The Culling of the Cull: The Equitable Relief Lawsuit that Derailed the Ludington Deer Cull

[XLFD]

 

One of my proudest achievements happened this Monday, when a lawsuit I had filed in the local small claims court against the City of Ludington (COL) and Ludington Area School District (LASD) seeking a temporary restraining order, a preliminary injunction, a permanent injunction, and rescission/reformation of a contract was rendered moot after the Ludington City Council went into closed session for a half hour, came out, and after discussing whether to continue the deer cull set to happen in the school forest, decided it was not worth it, choosing to end it with a 4-2 vote. 

 

The efforts to prevent this cruel practice on school grounds began in earnest after October 10th, 2022 when that same council voted 4-3 to have 'wildlife damage management' activities occur in up to four areas of town, including the school forest where the Ludington Elementary School is.  Terry Grams who started a group against the local practice at the website (https://www.stopthedeercull.org/) would take out ads in local media decrying the cull in general, but I was more fixated on removing it from school grounds and both public entities had left a careless path of violated laws and poor contractual practices to help me in my goal to stop the cull in that area.

I provide the lawsuit I filed below with links to the various laws provided and to the three items of evidence I included in the complaint.  One may ask, how were you able to file this in small claims court?  The court clerk and judge, and even I initially, thought the same thing until I looked at jurisdictional laws and knew this was the place for its original jurisdiction.  Before the judge had ruled on this procedural issue (see motion and brief) the council decided it was not worth the fight to continue.  Earlier this afternoon, City Manager Mitch Foster sent over proof that the deer cull has been terminated for the COL, which means that the issue is now a moot point, and the lawsuit is in the process of being re-dismissed on mootness.

The lawsuit is instructive to those interested in such matters as to the wide range of problems inherent in the COL-USDA contract and in the deer cull activities taking place on school grounds.  We hope other Michigan municipalities who consider deer culls in the future consider all the factors and all the potential dangers of holding deer culls and if not, we hope that their citizens come here and get an idea of how to fight back.  Moving from the Word format to this page had some odd things appear (see line 1994-1999 later on that I can't figure out how to remove).  

                                   STATE OF MICHIGAN

                        IN THE 79th DISTRICT COURT OF MASON COUNTY

TOM ROTTA, plaintiff                           File Number:  23-001-CZ

137 E Dowland St                                     Hon. Judge Middlebrook

Ludington, MI 49431              

[phone]                                  VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF

                                                                AND RESCISSION OF CONTRACT

v.

CITY OF LUDINGTON, LUDINGTON AREA SCHOOL DISTRICT, defendants

400 S Harrison                       809 E Tinkham

Ludington, MI 49431              Ludington, MI 49431

[phone]                      [phone]

_____________________________________________________________________

VERIFIED COMPLAINT FOR TEMPORARY, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AND RESCISSION OR REFORMATION OF CONTRACT

 

Plaintiff TOM ROTTA comes forth and in affinity with other concerned citizens and parents in the Ludington area initiate this lawsuit against defendant CITY OF LUDINGTON (hereafter COL) who entered haphazardly into a three-year contractual agreement with the United States Department of Agriculture (USDA) for a deer cull to take place on school grounds and defendant LUDINGTON AREA SCHOOL DISTRICT (hereafter, LASD) who thereafter permitted an action plan for those contractors allowing shooting of high-powered rifles and other dangerous acts on elementary school grounds in reckless disregard for the safety and health of the children and the general public and in careless dismissal of relevant laws made to protect the public from such encroachments.

Plaintiff brings this verified complaint for equitable relief, seeking temporary and preliminary injunctive relief against the deer cull scheduled to take place as early as late January 2023 on school grounds, and permanent injunctive relief against the deer culls at around the same times in 2024 and 2025 as stated in the contract.  Plaintiff additionally seeks rescission of the deer cull contract as approved by the COL due to material fraud perpetrated on their public body, mutual errors, and unlawful intents which will be brought forth in this verified complaint.

 

                                                        INTRODUCTION

1)  The COL first formally discussed having deer culls back in October 2019 at committee meetings before they determined that it was a lower priority than high water level issues.  In July 2021 the topic reemerged in committee and further research on local deer numbers and car/deer accidents were promised but have never been produced since.  In June 2022, the committee was presented with a petition signed by 1% of Ludington's population in favor of a deer cull and got on the USDA's waiting list for culling deer.  City Manager Mitch Foster (hereafter CM Foster) would state in the meeting notes that "only USDA employees can perform the hunt" which would lay out bait for two weeks and then "spend about four days taking out deer".  The COL police chief would note that the time when the deer cull was to take place would not be communicated to the public, having witnessed USDA deer culls taking place in Manistee when he was recently chief there (EXHIBIT 1, June 30, 2022 meeting notes, COL Public Safety Committee).

2)  When the deer cull contract came before the COL council on 9-26-22 as an ordinance, a poll conducted by the city was introduced by one councilor showing the unpopularity of a deer cull, multiple citizens spoke out against it.  A petition against the deer cull would emerge before the next meeting with similar numbers to the one calling for it.

3)  At the 10-10-22 meeting, public comment reflected that sentiment, before CM Foster explained it further.  He would say the cull would take place in 3-4 places in the city for four nights; he listed 3 of those places, one of which was the forest surrounding the Ludington Elementary School.  He stated further he had already talked with a school committee and they seemed to want it if insurance was provided by the USDA.  He affirmed that the cull would be conducted only by USDA's wildlife services sharpshooters and that they were permitted by their sworn officer status to discharge firearms in the city.  The city attorney indicated the USDA's tort immunity would protect them from liability claims, with Foster noting that their own liability insurance provider could not answer this question.  The council would support the ordinance on a 4-3 vote as seen in EXHIBIT 2, COL council's approved 10-10-22 meeting minutes.

4)  At the 10-17-22 meeting of the LASD Board unanimously passed a motion "to approve the COL's use of the school forest for the purpose of the deer cull performed by the USDA pending evidence of insurance".  The forest lies outside the city limits and is not in the COL's jurisdiction or direct control.  This was not discussed at any of the committee meetings the prior week, nor was the topic ever on any of those committee's agendas before that point; it was added to the agenda at the 10-17-22 meeting. 

5)  Facing mounting public pressure by plaintiff, concerned citizens, and an ad campaign by stopthedeercull.com raising awareness of the inherent issues behind holding the deer cull on school grounds, the LASD board would revisit the issue at their 12-12-22 board meeting, rejecting a motion to rescind permission by a 4-2 vote and voting to cosmetically change a bylaw in an effort to make their earlier vote that allowed the deer cull more palatable. 

6)  Plaintiff attended all meetings of the COL council and LASD Board in the relevant timeframe, submitted FOIA requests for deer cull records made and subscribed for those to be made; he and others reminded the two public bodies during that time of how the contract was insufficient and the work plan was reckless towards public safety, incomplete, and portrayed incorrectly by CM Foster and the LASD's superintendent prior to each body's approvals.  He and others pointed out school bylaws, city codes, state statutes and federal codes that the proposed deer cull would directly violate.  Both public bodies effectively ignored these warnings, apparently feeling that their operation was above the law and actually worked towards bettering the public health and safety. 

7)  Plaintiff respectfully requests the extraordinary relief this court can grant of an ex parte temporary restraining order on deer cull activities pursuant to holding an expedited hearing on the merits of the case in hopes for an order to show cause why a preliminary injunction should not be issued pursuant to MCR 3.301(A) halting the deer cull work plan for 2023 on school grounds and to argue for the rescission of the standing contract between the COL and the USDA which at this point has still not been finalized.

 

                                                                  PARTIES

8)  Plaintiff TOM ROTTA, is a resident of the COL living in the Third Ward and co-owning a property in the Sixth Ward.  Like all other COL residents, he is within the LASD and has had children and grandchildren matriculate through the LASD.  He wanders through and rides bikes through the 'school forest' regularly. 

9)  Defendant CITY OF LUDINGTON, (COL), is a home rule city, a municipal corporation provided with certain powers and duties under the restrictions of the laws of the State of Michigan and their city charter.

10)  Defendant LUDINGTON AREA SCHOOL DISTRICT, (LASD), operates as a General Powers School District. As such it has all of the powers and duties expressly stated in statute; may exercise a power implied or incident to any power expressly stated in statute; and, except as provided by law, may exercise a power incidental or appropriate to the performance of any function related to the operation of the district in the interests of public elementary and secondary education in the district, among these is providing for the safety and welfare of students while at school or while enroute to or from school.

 

                                                    JURISDICTION AND VENUE

11)  This action is properly filed in the small claims division of the district court pursuant to jurisdiction under MCL 600.8302(2) as the recovery of money sought for relief is under $6500 and the court is asked to issue and enforce an injunctive order and an order rescinding or reforming a contract.  As per MCL 600.8424(3), an action may be filed in the small claims division against a city or school district, but a party may not assert a claim with respect to which the city or school district has immunity.  Neither defendant has immunity for the equitable relief sought or for the relief acquired through rescission/reformation of contracts.

12)  Venue is properly held in Mason County under MCL 600.1615 as plaintiff, the COL and LASD fall within that county's boundaries.

 

 GENERAL ALLEGATIONS FOR RESCISSION OR REFORMATION OF CONTRACT

 

13)  Plaintiff received EXHIBIT 3 containing a certified copy of COL Ordinance 494-22, a Cooperative Service Agreement (hereafter CSA) between the COL and the USDA's Animal and Plant Health Inspection Service- Wildlife Services (hereafter APHIS WS), a work plan, itemized costs for a 3-year cull and a WS Form 12A via a FOIA request arriving on 12-13-2022.

14)  Records in EXHIBIT 3 were provided to the COL council and the public when the topic came before the council in September and October, with the exception that signatures and dates were absent and the 12A form was filled in with data only in section 4.

 

                                                        Fraudulent Backdating

15)  The certified ordinance approving the 3-year CSA was passed on 10-10-22.  CM Foster and the city clerk signed the CSA on 10-17-22.  APHIS WS personnel signed the contract on 11-16-22 and 11-18-22. 

16)  Article 12 of the CSA states "the agreement shall become effective on October 1st, 2022".  Ergo, the effective date of the agreement was 9 days before it was approved by the COL, 16 days before it was signed by the COL's signatories, and 45-47 days before it was signed by APHIS WS personnel.

17) The WS Form 12A, which should have been filled out completely prior to the COL council's deliberations on 10-10-22 and signed by both parties remains unsigned by the APHIS WS representative at this point in time (the section is whited out, reportedly it was accidentally signed by one of the COL's signatories).

18)  Accepted contract practice is to set the effective date of an agreement/contract once all involved parties have signed it and to use a date that goes back no further than the date of the most recent signature.

19)  In this case, both parties seem to have tacitly agreed to backdate the agreement to a point where neither party had any contractual performance, "on October 1st, 2022".  The CSA mentions nothing about why it would require backdating in any case.

20)  Rather than acknowledge the backdating by using "effective as of October 1st, 2022" the parties knowingly deceived the COL council and the public by making the agreement effective on that date and yet have not finalized the CSA to this day three months later by having all the signatures on all parts of the contract.

21)  If the backdating of an agreement misleads a third party or gives a false impression about when an action was taken, it may be considered fraudulent.  If the agreement is intentionally backdated in order to obtain a more favorable legal result or in order to avoid a legal penalty, it may also be unlawful. 

22)  By the way this agreement was presented, the public and COL's council was misled into believing that the CSA would go into effect at a future date if passed and once signed rather than already be in effect before its passage.

 

                                                Fraudulent Misrepresentation

23)  In Exhibit 1, CM Foster, states on the record to the COL Public Safety Committee that "only USDA employees can perform the hunt", in reference to the proposed USDA APHIS WS deer cull.

24)  In Exhibit 2, CM Foster once again emphasizes that only USDA sharpshooters can take place in the cull and that they were permitted by their sworn officer status to discharge firearms in the city.  He would note there would be 3-4 locations for the cull, one of them being the 'school forest'.

25)  At the 10-24-22 meeting, CM Foster would state in response to plaintiff's comment that the 'cullers' were licensed law enforcement personnel duly authorized to carry firearms on school property. 

26) In response to a FOIA request from plaintiff for records consistent with showing the deer cullers would be licensed law enforcement personnel authorized to carry firearms on school property, CM Foster, in a 10-26-22 email stated he had no records showing that was the case.  He indicated that he would contact the USDA to get confirmation, but it has not been produced.

27)  The CSA actually confirms the opposite.  In Article 3, Section 2 of the CSA, it states:  "APHIS WS has advised the Cooperator [COL] there may be private sector service providers available to provide wildlife damage management [hereafter WDM] services that the Cooperator is seeking from APHIS WS"

28)  Additionally, Article 7 of the CSA states:  "Nothing in this agreement shall prevent APHIS WS from entering into separate agreements with any other organization or individual for the purpose of WDM services..."

29)  CM Foster claimed thrice in front of COL councilors that the deer cull would be only performed by professionals from the USDA APHIS WS with license to carry on school grounds, the CSA indicates that was not the case; APHIS WS can literally hire anybody for WDM.  Foster would never convey to the COL council or public that private sector WDM would be provided--in fact he stated the exact opposite.

30)  In Article 4 section 2 of the CSA, it authorizes APHIS WS to conduct direct control activities as an invitee on the lands controlled by the Cooperator. 

31)  The COL has no control over the property containing the school forest, nor were they granted any powers of control by the actions of the school board allowing them to use it for the deer cull.

32)  WS Form 12A, section 4, clarifies control over the land consists of "land owned, leased or otherwise controlled" by coordinator.  Section 5 clarifies that those in control of the land (in this case the LASD) have been totally informed of the methods and devices used in the deer cull.  This information was never related to the LASD Board at their October meeting before they gave their consent for use of their school grounds.

33)  WS Form 12A, filled in (except section 4) since the CSA was agreed to, indicates that only one tract of private property covering 175 acres was to be in the work plan. 

34)  Being that the other two properties under consideration were much smaller than 175 acres, this tract appears to be the 'school forest' which is slightly over 1/4 square mile (160 acres).

35)  The tract is not private property.  It conforms to "adjacent landowner" and "non-private property" designations in line 3A of that form.

36)  The property is referred to as ‘private’ again in line 11A of that form, when it should be labelled as 'school' property.

37)  In line 17 of WS Form 12A under special conditions it states that the Cooperator [COL] certifies that "all schools that have a school zone within the area where activities will be conducted have approved the program activities as described in the agreement and work plan in accordance with 18 USC 922(q)"

38)  The LASD Board, as noted, has never been presented with the agreement's activities and work plan, it has only approved the COL use of the school grounds for a deer cull by the COL's APHIS WS contractors, not the methods or plan.

39)  The school has no written agreement with either the COL or the USDA, they have relied solely on information supplied to the superintendent of the LASD by CM Foster, no concrete information on the CSA has been provided in LASD Board packets or at any meetings other than culling operations will take place.

 

                                RESCISSION OF CONTRACT RELIEF REQUESTED

40)  Multiple issues of material misrepresentation and omission to the COL council and LASD Board and improper backdating of a contract that has still not been finalized three months after it has gone into effect (explained in para. #15-39) indicates fraud on a large scale has taken place in this complicated interaction between three government agencies. 

41)  False representations and omissions seem to have been regularly made in order to get around serious issues of public safety that will arise if this haphazard agreement is allowed to go forward and a deer cull featuring cullers of unknown skill and experience shooting high-powered rifles from the back of ATVs on elementary school grounds after dark using night-vision equipment happens in this highly populated area.  

42)  Serious violations of the city code, school bylaws, Michigan statutes and the federal code are going to happen if aspects of this contract goes forth and APHIS WS agents, or their subcontractors, conduct the contracted WDM activities in the school forest.  The extent of the law violations will be developed in the next section.

43)  Widespread fraud and error by commission or omission and threat of harm to the public demands that this court takes action to immediately rescind the CSA and allow reformation of a contract that takes into account full disclosure to all parties involved including the public and follows all applicable laws. 

44)  WHEREFORE, As a citizen living in the Ludington city limits and public school district, plaintiff humbly requests the equitable relief this court can provide by rescinding a deeply flawed contractual agreement that has gained acceptance by his representative public bodies through use of material fraud, omissions, and erroneous claims.

   GENERAL ALLEGATIONS SHOWING ILLEGALITY OF CULL AGREEMENT

 

45)  The CSA, Work Plan, and WS Form 12A drafted for the deer cull on Ludington elementary school grounds in the school forest fails to be lawful on multiple legal grounds as follows starting at the federal level and working down. 

 

                                                    Federal code violations

46)  Under 18 USC 922(q)(3)(A):  "Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm... at a place that the person knows is a school zone.”

47)  Subparagraph (B) has no exceptions that apply in relation to the WDM agreement between the COL and APHIS WS.  The closest is iii which applies only if the school district is in a contract with the firearm discharger.  There is no contract between the LASD and APHIS WS.

48)  Under 18 USC 921(a)(26):  The term “school zone” means— (A) in, or on the grounds of, a public, parochial or private school; or (B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

49)  Under the action plan, firearms will be discharged in order to cull deer on school grounds in violation of 18 USC 922(q)(3)(A).

50)  Under 18 USC 922(q)(2)(A):  "It shall be unlawful for any individual knowingly to possess a firearm... at a place that the individual knows, or has reasonable cause to believe, is a school zone."

51)  Subparagraph (B) for possession of a firearm also has exceptions, none of which is applicable in relation to the WDM agreement between the COL and APHIS WS.

52)  The CSA with the USDA, a federal agency, is in direct violation of two federal laws as APHIS WS agents and their subcontractors will possess and discharge firearms on school grounds.

                                                     State Statute violations

53)  Under MCL 750.237a:  "Except as provided in subsection (5), an individual who possesses a weapon in a weapon free school zone is guilty of a misdemeanor..."

54)  Subsection (5) of that law does not have any valid exceptions in regard to the WDM CSA as no APHIS WS individuals have been granted express permission from the elementary school principal or school board to possess firearms on school grounds.

55) The Municipal Forestry Act allows school districts to acquire forest land with restrictions, as stated in relevant part in MCL 324.52702:  Any [school district] may acquire by purchase, gift, or devise, or may provide land already in its possession, and use the land for a forestry or recreational purpose, or both, either within or outside of the territorial limits of the municipality, and may carry on forestry or recreational activities, or both, on the land..."

56)  On knowledge and belief, the 'school forest' where the Ludington Elementary School was built in was acquired property via the Municipal Forest Act and is to be used only for forestry and recreation purposes. 

57) A deer cull, which must be distinguished from hunting, which is recreational, is neither a recreational purpose or an act of forestry.  Neither has the LASD established the need for WDM in that area for forestry or recreational purposes.  The WDM stated in the CSA would violate many rules of hunting, as the DNR denies deer baiting in Mason County, shooting at night, shooting from ATVs/trucks, etc.

58)  LASD's permission of the deer cull is a violation of the Municipal Forest Act and threatens to have the land revert to the state, by MCL 324.52706:  " Land sold to a public agency under this section or section 6 of former 1931 PA 217 shall be used only for a forestry or recreational purpose, or both, if the land is prime land. When the prime land is no longer used for a forestry or recreational purpose, or both, the land shall revert to this state."  On information and belief, the school forest is 'prime land' by definition in that section.

59)  The CSA with the USDA is in direct violation of two state laws as APHIS WS agents and their subcontractors will possess and discharge firearms on school grounds in a four-day activity in a school forest that is neither forestry related or a recreational purpose, thereby risking the prime land reverting to the state.  Additionally, APHIS WS agents using high-powered rifles for their WDM business do not have to abide by the state hunting restrictions that prohibit shooting within 450 feet of a building.

                      

                                        School district bylaw violations

60)  LASD Bylaw 8400 - SCHOOL SAFETY INFORMATION states in total, echoing to an extent the federal code:  "Federal law establishes a "Student Safety Zone" that extends 1,000 feet from the boundary of any school property in relation to weapons and drugs. Individuals are prohibited from possessing or using weapons or drugs at any time on District property, within the Student Safety Zone, or at any District-related event."

61)  LASD Bylaw 7217 - WEAPONS states in relevant parts, listing exception that do not apply under the approved CSA:  "The Board of Education prohibits visitors from possessing, storing, making, or using a weapon in any setting that is under the control and supervision of the Board including, but not limited to, property leased, owned, or contracted for by the Board... This prohibition applies regardless of whether the visitor is otherwise authorized by law to possess the weapon, including if the visitor holds a concealed weapons permit."

62)  LASD Bylaw 7465 - LAND USE/DEVELOPMENT/SCHOOL FOREST states the LASD Board has some discretion in use of the school forest but offers:  "The Board of Education has full authority to determine appropriate use, has the authority to approve use, and may deny requests."

63) Bylaw 7465 lists these factors/considerations, stressing some are absolutes, here is a list with the problems noted in parentheses:

1994. a) "School Forest property usage must follow the rules and guidelines of the Municipal Forest Section of Act 451 of PA 1994." (as noted in paragraphs 55-59, this isn't so for the CSA's WDM)
1995. b) "Green value should be considered. No motorized vehicles should be permitted as part of day-to-day activities on properties contiguous to the School Forest. Motorized vehicles are permitted on designated parking areas and for the purpose of day-to-day work that is needed in the area, as permitted by the school district."  (the work plan permits ATVs and trucks to be used for WDM in the school forest, the LASD Board was never told this was part of the WDM)
1996. c) "No hunting is permitted in the School Forest or contiguous school owned properties." (this factor does not come into play as WDM is not technically 'hunting' but the bylaw's intent is clear-- the LASD does not want guns being shot in the school forest area so much that they ban hunting even by adjacent landowners).
1997. d) "Attention should be given by the Board of Education to remain good neighbors with other property owners."  (many residential homes surround or abut the school forest on the south on Johnson, to the west on Sherman, and to the east on Jebavy, the safety of themselves and their pets will be jeopardized by stray bullets shot by strangers in the dark unfamiliar with the area.  They may not even recognize when their property or themselves get hit since the APHIS WS agents use silencers. No good neighbor would think of doing this)
1998. e) "Safety and district liability must be considered. Non-school organizations using the properties must provide the association will maintain liability insurance for at least $1,000,000 per occurrence for its sponsored activities on school premises. Ludington Area Schools will be named as additional insured for these purposes." (LASD has not been provided as additionally insured for the WDM activities, their lawyers reportedly have foolishly assured them that the USDA's tort immunity would cover this requirement. It doesn't, just like it doesn't protect the COL from the immense potential liabilities that their taxpayers would be burdened with.)
1999. f) "Only not-for-profit activities may be considered by non-school groups" (APHIS WS is earning $19,500, mostly profit, for four days in the school forest.

63)  LASD Bylaw 7510 - USE OF SCHOOL FACILITIES states concisely what has been developed through paragraphs #46-63:  "The use of District grounds and facilities shall not be granted for: any purpose which is prohibited by law."

64)  Minimally, five LASD bylaws prohibit the WDM activities described in the CSA to happen in the school forest, one of those bylaws having five factors within it which would halt the approval of the deer cull in the school forest by an LASD Board actually concerned with public health and safety on their campus.

 

                                                  City charter violations

65)  As the school forest property is not under any control of the COL, city code violations are nil; however, had the WDM plan in the CSA been activated in Cartier Park by including them on the WS Form 12A, there would be a host of city code violations that will not be considered here, as this is an action to enjoin activity that is contracted which appears to be only in the school property. 

66)  In the Ludington City Charter Section 13.2, it states:  "No contract shall be amended after the same has been made except upon authority of the Council."

67)  The CSA and the accompanying work plan and WS Form 12A was approved by the COL council by passing Ordinance 494-22 on 10-10-22.  As noted previously, WS Form 12A was incomplete at that time.

68) CM Foster had sold the CSA by characterizing it as happening in 3-4 places within the city.  A completed (except for APHIS WS signature) WS Form 12A indicates it takes place on private property in one place, apparently corresponding to the school forest property outside the city limits.

69) Foster and the city clerk were given authority to sign documents relevant to the CSA, not to amend the contract without council approval.  Only the council has that authority, and that was never given to reduce the locations or mischaracterize the property information. 

70) Had the issue of reducing locations to one from 3or 4 came back before the council who passed the original CSA by a weak 4-3 vote when they were told it would happen within the city, it is questionable whether they would continue knowing that no deer culling would occur within the city as promised and only one location outside, adjacent to only two wards.

71) The elected representatives of the people were never given the chance to decide, that decision was made by a city administrator acting beyond their official capacity.

 

                                             EQUITABLE RELIEF REQUESTED

72)  In Michigan, the decision to grant an ex parte temporary restraining order (TRO) or preliminary injunction is based largely on interests of fairness and equity.

73)  The granting of a preliminary injunction or TRO is extraordinary relief that one receives only when justice so requires, because there is no adequate legal remedy available and, most importantly, there exists a real and imminent danger of irreparable injury if an injunction is denied.

74)  Such relief is not a final ruling, they are temporary measures, often entered soon after a case is filed, aimed at preserving the status quo pending a thorough development of the facts and law and awaiting the trial court’s opportunity to render a full, fair and final determination of the parties’ rights and responsibilities in accepting or denying a permanent injunction.

75)  In this case, plaintiff bears the burden of satisfying to the court that a preliminary injunction or TRO should be issued.  In deciding such matters, trial courts are guided by four common factors:

1. a) the likelihood that the party seeking the injunction will prevail on the merits,
2. b) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued
3. c) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and
4. d) the harm to the public interest if the injunction is issued.

76)  In this action, plaintiff has shown that the contract entered into between the COL and APHIS WS was deficient and defraudulent.  It has still failed to be finalized over three months since its effective date and looks different than when it was passed.  The LASD has yet to see this contract even though they have allowed their elementary school grounds to be the killing fields.

77)  In this action, plaintiff has shown two significant federal laws being violated, three state law violations not to mention multiple state DNR rule violations, and four clear school bylaw violations occurring if the work plan in the CSA takes place on the school forest property.

78)  Additionally, the violation of many of the above laws, bylaws, and rules meant to protect the public from harm from the unsafe discharge of firearms on school grounds subject the plaintiff and the general public who live near or regularly use the publicly accessible school property in fatal danger.

79)  The psychological harm to our children and the citizens who care for them cannot be minimalized either, as the reckless and unsportsmanlike methods of deer slaughter proposed in the CSA and the work plan will become common knowledge to the children who attend school within that forest over the years that this takes place.  That elementary school uses the image of a deer as the 'spirit animal' of first graders; how might they feel when they know that the COL and LASD combined in force to spend a lot of money to mercilessly go after deer on school grounds using extraordinary methods never afforded to hunters?

80)  When evaluating the issuance of a preliminary injunction and weighing the four factors in paragraph 75, this court should consider that the LASD has never expressed any desire to be involved with a deer cull until the COL called upon it to host one in the yard of its new elementary school and that the COL has used only questionable anecdotes and fraud to justify their use of a deer cull-- outside their jurisdiction. 

81)  While a TRO or preliminary injunction may interfere with the unannounced schedule of the deer cull were it to happen in this month or even February, the cull could still take place in March if this court finds through hearings that a permanent injunction should not issue.

 

WHEREFORE, Plaintiff respectfully requests that this honorable court orders the following:

 1) To grant the relief requested in paragraph 44, namely by rescinding a deeply flawed contractual agreement that has gained acceptance by plaintiff's two representative public bodies through use of material fraud, omissions, and erroneous claims. 

 2) To immediately enjoin and restrain, directly and indirectly, the defendants (including their agents, employees, officers, contractors and subcontractors) until further order of this Honorable court from doing any of the following: 

1. pre-baiting or otherwise preparing for WDM (aka deer cull operations) in the area known as the school forest.
2. allowing APHIS WS or their subcontractors from using any of the other methods on WS Form 12A for WDM in the school forest.
3. allowing money to be distributed from the COL to their WDM contractors in APHIS WS except for actual expenses already incurred before being enjoined.

 3) For both defendants to maintain the status quo until this matter can be heard by this Honorable court

 4) That this order remains in full force and effect until this Honorable court determines otherwise

 5) Defendants shall show cause before this Honorable court on the date of _______________ at the time of _________ or as soon thereafter as they can be heard to argue against plaintiff as to why a preliminary injunction should not be ordered according to the terms and conditions set forth above.

 

Date:  January 3, 2023                            ______________________________________

                                                                    Tom Rotta, plaintiff

 

[Freedom Seeker]

Bullseye! Amazing X how you can so quickly write up a lawsuit while the city's hired attorneys are still struggle to seemingly understand the law. Thanks to the citizens who are standing up and taking action!

If Ms. Nielsen really wanted to put all the city's resources into stopping you, maybe she could put her anger to positive use by suggesting that the city fund you a scholarship to get a JD (or law degree) and hire you to advise the city counsel.

Even without a JD, you seem to understand the law better than advisors we've hired. Maybe Mr. Barnett could do something creative since he seems fond of paying for certain internship's education. I pray. Thanks for all your volunteer hard work!

[XLFD]

Thanks for your encouragement and support, but I don't think the City of Ludington is interested in having me on their team, witness the amount of effort they used back in 2011 and 2016 to keep me from being a councilor.  In 2011, they banned me from city hall, disallowing me to attend the only debate scheduled and even to vote for myself, the city attorneys at the time saw no problems with that.  In 2016, they created a molehill controversy about members of this website expressing opinions a lot less threatening than Ms. Nielsen's, and put me in the front and center of it.  We all know how they treated Councilor Angela Serna for her populism whenever it was critical of public policy or personnel, they would never hire somebody that doesn't toe their crooked line.  

These guys and gals don't want to be restricted in their excess behaviors and general disregard of the law, they're above the rules, and they take offense when anybody points it out.  So when it's pointed out that they recklessly broke multiple federal, state and local laws to allow strangers with unknown backgrounds ride ATVs through the Ludington Elementary School property shooting anything that registers in their night vision, they focus instead on the appropriateness of a sign which thankfully didn't come true thanks to the efforts of good people-- and me too.  

[Willy]

Excellent work X. You laid out your argument completely. The promoters of this cull should be ashamed at the huge waste of tax dollars used to promote and then defend this kind of nonsense. Without your efforts and diligence the taxpayers would never get any justice. I definitely appreciate what you have done for all the good people who are continually being ignored by Ludington's ruling class.

[XLFD]

Thanks for the support, I appreciate it greatly.  The above 'thank you' was on page 2 of the weekend's COLDNews honoring the councilors who voted properly and those who helped them get there.  Councilors Cain and Terzano, you are not part of the heroes, you're the villains that tried to put high-powered rifles discharging death on school grounds twice even after seeing how unlawful it was and how unprepared the City was.    

[happpy]

I like the award, impressive how smart x is