Joint Appendix — Enbridge Energy, LP, et al., Petitioners v. Dana Nessel, Attorney General of Michigan, on Behalf of the People of the State of Michigan

Supreme Court briefAug 29, 2025

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No. 24-783

In the

Supreme Court of the United States

ENBRIDGE ENERGY, LP, et al.,

Petitioners,

DANA NESSEL, ATTORNEY GENERAL OF

MICHIGAN, ON BEHALF OF THE PEOPLE OF THE

STATE OF MICHIGAN,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Sixth Circuit

JOINT APPENDIX

A nn Maurine Sherman

Counsel of Record

for Respondent

Michigan Department of

Attorney General

G. Mennen Williams

Building

P.O. Box 30212

Lansing, MI 48909

(517) 335-7628

shermana@michigan.gov

A lice Loughran

Counsel of Record

for Petitioners

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

(202) 429-6202

aloughran@steptoe.com

PETITION FOR CERTIORARI FILED JANUARY 13, 2025

CERTIORARI GRANTED JUNE 30, 2025

TABLE OF APPENDICES

Page

A PPENDIX A — NOTICE OF REMOVAL

OF THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF MICHIGAN, SOUTHERN DIVISION,

FILED DECEMBER 15, 2021 . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — COMPLA INT OF THE

S TAT E OF M ICH IG A N, CI RCU I T

C OU RT F OR T H E 3 0 T H J U DICI A L

CIRCUIT, INGH A M COUNT Y, FILED

JUNE 27, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21a

A PPENDI X C — EXCERP T OF STATE

DOCKET SHEET . . . . . . . . . . . . . . . . . . . . . . . . . . . 55a

APPENDIX D — MOTION OF ENBRIDGE,

CIRCUIT COURT FOR THE 30TH JUDICIAL

CIRCUIT, INGH A M COUNT Y, FILED

SEPTEMBER 16, 2019 . . . . . . . . . . . . . . . . . . . . . 104a

APPENDIX E — EMAIL FROM INGHAM

C OU N T Y CI RCU I T C OU RT, DAT ED

MAY 1, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167a

APPENDIX F — HEARING TRANSCRIPT

ON CROS S -MOTIONS FOR PA RTI A L

SU M M A RY DISPOSITION HELD ON

MAY 22, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170a

APPENDIX G — SUPPLEMENTAL BRIEF

OF ENBRIDGE, CIRCUIT COURT FOR

THE 30TH JUDICIAL CIRCUIT, INGHAM

COUNTY, FILED JUNE 19, 2020 . . . . . . . . . . . . 261a

Appendix

APPENDIX A — NOTICE

OFAREMOVAL OF THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN, SOUTHERN

DIVISION, FILED DECEMBER 15, 2021

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 1:21-cv-01057-RJJ-RSK

DANA NESSEL, ATTORNEY GENERAL OF THE

STATE OF MICHIGAN, ON BEHALF OF THE

PEOPLE OF THE STATE OF MICHIGAN

Plaintiffs,

ENBRIDGE ENERGY, LIMITED PARTNERSHIP,

ENBRIDGE ENERGY COMPANY, INC., AND

ENBRIDGE ENERGY PARTNERS, L.P,

Defendants.

NOTICE OF REMOVAL

PLEA SE TA K E NOTICE TH AT Defendants

Enbridge Energy, Limited Partnership; Enbridge Energy

Company, Inc.; and Enbridge Energy Partners, L.P.

(collectively, “Enbridge”) hereby remove this action from

the Circuit Court for the 30th Judicial Circuit, Ingham

County, Case No. 19-474, to the United States District

Appendix A

Court for the Western District of Michigan pursuant to

28 U.S.C. §§ 1331, 1441(a), 1442, and 1367.

In this action, the Attorney General of Michigan

seeks to permanently enjoin Enbridge from continuing to

operate its international Line 5 pipeline in the Straits of

Mackinac. In finding that removal of a similar suit against

Enbridge was proper, this Court recently held that “this

Court is an appropriate forum for deciding these disputed

and substantial federal issues.” Michigan v. Enbridge, No.

1:20-cv-01142, ECF No. 42 at 15, PageID.1035 (W.D. Mich.

Nov. 16, 2021). This removal is timely because “the initial

pleading lack[ed] solid and unambiguous information

that the case [wa]s removable” and this Notice is being

filed “within 30 days after receipt” of this Court’s order

in Michigan v. Enbridge, which “contains solid and

unambiguous information that th[is] case is removable.”

Berera v. Mesa Medical Group, PLLC, 779 F.3d 352,

364 (6th Cir. 2015) (emphasis added). Removal ensures

that both cases between Enbridge and Michigan officials

concerning the officials’ attempt to shut down the Straits

Pipelines are considered in federal court. Indeed, if the

Court grants the summary judgment motion that it has

authorized Enbridge to file in January, that ruling will

impact resolution of this action as well.

The Attorney General’s Complaint

1. In her Complaint, the Attorney General seeks

declaratory relief and an injunction requiring Enbridge

to cease operation of the Straits Pipelines. A copy of

the Attorney General’s Complaint is attached hereto as

Exhibit A.

Appendix A

2. The Complaint includes a “factual background”

section. It explains that Line 5 was built as a means of

transporting petroleum and other products to Sarnia,

Ontario without interruption. Compl. ¶ 10. In 1953, the

State of Michigan granted Enbridge’s predecessor an

Easement “to construct, lay, maintain, use, and operate”

two 20-inch pipelines on the bottomlands of the Straits

as part of Line 5. Id. at ¶¶ 12-14. Line 5 has operated

continuously since construction was completed in 1954.

Id. at ¶ 15.

3. The Complaint includes three counts. Count I

asserts that the Easement violates the public trust and is

void. Id. at ¶¶ 22-63. Counts II and III assert, respectively

that Line 5 is a public nuisance and that it violates the

Michigan Environmental Protection Act. Id. at ¶¶ 64-70.

4. Enbridge was served with a copy of the Complaint

on or about June 27, 2019. Enbridge has not filed an

answer, and no discovery has taken place in the state

court action. Both parties instead moved for summary

disposition. Those motions have not yet been decided. In

January 2021, both parties and the state court agreed that

the Attorney General’s action should be held in abeyance

pending the outcome of the related proceedings before this

Court. The action remains in abeyance. Prior to the filing

of this Notice, the next planned action in the case was a

status conference requested by the Attorney General and

scheduled for January 7, 2022.

Appendix A

II. Related proceedings before this Court

5. This Court is familiar with the parties’ dispute

from two related cases: Enbridge v. Whitmer, No. 1:20cv-01141 (which remains pending before the Court), and

Michigan v. Enbridge, No. 1:20-cv-01142 (which Michigan

recently voluntarily dismissed).

6. The related proceedings arose out of a November

13, 2020 notice of revocation and termination issued by

Michigan Governor Gretchen Whitmer and the Director

of Department of Natural Resources. The Governor and

Director notified Enbridge that the 1953 easement was

revoked for violation of the public trust doctrine. They

also notified Enbridge that the easement was being

terminated based on Enbridge’s alleged violation of the

1953 easement’s terms and conditions. The notice directed

Enbridge to cease operating the Straits Pipelines by

May 12, 2021. The Attorney General’s office represented

the State, the Governor, and the Director in the related

litigation.

7. Enbridge filed Enbridge v. Whitmer in this Court

on November 24, 2020. In that action under Ex parte

Young, Enbridge seeks declaratory and injunctive relief

barring the defendants—Michigan’s Governor and the

Director of its Department of Natural Resources—from

violating federal law by seeking to shut down the Straits

Pipelines. Count I of Enbridge’s Complaint claims that

the defendants’ attempt to shut down Enbridge’s pipeline

violates the Supremacy Clause of the U.S. Constitution in

light of the express preemption provision of the federal

Appendix A

Pipeline Safety Act. See No. 1:20-cv-01141, ECF No.

1 at 10-13, PageID. 10- 13. Count III claims that the

defendants’ attempt to shut down the pipeline violates

the Foreign Affairs Doctrine, which is rooted in the

Constitution’s assignment of authority over foreign affairs

to the Federal Government. See id. at 16-18, PageID.16-18.

Enbridge seeks declaratory relief and “[a]n injunction

prohibiting Defendants from taking any steps to impede

or prevent the interstate and international operation of

Line 5.” Id. at 18-19, PageID.18-19. Enbridge v. Whitmer

remains pending before this Court, which has authorized

Enbridge’s filing of a motion for summary judgment, due

on January 18, 2022. See No. 1:20-cv-1141, ECF No. 42

(briefing order).

8. Also on November 24, 2020, Enbridge removed

Michigan v. Enbridge to this Court. In that lawsuit, the

State of Michigan sought an injunction forcing Enbridge

to “cease operation of” and “permanently decommission

the Straits Pipelines”—the very outcome that Enbridge

sued to prevent in Enbridge v. Whitmer. No. 1:20-cv01142, ECF No. 1-1 at 23, PageID.37. Enbridge’s grounds

for removal included the Grable doctrine (because the

lawsuit “necessarily raised” federal issues of Pipeline

Safety Act preemption and the Foreign Affairs Doctrine),

federal common law (because of the suit’s implications for

international relations), and the federal officer removal

statute (because Enbridge acts under federal officers in

operating its pipeline). See No. 1:20-cv-01142, ECF Nos.

1, 12.

Appendix A

9. Represented by the Attorney General’s office,

the State moved to remand Michigan v. Enbridge to

state court. See No. 1:20-cv-01142, ECF No. 42. The

State argued that rejection of removal under Grable was

“straightforward, as none of the State’s causes of action

rely on federal law in any way.” Id. at 7, PageID.486.

Rather, the State asserted, the claims were “all matters

of pure state law that fall squarely within the jurisdiction

of Michigan courts,” and “[t]he issues raised by Enbridge

as grounds for federal jurisdiction—alleged statutory

preemption, interstate and foreign commerce, and

foreign affairs and treaties—are simply its defenses,

not elements of the State’s claims.” Id. Indeed, the State

vigorously disputed three of the four factors required for

removal under Grable, contending that the federal issues

Enbridge had identified were not “necessarily raised,”

that those issues were not even “substantial,” and that

allowing this suit to proceed in federal court would upset

the balance between federal and state courts. See id. at

7-16, PageID.486-495. The State also urged that there

was no legal basis for removal under federal common law

or the federal officer removal statute. See id. at 16-27,

PageID.495-506.

10. This Court rejected the State’s arguments and

held that Michigan v. Enbridge was “properly in federal

court” under Grable. No. 1:20-cv-1142, ECF No. 80 at 1,

PageID.1021. This Court held that “[t]he State Parties’

claims ‘arise under’ federal law because the scope of

the property rights the State Parties assert necessarily

turns on the interpretation of federal law that burdens

those rights, and this Court is an appropriate forum for

Appendix A

deciding these disputed and substantial federal issues.”

Id. at 15, PageID.1035.

11. The Governor, however, has made clear that

she “disagree[s]” with this Court’s ruling that it had

jurisdiction. No. 1:20 -cv-1141, ECF No. 39-1 at 1,

PageID.254. Two weeks after issuance of the Court’s

November 16 order, the Governor admittedly directed the

State to “shift[] its legal strategy” to “give Michigan courts

the final say . . . by voluntarily dismissing” its complaint.

Id. The Governor believed that this maneuver, which

deprived this Court of jurisdiction, would “clear[] the way

for the lawsuit filed by Attorney General Dana Nessel to

go forward in Michigan state court,” giving “state courts,

. . . the final say” on the federal issues implicated by the

parties’ dispute. Id. She further noted that “[o]ur goal

here remains the same.” Id. Attorney General Nessel

announced on the same day that she “fully support[s] the

Governor in her decision to dismiss the federal court case

and instead focus on our ongoing litigation in state court,”

which she declared the “most viable path to permanently

decommission Line 5.” Department of Attorney General,

“AG Nessel Provides Statement on Voluntary Dismissal

of Enbridge Lawsuit in Federal Court” (Nov. 30, 2021),

https://www.michigan.gov/ag/0,4534,7-359-92297_99936573159 –,00.html.

12. Consistent with this Court’s ruling in Michigan

v. Enbridge that “this Court is an appropriate forum for

deciding these disputed and substantial federal issues,”

Enbridge hereby removes Nessel v. Enbridge to this Court

so that it can be resolved along with the still-pending

Enbridge v. Whitmer lawsuit.

Appendix A

III. Removal is timely under the third paragraph of 28

U.S.C. § 1446(b)

13. Generally, a defendant must remove within 30

days of receiving the state-court complaint. 28 U.S.C.

§ 1446(b)(1). The Sixth Circuit has held, however, that

“[t]he 30-day period in § 1446(b)(1) starts to run only

if the initial pleading contains ‘solid and unambiguous

information that the case is removable.’” Berera v. Mesa

Medical Group, PLLC, 779 F.3d 352, 364 (6th Cir. 2015)

(citation omitted). If the case is not unambiguously

removable when it is filed, then “the defendant must file

the notice of removal ‘within 30 days after receipt . . . of a

copy of an amended pleading, motion, order or other paper’

that contains solid and unambiguous information that the

case is removable.” Id. (quoting 28 U.S.C. § 1446(b)(3))

(emphasis added).

14. Nessel v. Enbridge was not unambiguously

removable when it was filed. The Complaint purports to

assert claims under state law only, and the parties are

not diverse. Like the parallel complaint in Michigan v.

Enbridge, the Complaint here arises under federal law

under the Grable doctrine because substantial federal

issues are necessarily raised by the purportedly state-law

claims. When the case was filed, however, its removability

under Grable was far from unambiguous. Indeed, as

set forth above, the State (represented by the Attorney

General) vigorously argued that the broadly similar

complaint in Michigan v. Enbridge was not removable

and that it satisfied just one of the Grable doctrine’s four

requirements.

Appendix A

15. But in its recent order denying the State’s motion

to remand in Michigan v. Enbridge, this Court made it

unambiguously clear that Nessel v. Enbridge is likewise

removable under Grable and is “properly in federal court.”

No. 1:20-cv-1142, ECF No. 80 at 1, PageID.1021.

16. Appellate case law confirms that this Court’s

order in Michigan v. Enbridge constitutes an “order”

within the meaning of 28 U.S.C. § 1446(b)(3). An order

in a separate federal proceeding is an “order” under

§ 1446(b)(3) “where the same party was a defendant

in both cases, involving similar factual situations, and

the order expressly authorized removal.” Green v. R.J.

Reynolds, 274 F.3d 263, 267-68 (5th Cir. 2001); see also

Doe v. American Red Cross, 14 F.3d 196, 201-02 (3d Cir.

1993). This case falls squarely within this rule: This

Court’s removal order in Michigan v. Enbridge involved

the same Enbridge defendants, the facts and legal theories

are similar, and the order expressly authorized removal.

17. Under § 1446(b)(3) and the Sixth Circuit’s Berera

decision, therefore, Enbridge has the right to remove

Nessel v. Enbridge within 30 days of receipt of the Court’s

order in Michigan v. Enbridge. This Court issued that

order on November 16, 2021. This Notice of Removal is

being filed within 30 days of that order and is therefore

timely.

IV. Grounds for removal in this action

18. Following this Court’s order in Michigan v.

Enbridge, this Court plainly has jurisdiction over this case

10a

Appendix A

under 28 U.S.C. § 1331. Enbridge submits that removal

is proper on three independent and alternative grounds:

the Grable doctrine, federal common law, and the federal

officer removal statute. Each ground is briefly explained

below.

19. The Grable doctrine. This Court held that the

similar complaint in Michigan v. Enbridge was properly

removed under Grable & Sons Metal Products, Inc. v.

Darue Engineering & Manufacturing, 545 U.S. 308

(2005). See 1:20-cv-01142, ECF No. 80. That ruling

establishes that this case is likewise removable under

Grable.

20. As this Court explained, Grable holds that

“federal-question jurisdiction over state-law claims will

lie where the ‘state law claim necessarily raise[s] a stated

federal issue, actually disputed and substantial, which

a federal forum may entertain without disturbing any

congressionally approved balance of federal and state

judicial responsibilities.’” Id. at 6, PageID.1026 (quoting

Grable, 545 U.S. at 314). Applying the Grable framework,

this Court held that it had jurisdiction.

21. First, the State’s suit necessarily raised federal

issues because “the Federal Submerged Lands Act

necessarily governs the scope of the State’s property

interest” by reserving to the Federal Government

“paramount” authority over the bottomlands, which the

Federal Government has exercised by burdening the

State’s property rights through the Pipeline Safety Act

and the Transit Pipelines Treaty with Canada. See id. at

10, PageID.1030.

11a

Appendix A

22. Second, these federal issues are plainly disputed

and “raise vitally important questions that implicate

the federal regulatory scheme for pipeline safety and

international affairs.” Id. at 12, PageID.1032.

23. Third, “exercising jurisdiction over the state law

claims” would not “open the federal courthouse doors too

wide” because so few state-law claims necessarily raise

issues under the Act or the Treaty. Id. at 14, PageID.1034.

The Court concluded: “The State Parties’ claims ‘arise

under’ federal law because the scope of the property

rights the State Parties assert necessarily turns on the

interpretation of federal law that burdens those rights,

and this Court is an appropriate forum for deciding

these disputed and substantial federal issues.” Id. at 15,

PageID.1035.

24. The Court’s application of Grable to Michigan

v. Enbridge—which the State voluntarily dismissed

in an admitted effort to avoid this Court’s jurisdiction

(see ECF No. 39 at 2, PageID.248; ECF No. 39-1 at 2-3,

PageID.254-55)—makes clear that Nessel v. Enbridge

likewise “arises under” federal law and belongs in federal

court.

25. Federal common law. This Court also has

jurisdiction under 28 U.S.C. § 1331 because the claims

here implicate uniquely federal interests and thus must

be brought, if at all, under federal common law. See, e.g.,

National Farmers Union Insurance Cos. v. Crow Tribe

of Indians, 471 U.S. 845, 850 (1985); Illinois v. City

of Milwaukee, 406 U.S. 91, 100 (1972); Sam L. Majors

12a

Appendix A

Jewelers v. ABX, Inc., 117 F.3d 922, 926 (5th Cir. 1997);

Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1184

(9th Cir. 2002). While the Complaint purports to state

claims under Michigan law, courts have long recognized

that claims may arise under federal law regardless of

whether the plaintiff purports to plead federal claims.

See United States v. Standard Oil Co., 332 U.S. 301, 307

(1947) (holding that certain claims asserted under state

law must be governed by federal common law because

they involved “matters essentially of federal character”).

“[I]f federal common law exists, it is because state law

cannot be used.” City of Milwaukee v. Illinois, 451 U.S.

304, 313 n.7 (1981); see also Brief for the United States as

Amicus Curiae at 26-28, in BP P.L.C. v. Mayor & City of

Baltimore, No. 19-1189 (U.S. Nov. 23, 2020) (explaining

that removal was proper under federal common law in

climate change lawsuit that was nominally couched in

terms of state-law claims).

26. Enbridge invokes “federal common law based on

foreign relations” as an independent basis for removal to

federal court. The Fifth, Eleventh, and Second Circuits

have recognized that removal is proper when the plaintiff’s

claims “directly and significantly affect American foreign

relations.” Torres v. Southern Peru Copper Corp., 113

F.3d 540, 542-53 & n.8 (5th Cir. 1997); see also Pacheco

de Perez v. AT&T Co., 139 F.3d 1368, 1377 (11th Cir. 1998);

Republic of Philippines v. Marcos, 806 F.2d 344, 352

(2d Cir. 1986). That describes this case perfectly. As the

Court observed in holding that Michigan v. Enbridge was

properly removed to federal court, Canada has “formally

invoked the international dispute resolution provision

13a

Appendix A

of Article IX of the 1977 [Transit] Treaty to determine

whether the implementation of the Governor of Michigan’s

shutdown order would violate the binding commitments

the United States made to Canada under international

law in the 1977 Treaty.” 1:20-cv-01142, ECF No. 80 at

4, PageID.1024 (quotation marks omitted). This Court

explained that, “with Canada’s invocation of the dispute

resolution provision in the 1977 Treaty, the federal issues

in this case are under consideration at the highest levels of

this county’s government,” such that the dispute over the

Straits Pipelines “raise[s] vitally important questions that

implicate . . . international affairs.” Id. at 12, PageID.1032.

Nessel v. Enbridge likewise raises issues pertaining to the

continued operation of Line 5 that lay at the heart of the

Treaty dispute resolution proceeding now underway. This

case belongs in federal court no less than did Michigan

v. Enbridge.

27. Federal common law supplies the rule of decision

for the State’s claims, even if the complaint on its face only

invokes state law. “[O]ur federal system does not permit

the controversy to be resolved under state law, either

because the authority and duties of the United States as

sovereign are intimately involved or because the interstate

or international nature of the controversy makes it

inappropriate for state law to control.” Texas Indus.,

Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981);

see also City of New York v. Chevron Corp., 993 F.3d 81,

89-91 (2d Cir. 2021); Ungaro-Benages v. Dresdner Bank

AG, 376 F.3d 1227, 1232-33 (11th Cir. 2004). Thus, federal

courts have relied on U.S. foreign policy implications

to find removal is proper, even though the underlying

14a

Appendix A

facts and implications were not alleged in the complaint.

See, e.g., Torres, 113 F.3d at 542-43 ((relying on foreign

government’s protests, not alleged in the complaint, to

find removal was proper); Marcos, 806 F.2d at 353-54

(relying upon an executive order issued by the Philippine

government after the filing of the complaint); Pacheco,

139 F.3d at 1378.

28. Federal common law also governs for an

independent reason: The Complaint is premised on

concerns about environmental harm to the Great Lakes

from international and interstate commerce. It therefore

necessarily implicates uniquely federal interests and must

be governed by federal common law.1 The Supreme Court

has long recognized that “[e]nvironmental protection is

undoubtedly an area within national legislative power” for

which “federal courts may . . . fashion federal common law.”

American Electric Power Co. v. Connecticut, 564 U.S. 410,

419, 421 (2011) (cleaned up); see also, e.g., Illinois v. City

of Milwaukee, 406 U.S. 91, 99 (1972). For this reason, too,

this case belongs in federal court.

1. In fact, the United States and Canada have long dealt with

environmental issues in the Great Lakes through international

agreements. The agreements include the 1972 Agreement on

Great Lakes Water Quality, Apr. 15, 1972, U.S.-Can., 23 U.S.T.

301, CTS 1972/12. Canada and the United States have also entered

into the Agreement Concerning the Transboundary Movement of

Hazardous Waste, Oct. 28, 1986, Can.-U.S., T.I.A.S. No. 11,099,

CTS 1986/39, and the Canada-United States Joint Inland Pollution

Contingency Plan, July 25, 1994, U.S.-Can., to address releases

and other environmental emergencies along the Canada-United

States border.

15a

Appendix A

29. The federal officer removal statute. Federal

law expressly authorizes the removal of any state-court

action against “any officer (or any person acting under that

officer) of the United States or of any agency thereof . . .

relating to any act under color of such office.” 28 U.S.C.

§ 1442(a)(1). “The federal officer removal statute allows

a defendant to remove a case from state to federal court

if the defendant establishes (1) it is a federal officer or a

‘person acting under that officer’; (2) a ‘colorable federal

defense’; and (3) that the suit is ‘for a[n] act under color

of office,’ which requires a causal nexus ‘between the

charged conduct and asserted official authority.’” Ripley

v. Foster Wheeler LLC, 841 F.3d 207, 209-10 (4th Cir. 2016)

(citations omitted); see also, e.g., Bennett v. MIS Corp.,

607 F.3d 1076, 1085 (6th Cir. 2010). All three elements

are satisfied here.

30. First, Enbridge “acted under” a federal officer

because “the government [PHMSA] exert[ed] some

‘subjection, guidance, or control’” over Enbridge’s

operation and safety management of the Straits Pipelines

through its extensive regulation and because Enbridge

thereby “engage[d] in an effort ‘to assist, or to help

carry out, the duties or tasks of the federal superior.’”

Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 255 (4th

Cir. 2017) (quoting Watson v. Philip Morris Cos., 551 U.S.

142, 151-52 (2007)); see also Watson, 551 U.S. at 150 (the

words “acting under” are “broad” and must be “liberally

construed” to effectuate § 1442(a)’s policy objectives—

principally, “to protect the Federal Government from

[state] interference with its ‘operations’”); Caver v.

Central Alabama Electric Cooperative, 845 F.3d 1135,

16a

Appendix A

1143-44 (11th Cir. 2017); California v. H&H Ship Service

Co., 68 F.3d 481, 1995 WL 619293, at *1-2 (9th Cir. 1995)

(unpublished); City of St. Louis v. Velsicol Chemical Corp.,

708 F. Supp. 2d 632, 660 (E.D. Mich. 2010). Indeed, the

federal government recognizes that Enbridge’s pipelines

constitute critical infrastructure whose operation is vital

to the energy supply. See Wazelle v. Tyson Foods, Inc.,

2021 WL 2637335, at *3-5 (N.D. Tex. 2021) (holding that

Tyson Foods properly removed under the federal officer

removal statute “because Tyson Foods was designated

as ‘critical infrastructure’ by the federal government”).

31. Second, there is a causal nexus between

Enbridge’s management of the Straits Pipelines pursuant

to PHMSA’s directives and Plaintiffs’ claims concerning

the safety of the Pipelines. Historically, the hurdle set by

the causal nexus requirement was “quite low.” Goncalves

ex rel. Goncalves v. Rady Children’s Hospital, 865 F.3d

1237, 1344-45 (9th Cir. 2017). In 2011, Congress lowered

the bar even further. See Caver, 845 F.3d at 1144; Latiolas

v. Huntington Ingalls, Inc., 951 F.3d 286, 291-92 (11th Cir.

2020). The current version of the statute merely requires

that the conduct at issue “relate to” acts under color of

federal office. 28 U.S.C. § 1442(a)(1). This test simply

requires a “connection or association” between the acts

in the lawsuit and the federal office; the defendant is not

“required to allege that the complained-of conduct itself was

at the behest of a federal agency.” In re Commonwealth’s

Motion to Appoint Counsel Against or Directed to

Defender Association of Philadelphia, 790 F.3d 457, 47071 (3d Cir. 2015). This suit readily clears that low hurdle,

because the allegations here depend on the activities of

17a

Appendix A

Enbridge over the past decades in its management of

the Straits Pipelines—many of which activities were

undertaken in furtherance of PHMSA requirements and,

as warranted, direct oversight. Similarly, in Sawyer, the

Fourth Circuit held that removal was proper where a

military contractor, sued for failing to warn of asbestos

in military equipment, showed extensive federal control

over its activities. This included “highly detailed ship

specifications and military specifications provided by the

Navy,” whereby the Navy exercised “intense direction and

control . . . over all written documentation to be delivered

with” the equipment, deviations from which “were not

acceptable.” 860 F.3d at 253.

32. Third, Enbridge intends to raise numerous

meritorious federal defenses, including preemption,

interstate and foreign commerce, and the foreign affairs

doctrine. These and other federal defenses are more than

colorable. See Willingham v. Morgan, 395 U.S. 402, 407

(1969) (a defendant invoking § 1442(a)(1) “need not win his

case before he can have it removed”).

33. Removal is thus proper under the federal officer

removal statute.

V. This Court has jurisdiction and removal is proper

34. Enbridge is required to show that this Court has

28 U.S.C. §1331 jurisdiction over at least one claim in the

Complaint. See Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 563 (2005). It has met this burden here.

This Court has supplemental jurisdiction under 28 U.S.C.

18a

Appendix A

§ 1367(a) over any claims for which it does not have original

federal question jurisdiction because those claims form

part of the same case or controversy as the claims over

which the Court has original jurisdiction. Removal of this

action is accordingly proper under 28 U.S.C. §§ 1441(a),

1442, and 1367.

35. All Defendants in this action are Enbridge

entities. All consent to removal.

36. The Eleventh Amendment does not bar removal

to federal court. See Oklahoma ex rel. Edmondson v.

Magnolia Marine Transp. Co., 359 F.3d 1237, 1239 (10th

Cir. 2004) (“[T]he Eleventh Amendment’s abrogation of

federal judicial power ‘over any suit . . . commenced or

prosecuted against one of the United States’ does not apply

to suits commenced or prosecuted by a State.”); California

ex rel. Lockyer v. Dynegy, 375 F.3d 831, 847-48 (9th Cir.

2004) (same); In re Katrina Canal Litigation Breaches,

524 F.3d 700, 710- 11 (5th Cir. 2008).

37. Upon filing this Notice of Removal, Defendants

will furnish written notice to Plaintiffs’ counsel, and will

file and serve a copy of this Notice with the Clerk of the

Circuit Court for 30th Judicial Circuit, Ingham County

pursuant to 28 U.S.C. § 1446(d).

Accordingly, Defendants hereby remove to this Court

the above action pending against them in the Circuit Court

for 30th Judicial Circuit, Ingham County.

19a

Appendix A

Dated: December 15, 2021

Respectfully submitted,

/s/ Peter H. Ellsworth

Peter H. Ellsworth (P23657)

Jeffery V. Stuckey (P34648)

DICKINSON WRIGHT PLLC

123 W. Allegan Street, Suite 900

Lansing, MI 48933

(517) 371-1730

pellsworth@dickinsonwright.com

jstuckey@dickinsonwright.com

Phillip J. DeRosier

DICKINSON WRIGHT PLLC

500 Woodward Avenue, Suite 4000

Detroit, MI 48226

(313) 223-3866

PDeRosier@dickinson-wright.com

John Bursch

BURSCH LAW PLLC

9339 Cherry Valley Avenue SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

20a

Appendix A

David H. Coburn

William T. Hassler

Alice Loughran

Joshua H. Runyan

Mark C. Savignac

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

(202) 429-3000

dcoburn@steptoe.com

whassler@steptoe.com

aloughran@steptoe.com

jrunyan@steptoe.com

21a

Appendix B OF THE STATE

APPENDIX B — COMPLAINT

OF MICHIGAN, CIRCUIT COURT FOR THE

30TH JUDICIAL CIRCUIT, INGHAM COUNTY,

FILED JUNE 27, 2019

STATE OF MICHIGAN

CIRCUIT COURT FOR THE

30TH JUDICIAL CIRCUIT

INGHAM COUNTY

No. 19-474-CE

HON. JUDGE JAMES S. JAMO

DANA NESSEL, ATTORNEY GENERAL OF THE

STATE OF MICHIGAN, ON BEHALF OF THE

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

ENBRIDGE ENERGY LIMITED PARTNERSHIP,

ENBRIDGE ENERGY COMPANY, INC., AND

ENBRIDGE ENERGY PARTNERS, L.P.,

Defendants.

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

Dana Nessel, Attorney General of the State of

Michigan, on behalf of the People of the State of Michigan,

by and through the undersigned Assistant Attorneys

General, alleges as follows:

22a

Appendix B

NATURE OF THE CASE

1. The Attorney General brings this action to abate

the continuing threat of grave harm to critical public rights

in the Great Lakes and associated resources posed by the

Defendants’ daily transportation of millions of gallons

of oil in dual pipelines that lie exposed in open water on

State-owned bottomlands at the Straits of Mackinac. This

location—where Lakes Michigan and Huron connect and

multiple busy shipping lanes converge—combines great

ecological sensitivity with exceptional vulnerability to

anchor strikes like those that occurred in 2018, making

it uniquely unsuitable for oil pipelines. Defendants’

continued operation of the Straits Pipelines presents

an extraordinary, unreasonable threat to public rights

because of the very real risk of further anchor strikes, the

inherent risks of pipeline operations, and the foreseeable,

catastrophic effects if an oil spill occurs at the Straits.

2 . The Attor ney General seeks decla rator y

judgments that: (a) the 1953 Easement granted by the

State, which authorized the construction and operation of

the Straits Pipelines, violates the public trust doctrine and

is therefore void; (b) Defendants’ continued operation of

the Straits Pipelines unreasonably interferes with rights

common to the public and is therefore subject to abatement

as a common law public nuisance; and (c) Defendants’

continued operation of the Straits Pipelines is likely to

cause pollution, impairment, and destruction of water and

other natural resources and the public trust therein in

violation of Part 17 (Michigan Environmental Protection

Act) of the Natural Resources and Environmental

23a

Appendix B

Protection Act, MCL 324.1701 et seq. The complaint seeks

injunctive relief requiring the Defendants to (a) cease

operation of the Straits Pipelines as soon as possible after

a reasonable notice period to allow orderly adjustments by

affected parties; and (b) permanently decommission the

Straits Pipelines in accordance with applicable law and

plans approved by the State of Michigan.

PARTIES

3. Dana Nessel is the duly elected Attorney General

of the State of Michigan pursuant to Article V, Section 21

of the Michigan Constitution and is the chief legal officer of

the State of Michigan. She has the statutory and common

law authority to bring this action on behalf of the people

of the State of Michigan.

4. Enbridge Energy, Limited Partnership is a

Delaware limited partnership conducting business in

Michigan.

5. Enbridge Energy Company, Inc. is a Delaware

corporation conducting business in Michigan.

6. Enbridge Energy Partners, L.P. is a Delaware

limited partnership conducting business in the State of

Michigan.

7. Enbridge Energy, Limited Partnership, Enbridge

Energy Company, Inc., and Enbridge Energy Partners,

L.P., (collectively “Enbridge”) control and operate the

Enbridge Line 5 pipeline that extends from Superior,

24a

Appendix B

Wisconsin, across the Upper Peninsula of Michigan,

crosses the Straits of Mackinac through the Straits

Pipelines portion of Line 5, and continues through the

Lower Peninsula to Marysville, Michigan and then crosses

beneath the St. Clair River to Sarnia, Ontario, Canada.

JURISDCITION AND VENUE

8. This Court has subject matter jurisdiction of this

civil matter under MCL 600.605.

9. Venue for this civil action brought by the Attorney

General is proper in this Court under MCL 14.102 and

MCL 600.1631.

FACTUAL BACKGROUND

The Development of Line 5 and the Straits Pipelines

10. As explained in the Michigan Petroleum

Pipeline Task Force Report (2015), “what is now known

as Enbridge’s Line 5, including the Straits Pipelines,

was conceived and built as a means of transporting crude

oil produced in Alberta to refineries located in Sarnia,

Ontario without interruption. In the late 1940s, Imperial

Oil Company, Limited began producing significant

quantities of crude oil from Leduc oil fields in Alberta. It

formed a subsidiary, Interprovincial Pipe Line Company

(IPL) (a corporate predecessor of Enbridge), which

developed a series of pipelines to transport oil from

Alberta to various refineries. By 1950, a pipeline had been

completed eastward as far as Superior, Wisconsin, on the

25a

Appendix B

shore of Lake Superior. Over the next few years, Imperial

Oil transported approximately 50 million barrels of oil on

a fleet of Great Lakes tankers from Superior, Wisconsin

to refineries near Sarnia, Ontario.”

11. Because of increasing oil production and because

tankers could not operate during winter months on

the Great Lakes, IPL decided, in late 1952, to extend

its pipeline system from Superior to Sarnia. IPL, its

wholly owned American subsidiary Lakehead Pipeline

Company, its primary contractor Bechtel Corporation,

and various other contractors completed the entire process

of designing the 645-mile-long Line 5 pipeline, obtaining

rights of way, securing required approvals, contracting,

and constructing it in approximately one year, between

November 1952 and January 1954. This process included:

• Lobbying the Michigan Legislature to enact

1953 PA 10 [later amended and recodified as

MCL 324.2129] so that the State, through the

Conservation Commission, had the legal authority

to grant pipeline easements on state land and lake

bottomlands.

• Obtaining pipeline easements, including the

Easement for the Straits of Mackinac Pipelines,

from the Conservation Commission.

• Obtaining approval of the construction, operation,

and maintenance of the pipeline in Michigan from

Michigan Public Service Commission under 1929

PA 16.

26a

Appendix B

12. On April 23, 1953, the Conservation Commission

of the State of Michigan granted an easement entitled

“Straits of Mackinac Pipe Line Easement Conservation

Commission of the State of Michigan to Lakehead Pipeline

Company, Inc.” (1953 Easement), a copy of which is

attached as Exhibit 1.

13. The Easement recited that it was issued by the

Conservation Commission under the authority of 1953 PA

10 and in consideration of a one-time payment of $2,450.00

by the Grantee to the Grantor.

14. Subject to its terms and conditions, the Easement

granted the Grantee and its successors and assigns the

right “to construct, lay, maintain, use and operate” two 20

inch diameter pipelines for the purpose of transporting

petroleum and other products, “over, through, under, and

upon” specifically described bottomlands owned by the

State of Michigan in the Straits of Mackinac.

15. Since completing Line 5 in 1954, the Grantee

and its successors have continued to operate it, and over

time significantly increased the quantity of products

transported through it.

16. The Grantee’s present successor, Enbridge,

currently transports an average of 540,000 barrels or

22,680,000 gallons of light crude oil, synthetic light crude

oil, and/or natural gas liquids per day on Line 5, including

the Straits Pipelines.

27a

Appendix B

17. The Straits Pipelines are each approximately

four miles long, run parallel to each other, approximately

1,200 feet apart, and are located approximately three

miles west of the Mackinac Bridge, in waters ranging in

depth to more than 250 feet.

18. While the near-shore sections of each Pipeline

(those located where the water is less than 65 feet deep)

were laid in trenches and covered with soil, most of each

pipeline was placed on or above the lakebed, and remains

exposed in open water, with no covering shielding it from

anchor strikes or other physical hazards.

19. The lakebed beneath the pipelines varies

considerably in depth and is subject to erosion by very

strong currents in and beneath the Straits. Consequently,

while some sections of the pipelines rest directly on

the lakebed, at many other locations, the pipelines are

suspended several feet above the lakebed. This includes

locations where, since 2002, Enbridge has installed more

than 150 anchor support structures in an effort to limit

unsupported lengths or spans of pipeline to less than the

75-foot maximum prescribed in the Easement.

The Critical Public Importance of the

Straits of Mackinac

20. The Straits of Mackinac are at the heart of the

Great Lakes, a unique ecosystem of enormous public

importance. As noted in Independent Risk Analysis for

the Straits Pipelines (Michigan Technological University

(September 2018)), a report commissioned by the State

28a

Appendix B

and carried out by a multi-disciplinary team of experts

(Michigan Tech Report):

The Straits of Mackinac hydraulically link

Lakes Michigan and Huron . . . and are wide

and deep enough . . . to permit the same average

water level in both water bodies, technically

making them two lobes of a single large lake.

The combined Michigan—Huron system forms

the largest lake in the world by surface area

and the fourth largest by volume, containing

nearly 8% of the world’s surface freshwater.

The Straits of Mackinac serve as a hub for

recreation, tourism, commercial shipping, as

well as commercial, sport and subsistence

[tribal] fishing. . . .1

21. An oil spill at the Straits threatens a wide range

of highly valuable resources:

The waters and shoreline areas of Lake

Michigan and Lake Huron including areas

surrounding and adjacent to the Straits of

Mackinac contain abundant natural resources,

including fish, wildlife, beaches, coastal sand

dunes, coastal wetlands, marshes, limestone

cobble shorelines, and aquatic and terrestrial

plants, many of which are of considerable

1 . In d e p e n d e n t R i s k A n a l y s i s , p 2 6 ; h t t p s : / /

mipetroleumpipelines.com/sites/mipetroleumpipelines.com/files/

document/pdf/Straits_Independent_Risk_Analysis_Final.pdf.

29a

Appendix B

ecological and economic value. These areas

include stretches of diverse and undisturbed

Great Lakes shorelines that provide habitat for

many plant and animal species. 2

COUNT I

The 1953 Easement violates the Public Trust

and is Void

22. Paragraphs 1 through 21 above are re-alleged

and incorporated by reference.

The Public Trust Doctrine

23. As the Michigan Supreme Court held in Glass v

Goeckel, 473 Mich 667, 678-679 (2005):

[U]nder longstanding principles of Michigan’s

common law, the state, as sovereign, has an

obligation to protect and preserve the waters

of the Great Lakes and the lands beneath them

for the public. The state serves, in effect, as the

trustee of public rights in the Great Lakes for

fishing, hunting, and boating for commerce or

pleasure. (Citations and footnote omitted.)

24. These public rights are protected by a “high,

solemn and perpetual trust which it is the duty of the

State to forever maintain.” Collins v Gerhardt, 237 Mich

38, 49 (1926).

2. Id., p 168.

30a

Appendix B

25. Both the United States Supreme Court and the

Michigan Supreme Court have held that the public trust

doctrine strictly limits the circumstances under which

a state may convey property interests in public trust

resources. In Illinois Central Railroad Co v Illinois,

146 US 387, 455-456 (1892), the court identified only two

exceptions under which such a conveyance is permissible:

The trust with which they are held, therefore, is

governmental and cannot be alienated, except

in those instances mentioned of parcels used

in the improvement of the interest thus held,

or when parcels can be disposed of without

detriment to the public interest in the lands

and waters remaining.

There, the court held that because neither of those

conditions were satisfied by a state statute purporting

to grant submerged lands along the Chicago lakefront to

a private company, a subsequent state statute revoking

that grant and restoring public rights was valid and

enforceable. Id. at 460.

26. In Obrecht v National Gypsum Co, 361 Mich 399,

412-413 (1960), the Michigan Supreme Court declared that

“[l]ong ago we committed ourselves . . . to the universally

accepted rules of such trusteeship as announced by the

[S]upreme [C]ourt in Illinois Central,” including Illinois

Central’s delineation of the limited conditions under which

public trust resources may be conveyed:

[N]o part of the beds of the Great Lakes,

belonging to Michigan and not coming within

31a

Appendix B

the purview of previous legislation . . . can be

alienated or otherwise devoted to private use in

the absence of due finding of 1 of 2 exceptional

reasons for such alienation or devotion to

nonpublic use. One exception exists where the

State has, in due recorded form, determined

that a given parcel of such submerged land may

and should be conveyed “in the improvement

of the interest thus held” (referring to public

trust). The other is present where the State

has, in similar form, determined that such

disposition may be made “without detriment

to the public interests in the lands and waters

remaining.”

Obrecht, 361 Mich at 412-413, quoting Illinois Central,

146 US at 455-56 [emphasis added]. The Michigan

Legislature has incorporated that common-law standard

and “due finding” requirement into Part 325 (Great

Lakes Submerged Lands) of the Natural Resources and

Environmental Protection Act, MCL 324.32501 et seq.3

3. See, e.g., Mich. Comp. Laws § 324.32502 (conveyance of

property interests in submerged lands allowed “whenever it is

determined by the department that the private or public use of

those lands and waters will not substantially affect the public use

of those lands and waters for hunting, fishing, swimming, pleasure

boating, or navigation or that the public trust in the state will not

be impaired by those agreements for use, sales, lease, or other

disposition”); §§ 324.32503, 324.32505 (same).

32a

Appendix B

The 1953 Easement Violated the Public Trust,

and it was Void from its Inception.

27. The 1953 Easement violated the public trust

doctrine because the State never made a finding that the

easement: (1) would improve navigation or another public

trust interest; or (2) could be conveyed without impairment

of the public trust. There is no contemporaneous document

in which the State duly determined that the proposed

Easement met either of the two exceptions to the common

law public trust doctrine’s prohibition of conveyances of

public rights in Great Lakes bottomlands. The Easement

itself contains no such findings. It merely recited:

WHEREAS, the Conservation Commission

is of the opinion that the proposed pipe line

system will be of benefit to all of the people of

the State of Michigan and in furtherance of the

public welfare; and

WHEREAS, the Conservation Commission

duly considered the application of Grantee and

at its meeting held on the 13th day of February,

A.D. 1953, approved the conveyance of an

easement.

2 8. There is no indication the Conser vation

Commission determined that the conveyance of the

Easement and the operation of oil pipelines in the Great

Lakes would somehow improve public rights in navigation,

fishing, or other uses protected by the public trust. Nor is

there evidence that the Commission duly determined that

33a

Appendix B

the operation could not adversely affect those rights. And

the contemporaneous approval of the construction of what

is now Enbridge’s Line 5 in Michigan by the Michigan

Public Service Commission made no such determinations

and suggested that the Line 5 pipeline, which was built

to transport crude oil from Alberta to Ontario, would

enhance joint defenses in times of national emergency

and promote improved trade relations.4

29. In the absence of either of the due findings

required under the public trust doctrine, the 1953

Easement was and remains void.

B. The State’s Continuing Obligation to Protect

Public T r ust Resources Now Requires

Revocation of the 1953 Easement Because

it is Today Clear that Enbridge’s Continued

Transportation of Petroleum Products through

the Straits Pipelines Violates the Public Trust.

30. As noted above, public rights in navigable waters

“are protected by a high, solemn and perpetual trust, which

it is the duty of the State to forever maintain.” Collins v

Gerhardt, 237 Mich at 48. The State did not surrender

its trust authority—or the affirmative responsibilities

that underpin it—when it granted the 1953 Easement to

Enbridge’s predecessor. “The state, as sovereign, cannot

relinquish [its] duty to preserve public rights in the Great

4. Mich Pub Serv Comm’n Op and Order for the 1953 Line

5 pipeline (Mar. 31, 1953); https://www.michigan.gov/documents/

deq/Appendix_A.3_493982_7.pdf.

34a

Appendix B

Lakes and their natural resources.” Glass, 473 Mich at 679.

To the contrary, a state’s conveyance of property rights “to

private parties leaves intact public rights in the lake and

its submerged land. . . . Under the public trust doctrine,

the sovereign never had the power to eliminate those

rights, so any subsequent conveyances . . . remain subject

to those public rights.” Id. at 679-681 [emphasis added].

That all conveyances of bottomlands and other public

trust resources are encumbered by the trust has long

been the law in Michigan. See Nedtweg, 237 Mich at 17 (the

public trust “is an inalienable obligation of sovereignty”

and “[t]he State may not, by grant, surrender such public

rights any more than it can abdicate the police power or

other essential power of government.”).

31. When the State conveys a property interest

in Great Lakes bottomlands, “it necessarily conveys

such property subject to the public trust.” Glass at 679.

Accordingly, even assuming the 1953 Easement was

initially valid, it necessarily remains subject to the public

trust and the State’s continuing duty to protect public

trust resources of the Great Lakes. And, by its terms, the

Easement broadly reserved the State’s rights: “All rights

not specifically conveyed herein are reserved to the State

of Michigan.” 1953 Easement, p 11, paragraph M.

32. As the Supreme Court held in Illinois Central,

a grant of property rights in public trust resources “is

necessarily revocable, and the exercise of the trust by

which the property was held by the state can be resumed

at any time.” 146 US at 455. There, the State of Illinois

“subsequently determined, upon consideration of public

35a

Appendix B

policy” that it should rescind its prior grant of lake

bottomlands to a private entity and the court upheld that

action.

33. Here, it has now become appa rent that

continuation of the activity authorized by the 1953

Easement—transporting millions of gallons of petroleum

products each day through twin 66-year old pipelines that

lie exposed, and literally in the Great Lakes at a uniquely

vulnerable location in busy shipping lanes—cannot be

reconciled with the State’s duty to protect public trust

uses of the Lakes, including fishing, navigation, and

recreation from potential impairment or destruction. As

outlined below, continued operation of the Straits Pipelines

presents an extraordinary, unreasonable threat to public

rights because of the very real risk of further anchor

strikes to the pipelines, the inherent risks of pipeline

operations, and the foreseeable, catastrophic effects if an

oil spill occurs at the Straits.

The Continuing Risk of Anchor Strikes

Threatens an Oil Spill at the Straits.

34. Independent expert analysis and real-world

experience demonstrate that the Straits Pipelines remain

highly vulnerable to damage caused by inadvertent

deployment and dragging of anchors from the many

vessels moving in the multiple shipping lanes that converge

at the Straits. So long as oil flows through the Pipelines,

the associated threat of a catastrophic spill will continue.

36a

Appendix B

a. The Dynamic Risk Report.

35. In 2016, the State commissioned an expert

consulting firm, Dynamic Risk Assessment Systems,

Inc., to perform an analysis of alternatives to the

Straits Pipelines that included, among other things,

risks associated with continued operation of the existing

pipelines. Dynamic Risk completed a Draft Report in the

summer of 2017 and issued its Final Report in October

2017 (Report). 5 In publicly presenting its analysis,

Dynamic Risk estimated the chance of rupture of the

Straits Pipelines in the next thirty-five years to be not

one in a million, nor one in a thousand, nor even one in

a hundred, but a remarkable one in sixty.6 And of the

various threats the Report canvassed, it determined that

“the dominant threat, representing more than 75% of the

annualized total (all-threat) failure probability, is that . . .

caused by the inadvertent deployment of anchors from

ships traveling through the Straits.” 7

5. Report, Alternatives Analysis for the Straits Pipelines;

https://mipetroleumpipelines.com /document /alternativesanalysis-straits-pineline-final-report.

6. See Statements of James Mihell, P.Eng., at July 6, 2017,

Information Meeting at Holt, Michigan, at 3:11:00-3:12:00; https://

mipetroleumnipelines.com/event/watch-video-july-6-publicinformation-session-holt.

7. Report, Alternatives Analysis for the Straits Pipelines, at

ES-25; https://mipetroleumpipelines.com/document/alternativesanalysis-straits-pipeline-final-report.

37a

Appendix B

36. According to the Report, inadvertent anchor

strikes are known in the industry to be the principal

threat to offshore pipelines. They are both “increas[ing] in

frequency” and “not influenced by mitigation measures”:

In offshore pipelines . . . inadvertent anchor

deployment and dragging . . . represents the

most significant threat due to shipping activity;

all others being of insignificant magnitude

by comparison. The threat associated with

inadvertent anchor deployment and dragging

involves the potential for a pipeline to be

hooked by anchors that are unintentionally

dropped while ships are under way, and

subsequently dragged, and this threat has

seen a heightened focus on the part of pipeline

owners and operators, due to an increase in

frequency. . . . Because this scenario involves

inadvertent deployment, it is not influenced

by mitigation measures, such as warnings

and signage that are taken to discourage ships

from intentionally deploying anchors within

the Straits of Mackinac.8

37. The Report goes on to explain how, “[i]n bad weather

when there is movement in both the ship and the anchor,

snatches may cause the chain stopper to break or jump,”

rendering anchor mechanisms susceptible to inadvertent

anchor deployment even when operating as designed.9

8. Id. at 2-35 (emphasis added).

9. Id. at 2-35-36.

38a

Appendix B

Bad weather conditions commonly occur in the Straits of

Mackinac.

38. Moreover, “[a]fter having unintentionally

dropped the anchor, the inadvertent anchor drop may or

may not be discovered within a short period of time,” a

possibility that, as noted below, is borne out all too well

by the recent anchor strikes in the Straits.10

39. According to the Report, the risk of a pipelineanchor incident depends largely on four “vulnerability

factors”:

(1) size of the pipeline;

(2) water depth (relative to anchor chain

length);

(3) pipeline protection (depth of burial, use of

armoring material); and

(4) number and size distribution of ship

crossings per unit of time.

40. The Straits Pipelines score high on all four of

these factors:

[I]t must be noted that with respect to the above

vulnerability factors, the Straits Crossing

segments cross a busy shipping lane. . . . They

10. Id.

39a

Appendix B

are also situated in water that is shallow,

relative to the anchor chain lengths of most

cargo vessels. Furthermore, a 20-in. diameter

pipeline is small enough to fit between the shank

and flukes of a stockless anchor for a large cargo

vessel, and thus, is physically capable of being

hooked.11

41. The Report further notes that because the

Straits pipelines are, for significant portions of their

length, suspended above the lake bottom, they are

“therefore more vulnerable” to anchor hooking.

42. It would be extremely difficult to deliberately

arrange a more ill-advised setting for exposed pipelines

than at the Straits of Mackinac. The Straits are not

simply a “busy shipping lane,” as described in the Report.

They are the point of convergence for multiple lanes of

high-volume domestic and international shipping traffic,

concentrating that traffic into a dense procession and

funneling it daily across a narrow saddle of lake bottom

between two of the largest, deepest, and most heavily

trafficked lakes in the world.12

43. And on that lake bottom, below the heavily

concentrated procession of ships, lie two 20 -inch

pipelines, at many junctures suspended off the lakebed in

relatively shallow water, approximately 1,200 feet apart,

11. Id.

12. See image at http://w w w.shiptraffic.net /20 01/04 /

mackinac-strait-ship-traffic.html.

40a

Appendix B

perpendicular to the ship traffic, ideally sized and situated

to catch within the shank and flukes of a typical shipping

anchor that is inadvertently deployed.

A nchor St r i ke s Have Ac tua lly

Occurred in the Straits.

44. The risk of anchor strikes at the Straits is very

real. In April 2018, a commercial tug and barge vessel

inadvertently dropped and dragged its anchor across the

lakebed at the Straits (and apparently for several hundred

more miles, unknowingly, until it reached Chicago).13 The

anchor severed or dragged several active and abandoned

electrical transmission cables that lie at the bottom of the

Straits in close proximity to the Line 5 Pipelines.

45. Moreover, both Straits Pipelines were also

struck and dented in three places by the anchor, as it

13. See, e.g., Mark Tower, Broken cables capped as Straits of

Mackinac spill response continues, mlive, Apr. 30, 2018; http://

www.mlive.com/news/grand-rapids/index.ssf/2018/04/broken_

cables_capped_as_strait.html; Elizabeth Brackett, Straits of

Mackinac Spill Raises New Fears of Great Lakes Disaster, wttw

News (May 1, 2018); https://chicagotonight.wttw.com/2018/05/01/

straits-mackinac-spill-raises-new-fears-great-lakes-disaster;

National Transportation Safety Board Marine Accident Brief

19/12 Anchor Contact of Articulated Tug and Barge Clyde S

VanEnkevort/Erie Trader with Underwater Cables and Pipelines

https://www.ntsb.gov/investigations/AccidentReports/Pages/

MAB1912.aspx.

41a

Appendix B

dragged across the lakebed14 though neither ruptured.15

Fortunately, these strikes to the Pipelines happened to

occur at locations where they currently rest on the lakebed

rather than other areas where they are suspended above

it and particularly vulnerable to the risk of “hooking”

identified in the Dynamic Risk Report.

46. The 2018 anchor strikes were not an isolated

event. At least one other anchor strike in the Straits

apparently occurred in April 1979. Correspondence dated

June 14, 1979 from Consumers Energy Company to the

Michigan Department of Natural Resources proposing to

repair damaged electrical cables located on an easement

granted by the Department referred to an outage that

occurred on April 12, 1979 and stated: “Based on our

inspection it is assumed that a ship dragging anchor

accidentally hooked the cables, resulting in breaking two

of the cables and damaging the third and fourth.”

47. In sum, the Report and the actual anchor strikes

show that the Straits Pipelines and shipping patterns

together create an extreme vulnerability for a catastrophic

oil spill. While the US Coast Guard has promulgated a

regulation establishing a Regulated Navigation Area in

14 . S ee , e.g., http s: // w w w.br idgem i.com /m ich ig a nenvironment-watch/watch-video-anchor-damage-line-5-straitsmackinac.

15. See, e.g., Keith Matheny, Line 5 oil pipeline in the Straits

of Mackinac dented by ship, Detroit Free Press, Apr. 11, 2018;

https://www.freep.com/story/news/local/michigan/2018/04/11/

enbridge-line-oil-pipeline-straits-mackinac/507506002/.

42a

Appendix B

the Straits of Mackinac that generally prohibits anchoring

and loitering or vessels there,16 such measures regulating

intentional anchoring cannot, as noted above, mitigate

the principal threat identified in the Report—accidental

anchor deployment. And while the State of Michigan is

currently considering a regulation intended to reduce that

risk by requiring vessels transiting the Straits to verify

the security of their anchors, such a regulation, even if

adopted as an interim measure, cannot ensure compliance

or eliminate the continuing risk.

Continued Operation of the Straits

Pipelines Carries Substantial, Inherent

Risk.

48. Even apart from their unique susceptibility to

damage from anchor strikes, the Straits Pipelines, like all

hazardous materials pipelines, present inherent risks of

environmental harm. Regardless of a pipeline operator’s

safety culture and the sophistication of its integrity

management system, it has become clear that accidents,

manufacturing defects, human error, and failures of

material are an enduring, inherent feature of hazardous

materials pipeline operation. According to United States

Department of Transportation Pipeline and Hazardous

Materials Safety Administration (PHMSA) data, since

2014, there have been nearly 12,000 reported “incidents”17

16. See 33 CFR 165.994, 83 Federal Register 49283 (October

1, 2018).

17. An “incident” is defined by PHMSA as a pipeline

occurrence resulting in any of the following: a fatality or injury

43a

Appendix B

(an average of 666 per year) on pipelines across the United

States.18 In that time, Michigan has seen an average of

approximately 20 incidents per year.19

49. Between 2006 and 2018, Enbridge reported

126 pipeline “incidents.” 20 Most notably, in July 2010,

Enbridge’s Line 6B ruptured and for hours continued

to pump crude oil into Talmadge Creek, a tributary of

the Kalamazoo River, near Marshall, Michigan. The

resulting damage to the lands, waters, wildlife, and other

resources of that watershed were extensive, requiring

years of clean-up efforts. The National Transportation

Safety Board (NTSB) has identified the Marshall spill as

requiring in-patient hospitalization; $50,000 (1984 dollars) or

more in total costs; highly volatile liquid releases of 5 barrels or

more or other liquid releases of 50 barrels or more; liquid releases

resulting in an unintentional fire or explosion. See PHMSA,

Pipeline Incident Flagged Files; www.phmsa.dot.gov/data-andstatistics/pipeline/pipeline-incident-flagged-files.

18. See PHMSA Pipeline Incidents (1999-2018).

19. See PHMSA Pipeline Incidents: Michigan (1999-2018).

20. See PHMSA, Pipeline Incident Flagged Files; www.

phmsa.dot.gov/data-and-statistics/pipeline/pipeline-incidentflagged-files. Another recent compilation of federal data indicates

that “the U.S. portion of the pipeline network owned by Enbridge

and its joint ventures and subsidiaries suffered 307 hazardous

liquids incidents from 2002 to August 2018—around one spill every

20 days on average.” Greenpeace Reports, Dangerous Pipelines:

Enbridge’s History of Spills Threatens Minnesota Waters, at

6 (Nov. 2018); https://w w w.greenpeace.org/usa/wp-content/

uploads/2018/11/Greenpeace-Report-Dangerous-Pipelines.pdf.

44a

Appendix B

“the single most expensive on-shore spill in US history.” 21

In examining the causes of the Line 6B spill, the NTSB

determined that Enbridge “staff failed to recognize that

the pipeline had ruptured until notified by an outside caller

more than 17 hours later.” It concluded “that the Line

6B segment ruptured under normal operating pressure

due to corrosion fatigue cracks” and that “[t]he rupture

and prolonged release were made possible by pervasive

organizational failures at Enbridge[.]” 22

50. While the design of the Straits Pipelines differs

from that of Line 6B, and Enbridge has attested to

improvements in its safety culture and pipeline integrity

protocols since the Marshall spill, significant issues

persist. Enbridge has reported 72 pipeline incidents since

2010.23 And, for example, in recent months, explosions have

at least twice occurred on Enbridge natural gas pipelines.

In October 2018, an Enbridge natural gas pipeline

exploded near Prince George, British Columbia, in close

21. See NTSB News Release, Pipeline Rupture and Oil

Spill Accident Caused by Organizational Failures and Weak

Regulations (July 10, 2012); https://www.ntsb.gov/news/pressreleases/Pages/PR20120710.aspx.

22. NTSB, Accident Repor t: Enbridge Incorporated

Hazardous Liquid Pipeline Rupture and Release, Marshall

Michigan, July 25, 2010 (NTSB Line 6B Report), at xiii, 84, 121;

https://www.ntsb.gov/investigations/AccidentReports/Reports/

PAR1201.pdf.

23. PHMSA, Operator Information, Enbridge Energy; https://

primis.phmsa.dot.gov/comm/reports/operator/OperatorIM_

opid_11169.html? nocache=1967#_OuterPanel_tab_2.

45a

Appendix B

proximity to a First Nation village. 24 In January 2019,

another Enbridge pipeline in Ohio failed with the resulting

“fireball” visible from 15 miles away. 25 Apparently, in each

instance Enbridge’s pipeline inspection technology and

improved safety culture did not predict, much less prevent

these failures.

51. As a part of its analysis of various potential

threats to the integ rity of the Straits Pipelines,

Dynamic Risk sought to identify what it classified as the

“Principal Threats,” i.e., “Threats for which an evaluation

of susceptibility attributes indicates a significant

vulnerability, and that have the potential to provide

the most significant contributions to overall failure

probability.” 26 The threats considered included “incorrect

operations,” which were described as follows:

The threats to transmission pipeline integrity

from incorrect operations include, but are

not necessarily limited to accidental overpressurization, exercising inadequate or

improper corrosion control measures, and

24. Global News, Enbridge natural gas pipeline explodes

near Prince George, Oct. 10, 2018; https://globalnews.ca/

video/4531983/enbridge-natural-gas-pipeline-explodes-nearprince-george.

25. CBC News, Enbridge pipeline explosion sends fireball

into Ohio sky, Jan. 22, 2019; https://www.cbc.ca/news/canada/

calgary/enbridge-ohio-pipeline-explosion-1.4987897.

26. Dynamic Risk Report, p 98 (emphasis added).

46a

Appendix B

i mprop erly ma i nt a i n i ng, repa i r i ng, or

calibrating piping, fittings, or equipment. 27

52. Dynamic Risk concluded that notwithstanding

the various operational and procedural changes that

Enbridge adopted after the Line 6B failure, “incorrect

operations” remain a Principal Threat for the Straits

Pipelines:

. . . [S]ince the Marshall incident in 2010,

Enbridge has undertaken a review and upgrade

of the management systems by which it controls

its pipeline operations. Despite this, numerous

pipeline investigation analyses have shown that

regardless of the direct cause, some element

of incorrect operations, such as procedural,

process, implementation or training factors

invariably plays a role in the root causes of

pipeline failure. Furthermore, it is often

impossible to foresee in advance what sequence

of events and breakdown in management

systems and operating practices might lead to

failure. For this reason, failures that are related

to incorrect operations cannot be discounted,

and are considered a Principal Threat. 28

53. In sum, continued operation of the Straits

Pipelines presents significant, inherent risks of releases

of hazardous substances into the environment.

27. Id., p 124.

28. Id., p 134.

47a

Appendix B

A n O i l S pi ll at t he St r a it s Risk s

C a t a s t r o p h i c E n v i r o n m e nt a l a n d

Economic Consequences, including Severe

Impairment of Public Trust Rights.

54. As noted above, Independent Risk Analysis for

the Straits Pipelines (Michigan Technological University

(September 2018)), is a report commissioned by the State

and carried out by a multi-disciplinary team of experts

(Michigan Tech Report).

55. The Report analyzed the consequences of a

“worst case” spill of oil from the Straits Pipelines under

various seasonal and other conditions, taking into account

the wide range of resources and activities that would likely

be affected by such a spill.

56. Among other things, water currents in the

Straits are unusually strong, complex, and variable:

Water currents in the Straits of Mackinac

can reach up to 1 [meter per second] and can

also reverse direction every 2-3 days flowing

either easterly into Lake Huron or westerly

towards Lake Michigan. . . . Flow volumes

through the Straits can reach 80,000 [cubic

meters per second] and thus play essential

roles in navigation and shipping in this region,

the transport of nutrients, sediments and

contaminants between Lakes Michigan and

48a

Appendix B

Huron, and also the ecology and biodiversity

of this region. 29

57. Consequently, oil spilled into the Straits could

be transported into either Lake, and depending upon the

season and weather conditions, impact up to hundreds of

miles of Great Lakes shoreline. 30

58. Crude oil contains toxic compounds that would

cause both short- and long-term harm to biota, habitat, and

ecological food webs.31 Numerous species of fish, especially

in their early life stages, as well as their spawning habitats

and their supporting food chains are also at risk from an

oil spill. 32 Viewed as a whole, the ecological impacts would

be both widespread and persistent. 33

59. And “[b]ecause of the unique and complex

environment of the Great Lakes and Straits area . . . ,” it

is uncertain how effectively and at what cost the affected

resources could be restored. 34

60. The Michigan Tech Report also estimated

several forms of natural resources and other economic

29. Michigan Tech Report, p 56.

30. Id., pp 68-69.

31. Id., pp 166-168, 176, 181-185.

32. Id., pp 192-199.

33. Id., pp 213-214.

34. Id., pp 261-264.

49a

Appendix B

damages that would likely result from a worst-case oil spill

from the Straits Pipelines. 35 Among other findings, the

Report estimated large damages to recreational fishing,

recreational boating, commercial fishing, and commercial

navigation, 36 all activities within the core rights subject

to the public trust.

61. Finally, the Report estimated that the total of

all cleanup costs and economic damages that it was able

to measure would be $1.878 billion, but that figure was

necessarily incomplete. 37 A different report conducted by

researchers at Michigan State University, using different

assumptions and methods, estimated the damages from a

spill from the Straits Pipelines at $5.6 billion. 38

62. In any event, regardless of the precise details

of these estimates, it is now apparent that the continued

operation of the Straits Pipelines presents a substantial,

inherent risk of an oil spill and that such a spill would have

grave ecological and economic consequences, impairing

public rights in the Great Lakes and its resources. Given

the magnitude of the threatened harm, continuation of oil

35. Id., pp 271-273.

36. Id., pp 285-294.

37. Id., p ES-31.

38. Nathan Brugnone and Robert B. Richardson, Mich.

State Univ. Dep’t of Cmty. Sustainability, Oil Spill Economics:

Estimates of the Damages of an Oil Spill in the Straits of

Mackinac in Michigan. https://flowforwater.org/wp-content/

uploads/2018/05/FLOW_Report_Line-5_Final-release-1.pdf.

50a

Appendix B

transport through the Straits Pipelines is fundamentally

unreasonable and inconsistent with the State’s perpetual

duty to protect the inalienable public trust.

63. An actual controversy exists between the Parties

as to whether (a) the 1953 Easement was void from its

inception in the absence of the due findings required under

the public trust doctrine; and (b) Enbridge’s continued

operation of the Straits Pipelines violates the public trust

and is therefore unlawful.

COUNT II

Public Nuisance

64. Paragraphs 1 through 63 above are re-alleged

and incorporated by reference.

65. At common law, including the common law

of Michigan, a condition, action, or failure to act that

unreasonably interferes with a right common to the

general public is a public nuisance. A condition, action, or

failure to act is unreasonable when it is of a continuing

nature and the actor knows it has a significant effect

upon the public right. 39 The attorney general may bring

an action for injunctive relief to prevent or abate such a

public nuisance.

66. The waters and aquatic resources of Lakes

Huron and Michigan within Michigan’s boundaries are

39. Restatement (Second) of Torts § 821B (1979).

51a

Appendix B

held in trust for the benefit of the people of the State of

Michigan. The public rights in those waters and resources

include, but are not limited to, fishing, boating, commercial

navigation, and recreation.

67. By continuing to transport oil through the Straits

Pipelines that lie exposed in the waters of the Great

Lakes where multiple shipping lanes converge, despite

the recently demonstrated risks of anchor strikes, the

inherent risks of pipeline operations, and the foreseeable

consequences of an oil spill at the Straits, Enbridge has

created a continuing, unreasonable risk of catastrophic

harm to public rights. As such, Enbridge is maintaining

a public nuisance.

COUNT III

Michigan Environmental Protection Act

68. Paragraphs 1 through 67 above are re-alleged

and incorporated by reference.

69. Part 17 (Michigan Environmental Protection

Act) of the Natural Resources and Environmental

Protection Act, 1994 PA 451, provides:

The attorney general or any person may

maintain an action in the circuit court having

jurisdiction where the alleged violation occurred

or is likely to occur for declaratory and equitable

relief against any person for the protection of

the air, water, and other natural resources

52a

Appendix B

and the public trust in those resources from

pollution, impairment, or destruction. MCL

324.1701(1).

70. As set forth above, Enbridge’s conduct—

continuing to transport oil though the Straits Pipelines

in the face of substantial risks of grave environmental

harm—is likely to cause pollution, impairment, or

destruction of the water and other natural resources of

the Great Lakes and the public trust in those resources.

RELIEF REQUESTED

For the reasons stated in this complaint, the Plaintiff

requests that this Court grant the following relief:

A. A declaratory judgment that in the absence of

the due findings required under the public trust doctrine,

the 1953 Easement was void from its inception, and that

Enbridge has no further right to maintain and operate

the Straits Pipelines under its terms;

B. A declaratory judgment that under the present

circumstances, the 1953 Easement violates the public trust

and should be revoked, and that Enbridge has no further

right to maintain and operate the Straits Pipelines under

its terms;

C. A decla rator y judg ment that Enbr idge’s

continued operation of the Straits Pipelines is a public

nuisance subject to abatement;

53a

Appendix B

D. A declarator y judg ment that Enbr idge’s

continued operation of the Straits Pipelines is likely to

cause pollution, impairment, or destruction of water and

other natural resources and the public trust therein and

thereby violates the Michigan Environmental Protection

Act;

E. A permanent injunction requiring Enbridge to

(1) cease operation of the Straits Pipelines as soon as

possible after a reasonable notice period to allow orderly

adjustments by affected parties; and (2) permanently

decommission the Straits Pipelines in accordance

with applicable law and plans approved by the State of

Michigan; and

F. Any other relief that the Court finds just and

reasonable.

Respectfully submitted,

Dana Nessel

Attorney General

/s/ Daniel P. Bock

S. Peter Manning (P45719)

Division Chief

Robert P. Reichel (P31878)

First Assistant

Daniel P. Bock (P71246)

Charles A. Cavanagh (P79171)

Assistant Attorneys General

54a

Appendix B

Environment, Natural Resources,

and Agriculture Division

P.O. Box 30755

Lansing, MI 48909

(517) 335-7664

Attorneys for Plaintiff

BockD@michigan.gov

CavanaghC2@michigan.gov

Dated: June 27, 2019

55a

Appendix

APPENDIX

C — EXCERPT

STATE DOCKET SHEET

INGHAM COUNTY 30TH CIRCUIT

313 W. Kalamazoo St.

LANSING, MICHIGAN 48933

Case Number

Status

19-000474-CE-C30

OPEN

In The Matter Of

ATTY GEN MI VS

DEFENDANT: ENBRIDGE

ENERGY COMPANY, INC et al

Party

Type

ATTY GEN MI

PLNTF

525 W OTTAWA ST

FL 6

PO BOX 30755

LANSING, MI

48933

ENBRIDGE

ENERGY

COMPANY, INC

DFNDT

Judge

JAMO, JAMES S

Action

COMPLAINT W/

SUMMONS

Attorneys

MANNING, S.

PETER

ASSISTANT

ATTORNEY

GENERAL

P. O. BOX 30755

LANSING, MI

48909

ELLSWORTH,

PETER H.

215 S

WASHINGTON

SQ #200

LANSING, MI

43933

56a

Appendix C

ENBRIDGE

ENERGY

PARTNERS, L. P

DFNDT

ENBRIDGE

ENERGY,

LIMITED

PARTNERSHIP

DFNDT

AMICUS SIERRA

CLUB

INPTY

Opened

Judgment Date

06/27/2019

Comments:

ELLSWORTH,

PETER H.

215 S

WASHINGTON

SQ #200

LANSING, MI

48933

ELLSWORTH,

PETER H.

215 S

WASHINGTON

SQ #200

LANSING, MI

48933

Case Type

CE – ENVIRONMENT

57a

Appendix C

No. Date of Operator Pleadings

Original Balance

Filing

and Actions

Amt

Due

Journal Book- Due/Amt

Page-Nbr

DisRef Nbr missed

12/16/21 jliles

EVENT

0.00

CANCELLED

The following

event: STATUS

CONFERENCE

scheduled for 01/07/2022

at 2:00 pm has been

resulted as follows:

Result: CANCELLED

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

WERNER, KELLI

Certification Number: 6610

12/15/21 dmiracle NOTICE OF

0.00

FILING OF

NOTICE OF

REMOVALW/PS

58a

Appendix C

11/30/21 jliles

HEARING

0.00

SET:

Event: STATUS

CONFERENCE

Date: 01/07/2022 Time: 2:00 pm

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result: CANCELLED

08/18/21

kamilton

08/18/21

kamilton

07/28/21

kamilton

02/26/21

wrightt

NOTICE

0.00

(JOINT

STATUS

REPORT)

NOTICE

0.00

(JOINT

STATUS

REPORT)

ORDER

0.00

THAT JOINT

STIPULATED

WRITTEN STATUS

UPDATE BE PROVIDED

TO THIS COURT

BEFORE 8-18-21

JOINT

0.00

INTERIM

STATUS

REPORT

59a

Appendix C

01/20/21

kamilton

01/15/21

12/28/20

jliles

ORDER

0.00

THAT PROCEEDINGS

IN THIS CASE SHALL

BE HELD IN ABEYANCE

UNTIL FURTHER ORDER

OF THIS COURT

HELD BUT

0.00

NOT ON THE RECORD

The following event: STATUS

CONFERENCE scheduled for

01/15/2021 at 9:00 am has been

resulted as follows:

Result: HELD BUT

NOT ON RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

WERNER, KELLI

Certification Number: 6610

HEARING

0.00

SET:

Event: STATUS

CONFERENCE

Date: 01/15/2021 Time: 9:00 am

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

60a

Appendix C

09/24/20

kamilton

09/23/20

kamilton

Result: HELD BUT

NOT ON RECORD

STIPULATION

0.00

AND ORDER OF

THE PARTIES AND

PROPOSED ORDER

TO AMEND THE

THIRD TEMPORARY

RESTRAINING

ORDER AND FULLY

RESOLVE THE

PENDING MOTIONS

FOR TEMPORARY

RESTRAINING

ORDER AND

PRELIMINARY

INJUNCTIONS

PROOF OF

0.00

SERVICE

ON 092420

A COPY

OF STIP

& ORDER

BY EMAIL

UPON

ATTY

GENERAL

0.00

61a

Appendix C

09/18/20

kamilton

09/18/20

kamilton

09/11/20

kamilton

PROOF OF

0.00

SERVICE ON

091820 A COPY OF

(9-18-20 JOINT

STATUS REPORT)

BY MAIL UPON

PARTIES OF

RECORD

PROOF OF

0.00

SERVICE

ON 091820

A COPY OF

(SEPTEMBER 18,

2020 JOINT

STATUS

REPORT)

PROOF OF

0.00

SERVICE ON

091120 A COPY OF

STATUS REPORT

BY MAIL UPON

PARTIES OF

RECORD

(STATUS

REPORT)

0.00

62a

Appendix C

09/09/20

kamilton

08/25/20

kamilton

08/24/20

kamilton

STIPULATION

0.00

TO MODIFY

SECOND

AMENDED

TEMPORARY

RESTRAINING

ORDER TO ALLOW

FOR RESTART OF

EAST LINE IN

ACCORDANCE

WITH PHMSA

SEPTEMBER 4, 2020

LETTER

NOTICE OF

0.00

COMPLETION OF

IN LINE

INSECTION

ON THE

EAST

PIPELINE

ORDER

0.00

SECOND

AMENDED

TEMPORARY

RESTRAINING ORDER

0.00

63a

Appendix C

08/03/20

ksmith

HELD

0.00

BUT NOT

ON THE

RECORD

The following

event: STATUS

CONFERENCE

scheduled for

08/03/2020 at 1:30 pm

has been resulted

as follows:

0.00

Result: HELD BUT

NOT ON RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

64a

Appendix C

07/31/20

ksmith

07/27/20

tsmith

07/20/20

ksmith

HEARING

0.00

SET:

Event: STATUS

CONFERENCE

Date: 08/03/2020 Time: 1:30 pm

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result: HELD BUT

NOT ON RECORD

DEF 7-27-20

0.00

STATUS

REPORT

HELD BUT

0.00

NOT ON THE RECORD

The following event:

STATUS CONFERENCE

scheduled for 07/20/2020

at 3:30 pm has been

resulted as follows:

Result: HELD BUT

NOT ON RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

65a

Appendix C

07/20/20

kamilton

07/20/20

ksmith

NOTICE OF

0.00

DF’S JULY

17, 2020

STATUS

REPORT

W/PS

HEARING

0.00

SET:

The following event:

STATUS CONFERENCE

scheduled for 07/20/2020 at

11:00 am has been rescheduled

as follows:

Event: STATUS

CONFERENCE

Date: 07/20/2020 Time: 3:30 pm

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

07/20/20

ksmith

Result: HELD BUT

NOT ON RECORD

HEARING

0.00

ADJOURNED

The following event:

STATUS CONFERENCE

scheduled for 07/20/2020 at

11:00 am has been resulted

as follows:

66a

Appendix C

07/13/20

ksmith

Result: C30 ADJOURNED

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

HEARING

0.00

SET:

Event: STATUS

CONFERENCE

Date: 07/20/2020 Time: 11:00 am

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result: C30 ADJOURNED

07/09/20 kamilton DFS

0.00

NOTICE

REGARDING IN

LINE INSPECTION

RESULTS FOR WEST

PIPELINE FEATURE

OF INTEREST – W/PS

07/09/20 jwhorton MOTION

20.00

0.00

FEE

Receipt: 467238

Date: 07/09/2020

67a

Appendix C

07/08/20

rbuck

07/07/20

kamilton

07/07/20

kamilton

07/01/20

kamilton

TRAN0.00

0.00

SCRIPT OF

PROCEEDINGS –

JUNE 30, 2020 HEARING

ON PLAINTIFF’S MOTION

FOR PRELIMINARY

INJUNCTION

JOINT

0.00

STATUS REPORT

AND STIPULATION

REGARDING LIST

OF DOCUMENTS

TO BE PRODUCED

AS PROVIDED IN

AMENDED TEMPORARY

RESTRAINING ORDER

DATED JULY 1, 2020

PL’S

0.00

SUPPLEMENTAL

BRIEF IN OPPOSITION TO DFS

MOTION FOR

SUMMARY

DISPOSITION W/PS

AMENDED

0.00

TEMPORARY

RESTRAINING ORDER

68a

Appendix C

07/01/20

wrightt

07/01/20

wrightt

06/30/20

ksmith

AMENDED

0.00

TEMPORARY

RESTRAINING ORDER

NOTICE OF

0.00

DEF’S

SUPPLEMENTAL

SUBMISSION OF

ADDITIONAL

MATERIALS

REFERENCED

DURING

JUNE 30, 2020

PRELIMINARY

INJUNCTION

HEARING

0.00

HELD ON

THE RECORD

The following event:

MOTION FOR IN

JUNCTION/TRO

scheduled for 06/30/2020

at 1:30 pm has been

resulted as follows:

0.00

69a

Appendix C

06/30/20

kamilton

06/30/20

wrightt

Result: HEARING HELD

ON THE RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

MOTION OF

0.00

CITY OF

MACKINAC ISLAND,

GRAND TRAVERSE

BAND OF OTTAWA AND

CHIPPEWA INDIANS AND

STRAITS OF MACKINAC

ALLIANCE FOR LEAVE

TO FILE AMICUS

CURIAE BRIEF IN

SUPPORT OF PL’S MOTION

FOR PRELIMINARY

INJUNCTION W/PS

REQUEST

0.00

FOR FILM AND

ELECTRONIC

MEDIA

COVERAGE

OF COURT

PROCEEDINGS

70a

Appendix C

06/30/20

dlopez

06/30/20

kamilton

06/30/20

kamilton

MOTION

20.00

FEE

Receipt: 467021

Date: 07/01/2020

REQUEST

0.00

FOR FILM AND

ELECTRONIC

MEDIA COVERAGE

OF COURT

PROCEEDINGS

TO RECORD

HRG ON 063020

@ 1:30 PM

ORDER ON

0.00

MOTION

TO FILE AMICUS

BRIEFS, GRANTS

OF AMERICAN

PETROLEUM

AND AMERICAN

FUEL AND

PETROCHEMICAL

THE CITY OF

MACKINAC

ISLAND, GRAND

TRAVERS BAND

OF OTTAWA

AND CHIPPEWA

INDIANS AND

0.00

71a

Appendix C

06/30/20

kamilton

STRAITS OF

MACKINAW AND

ATTYS GENERAL

OHIO, INDIANA

AND LOUISIANA

STATE0.00

MENT

PURSUANT

REGARDING

MOTION FOR

LEAVE TO FILE

AMICUS CURIAE

BRIEF OF CITY

OF MACKINAC

ISLAND, GRAND

TRAVERSE BAND

OF OTTAWA

AND CHIPPEWA

INDIANS AND

STRAITS OF

MACKINAC

ALLIANCE IN

SUPPORT OF PL’S

MOTION FOR

PRELMINARY

INJUNCTION W/PS

0.00

72a

Appendix C

06/30/20

kamilton

06/30/20

kamilton

PROOF OF

0.00

SERVICE ON

062920 A COPY OF

SUPPLEMENTAL

SUBMISSION VIA

EMAIL UPON

COUNSEL OF

RECORD

MOTION

0.00

OF THE CITY

OF MACKINAC

ISLAND, GRAND

TRAVERSE BAND

OF OTTAWA

AND CHIPPEWA

INDIANS AND

STRAITS OF

MACKINAC

ALLIANCE

FOR LEAVE TO

FILE AMICUS

CURIAE BRIEF

IN SUPPORT OF

PLS MOTION FOR

PRELIMINARY

INJUNCTION

– BRIEF IN

SUPPORT W/POS

0.00

73a

Appendix C

06/30/20

kamilton

06/30/20

kamilton

06/29/20

kamilton

DFS

0.00

SUPPLEMENTAL

SUBMISSION OF

ADDITIONAL

INTERESTED

PARTY LETTERS

IN SUPPORT OF

DFS RESPONSE

TO PL’S

MOTION FOR

PRELIMINARY

INJUNCTION

NOTICE

0.00

(LETTER

FROM ACTOHIO/

EXECUTIVE

DIRECTOR

MATTHEW

SOLLOSI

ORDER

0.00

GRANTING

PL’S MOTION

FOR LEAVE

TO FILE

REPLY BRIEF

IN EXCESS OF

FIVE PAGES

0.00

74a

Appendix C

06/29/20

kamilton

06/29/20

kamilton

OHIO

0.00

ATTORNEY

GENERALK

DAVE YOST’S

MOTION FOR

LEAVE TO FILE

AN AMICUS

CURIAE BRIEF

INSTANTER

ON BEHALF OF

THE STATE OF

OHIO THE STATE

INDIANA, AND

THE STATE OF

LOUISIANA

REGARDING

ECONOMIC HARM

RESULTING

FROM A LINE

5 SHUTDOWN

– BRIEF IN

SUPPORT W/PS

ORDER

0.00

THAT THE COURT

GRANTS DFS

MOTION FOR

LEAVE TO FILE

BRIEF IN EXCESS

OF 20 PAGES

AND ACCEPTS

DF BRIEF IN

RESPONSE

0.00

75a

Appendix C

06/29/20

kamilton

06/29/20

kamilton

06/29/20

kamilton

06/29/20

kamilton

DFS’

0.00

SUPPLEMENTAL

PROCEEDINGS

SUBMISSION OF

CORRESPONDENCE FROM

PHMSA IN

SUPPORT OF

DFS RESPONSE

TO PL’S

MOTION FOR

PRELIMINARY

INJUNCTION

PL’S

0.00

REPLY IN

SUPPORT

OF MOTION

FOR PRELMINARY

INJUNCTION

INDEX

0.00

EXHIBITS

PL’S

0.00

MOTION

FOR LEAVE

TO FILE

BRIEF IN

EXCESS

OF FIVE

PAGES W/PS

0.00

76a

Appendix C

06/29/20

DFS

0.00

SUPPLEMENTAL

SUBMISSION OF

INTERESTED

PARTY LETTERS

IN SUPPORT OF

DFS RESPONSE

TO PL’S MOTION

FOR PRELIMINARY

INJUNCTION

06/29/20 jwhorton MOTIONFEE

20.00

Receipt: 467009

Date: 06/30/2020

06/29/20 kamilton DECLARA0.00

TION OF MARK

MAXWELL IN

SUPPORT OF

ENBRIDGE

ENERGY, LP’S

OPPOSITION TO

THE PRELIMINARY INJUNCTION

06/29/20 kamilton AFFIDAVIT

0.00

OF MIKE MOELLER

IN SUPPORT

OF ENBRIDGE

ENERGY, LP’S

OPPOSITION TO

PL’S MOTION FOR

PRELIMINARY

INJUNCTION

kamilton

0.00

77a

Appendix C

06/29/20

kamilton

06/29/20

kamilton

06/29/20

tperkins

0.00

NOTICE FROM

PHILLIP

DEROSIER

REGARDING

AFFIDAVI’T OF

MIKE MOELLER

INADVERTENLY

OMITTED PAGE 15

MOTION OF

0.00

AMERICA

PETROLEUM

INSTITUTE

ASSOCIATION OF

OIL PIPE LINES

AND AMERICAN

FUEL &

PETROCHEMICAL

MANUFACTURERS

FOR LEAVE TO

FILE AMICUS

CURIAE BRIEF IN

SUPPORT OF DFS

OPPOSITION TO

PL’S MOTION FOR

PRELIMINARY

INJUNCTION

MOTIONFEE

20.00

Receipt: 467009

Date: 06/30/2020

0.00

78a

Appendix C

06/29/20

kamilton

06/29/20

kamilton

06/29/20

kamilton

06/29/20

kamilton

PROOF OF

0.00

SERVICE ON

062620 A COPY OF

AFFIDAVIT IN

SUPPORT OF DF

RESPONSE IN

OPPOSITION TO

PL’S MOTION FOR

PRELIMINARY

INJUNCTION

UPON COUNSEL

OF RECORD VIA

INDEX OF

0.00

AFFIDAVITS

DFS

RESPONSE IN

OPPOSITION TO

PL’S MOTION

FOR PRELIMINARY INJUNCTION

PROOF OF

0.00

SERVICE ON

062620 A COPY OF

DF RESPONSE IN

OPPOSITION TO

PL MOTION FOR

PRELMINARY

INJUNCTION

VIA EMAIL UPON

PARTIES OF RECORD

0.00

79a

Appendix C

06/29/20

kamilton

06/29/20

kamilton

06/29/20

tperkins

PROOF OF

0.00

SERVICE ON

062620 A COPY

OF AFFIDAVITS

IN SUPPORT OF

DFS RESPONSE

IN OPPOSITION

TO PL MOTION

FOR PRELIMINARY INJUNCTION VIA EMAIL

UPON PARTIES OF

RECORD

DFS

0.00

MOTION FOR

LEAVE TO FILE

BRIEF EXCESS

OF TWENTY

PAGES – NOTICE

OF HEARING

MOTION

20.00

FEE

Receipt: 466929

Date: 06/29/2020

0.00

80a

Appendix C

06/25/20

jliles

06/25/20

kamilton

06/24/20

kamilton

HEARING

0.00

SET:

Event: MOTION FOR

IN JUNCTION/TRO

Date: 06/30/2020

Time: 1:30 pm

Judge: JAMO, JAMES S

Location:

COURTROOM 7 –

VETERANS

MEMORIAL

Result: HEARING

HELD ON THE

RECORD

TEMPO0.00

RARY

RESTRAINING ORDER

DFS

0.00

RESPONSE IN

OPPOSITION TO

PL’SM MOTION

FOR TEMPORARY

RESTRAINING

ORDER PENDING

HEARING ON

MOTION FOR

PRELIMINARY

INJUNCTION –

EXHIBITS W/PS

0.00

81a

Appendix C

06/23/20

PROOF OF

0.00

SERVICE ON

062220 A COPY

OF PL’S EX PARTE

MOTION FOR

RESTRAINING

ORDER BY MAIL

UPON COUNSEL

OF RECORD

06/23/20 kamilton PL’S

0.00

EXPARTE

MOTION FOR

TEMPORARY

RESTRAINING

ORDER PENDING

HEARING ON

MOTION FOR

PRELIMINARY

INJUNCTION –

BRIEF IN SUPPORT

– NOTICE OF

HEARING W/PS

06/23/20 jwhorton MOTION

20.00

FEE

Receipt: 466922

Date: 06/29/2020

kamilton

0.00

82a

Appendix C

06/22/20

kamilton

06/02/20

rbuck

06/01/20

lciava

SUPPLE0.00

MENTAL

BRIEF IN

SUPPORT

OF DFS

MOTION

FOR

SUMMARY

DISPOSITION W/PS

TRAN0.00

SCRIPT OF

PROCEEDINGS

STIPULA0.00

TION AND

ORDER FOR

SUBMISSION OF

SUPPLEMENTAL

BRIEFS

FOLLOWING

THE MAY 22, 2020

HEARING ON THE

PARTIES’ MOTION

FOR SUMMARY

DISPOSITION – IT

IS ORDERED DEF

SHALL SUBMIT

SUPPLEMENTAL

BRIEF ADDRESSING

ISSUES IDENTIFIED

0.00

83a

Appendix C

05/29/20

lciava

BY THE COURT BY

6/19/20, LIMITED

TO 20 PAGES

(EXCLUSIVE OF

COVER PAGE,

TABLES, INDEXES

AND EXHIBITS) .

THE PLAINTIFF

SHALL RESPOND

TO THE ISSUES

ADDRESSED

IN DEF’S

SUPPLEMENTAL

BRIEF BY 7/3/20,

LIMITED

TO 20 PAGES

(EXCLUSIVE OF

COVER PAGE,

TABLES, INDEXES

AND EXHIBITS)

PROOF OF

0.00

SERVICE –

ON 5/29/20 THE

STIPULATION

AND ORDER FOR

SUBMISSION OF

SUPPLEMENTAL

BRIEFTS

FOLLOWING THE

5/22/20 HEARING

ON THE PARTIES’

0.00

84a

Appendix C

05/22/20

jliles

MOTIONS FOR

SUMMARY

DISPOSITION WAS

SERVED UPON

DANIEL P. BOCK

VIA EMAIL

HEARING

0.00

HELD ON

THE RECORD

The following event:

MOTION FOR

SUMMARY

DISPOSITION scheduled

for 05/22/202 at 9:00 am

has been resulted

as follows:

Result: HEARING

HELD ON

THE RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS

MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

85a

Appendix C

05/22/20

02/20/20

jliles

lciava

HEARING

0.00

HELD ON

THE RECORD

The following event:

MOTION FOR

SUMMARY

DISPOSITION scheduled

for 05/22/2020 at 9:00 am

has been resulted

as follows:

Result: HEARING

HELD ON

THE RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS

MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

ORDER –

0.00

THE COURT

NOW FINDS

THAT THE

FOLLOWING

PROSPECTIVE

AMICI HAVE

COMPLIED

WITH THE

86a

Appendix C

02/11/20

lciava

02/11/20

lciava

02/07/20

lciava

REQUIRED

DISCLOSURES

AND NOW

ACCEPTS THEIR

SUBMITTED

BRIEFS FOR

CONSIDERATION:

THE SIERRA

CLUB, THE GREAT

LAKES BUSINESS

NETWORK,

FOR LOVE OF

WATER (FLOW)

AND THE CHITY

OF MACKINAC

ISLAND – W/ PS

NOTICE OF

0.00

HEARING

W/ PS

BRIEF OF

0.00

AMICUS

CURIAE

NOTICE OF

0.00

HEARING

W/ PS

(5/22/20

@ 9AM)

0.00

87a

Appendix C

02/07/20

ksmith

HEARING

0.00

SET:

Event: MOTION

FOR SUMMARY

DISPOSITION

Date: 05/22/2020

Time: 9:00 am

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result: HEARING HELD

ON THE RECORD

HEARING

0.00

SET:

Event: MOTION

FOR SUMMARY

DISPOSITION

Date: 05/22/2020

Time: 9:00 am

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result: HEARING HELD

ON THE RECORD

88a

Appendix C

02/05/20

lciava

02/03/20

lciava

02/03/20

lciava

AMENDED

0.00

MOTION FOR

LEAVE TO FILE

AMICUS CURIAE

BRIEF OF GREAT LAKES

BUSINESS NETWORK –

WITH BRIEF OF AMICUS

CURIAE GREAT LAKES

BUSINESS NETWORK –

W/ PROOF OF SERVICE

STATE0.00

0.00

MENT PURUSANT

TO MCR 7.212(H)(3)

AND 7.312(H)(4)

REGARDING MOTION

FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

OF CITY OF MACKINAC

ISLAND IN SUPPORT

OF PLAINTIFF AND

IN OPPOSITION TO

DEFENDANTS W/ PS

STATE0.00

0.00

MENT PURSUANT

TO MCR 7.212(H)(3)

AND 7.312(H)(4)

REGARDING MOTION

FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

OF FOR LOVE OF WATER

(FLOW) IN SUPPORT OF

89a

Appendix C

01/31/20

01/27/20

jliles

lciava

PLAINTIFF AND

IN OPPOSITION TO

DEFENDANTS W/ PS

HEARING

0.00

HELD ON

THE RECORD

The following event:

STATUS CONFERENCE

scheduled for 01/31/2020

at 9:00 am has been resulted

as follows:

Result: HEARING HELD

ON THE RECORD

Judge: JAMO, JAMES S

Location: COURTROOM 7 –

VETERANS MEMORIAL

Result Staff:

Staff: COURT REPORTER:

DEXTER, MELINDA

Certification Number: 4629

ORDER –

0.00

THE AMERICAN

PETROLEUM

INSTITUTE,

ASSOCIATION

OF OIL PIPE LINES

AND AMERICAN

FUEL AND

PETROMECHANICAL

MANUFACTURERS’

90a

Appendix C

01/02/20

kamilton

01/02/20

tperkins

MOTION TO FILE AN

AMICUS BRIEF IS

THEREFORE GRANTED

AND THEIR BRIEF

IS ACCEPTED, AND

THEY DO NOT NEED

TO DO ANYTHING IN

RESPONSE TO THIS

ORDER. W/ PS

MOTION

0.00

OF AMERICAN

PETROLEUM

INSTITUTE,

ASSOCIATION OF

OIL PIPE LINE AND

AMERICAN FUEL AND

PETROCHEMICAL

MANUFACTURERS

FOR LEAVE TO FILE

AMICUS CURIAE

BRIEF IN SUPPORT

OF DFS MOTION FOR

SUMMARY DISPOSITION

– BRIEF IN SUPPORT

MOTION

20.00

0.00

FEE

Receipt: 460469

Date: 01/02/2020

91a

Appendix C

12/30/19

wrightt

12/30/19

tperkins

12/12/19

kamilton

12/11/19

kamilton

MOTION

0.00

OF THE CITY

OF MACKINAC

ISLAND FOR

LEAVE TO FILE

AMICUS CURIAE

BRIEF IN SUPPORT OF

PL – AMICUS CURIAE

BRIEF OF CITY OF

MACKINAC ISLAND

IN SUPPORT OF PL

AND IN OPPOSITION

TO DEF – W/ PS

MOTION

20.00

0.00

FEE

Receipt: 460348

Date: 12/30/2019

ORDER

0.00

AND NOTICE

OF STATUS

CONFERENCE

ON 1-31-20 @ 9 AM

ORDER

0.00

THAT BRIEF

TO BE FILED

ON 1-3-20

92a

Appendix C

12/11/19

12/10/19

jliles

kamilton

12/10/19

kamilton

HEARING

0.00

SET:

Event: STATUS

CONFERENCE

Date: 01/31/2020

Time: 9:00 am

Judge: JAMO, JAMES S

VETERANS

MEMORIAL

Location:

COURTROOM 7 –

Result: HEARING HELD

ON THE RECORD

PL’S REPLY

0.00

BRIEF IN

SUPPORT OF

MOTION FOR

PARTIAL

SUMMARY

DISPOSITION W/PS

0.00

BRIEF IN

SUPPORT OF

DFS MOTION

FOR SUMMARY

DISPOSITION

93a

Appendix C

12/10/19

kamilton

100 12/10/19

lciava

101 12/06/19

buck

MOTION

0.00

LEAVE TO

FILE AMICUS

CURIAE BRIEF

OF GREAT LAKE

BUSINESS

NETWORK – BRIEF

IN SUPPORT W/PS

MOTION

20.00

FEE

Receipt: 459646

Date: 12/10/2019

AMICUS

0.00

CURIAE BRIEF

OF FOR LOVE OF

WATER (FLOW)

IN SUPPORT OF

PLAINTIFFS

MOTION FOR

SUMMARY

DISPOSITION AND

OPPOSITION TO

DEFENDANTS

MOTION FOR

SUMMARY

DISPOSITION

0.00

94a

Appendix C

102 12/06/19

buck

103 12/06/19

buck

104 12/06/19

tperkins

PROOF OF

0.00

SERVICE

MOTION FOR

LEAVE TO

FILE AMICUS

CURIAE BRIEF

OF FOR LOVE OF

WATER (FLOW)

IN SUPPORT OF

PLAINTIFF AND

IN OPPOSITION

TO DEFENDANTS

AND BRIEF IN

SUPPORT

MOTION

0.00

FOR LEAVE

TO FILE AMICUS

CURIAE BRIEF

OF FOR LOVE OF

WATER (FLOW)

IN SUPPORT OF

PLAINTIFF AND

IN OPPOSITION

TO DEFENDANTS

MOTION

20.00

FEE

Receipt: 459475

Date: 12/06/2019

0.00

95a

Appendix C

105 11/27/19

buck

106 11/26/19

kamilton

107 11/25/19

kamilton

ORDER FOR

0.00

ADMISSION

OF OUT OF

STATE ATTY

FOR AMICUS

SIERRA CLUB

WITH PS

MOTION

0.00

FOR LEAVE

TO FILE

BRIEF AMICUS

CURIAE AND

BRIEF AMICUS

CURIAE OF THE

ATTORNEYS

GENERAL OF

MINNESOTA

CALIFORNIA

AND WISCONSIN

IN SUPPORT

OF PL – BRIEF

IN SUPPORT –

AFFIDAVIT OF

SERVICE

AMENDED

0.00

MOTION FOR

PRO HAC VICE

ADMISSION OF

LAURENS H

SILVER

0.00

96a

Appendix C

108 11/25/19

lciava

109 11/18/19

kamilton

110 11/18/19

kamilton

111 11/18/19

kamilton

112 11/15/19

kamilton

MOTION

20.00

FEE

Receipt: 458945

Date: 11/26/2019

NOTIFICA0.00

TION PURSUANT

TO MCR 8.126(A)(1)(b)

C/O LAURENS

SILVER

ORDER

0.00

REVERSING

ADMISSION OF

OUT OF STATE

ATTY LAURENS

SILVER

NOTIFICA0.00

TION PURSUANT

TO MCR 8.126(A)(1)(b)

FROM STATE

BAR REGARDING

ELIGIBILITY

ORDER FOR

0.00

ADMISSION

OF OUT OF

STATE ATTORNEY

LAURENS SILVER

0.00

97a

Appendix C

113 11/15/19

kamilton

114 11/14/19

kamilton

115 11/14/19

kamilton

116 11/14/19

kamilton

ORDER FOR

0.00

ADMISSION OF

OUT OF STATE

ATTORNEY OF

LEIGH CURRIE

W/PS

MOTION

0.00

FOR PRO HAC

VICE ADMISSION

OF LAURENS H

SILVER

PL’S SIERRA

0.00

CLUB MOTION

FOR PARTIAL

SUMMARY

DISPOSITION

– BRIEF IN

SUPPORT W/PS

NOTICE OF

0.00

APPEARANCE

OF NICHOLAS

LEONARD AND

LAURENS H

SILVER ON

BEHALF OF

AMICUS CURAE

SIERRA CLUBX

0.00

98a

Appendix C

117 11/14/19

dlopez

118 11/12/19

kamilton

119 11/12/19

kamilton

120 11/12/19

kamilton

MOTION

20.00

FEE

Receipt: 458368

Date: 11/15/2019

PL’S BRIEF

0.00

IN OPPOSITION

TO DFS MOTION

FOR SUMMARY

DISPOSITION

ATTY

0.00

GENERAL’S

MOTION FOR

TEMPORARY

ADMISSION OF

OUT OF STATE

ATTORNEY

LEIGH K CURRIE

– AFFIDAVIT OF

LEIGH CURRIE

IN SUPPOT OF

ADMISSION PRO

HAC VICE W/PS

DFS’

0.00

RESPONSE

TO PL’S

MOTION

FOR PARTIAL

SUMMARY

DISPOSITION

0.00

99a

Appendix C

121 11/12/19

kamilton

122 11/12/19

tperkins

123 10/24/19

kamilton

124 09/16/19

kamilton

PROOF OF

0.00

SERVICE ON

111219 A COPY

OF DFS

RESPONSE TO

PL’S MOTION FOR

PARTIAL SUMM

DISP BY MAIL

UPON PARTIES

OF RECORD

MOTION

20.00

FEE

Rcceipt: 458214

Date: 11/12/2019

STIPULA0.00

TION AND

ORDER

AMENDING

BRIEFING

SCHEDULE FOR

CROSS MOTIONS

FOR SUMMARY

DISPOSITION

DFS’

0.00

MOTION FOR

SUMMARY

DISPOSITION

– BRIEF IN

SUPPORT –

W/PS

0.00

100a

Appendix C

125 09/16/19

kamilton

126 09/16/19

dlopez

127 09/16/19

dlopez

128 08/02/19

kamilton

PL’S MOTION

0.00

FOR PARTIAL

SUMMARY

DISPOSITION

– BRIEF IN

SUPPORT –

W/PS

MOTION

20.00

FEE

Receipt: 454961

Date: 09/16/2019

MOTION

20.00

FEE

Receipt: 454951

Date: 09/16/2019

PROOF OF

0.00

SERVICE ON

080119 A COPY

OF ORDER

GRANTING

UNOPPOSED

MOTIONS FOR

TEMPORARY

ADMISSION OF

OUT OF STATE

BY MAIL UPON

PARTIES OF

RECOD

0.00

101a

Appendix C

129 07/30/19

kamilton

130 07/29/19

kamilton

ORDER

0.00

GRANTING

UNOPPOSED

MOTION FOR

TEMPORARY

ADMISSION OF

OUT OF STATE

ATTORNEY

JOSHUA RUNYAN;

ATTORNEY ALICE

LOUGHRAN;

ATTORNEY

WILLIAM

HASSLER; DAVID

COBURN WPS

UN0.00

OPPOSED

MOTION FOR

TEMPORARY

ADMISSION OF

OUT OF STATE

ATTORNEY

JOSHUA RUNYAN;

ATTORNEY ALICE

LOUGHRAN;

ATTORNEY

WILLIAM

HASSLER;

DAVID COBURN

WPS

0.00

102a

Appendix C

131 07/29/19

dlopez

132 07/24/19

kamilton

133 07/23/19

kamilton

134 07/22/19

kamilton

MOTION

20.00

FEE

Receipt: 452251

Date: 07/29/2019

PROOF OF

0.00

SERVICE ON

072419 A COPY

OF ORDER

EXTENDING

TIME BY MAIL

UPON PARTIES

OF RECORD

STIPULA0.00

TION AND

ORDER

EXTENDING

TIME FOR DEFS

TO RESPOND TO

COMPLAINT AND

TO SET BRIEFING

SCHEDULE AND

PAGE LIMITS FOR

INITIAL CROSS

MOTION FOR

SUMM DISP

APPEAR0.00

ANCE ON BEHALF

OF DFS Attorney:

ELLSWORTH,

PETER H. (23657)

W/PS

0.00

103a

Appendix C

135 07/12/19

PROOF OF

0.00

SERVICE

ON070119 A

COPY OF

SUMMONS &

COMPLAINT

SERVED UPON

THE CORPORATION

COMPANY

136 06/27/19 bkiesel COMPLAINT 150.00

0.00

FILED

Receipt: 450757

Date: 06/27/2019

137 06/27/19 bkiesel SUMMONS

0.00 0.00

ISSUED

Totals By: COURT COSTS 470.00 0.00

kamilton

INFORMATION

*** End of Report ***

0.00

104a

APPENDIX D —Appendix

MOTIONDOF ENBRIDGE,

CIRCUIT COURT FOR THE 30TH JUDICIAL

CIRCUIT, INGHAM COUNTY,

FILED SEPTEMBER 16, 2019

STATE OF MICHIGAN

CIRCUIT COURT FOR THE 30TH JUDICIAL CIRCUIT

INGHAM COUNTY

Case No.: 19-474-CE

Hon. James S. Jamo

DANA NESSEL, ATTORNEY GENERAL OF THE

STATE OF MICHIGAN, ON BEHALF OF THE

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

ENBRIDGE ENERGY, LIMITED PARTNERSHIP,

ENBRIDGE ENERGY COMPANY, INC., AND

ENBRIDGE ENERGY PARTNERS, L.P.,

Defendants.

Filed September 16, 2019

DEFENDANTS’ MOTION

FOR SUMMARY DISPOSITION

Defendants Enbridge Energy, Limited Partnership,

Enbridge Energy Company, Inc., and Enbridge Energy

Partners, L.P. (collectively, “Enbridge”) move for

summary disposition of the Attorney General’s Complaint.

105a

Appendix D

As further discussed in Enbridge’s supporting brief,

Count I.A. should be dismissed under MCR 2.116(C)(7)

and/or (8) because the Attorney General cannot show

that the 1953 Easement within which Enbridge’s Line 5

dual pipelines operate was invalid from its inception and,

in any event, her challenge to the Easement’s issuance

comes far too late. Count I.B. should be dismissed under

MCR 2.116(C)(4) and/or (8) because the Attorney General’s

public trust claim has been subsumed by the Michigan

Environmental Protection Act (MEPA), MCL 324.1701 et

seq., improperly seeks termination on grounds not provided

in the Easement itself and is preempted by federal law.

Count II (public nuisance) should be dismissed under MCR

2.116(C)(8) because the alleged risk of harm inherent in

Line 5’s continued operation is impermissibly speculative.

Finally, Count II (request for relief under MEPA) should

be dismissed under MCR 2.116(C)(8) because the Attorney

General’s Complaint does not adequately allege that harm

to the environment has “occurred or is likely to occur.”

Accordingly, Enbridge respectfully requests that

the Court grant its motion for summary disposition and

dismiss the Attorney General’s Complaint in its entirety.

Respectfully submitted,

STEPTOE & JOHNSON

LLP

David H . Coburn

(DC 241901)

William T. Hassler

(DC 366916)

DICKINSON WRIGHT

PLLC

By: /s/ Peter Ellsworth

Peter H. Ellsworth

(P23687)

106a

Appendix D

Alice Loughran

(DC 470792)

Joshua Runyan

(DC 977664)

1330 Connecticut

Avenue, NW

Washington, D.C. 20036

(202) 429·8063

Jeffery V. Stuckey (P34648)

Ryan M. Shannon (P74535)

215 South Washington

Square, Suite 200

Lansing, MI 48933

(517) 371-1730

Phillip J. DeRosier

(P55595)

500 Woodward Avenue,

Suite 4000

Detroit, MI 48226

(313) 223-3866

Attorneys for Defendants

Dated: September 16, 2019

107a

Appendix D

STATE OF MICHIGAN

CIRCUIT COURT FOR THE 30TH JUDICIAL CIRCUIT

INGHAM COUNTY

Case No.: 19-474-CE

Hon. James S. Jamo

DANA NESSEL, ATTORNEY GENERAL OF THE

STATE OF MICHIGAN, ON BEHALF OF THE

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

ENBRIDGE ENERGY, LIMITED PARTNERSHIP,

ENBRIDGE ENERGY COMPANY, INC., AND

ENBRIDGE ENERGY PARTNERS, L.P.,

Defendants.

[Tables Intentionally Omitted]

Glossary

Short Form

Description

Conservation

Commission

Michigan Conservation Commission,

predecessor to the Michigan

Department of Natural Resources

108a

Appendix D

DEQ

Dual Pipelines

Dynamic Risk

GLSLA

Easement or

1953 Easement

Enbridge

Lakehead

Line 5

Michigan Depa r tment of

Env i ron ment a l Q u a l it y, now

called the Michigan Department

of Environment, Great Lakes, and

Energy

Four miles of Line 5 where it

crosses the Straits of Mackinac and

splits into two, parallel lines

Dynamic Risk Assessment Systems,

Inc., an expert consulting firm

commissioned by the State in 2016

to study alternatives to the existing

Dual Pipelines

Great Lakes Submerged Lands

Act of 1955, CLS 1956, § 322.701

et seq.

Easement granted by the Michigan

Conservation Commission on April

23, 1953 to Lakehead Pipe Line

Company, Inc.

All three defendants in this action

Lakehead Pipe Line Company.

Inc., the former name of Enbridge

Energy Company, Inc.

645-mile pipeline that transports

p et roleu m produc t s bet we en

Superior, Wisconsin and Sarnia,

Ontario, Canada

109a

Appendix D

MDNR

MEPA

PAWSA

PHMSA

PIPES Act

PSA

Task Force

Tunnel

Michigan Department of Natural

R e s ou r c e s , suc c e s s or t o t he

Michigan Conservation Commission

Michigan Environmental Protection

Act, MCL 324.1701 et seq.

Process initiated by the U.S. Coast

Guard on June 10, 2019 to study

additional measures that could

reduce the risk of an anchor strike

Pipeline and Hazardous Materials

Safety Administration, a federal

agency within the U.S. Department

of Transportation charged with

responsibility for the promulgation

and enforcement of federal pipeline

safety standards

Protecting our Infrastructure of

Pipelines and Enhancing Safety

Act of 2016, Pub. L. 114-183, 130

Stat. 527 (2016)

Pipeline Safety Act, 49 USC 60101

et seq.

Michigan Petroleum Pipeline Task

Force, a multi-agency group formed

in 2 014 to address petroleum

pipelines in Michigan

Tunnel in the bedrock underneath

the Straits that would house a

replacement for Line 5 and possibly

other third-party utilities

110a

Appendix D

1x10-4

1x10 -4 = 0.01% or 1/10,000

3.5x10-4

3.5x10 -4 = 0.035% or 3.5/10,000

4.5x104

4.5x10 -4 = 0.045% or 4.5/10,000

1 in 60 over 35

years

Equivalent to an annual rate of

(1/60)/35 = 4.76x10 -4 = 0.0476%

Introduction

This case concerns an interstate pipeline built over

six decades ago. This pipeline (Line 5) transports crude

oil used for refining into vehicle, aviation, and other fuel

products and natural gas liquids used to make propane.

It extends more than 600 miles from Superior, Wisconsin

to Sarnia, Ontario. At issue here is a segment of the

pipeline that crosses the bottomlands of the Straits of

Mackinac (“Straits”) within an easement issued by the

State of Michigan. The Easement was granted in 1953

in furtherance of a statute enacted by the Michigan

Legislature. In the more than six decades since the

pipeline was installed, there have been no releases of Line

5 product in the Straits and no efforts by any prior State

administration to force closure of this Line 5 segment.

Sixty-six years after the Easement was granted, the

Attorney General now, for the first time, seeks to endrun its terms. She starts by claiming that the Easement

was void from its inception. This clearly was not the

view of the Attorney General in 1953 or in any of the

many years since then. In fact, the Office of the Attorney

General approved the Easement in 1953 as to legal form

111a

Appendix D

and effect. The Attorney General then claims that, even

if the Easement was valid when issued, it should now be

declared invalid under common-law doctrines and the

Michigan Environmental Protection Act (“MEPA”), MCL

324.1701 et seq.

The Attorney General’s Complaint is a direct attack

on the separation of powers and on the ability of the

Michigan Legislature to determine environmental

policy—authority that has been placed squarely within

the legislative sphere by Article 4, Section 52 of the

Michigan Constitution. This attack manifests itself in

three particular ways. First, the Complaint, by its very

design, is an attempt to circumvent the limitations on

the Easement’s termination. The 1953 Easement was

based upon a legislative grant of authority, and it set

forth specific grounds on which the Easement may be

terminated—none of which are invoked in the Attorney

General’s Complaint. Second, the Complaint invokes

the common law public trust doctrine, but this claim is

subsumed by MEPA. Under MEPA, the Attorney General

could pursue essentially the same relief she now seeks if

she could meet the statutory criteria; she has not, however,

met that criteria here. The public trust doctrine cannot

be used to undermine the specific framework that the

Legislature has established in this area. Third, the

displacement of the Attorney General’s public trust claim

is underscored by other legislative actions. In December

2018, the Legislature enacted new legislation authorizing

the construction of a Tunnel under the Straits that would

ultimately house a replacement pipeline and, according

to the State-commissioned Dynamic Risk report cited in

112a

Appendix D

the Attorney General’s Complaint, would render the risk

of a spill into the Straits “un-quantifiably low.” While the

Attorney General may desire a different approach, the

Legislature has already balanced the relevant public

interests with respect to Line 5.

Because the common law has been subsumed by

legislative enactments and because, for reasons described

below, the Attorney General has failed to state a cause of

action for public nuisance or under MEPA, the Complaint

should be dismissed in its entirety.

Factual and Procedural Background

Line 5 and the Dual Pipelines Across the

Straits of Mackinac

Line 5 transports petroleum products between

Superior, Wisconsin and Sarnia, Ontario, Canada. The

645-mile line extends across the Upper Peninsula of

Michigan, crosses the Straits and then travels in a

southeast direction toward Sarnia. This case focuses on

the approximately four miles of Line 5 that crosses the

Straits. At the point where it crosses the Straits, Line 5

splits into two parallel lines (the “Dual Pipelines”). The

Complaint does not allege that the Dual Pipelines have

ever released oil into the Straits.

B. Conveyance of the 1953 Easement

Prior to the construction of Line 5, oil moving from

Superior to Sarnia was transported on the Great Lakes

113a

Appendix D

by tanker. According to the Complaint, approximately

50 million barrels of oil moved by tanker over the Great

Lakes in the years after 1950. (Complaint, ¶ 10.)

La kehe a d P ip e Li ne Compa ny, Inc .—wh ich

subsequently changed its name to Enbridge Energy

Company, Inc.—submitted on January 24, 1953, its

application for a permit to lay the Dual Pipelines in

the Straits. The Michigan Conservation Commission

(“Conservation Commission”) initially considered the

application on February 13, 1953.1 The Michigan Public

Service Commission on March 19, 1953. granted Enbridge

the right to issue securities to finance the Pipelines,

further evidencing the State’s thorough process to

authorize the Pipelines. 2

Following the Conservation Commission’s initial

consideration of the application, the Michigan Legislature

on March 28, 1953, enacted 1953 PA 10, which provided:

The conser vation commission is hereby

vested with the power and authority to grant

easements, upon such terms and conditions as

the said commission deems just and reasonable,

for the purpose of erecting, laying, maintaining

and operating pipe lines . . . over, through,

under and upon any and all lands belonging

1. See Easement, Third W hereas Clause (Exh. 1 to

Complaint).

2. See Lakehead Pipe Line Co v Dehn, 340 Mich 25, 37; 64

NW2d 903 (1954).

114a

Appendix D

to the state of Michigan which are under the

jurisdiction of the conservation commission

or the department of conservation, and over,

through, under and upon any and all of the

unpatented overflowed lands, made lands and

lake bottom lands belonging to or held in trust

by the state of Michigan.

The Conservation Commission then considered the

application a second time and granted the Easement on

April 23, 1953. The Easement granted Enbridge the right

to “construct, lay and maintain” the Dual Pipelines “over,

through, under and upon certain lake bottom lands” in the

Straits. (Complaint, Ex. 1 at 1). Attached to the Easement

is a sworn statement by an Assistant Attorney General for

the State stating that the Easement had been “[e]xamined

and approved 4/23/53 as to legal form and effect.” (Id. at

13).

The Commission specifically found in granting the

Easement that the proposed line would benefit the people

of Michigan:

WHEREAS, the Conservation Commission

is of the opinion that the proposed pipe line

system will be of benefit to all of the people of

State of Michigan and in furtherance of the

public welfare.

Easement, Second Whereas Clause (Complaint, Ex. 1 at

1) (emphasis added).

115a

Appendix D

During 1953 and 1954, landowners in Bay County,

Michigan, challenged the right of Lakehead (now Enbridge

Energy Company, Inc.) to condemn land for construction

of Line 5. One of the grounds cited by the landowners

was that the company was seeking to take property by

condemnation for a “private purpose.” Lakehead Pipe

Line Co v Dehn, 340 Mich 25, 30; 64 NW2d 903 (1954).

The trial court rejected this claim, and the Supreme Court

affirmed, holding that construction and operation of Line

5 was “for a public use benefiting the people of the State

of Michigan.” Id. at 37.

C. Construction and Current Operation of Line 5

Construction of Line 5, including the Dual Pipelines,

was completed in 1954. Line 5 has continued to operate

since that date (Complaint, ¶ 15) and there have been no

releases of Line 5 product in the Straits. Eight different

governors of both parties have led the State’s executive

department and seven different attorneys general have

been elected but no prior State administration made

efforts to force closure of the Dual Pipelines segment of

Line 5.

D. Recent State Commissioned Reports on Line

5 Discussed in the Complaint

The Complaint relies on and cites to the following

studies relating to the Straits. Additional studies exist

that are not mentioned in the Complaint, and that thus do

not serve as a basis for the current motion.

116a

Appendix D

2015 Michigan Petroleum Pipeline Task

Force Report

In 2014, the then-Attorney General and then-Director

of the Department of Environmental Quality (“DEQ”)

formed a multi-agency Petroleum Pipeline Task Force

(“Task Force”) to address petroleum pipelines in Michigan

(including Line 5). The Task Force published its report in

2015. (Complaint, ¶ 10.)

2017 Dynamic Risk Alternatives Analysis

One of the recommendations of the 2015 Task

Force Report was that the State obtain an independent

analysis of alternatives to the existing Dual Pipelines.

See 2015 Task Force Report at 56. In 2016, the State

commissioned an expert consulting firm, Dynamic Risk

Assessment Systems, Inc. (“Dynamic Risk”), to perform

the recommended alternatives analysis. (Complaint,

¶ 35.) Dynamic Risk published its final Report in October

2017. (Id.) The Complaint incorporates the Dynamic

Risk Report by a link in note 5 (¶ 35) and relies on it in

numerous places. 3

Dynamic Risk concluded that the annual probability

of failure for the existing Dual Pipelines for all risks

combined was approximately 4.5x10 -4 (or 0.045%) per

year.4 To reach this conclusion, Dynamic Risk considered

separately different causes of potential releases, including

3. See Complaint, ¶¶ 35-41, 45, 47, 51-52.

4. See Dynamic Risk at ES-25 and 2-71 to 2-73.

117a

Appendix D

“anchor hooking” and incorrect operations (abbreviated

as “Inc Ops” in the chart below), as well as the risk posed

by “all threats” combined. The results of that analysis are

shown in the chart below, which appears at page ES-25

of the Dynamic Risk Report:5

Figure ES-4:

Annual Failure Probability Over

Time – Existing Straits Crossing

Segments

The Complaint alleges (at ¶ 35) that Dynamic Risk—

in a town hall meeting held three months before the

final report was issued—orally stated that the chance

of “rupture” “in the next thirty-five years” was “one in

sixty.”6 (See Complaint, ¶ 35 n.6.) The Complaint does not,

5. The Dynamic Risk Report included a much more detailed

discussion of each of these risks, as well as other, lesser risks. See,

e.g., Dynamic Risk at 2-41 to 2-73 and Figure 2-12.

6. A “one in sixty” chance of a strike over 35 years is

equivalent to an annual risk of 0.0476% per year. This annual risk

is calculated by dividing 1/60 by 35 years.

This equivalent allegation is relatively close to the approximate

value published by Dynamic Risk of 0.045% (shown in the chart

above). To the extent that the two estimates differ slightly, the

118a

Appendix D

however, allege that the Dual Pipelines are expected to

operate for thirty-five more years.

The Complaint (at ¶ 52) alleges that Dynamic Risk

concluded that “incorrect operations” were a “Principal

Threat” to the Dual Pipelines. The actual quantitative

risk that Dynamic Risk calculated for this risk, however,

is 0.01% per year (as shown in the chart above). Similarly,

the Dynamic Risk Report, which is incorporated in the

Complaint (¶ 35), calculates the annual probability of

failure due to a vessel anchor accidentally striking the

lines. According to Dynamic Risk, the annual probability

of failure from this type of risk was 3.5x10 -4 (or 0.035%)

per year (as shown in the chart above).

E. Related Matters: Enactment of 2018 PA 359

The Dynamic Risk Report looked in detail at possible

replacement of the existing Dual Pipelines with a segment

that would be located in a Tunnel built in bedrock under

the Straits. Dynamic Risk determined that a replacement

Tunnel was feasible, and the risk of a potential release

from a tunnel crossing to be “un-quantifiably low.” See

Dynamic Risk Report, § 3.2.2 (addressing “Alternative

4b”) and § 3.6 at 3-60.

In December 2018, the Michigan Legislature enacted

legislation (2018 PA 359) allowing the construction of

facts alleged in the Complaint are assumed to be true for purposes

of this Motion—i.e., that the risk of release is a “one in sixty”

chance over the next 35 years, or an annualized risk of 0.0476%

per year.

119a

Appendix D

the Tunnel that would house a replacement for Line 5

and possibly other third-party utilities. The Legislature

did not order a shutdown of Line 5. In substance and

practical effect, the Attorney General is asking in this

case for the Court to override the Legislature’s solution

to environmental concerns about Line 5.

On March 28, 2019, the new Attorney General issued

an opinion asserting that 2018 PA 359 failed to comply with

the Title-Object Clause of the Michigan Constitution and

was therefore invalid. See Attorney General Opinion No.

7309. On the same day the new Governor directed state

agencies to take no further action to implement the various

2018 agreements to construct a tunnel. See Executive

Directive No. 2019-13.

On June 6, 2019, Enbridge filed suit against the

State in the Court of Claims. Enbridge Energy, Limited

Partnership, et al. v State of Michigan, et al, No. 19000090-MZ. Enbridge’s suit seeks a declaration that 2018

PA 359 complies with the Michigan Constitution and that

related contractual agreements entered with the State

pursuant to 2018 PA 359 are enforceable, including an

agreement allowing Enbridge to continue operating the

Dual Pipelines until the replacement Tunnel is complete.

On June 27, 2019, the State moved for summary disposition

of the case. On August 1, 2019, Enbridge opposed and

cross-moved for summary disposition. The State has

replied to Enbridge’s motion and the case is now awaiting

decision by the Court of Claims.

120a

Appendix D

Standard of Review

“A motion under MCR 2.116(C)(8) tests the legal

sufficiency of the complaint.” Maiden v Rozwood, 461

Mich 109, 119; 597 NW2d 817 (1999). “A movant is entitled

to summary disposition under MCR. 2.116(C)(8) if ‘[t]he

opposing party has failed to state a claim on which relief

can be granted.’” Henry v Dow Chem Co, 473 Mich 63, 71;

701 NW2d 684 (2005), quoting MCR 2.116(C)(8).

Summary disposition may be granted under MCR

2.116(C)(7) when an action is barred by a statute of

limitations. Vance v Henry Ford Health Sys, 272 Mich

App 426, 429; 726 NW2d 78 (2006). See also Dep’t of

Environmental Quality v Gomez, 318 Mich App 1; 896

NW2d 39 (2016) (analyzing latches argument under MCR

2.116(C)(7)); Knight v Northpointe Bank, 300 Mich App

109; 832 NW2d 439 (2013) (same). “A defendant who files

a motion for summary disposition under MCR 2.116(C)(7)

may file supportive material such as affidavits, depositions,

admissions, or other documentary evidence.” Vance, 272

Mich App at 429.

Summary disposition of a claim under MCR 2.116(C)

(4) is appropriate when federal preemption deprives the

court of subject-matter jurisdiction to hear the claim.

See Packowski v United Food & Commercial Workers

Local 951, 289 Mich App 132, 138; 796 NW2d 94 (2010)

(addressing federal preemption under subrule (C)(4)).

“For jurisdictional questions under MCR 2.116(C)(4), th[e]

Court ‘determine[s] whether the affidavits, together with

the pleadings, depositions, admissions, and documentary

121a

Appendix D

evidence, demonstrate . . . [a lack of] subject matter

jurisdiction.’” Id. at 138-139 (citation and some internal

quotations omitted).

Summary of Argument

This Court should grant summary disposition in favor

of Enbridge. As an initial matter, the Attorney General’s

entire complaint—which seeks to force Enbridge to

remove the Dual Pipelines for supposedly threatening

the Straits—is inconsistent with the separation of

powers imposed by the Michigan Constitution. Under the

Constitution, the duty to safeguard Michigan’s natural

resources is expressly assigned to the Legislature. Where,

as here, the Legislature has made a considered judgment

about how best to fulfill its duties, the Attorney General

has no authority to second-guess that judgment—or to

ask the courts to do so. The Attorney General’s claims

must be evaluated with the constitutionally mandated

separation of powers in mind.

Count I.A claims that the 1953 Easement has been

invalid all along, based on the supposed failure of the

Legislature and the Conservation Commission to jump

through a procedural hoop created (on the Attorney

General’s reading) by dicta in a Supreme Court ruling

issued seven years after the Easement was granted,

Obrecht v National Gypsum Co, 361 Mich 399; 105

NW2d 143 (1960). This claim fails for many reasons.

For one, there is no ground to apply the Obrecht dicta

retroactively—to the contrary, Obrecht relied on a 1955

statute that is not retroactive, and the very language of the

122a

Appendix D

opinion that the Attorney General cites makes clear that

it has no application to grants addressed by preexisting

legislation. By its own terms, that language is also

limited to cases where submerged lands are given over

to private use, yet contemporaneous case law involving

Line 5 makes clear that the construction of a pipeline is

a quintessentially public use, regardless of whether the

pipeline is constructed by a private company. Even if the

Obrecht dicta did apply to preexisting easements, the

Conservation Commission’s express findings would he

more than sufficient to satisfy the procedural requirement

that the Attorney General draws from Obrecht. The

Attorney General’s invocation of Obrecht also comes far

too late and is barred by the statute of limitations. If

the express grant of an easement across the Straits was

invalid in 1953, then Enbridge has long since acquired an

easement by prescription. Finally, the Attorney General

is estopped from denying the Easement’s validity so late

in the day.

Count I.B asserts that the Dual Pipelines pose a risk

of an oil spill in the Straits in violation of the common law

public trust doctrine. But such attempts to regulate the

complex modern economy by means of an amorphous,

non-legislative public trust doctrine have been displaced

by MEPA. Count I.B also fails because it is inconsistent

with the 1953 Easement, which itself provides the

exclusive conditions and procedures under which it can be

terminated (and leave no role for the Attorney General).

Finally, the Attorney General’s attempt to regulate

pipeline safety through judicial application of the public

trust doctrine is preempted by the federal Pipeline

Safety Act (“PSA”), which assigns responsibility not

to the 50 state attorneys general but rather to a single

123a

Appendix D

expert federal agency, and more broadly by the Federal

Government’s pervasive occupation of the entire field of

pipeline safety.

Count II asserts that the Dual Pipelines constitute a

public nuisance. Yet Michigan law recognizes claims for

anticipatory public nuisance only where the feared harm

is either certain to come to pass or at least very probable.

Here, the Attorney General alleges no facts that could

suggest that the risk of an oil spill from the Dual Pipelines

is anything but exceptionally low. This unduly speculative

claim must therefore be dismissed. The Attorney General’s

own Complaint undermines any suggestion that harm

arising from Line 5’s operation is certain or probable. To

protect the public interest served by Line 5, the Attorney

General seeks to defer immediate action to allow users

of the line a “reasonable notice period” to adjust to the

proposed closure. (Complaint, ¶ 28).

Finally, Count III alleges violation of MEPA. This

claim has basically the same fatal flaw as the public

nuisance claim: MEPA authorizes an action by the

Attorney General only when harm to the environment

has “occurred or is likely to occur,” (MCL 324.1701(1)),

yet the Complaint fails to plead facts that any alleged

harm is “likely.” To the contrary, the Attorney General

relies heavily on a report that puts the annual failure

probability for the Dual Pipelines at less than 0.05%. Such

a speculative risk falls far short of the statutory threshold.

Moreover, the Attorney General’s own proposed deferral

of any closure of Line 5 for a “reasonable notice period”

entirely undermines her MEPA claim.

124a

Appendix D

Argument

The Attorney General’s Complaint transgresses

limits imposed by the Constitution and endorsed

by the Supreme Court.

The Court’s analysis of the Complaint should begin

with the proper constitutional framework. The Michigan

Constitution recognizes a duty to conserve the State’s

natural resources, and it delegates that specific duty to

the Legislature:

The conservation and development of the

natural resources of the state are hereby

declared to be of paramount public concern in

the interest of the health, safety and general

welfare of the people. The legislature shall

provide for the protection of the air, water

and other natural resources of the state from

pollution, impairment and destruction.

Const 1963, art 4, § 52. The Constitution also provides

that “[n]o person exercising powers of one branch shall

exercise powers properly belonging to another branch

except as expressly provided in this constitution.” Const

1963, art 3, § 2.

Addressing the separation of powers, the Supreme

Court has explained that environmental protection is

a legislative function. For example, in Kyser v Kasson

Township, 486 Mich 514; 786 NW2d 543 (2010), the Court

held that “Michigan’s constitution directs the Legislature,

not the judiciary, to provide for the protection and

125a

Appendix D

management of the state’s natural resources.” id. at

536 (emphasis added). The Court made this statement

in concluding that a judicially-created rule governing

extraction of natural resources violated the separation of

powers because Section 52 of Article 4 gives the authority

to protect natural resources to the Legislature, not the

courts. The Kyser Court also pointed out that trying to

apply a judicially-created rule would require courts “to

engage in an expansive and detailed analysis of landuse considerations as to which they have no particular

expertise,” and that such regulatory matters are thus

appropriately left to the Legislature. Id. at 537. See also

Oscoda Chapter of PBB Action Comm, Inc v DNR, 403

Mich 215, 231; 268 NW2d 240 (1978) (observing that “Const

1963, art 4, § 52, confers no authority on the courts”).

Indeed, the Supreme Court recognized even before the

1963 Constitution that regulation of the public’s interest

in the lake bottomlands falls within the Legislature’s

purview. See Nedtweg v Wallace, 237 Mich 14, 22-23; 208

NW 51 (1926) (“The Legislature is vested with power

to determine whether the public interests will be best

served by leaving lake bottom, unsuited to purposes of

navigation, in a wild state and wholly unproductive of any

public revenue or of benefit, except to hunters, or permit

use thereof, under suitable regulations, to the greater

benefit of the public.”).

Here, the Michigan Legislature has struck a balance

of the relevant public interests in three different ways. The

Legislature established the initial framework for pipeline

operations by vesting the Conservation Commission with

authority to “grant pipeline easements on state land and

126a

Appendix D

lake bottomlands.” (Complaint, ¶ 11; 1953 PA 10). The

Legislature also established a future framework for

continued operations by authorizing the construction and

operation of the Tunnel in which a replacement for the

existing Dual Pipelines could be located. (2018 PA 359). The

Legislature did so without taking any action to discontinue

operations of the Dual Pipelines in the meantime. Finally,

the Legislature has enacted a statutory framework for

courts to enjoin public or private entities from taking

action that will likely impair natural resources or the

public trust therein—the relief that the Attorney General

seeks in this case—provided that certain substantive

standards are satisfied. See MCL 324.1701(1). As discussed

below, however, the Attorney General has failed to allege

a prima facie case under MEPA.

Because the Michigan Constitution delegates the

protection of natural resources to the Legislature, each

count in the Complaint should be analyzed in light of

the policy judgments made by the Legislature and the

procedures authorized for challenging likely risks to the

environment.

II. Count I.A should he dismissed because the Attorney

General cannot show that the Easement was invalid

from its inception.

The 1953 Easement was issued under a valid

grant of legislative authority.

In Count I.A, the Attorney General claims that the

1953 Easement was void “from its inception.” (Count I.A.)

127a

Appendix D

Specifically, Count I.A complains that “the State never

made a finding that the easement: (1) would improve

navigation or another public trust interest; or (2) could

be conveyed without impairment of the public trust.”

(Complaint, ¶ 27). To be clear, the Attorney General’s

argument is that the 1953 Easement is invalid regardless

of whether it in fact improved a public trust interest,

simply because “[t]here is no contemporaneous document”

in which the State used the particular verbal formula that

she says is necessary to make any such Easement valid.

(Complaint, ¶ 27). This argument fails as a matter of law.

Accordingly, the Court should dismiss Count I.A under

MCR 2.116(C)(8).

As the Attorney General admits, the 1953 Easement

was issued pursuant to a legislative grant of authority.

(Complaint, ¶ 11). In 1953, the Legislature authorized

the Conservation Commission “to grant easements for

the erecting, laying, maintaining and operating of pipe

lines . . . over, through, under and upon any and all of

the unpatented overflowed lands, made lands and lake

bottom lands belonging to or held in trust by the state

of Michigan.” 1953 PA 10 (emphasis added). Consistent

with that legislative authorization, the Conservation

Commission then proceeded to grant an easement for

the construction and operation of the pipeline across the

Straits. (See 1953 Easement (Complaint, Ex. 1); Complaint,

¶ 11). In April 1953, the Attorney General approved the

easement as to legal form and effect. (Complaint, Ex. 1

at 13).

Because the Legislature enacted the statutory

framework for granting pipeline easements and the 1953

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Appendix D

Easement was granted pursuant to that framework,

there is no basis for declaring the Easement void from

its inception.

B. The Attorney General’s reliance on Obrecht to

retroactively change the legal framework is

misplaced.

The Attorney General nevertheless complains now

that the Conservation Commission failed to intone certain

magic words in the 1953 Easement. (Complaint, ¶ 28).

She does not contend that any Michigan statute or court

decision on the books as of 1953 required such language.

The Attorney General instead draws this theory from

language in Obrecht—a case decided seven years after

the 1953 Easement was granted and six years after Line

5 began operating.

Obrecht’s holding does not help the Attorney General.

Obrecht involved a landowner who claimed the right

to build without first obtaining the State’s consent.

Specifically, in Obrecht, a riparian landowner sought (i)

to construct a large loading dock that extended over 800

feet into Lake Huron, in an area predominantly devoted

to recreational uses, and (ii) to dredge more than a mile

of deep channel. See Obrecht, 361 Mich at 404-405. The

landowner did not rely on an easement but claimed that

it could construct docks and dredge channels of unlimited

length without the State’s consent under a riparian

landowner’s common law right to wharf out to navigable

waters. See id. at n.2. The Supreme Court rejected this

argument, explaining that “the public title and right

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is supreme as against [landowner’s] asserted right of

wharfage” and that “the latter may be exercised by the

[landowner] only in accordance with the regulatory assent

of the State.” Id. at 413. Because the State had not given

assent, and “for that reason alone,” the landowner’s

actions were unlawful. See id. at 414 (emphasis added).

Obrecht’s holding is clearly inapposite here. Enbridge

does not claim any right to go beyond what the State

has expressly authorized. Enbridge built and operated

the pipeline pursuant to an Easement issued by the

Conservation Commission under authority from the

Legislature. Because Obrecht’s holding does not help

her case, the Attorney General instead relies upon the

following dicta in the Court’s opinion:

Turning to pages 453 through 460 of [Illinois

Central Railroad Co v State of Illinois, 146

US 387 (1892),] and reading those pages in

conjunction with [the 1955 GLSLA], it will be

found authoritatively that no part of the beds

of the Great Lakes, belonging to Michigan and

not coming within the purview of previous

legislation . . . can be alienated or otherwise

devoted to private use in the absence of due

finding of one of two exceptional reasons for

such alienation or devotion to nonpublic use.

One exception exists where the State has, in

due recorded form, determined that a given

parcel of such submerged land may and should

be conveyed “in the improvement of the interest

thus held” (referring to public trust). The other

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Appendix D

is present where the State has, in similar form,

determined that such disposition may be made

“without detriment to the public interests in

the lands and waters remaining.” [Obrecht, 361

Mich at 412-13 (emphases added; quotations in

original), cited in Complaint, ¶ 28].

The Attorney General’s reliance on this quoted

language is legally flawed for three separate reasons.

First, the Obrecht passage that the Attorney General

relies upon states that “no part of the beds of the Great

Lakes, belonging to Michigan and not coming within the

purview of previous legislation . . . can be alienated or

otherwise devoted to private use in the absence of” the

findings described by Obrecht. Of course, the Easement

was granted in 1953 pursuant to 1953 PA 10. Obrecht

was not decided until 1960, so the 1953 easement plainly

“com[es] within the purview of previous legislation.”

That makes the language in Obrecht relied upon in the

Complaint inapplicable by its very terms.

Second, the language would not apply retroactively to

Enbridge’s easement. The quoted passage from Obrecht

derives from two sources: an excerpt from the U.S.

Supreme Court’s opinion in Illinois Central read “in

conjunction with” the 1955 GLSLA. Obrecht, 361 Mich

at 412-413. The cited pages from Illinois Central simply

recognize the public interest exception to the public trust

doctrine: state control cannot be relinquished except as

“parcels . . . used in promoting the interests of the public

therein.” Illinois Central, 146 US at 453. The GLSLA

requires that, where it applies, the state agency make

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Appendix D

determinations about the public trust before conveying

or leasing bottomlands. See, e.g., MCL 324.32503(1).

The GLSLA, however, was not in effect in 1953 when the

Easement was issued and thus is not applicable here.7

Third, the Obrecht passage speaks only about

submerged lands “devoted to private use.” Obrecht, 361

Mich at 412 (emphasis added). The use for which the

Easement was granted—running a common carrier

pipeline across the Straits—is a classic example of a

public use. In 1954—the same year that Line 5 went into

operation, and not long before Obrecht—the Supreme

Court expressly held that Enbridge’s use of land for Line 5

constituted a public use. See Lakehead Pipe Line Co, 340

Mich at 27. There, landowners challenged a proceeding

initiated by Lakehead (now Enbridge Energy Company,

Inc.) to condemn their land interests “for the construction

of a pipe line for the transportation as a common carrier

of petroleum products”—i.e., Line 5. Id. The landowners

argued that Lakehead “was seeking to take property by

condemnation for a private purpose”—the transportation

of a private corporation’s oil—in violation of “the general

rule” that “private property may not be taken under the

power of eminent domain for other than a public use.” Id.

at 30, 39. The Supreme Court rejected this argument,

explaining that the right-of-way was a public necessity: “It

is our conclusion that [Lakehead] was entitled to proceed

under the act in question to acquire property necessary

7. Moreover, none of the criteria recognized by the Supreme

Court as weighing in favor of retroactivity applies. See LaFontaine

Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 38-39; 852 NW2d

78 (2014).

132a

Appendix D

for the public use claimed.” Id. at 36 (emphasis added).

See also id. at 38 (“Unquestionably the construction of

the bridge [held to be a public use in an earlier decision]

benefited the people of Michigan. A like result may be

anticipated in the case at bar from the construction,

maintenance and operation of the pipe line in question.”).

The Court explained that the existence of a private

commercial interest in the pipeline did not undermine its

holding that the easement was for a public use: “Doubtless

the Imperial Oil Company [which indirectly owned a stake

in Lakehead at the time] will be benefited by the fact that

the pipe line system provides a method for transporting

its oil to the refineries. It cannot be said, however, that,

because of such situation, [Lakehead] is seeking to exercise

the power of eminent domain for a private purpose. The

private benefit, if such there is, is merely incidental to the

main purpose.” Id. at 40. 8

Because the submerged lands subject to the 1953

Easement were not “alienated or otherwise devoted to

private use,” Obrecht, 361 Mich at 412, the passage that

the Attorney General points to is inapplicable by its own

terms. Enabling a common carrier to build transportation

infrastructure is a textbook example of a “public use.”

In short, the Attorney General’s reliance on Obrecht to

invalidate the Easement is legally flawed.

8. In describing Line 5, the Lakehead Court expressly noted

that it “extend[ed] across the upper peninsula to the Straits of

Mackinac” and that “[t]he use of two 20-inch pipes across the

Straits of Mackinac [had been] approved.” Lakehead Pipe Line

Co, 340 Mich at 27-29. The Court plainly was referring to the Line

5 Dual Pipelines.

133a

Appendix D

The 1953 Easement states that the pipeline

system advances the public interest.

Even if Obrecht set forth a test applicable to all

easements on the books, it is absurd to criticize the 1953

Easement simply for failing to use the exact words used

seven years later in Obrecht. The far more important

point is that the Conservation Commission relied on

ample evidence of benefits to the public, as well as express

Legislative authorization, when it granted the 1953

easement. This is reflected in the terms of the Easement,

which is attached as an exhibit to the Complaint.

In the Easement, the Conservation Commission

expressly found that “the proposed pipe line system will

be of benefit to all of the people of the State of Michigan

and [operate] in furtherance of the public welfare.”

(Complaint, Ex. 1 at 1.) The Complaint itself concedes

that “the contemporaneous approval of the construction

of what is now Enbridge’s Line 5 in Michigan by the

Michigan Public Service Commission . . . suggested that

the Line 5 pipeline . . . would enhance joint defenses in

times of national emergency and promote improved trade

relations.” (Complaint, ¶ 28.) Thus, even if Obrecht imposed

a retroactive magic words requirement, as the Complaint

asserts, the Legislature’s authorization of the Easement

and Commission’s findings in the Easement itself satisfied

it. As noted, the Attorney General approved the Easement

as to legal form and effect in 1953. (Complaint, Ex. 1 at 13.)

In short, the Attorney General’s allegation that the

Easement was invalid from its inception is legally flawed.

For this reason alone, the Court should dismiss Count I.A.

134a

Appendix D

The Attorney General’s argument comes far

too late.

In addition, the Attorney General’s challenge comes

far too late. If she were right that the 1953 grant was

invalid from its inception, then Enbridge has long since

acquired a prescriptive easement across the Straits. “An

easement by prescription results from use of another’s

property that is open, notorious, adverse. and continuous”

for the applicable statutory period. Mulcahy v Verhines,

276 Mich App 693, 699; 742 NW2d 393 (2007), quoting

Plymouth Canton Community Crier, Inc v Prose, 242

Mich App 676, 679; 619 NW2d 725 (2002). The applicable

statutory period here is 15 years, as explained below.

Open and notorious. “To make good claim of title

by adverse possession, the true owner must have actual

knowledge of the hostile claim or the possession must be

so open, visible, and notorious as to raise the presumption

of notice to the world that the right of the true owner is

invaded intentionally.” Thomas v Rex A Wilcox Trust,

185 Mich App 733, 737; 463 NW2d 190 (1990), quoting

Burns v Foster, 348 Mich 8, 15; 81 NW2d 386 (1957)

(emphasis added). See also Martin v Arndt, 356 Mich

128, 135; 95 NW2d 858 (1959) (same). As the disjunctive

“or” indicates, where the owner has actual knowledge of

the claimant’s use, the requirement is satisfied even if the

use is underground or underwater: “A use that is actually

known to the owner of the servient estate satisfies the

requirement even though it is not open.” Restatement

(Third) of Property (Servitudes) § 2.17 comment h. Thus,

“if the installation of underground utilities is open and

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Appendix D

their location remains notorious, either because actually

known to the owner or widely known in the community,

the prescriptive period will continue to run even though

evidence of the use is subsequently buried.” Id.

Here, the State has known full well, going back all

the way to 1953, that Enbridge has been using the Straits

bottomlands to operate Line 5. Thus, even though Line 5

crosses the Straits deep underwater, Enbridge met the

requirement of open and notorious use because the State

had actual knowledge of its use.

Adverse. “Adverse or hostile use is use that is

inconsistent w ith the right of the owner, w ithout

permission asked or given, that would entitle the owner

to a cause of action against the intruder for trespassing.

The use of another’s property qualities as adverse if made

under a claim of right when no right exists.” Mulcahy,

276 Mich App at 702 (citation omitted). The adverse-use

requirement is met where the claimant claims a right

under an express easement that it mistakenly believes to

be valid: “[i]f a claimant has obtained a conveyance of an

easement which is ineffective, his use of the subservient

estate, made on the assumption that the conveyance was

legally effective, is adverse and not made in subornation

to the owner of the burdened estate.” Cook v Grand River

Hydroelectric Power Co, 131 Mich App 821, 826; 346

NW2d 881 (1984). In short, “use under an invalid easement

may establish an easement by prescription.” Plymouth

Canton, 242 Mich App at 684. See also Mulcahy, 276

Mich App at 702.

136a

Appendix D

Enbridge ran the Line 5 Dual Pipelines across the

Straits under a claim of right: the 1953 Easement, which

says that Enbridge has the right to do so. The Attorney

General’s position now is that no right actually existed,

because the grant was “void from its inception.” If that is

true, then Enbridge’s use was adverse.

Continuous for the statutory period. “[A]ssuming all

other elements have been established, one gains title by

adverse possession when the period of limitation expires.”

See Gorte v Dep’t of Transp., 202 Mich App 161, 168; 507

NW2d 797 (1993) (“the expiration of the period of limitation

terminates the title of those who slept on their rights and

vests title in the party claiming adverse possession”). The

Legislature “specifically enacted a statute of limitations

which require[d] the state to commence an action to

recover [] lands within 15 years after the right or title of

the people of the state first accrued.” Caywood v Dep’t of

Natural Resources, 71 Mich App 322, 331; 248 NW2d 253

(1976).9 See 1948 CL 609.11 (setting a 15-year limitations

period until 1963); MCL 600.5821(1) (1961) (setting a 15year limitations period between 1963 and 1988).

9. In 1988, Michigan “reinstated the common-law rule that

one cannot acquire title to state-owned property through adverse

possession.” Gorte, 202 Mich App at 166. See MCL 600.5821(1)

(1988). The 1988 amendment, however, did not apply retroactively

to interfere with rights gained by adverse possession prior to the

amended statute’s effective date. Gorte, 202 Mich App at 167-168.

See id. at 167 (“where a period of limitation has expired, the rights

afforded by that statute are vested and the action in question is

barred”). Thus, the 1988 amendment did not affect Enbridge’s

prescriptive easement across the Straits, which vested when the

15 year limitations period expired in 1969.

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Appendix D

Enbridge has continuously used the Easement

from 1954 until the present day. Indeed, the Attorney

General acknowledges that “[s]ince completing Line 5 in

1954, the Grantee [of the Easement] and its successors

have continued to operate it, and over time significantly

increased the quantity of products transported through

it.” (Complaint, ¶ 15). It follows that, if the 1953 Easement

was “void from its inception” as the Attorney General

claims, in 1969 (15 years after the Dual Pipelines went into

operation) Enbridge acquired a prescriptive easement.

Even if one assumes that Enbridge did not acquire a

prescriptive easement, the Attorney General is estopped

from pursuing Count I.A of the Complaint. In Michigan,

“the State as well as individuals may be estopped by

its acts, conduct, silence, and acquiescence.” Oliphant v

Frazhe, 381 Mich 630, 638; 167 NW2d 280 (1969). Here,

the Office of the Attorney General approved the easement

in 1953 as to legal form and effect. (Complaint, Ex. 1 at

13). Enbridge relied upon the State’s representations in

the easement, making significant expenditures on the

construction and operation of this pipeline, both across

the Straits and throughout the entire Upper and Lower

Peninsulas. Enbridge would be prejudiced if the State

were allowed, sixty-six years later, to deny the existence

of the Easement’s terms. The Court should dismiss Count

I.A in the Complaint.

III. Count I.B should be dismissed because the Attorney

General’s public trust claim fails as a matter of law.

In Count I.B, the Attorney General claims that

“Enbridge’s continued transportation of petroleum

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Appendix D

products through the straits pipelines violates the public

trust” because (in her view) there is a “very real risk of

further anchor strikes to the pipelines, the inherent risks

of pipeline operations, and the foreseeable, catastrophic

effects if an oil spill occurs at the Straits.” (Complaint,

¶¶ 30, 33). Count I.B should be dismissed for alternative

reasons: (1) it is subsumed by the MEPA, (2) it is

inconsistent with the terms of the 1953 Easement, and

(3) it is preempted by federal law.

The Attorney General’s public trust claim

has been subsumed by her MEPA claim in the

context of this case.

The Court should dismiss Count I.B under MCR

2.116(C)(8) because it is subsumed by the Attorney

General’s MEPA claim. The Michigan Court of Appeals

previously has implied that public trust claims are

completely subsumed by MEPA. See Highland Recreation

Def Found v Natural Res Comm’n, 180 Mich App 324,

331; 446 NW2d 895 (1989) (“We also agree that the claims

raised by plaintiff under its public trust argument are

duplicative of its claims under MEPA.”).

The public trust doctrine is a common law doctrine.

PPL Montana, LLC v Montana, 565 US 576, 603 (2012).

The doctrine is “a matter of state law,” and “the States

retain residual power to determine the scope of the

public trust[.]” Id. at 603-604. Under Michigan law, the

Legislature has the authority to supersede or change

common law by statute. See, e.g., Kyser, 486 Mich at 539543. See also Stout v Keyes, 2 Doug 184, 189; 1845 WL

139a

Appendix D

3119 (1845) (“[L]aws in force [when the state constitution

was passed] are retained until they should expire by

their own limitations, or be altered or repealed by the

legislature.”). The Michigan Constitution delegates

implementation of the duty to protect the state’s natural

resources to the Legislature. Const 1963, art 4, § 52.

“Michigan Constitution’s directs the Legislature, not the

judiciary, to provide for the protection and management

of the state’s natural resources.” Kyser, 486 Mich at 536.

The Legislature has enacted a statutory framework to

address how protections to the state’s resources are to

be implemented and thus common law must yield to the

statute. See Kyser, 486 Mich at 536; PBB, 403 Mich at 231.

See also Pulver v Dundee Cement Co, 445 Mich 68, 75 n 8;

515 NW2d 28 (1994) (“[I]f there is a conflict between the

common law and a statutory provision, the common law

must yield.”); City of Milwaukee v Illinois and Michigan,

451 US 304, 315 (1981) (“Our commitment to the separation

of powers is too fundamental to continue to rely on federal

common law by judicially decreeing what accords with

common sense and the public weal when Congress has

addressed the problem.”) (citation and internal quotations

omitted); Arizona v California, 373 US 546, 565 (1963)

(“[W]here Congress has so exercised its constitutional

power over waters, courts have no power to substitute

their own notions of an ‘equitable apportionment’ for the

apportionment chosen by Congress.”).

The Michigan Legislature, through its enactment of

MEPA, has expressly defined when a facility may present

an unreasonable risk of release to public trust resources

so as to warrant cessation of its operations. Specifically,

140a

Appendix D

Section 324.1701(1) of MEPA expressly provides that the

“attorney general . . . may maintain an action in the circuit

court having jurisdiction where the alleged violation

occurred or is likely to occur . . . against any person for the

protection of the air, water, and other natural resources

and the public trust in these resources from pollution,

impairment, or destruction.” (emphasis added).

MEPA was enacted pursuant to the Legislature’s

authority under the Michigan Constitution, which squarely

places protection of the State’s “air, water and other

natural resources” within the legislative sphere. See Const

1963, art 4, § 52. Accordingly, the Legislature, pursuant

to its authority to regulate public trust resources, has

established under MEPA a legal mechanism to address the

precise situation alleged by the Attorney General—where

a pipeline operator allegedly “is likely to pollute, impair,

or destroy the air, water, or other natural resources or

the public trust in these resources.” MCL 324.1703(1).

MEPA specifically creates a remedy by which “the

Attorney General or any person” can maintain an action

for protection of the public trust. In light of this legislative

determination, the Attorney General must follow the

remedial framework established in MEPA.

Courts in other jurisdictions have found that statutory

provisions displaced the common law public trust doctrine.

See Sanders Reed v Martinez, 350 P3d 1221, 1225-27

(NM App, 2015) (“[W]here the State has a duty to protect

the atmosphere under Article XX, Section 21 of the New

Mexico Constitution, the courts cannot independently

regulate greenhouse gas emissions in the atmosphere

as Plaintiffs have proposed, based solely upon a common

141a

Appendix D

law duty established under the public trust doctrine as a

separate cause of action.”); Alec v Jackson, 863 F Supp

2d 11, 12, 16-17 (D DC, 2012) (“Thus, a federal common

law claim [under the public trust doctrine] directed to

the reduction or regulation of carbon dioxide emissions

is displaced by the [Clean Air] Act”), aff’d 561 Fed Appx

7 (CA DC, 2014).

Analogous U.S. Supreme Court precedent confirms

that when the legislature enacts a statute that “speak[s]

directly” to the question, the common law is displaced.

American Electric Power Co v Connecticut (MEP), 564 US

410, 424 (2011), quoting Mobil Oil Corp v Higginbotham,

436 US 618, 625 (1978). In AEP, the U.S. Supreme Court

considered whether a public nuisance claim against

greenhouse gas emitters could be maintained under

federal common law after enactment of the federal Clean

Air Act. 564 US at 415. The Court held unambiguously that

“the Clean Air Act and the [Environmental Protection

Agency] actions it authorizes displace” any such commonlaw claim. Id. at 424. The Court’s holding in AEP was not

limited to nuisance claims: the Court held broadly that

the legislative regime “displace[s] any federal common law

right to seek abatement of” the greenhouse gas emissions.

564 US at 424, 426 (emphasis added).

The same reasoning applies here. Through MEPA,

the Legislature, exercising the authority granted to it by

the Constitution under Article 4, § 52, has established a

legislative framework that speaks directly to the alleged

problem identified in the Complaint. It is that framework

that controls here and to which the Attorney General

142a

Appendix D

must turn for relief. The common law public trust doctrine

cannot be used to create “an ad hoc environmental policy.”

Kimberly Hills, 114 Mich App 495, 503; 329 NW2d 668

(1982). As the Supreme Court cautioned in PBB, courts

do not have “plenary power . . . to do whatever they may

think preferable in environmental cases.” PBB, 403 Mich

at 231. See also Milwaukee, 451 US at 320 (holding that

because “the problem of effluent limitations” had been

“thoroughly addressed” by the legislature, there was

“no basis for a federal court to impose more stringent

limitations”). Accordingly, the Attorney General should

fail in her attempt to convince this Court to do something

that it should not—allow Count I.B to proceed where it

has clearly been subsumed by the Legislature’s enactment

of MEPA.10

B. The Attorney General’s Claim I.B should be

dismissed because it seeks termination on

grounds not provided in the Easement.

The Attorney General’s Count I.B fails for the

additional reason that the 1953 Easement can only be

terminated as provided under the termination provision in

the Easement. The Attorney General does not purport to

comply with the substantive and procedural requirements

of that provision. Accordingly, Court I.B should be

dismissed under MCR 2.116(C)(8) for this reason as well.

10. While MEPA offers a framework that could allow the

Attorney General to challenge the continued operation of the Dual

Pipelines, the very high bar set by MEPA for such a challenge has

not been met here, as discussed in Section V below.

143a

Appendix D

In furtherance of its authority to regulate the protection

of the public trust resources, the Michigan Legislature

expressly vested the Conservation Commission with

power and authority to grant easements over the bottom

lands “upon such terms and conditions” as the Commission

deems just and reasonable to protect the public trust

authority. 1953 PA 10. See Nedtweg, 237 Mich at 22-23

(confirming the Legislature’s authority to determine

whether use of the bottomlands is in the public interest).

On the basis of 1953 PA 10, the Conservation Commission

issued the 1953 Easement after concluding that the

“proposed pipe line system will be of benefit to all of the

people of the State of Michigan and in furtherance of

the public welfare.” Easement, Second Whereas Clause

(Complaint, Ex. 1 at 1).

As relevant here, the Easement also specifies the

limited circumstances under which it may be terminated.

Specifically, under Paragraph C of the Easement, the

Easement “may be terminated by Grantor:

(1) If, after being notified in writing by Grantor

or any specified breach of the terms and

conditions of this easement, Grantee shall

fail to correct said breach within ninety

(90) days, or, having commenced remedial

action within such ninety (90) day period,

such later time as it is reasonably possible

for the Grantee to correct said breach by

appropriate action and the exercise of due

diligence in the correction thereof;”

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Appendix D

(2) If Grantee fails to start construction of

the pipe lines authorized herein within

two years from date of execution of this

instrument; or

(3) If Grantee fails for any consecutive threeyear period to make substantial use of said

pipe lines commercially and also fails to

maintain said pipe lines during said period

in such condition as to be available to

commercial use within thirty (30) days.

Easement at 7-8 (Complaint, Ex. 1 at 7-8). The Grantor

of the Easement is expressly defined by the introductory

paragraph of the Easement to mean the Conservation

Commission, which was conferred by 1953 PA 10 with

authority to issue the Easement to Enbridge. The

Conservation Commission’s successor is the Michigan

Department of Natural Resources (“MDNR”), not the

Attorney General.

Michigan courts recognize that an easement (or other

property conveyances) must be administered based on

the conveying instrument’s own terms. See Blackhawk

Dev Corp v Village of Dexter, 473 Mich 33, 42; 700 NW2d

364 (2005) (explaining that “[t]he task of determining the

parties’ intent and interpreting the limiting language is

strictly confined to the ‘four corners of the instrument’

granting the easement.”). Here, the above-quoted terms

of the Easement relative to termination are not ambiguous

or otherwise open to dispute. The Easement may be

terminated, as per the termination provisions clearly set

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Appendix D

forth in Paragraph C, only when the Grantor (now MDNR)

asserts a “breach of the terms and conditions of this

easement.” The terms and conditions to which Paragraph

C refers are those specified in the Easement.11 At no point

does the 1953 Easement invest the Attorney General with

the right to seek Easement termination, refer to the public

trust as a termination ground, or provide for termination

based on any of the amorphous safety concerns being

asserted by the Attorney General in her Complaint. Nor

has the Michigan Legislature provided any other method

by which the 1953 Easement can be terminated, i.e., 1953

PA 10 does not speak to termination and no other Michigan

statute provides for the termination of the 1953 Easement.

Because the public trust claim is inconsistent with the

Easement’s own terms, Count I.B should be dismissed.

Federal law preempts the Attorney General’s

claims based on pipeline safety

Count I.B is also preempted by federal law. Specifically,

the Attorney General’s effort to terminate the Easement

11. See Easement at Paragraph A (concerning specifications),

Paragraph B (concerning notice requirements), Paragraph D

(concerning construction timing), Paragraph E (concerning

requirements for seeking approval for relocation, replacement,

major repair, or abandonment), Paragraph F (maximum operating

pressure), Paragraph G (concerning requirements to address a

release), Paragraph H (abandonment requirements), Paragraph

I (inspection and record retention requirements), Paragraph J

(financial assurance requirements), and Paragraph K (notification

of assignment).

146a

Appendix D

based on speculative concerns over a hypothetical

release from Line 5 constitutes a form of regulation of

the pipeline’s safety. As such, it is expressly preempted

by federal pipeline safety law and regulation. It is also

impliedly preempted by federal, pipeline safety law and

regulation, as well as federal Coast Guard regulation.

Dismissal is warranted under MCR 2.116(C)(4).12

Express Preemption. Pursuant to its Commerce

Clause powers, Congress enacted the federal Pipeline

Safety Act (PSA), 49 USC 60101 et seq., in 1979. The

purpose of the PSA is to “provide adequate protection

against risks to life and property posed by pipeline

transportation and pipeline facilities by improving the

regulatory and enforcement authority of the Secretary

of Transportation.” 49 USC 60102(a)(1).

The PSA establishes a two-fold scheme for regulating

interstate pipeline safety. First, Congress vested the

Pipeline and Hazardous Materials Safety Administration

(PHMSA)—a federal agency within the US Department

of Transportation—with exclusive jurisdiction to regulate

the transportation of petroleum products on interstate

pipelines (such as Line 5, which not only traverses two

states, but also an international boundary). PHMSA’s

regulatory authority reaches to, among other matters,

a pipeline’s design, installation, inspection, construction,

12. When reviewing a motion under MCR 2.116(C)(4), the Court

may consider affidavits, pleadings, dispositions, admissions

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