Petition for Writ of Certiorari — Gretchen Whitmer, Governor of Michigan, et al., Petitioners v. Enbridge Energy, LP, et al.

No. _________

In the Supreme Court of the United States

GRETCHEN WHITMER, GOVERNOR OF THE STATE OF

MICHIGAN, ET AL., PETITIONERS

v.

ENBRIDGE ENERGY, LP, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

Keith D. Underkoffler

Assistant Attorney General

Environment, Natural

Resources, and Agriculture

Division

Spencer D. Smith

Special Assistant Attorney

General

Attorneys for Petitioners

i

QUESTION PRESENTED

The State of Michigan revoked and terminated an

easement that had permitted pipelines to occupy sovereign lands beneath navigable waters. The private

easement holder sued state officials in federal court,

and the Sixth Circuit allowed the suit to proceed under

Ex parte Young on the view that state sovereign immunity does not apply unless the requested relief

would divest the State of full ownership and eliminate

all regulatory power over the submerged lands—lands

that this Court has recognized as implicating “special

sovereignty interests.” Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 281 (1997) (principal opinion); see

id. at 289 (O’Connor, J., concurring in part and concurring in the judgment). The question presented is:

Whether a State is the real party in interest, and

therefore entitled to sovereign immunity, where a private plaintiff sues state officials in federal court for relief that would diminish, but not necessarily extinguish, the State’s ownership and control of its sovereign lands.

ii

PARTIES TO THE PROCEEDING

Petitioners Gretchen Whitmer, Governor of the

State of Michigan, in her official capacity; and Scott

Bowen, Director of the Michigan Department of Natural Resources, in his official capacity (collectively,

“Governor”) were defendants-appellants in the court

below.

Respondents Enbridge Energy, Limited Partnership; Enbridge Energy Company, Inc.; and Enbridge

Partners, L.P. (collectively, “Enbridge”) were plaintiffs-appellees in the court below.

RELATED CASES

The related proceedings within the meaning of

this Court’s Rule 14.1(b)(iii) are listed below:

•

Enbridge Energy, Limited Partnership, et al. v.

Whitmer, No. 24-1608 (6th Cir. Apr. 23, 2025)

(judgment entered).

•

Enbridge Energy, Limited Partnership, et al. v.

Whitmer, No. 24-1608 (6th Cir. June 16, 2025) (rehearing denied).

•

Enbridge Energy, Limited Partnership, et al. v.

Whitmer, No. 1:20-cv-01141 (W.D. Mich. July 5,

2024) (motion to dismiss denied).

iii

TABLE OF CONTENTS

Question Presented ...................................................... i

Parties to the Proceeding ............................................ ii

Related Cases .............................................................. ii

Table of Contents........................................................ iii

Table of Authorities ..................................................... v

Opinions Below ............................................................ 1

Jurisdiction .................................................................. 1

Constitutional Provision Involved .............................. 1

Introduction ................................................................. 2

Statement of the Case ................................................. 4

A. Factual Background ....................................... 4

B. Procedural History ......................................... 6

Reasons for Granting the Petition .............................. 7

I.

This case presents an important question of

federal law that should be settled by this

Court. ..................................................................... 8

A. States’ immunity from suit over sovereign

lands is an important federal question. ......... 9

B. Coeur d’Alene left unsettled the scope of

States’ immunity from suit over sovereign

lands. ............................................................. 12

II. Coeur d’Alene has been inconsistently applied

in the lower courts, including as to whether

requested relief must completely extinguish a

State’s ownership and control over sovereign

lands. ................................................................... 16

iv

III. The Sixth Circuit’s decision is wrong. ................ 20

IV. This case is an ideal vehicle to resolve the

question presented. ............................................. 24

Conclusion.................................................................. 26

PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Sixth Circuit

Judgment in 24-1608

Issued April 23, 2025 ...................................... 01a–02a

United States Court of Appeals

for the Sixth Circuit

Opinion in 24-1608

Issued April 23, 2025 ...................................... 03a–25a

United States District Court

Western District of Michigan

Case No. 1:20-cv-1141

Opinion and Order

Issued July 5, 2024 ......................................... 26a–38a

United States Court of Appeals

for the Sixth Circuit

Order Denying Petition for

Rehearing Enbanc in 24-1608

Issued June 16, 2025 ...................................... 39a–40a

v

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 9

Asociación de Reclamantes v. United Mexican

States,

735 F.2d 1517 (D.C. Cir. 1984) ........................... 12

Baker Farms, Inc. v. Hulse,

54 F. App’x 404, 2002 WL 31687704 (5th Cir.

2002) .............................................................. 18, 22

Bd. of Comm’rs of Lowndes Cnty. v. Mayor &

Council of Valdosta,

848 S.E.2d 857 (Ga. 2020)................................... 21

Blatchford v. Native Vill. of Noatak,

501 U.S. 775 (1991) ............................................... 9

Block v. North Dakota ex rel. Bd. of Univ. & Sch.

Lands,

461 U.S. 273 (1983) ............................................. 23

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ............................................. 22

Dugan v. Rank,

372 U.S. 609 (1963) ............................................. 15

Edelman v. Jordan,

415 U.S. 651 (1974) ............................................. 24

Elephant Butte Irrigation Dist. v. Dep’t of the

Interior,

160 F.3d 602 (10th Cir. 1998) ............................. 19

vi

Franchise Tax Bd. v. Hyatt,

587 U.S. 230 (2019) ............................................. 12

Glass v. Goeckel,

703 N.W.2d 58 (Mich. 2005) ................................. 4

Great Lakes Gas Transmission Co. v. MacDonald,

485 N.W.2d 129 (Mich. Ct. App. 1992) ............... 15

Green v. Biddle,

21 U.S. (8 Wheat.) 1 (1823) ................................. 15

Hawaii v. Gordon,

373 U.S. 57 (1963) ............................................... 10

Hill v. Kemp,

478 F.3d 1236 (10th Cir. 2007) ................. 3, 12, 20

Hollywood Mobile Ests. Ltd. v. Cypress,

415 F. App’x 207 (11th Cir. 2011)....................... 19

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997) .... i, 2, 3, 4, 9, 10, 11, 12, 13,

14, 15, 16, 20, 23, 24

Ill. Cent. R.R. Co. v. Illinois,

146 U.S. 387 (1892) ............................................. 11

Lacano Investments, LLC v. Balash,

765 F.3d 1068 (9th Cir. 2014) ............................. 19

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............................................. 22

Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak,

567 U.S. 209 (2012) ....................................... 14, 23

Nedtweg v. Wallace,

208 N.W. 51 (Mich. 1926)...................................... 4

vii

Obrecht v. Nat’l Gypsum Co.,

105 N.W.2d 143 (Mich. 1960) ............................. 11

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) ........................... 6, 9, 10, 20, 21

Phillips Petrol. Co. v. Mississippi,

484 U.S. 469 (1988) ............................................. 11

PPL Montana, LLC v. Montana,

565 U.S. 576 (2012) ............................................. 11

Schumacher v. Dep’t of Nat. Res.,

663 N.W.2d 921 (Mich. Ct. App. 2003) ................. 8

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ............................................... 20

Silva v. Farrish,

47 F.4th 78 (2d Cir. 2022) ................................... 18

Sossamon v. Texas,

563 U.S. 277 (2011) ............................................. 23

State v. Venice of Am. Land Co.,

125 N.W. 770 (Mich. 1910).................................... 4

True Oil, LLC v. Bureau of Land Mgmt.,

154 F.4th 1236 (10th Cir. 2025) ......................... 15

Unkechaug Indian Nation v. Seggos,

126 F.4th 822 (2d Cir. 2025) ............................... 18

Utah Div. of State Lands v. United States,

482 U.S. 196 (1987) ......................................... 4, 11

Va. Office for Prot. & Advoc. v. Stewart,

563 U.S. 247 (2011) ....................... 9, 10, 15, 21, 23

Verizon Md. Inc. v. Pub. Serv. Comm’n,

535 U.S. 635 (2002) ............................................. 24

viii

Western Mohegan Tribe & Nation v. Orange

County,

395 F.3d 18 (2d Cir. 2004) ............................ 17, 18

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ........................................... 9, 20

Ysleta Del Sur Pueblo v. Laney,

199 F.3d 281 (5th Cir. 2000) ............................... 18

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 2409a(d) ............................................ 15, 23

Rules

Sup. Ct. R. 10(a) ........................................................ 16

Sup. Ct. R. 14.1(b)(iii) .................................................. ii

Sup. Ct. Rule 10(c) ....................................................... 8

Constitutional Provisions

U.S. Const. amend. XI ................................................. 1

1

OPINIONS BELOW

The United States Court of Appeals for the Sixth

Circuit’s opinion, Pet. App. 3a–25a, is reported at 135

F.4th 467. The Sixth Circuit’s order denying rehearing

en banc, Pet. App. 39a–40a, is not reported but is

available at 2025 WL 1860296. The United States District Court for the Western District of Michigan’s opinion, Pet. App. 26a–38a, is not reported but is available

at 2025 WL 1860296.

JURISDICTION

The court of appeals entered judgment on April 23,

2025. Pet App. 1a–2a. Petitioners filed a petition for

rehearing, which was denied on June 16, 2025. Pet.

App. 39a–40a. On September 3, 2025, Justice Kavanaugh extended the time within which to file a petition for a writ of certiorari to November 13, 2025. See

No. 25A252. This Court has jurisdiction under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Eleventh Amendment to the United States

Constitution provides: “The Judicial power of the

United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against

one of the United States by the Citizens of another

State, or by Citizens or Subjects of any Foreign State.”

2

INTRODUCTION

This case presents an important question of federal law regarding state sovereign immunity that this

Court left open in Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261 (1997). A private plaintiff may not

maintain an action against state officials in federal

court for relief that “is close to the functional equivalent of quiet title” to a State’s “sovereign lands.” Id. at

282–83. The Sixth Circuit nonetheless allowed this

dispute over a perpetual physical occupation of the

State of Michigan’s sovereign lands to proceed in federal court without the State’s consent, adopting an incorrect rule that sovereign immunity does not apply

unless the requested relief would divest the State of

full ownership and eliminate all regulatory power over

the lands.

In 1953, the State of Michigan granted to Enbridge

an easement to construct and operate pipelines on the

bottomlands of the Straits of Mackinac—subject to defined specifications, ongoing compliance obligations,

and an express termination clause. After determining

that the easement violated the public trust doctrine

and that Enbridge had repeatedly breached the easement’s conditions, the State revoked and terminated

the easement in May 2021. Enbridge sued the Governor in federal court for declaratory and injunctive relief prohibiting state officials from taking any steps to

impede the operation of its pipelines. Such relief would

effectively reinstate the 1953 easement and divest the

State of its rights to possess the submerged lands and

to exclude Enbridge from them.

3

This Court has previously confronted a similar

scenario. In Coeur d’Alene, the Court held that state

sovereign immunity applied to a suit that was “the

functional equivalent of a quiet title action which implicates special sovereignty interests” in the State’s

ownership and control of submerged lands. 521 U.S. at

281. But “Coeur d’Alene involved multiple and fractured opinions,” leaving courts and commentators confused about “the state of the Supreme Court’s Ex parte

Young jurisprudence.” Hill v. Kemp, 478 F.3d 1236,

1257 & n.25 (10th Cir. 2007) (Gorsuch, J.).

This case squarely presents—and underscores the

need to clarify after Coeur d’Alene—whether Ex parte

Young permits suits that seek to diminish a State’s

ownership and control over its sovereign lands so long

as some residual title and regulatory authority remain. The Sixth Circuit said yes, but the Second, Fifth,

and Ninth Circuits have taken a different approach.

Here, the material facts are undisputed and the issue

is outcome determinative, making this an ideal vehicle

for the Court to clarify the limits of Ex parte Young

where “special sovereignty interests” in the State’s

submerged lands are at stake. Coeur d’Alene, 521 U.S.

at 281. This Court’s intervention is urgently needed

because the Sixth Circuit’s rule strikes at not one, but

two core attributes of statehood: a State’s immunity

from suit and its dominion over sovereign lands.

4

STATEMENT OF THE CASE

A. Factual Background

Upon its admission to the Union in 1837, the State

of Michigan acquired title to the bottomlands of the

Straits of Mackinac, which run between Michigan’s

Upper and Lower Peninsulas and connect Lake Michigan and Lake Huron. See Nedtweg v. Wallace, 208

N.W. 51, 52 (Mich. 1926); Coeur d’Alene, 521 U.S. at

283. These submerged lands have “a unique status in

the law” and “have historically been considered ‘sovereign lands.’ ” Coeur d’Alene, 521 U.S. at 283 (citing

Utah Div. of State Lands v. United States, 482 U.S.

196, 195–98 (1987)). Michigan holds title to these sovereign lands “in trust for the people,” State v. Venice of

Am. Land Co., 125 N.W. 770, 778 (Mich. 1910), and

“serves, in effect, as the trustee of public rights in the

Great Lakes,” Glass v. Goeckel, 703 N.W.2d 58, 64–65

(Mich. 2005).

In 1953, the State of Michigan, as Grantor, purported to “convey[] and quit claim[]” an easement to

Enbridge, as Grantee, giving Enbridge the right “to

construct, lay, maintain, use and operate two (2) pipe

lines” on a four-mile stretch of submerged lands in the

Straits of Mackinac. 1 Dist. Dkt. 1-1:24. 2 But that right

1 The easement was granted to Enbridge’s predecessor, the Lake-

head Pipeline Company. For consistency with the opinion below,

Pet. App. 6a n2, this petition omits reference to Lakehead and

treats the original easement as between the State and Enbridge.

2 “Dist. Dkt.” refers to the district court’s CM/ECF docket in No.

1:20-cv-01141. Page cites are to the page numbers in the top right

of the ECF header.

5

was granted “subject to” certain terms and conditions,

including that Enbridge must “at all times exercise the

due care of a reasonably prudent person” and that the

pipelines must comply with certain “minimum specifications, conditions and requirements.” Id. at 24–28.

As relevant here, the easement required a minimum pipe curvature of 2,050 feet radius, specific coating and wrap protection for all pipes, and a maximum

unsupported pipe span of 75 feet. Id. at 27. The easement expressly states that it “may be terminated by

Grantor [the State] … [i]f, after being notified in writing by Grantor of any specified breach of the terms and

conditions of this easement, [Enbridge] shall fail to

correct said breach within ninety (90) days.” Id. at 29.

The easement also states: “All rights not specifically

conveyed herein are reserved to the State of Michigan.” Id. at 33. Other than the State’s reserved right

to revoke and its express right to terminate, the easement is perpetual. Id. at 24–34.

In November 2020, the Governor notified

Enbridge that the State was revoking and terminating

the easement effective 180 days from the date of the

notice. Dist. Dkt. 1-1:21. The revocation was based on

the State’s determination that the 1953 easement was

never valid and violated the public trust doctrine. Id.

at 3–10. The termination was based on the State’s

finding that Enbridge had repeatedly and incurably

breached the easement’s terms and conditions, including by failing to comply with the curvature limits,

maintain the required coating, ensure proper pipeline

support every 75 feet, and otherwise exercise the due

care of a reasonably prudent person. Id. at 12–18.

6

B.

Procedural History

Enbridge sued the Governor in federal court, alleging that the State’s revocation of the easement under

the public trust doctrine and the State’s exercise of its

contractual right to terminate the easement for breach

violated federal law. Dist. Dkt. 1:10–18. Enbridge argued in part that the terms of the easement were “nullified” by the later enactment of the federal Pipeline

Safety Act. Dist. Dkt. 66:18; 125:20. It sought a declaratory judgment and an “injunction prohibiting [the

Governor] from taking any steps to impede” the operation of the pipelines, “including the revocation or termination of the 1953 Easement based on the alleged

non-compliance with [the terms and conditions] in the

Easement.” Dist. Dkt. 1:18–19.

The Governor moved to dismiss Enbridge’s suit

based on the State’s sovereign immunity. Dist. Dkt.

62, 63. The Governor argued that, although the suit

was nominally against state officials, Ex parte Young

did not apply because Enbridge sought relief that

would interfere with the State’s special sovereignty interests in its submerged lands and compel the State to

specifically perform its contractual obligations under

an easement that it had renounced. Dist. Dkt. 63:7–

25. Thus, Enbridge’s requested relief “would improperly ‘operate against [Michigan]’, the ‘real, substantial

party in interest.’ ” Id. at 8 (quoting Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)).

The district court denied the Governor’s motion,

Pet. App. 26a–38a, and the Sixth Circuit affirmed, Pet.

App. 3a–25a. The Sixth Circuit acknowledged that

Enbridge’s requested relief—prohibiting any state

7

action that would interfere with Enbridge’s perpetual

use and physical occupation of the State’s sovereign

lands—would divest the State of some of “the sticks in

the so-called bundle of sticks representing the State’s

property rights” and “no doubt have an impact on the

State’s ability to exercise its regulatory authority” over

the disputed lands. Pet. App. 16a, 18a–19a. But the

panel read this Court’s fractured decision in Coeur

d’Alene as imposing two necessary conditions for State

sovereign immunity to apply: the requested relief

must effectively “divest the State of full ownership”

and “eliminate the State’s regulatory power over the

land.” Pet. App. 20a (emphasis added). Because granting Enbridge the right to perpetually use and occupy

the State’s sovereign lands without the State’s consent

would still leave the State with some residual rights—

including, the panel supposed, the right to “sell the

disputed parcel subject to an encumbrance (that is,

Enbridge’s easement)” and “the right to exclude entities and individuals other than Enbridge from the parcel,” Pet. App. 16a (emphasis added)—the Sixth Circuit held that the State was not the real, substantial

party in interest.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s decision warrants this Court’s

review because States have a fundamental interest in

managing the use and occupation of their sovereign

lands and in having disputes over those lands resolved

in their own courts. 3 The decision below deepens

3 Under Michigan law, a private party may bring an action in

state court claiming an interest in real property owned by the

8

acknowledged confusion over the scope of Ex parte

Young when private plaintiffs seek relief that would

diminish, but not necessarily extinguish, a State’s

ownership and control over sovereign lands. By adopting a cramped rule that requires divestiture of full

ownership and elimination of all regulatory power, the

Sixth Circuit parted ways with the Second, Fifth, and

Ninth Circuits and misread this Court’s precedents.

The question is important and recurring, implicating

both state sovereign immunity and States’ unique interests in sovereign lands. This case cleanly presents

the issue and offers an optimal vehicle for the Court to

provide much-needed guidance.

I.

This case presents an important question of

federal law that should be settled by this

Court.

The petition should be granted because the Sixth

Circuit decided the scope of state sovereign immunity

from suit where the effect of the relief sought would be

to diminish, but not necessarily extinguish, the State’s

ownership and control of its sovereign lands—an important federal question that “has not been, but should

be, settled by this Court.” Sup. Ct. Rule 10(c).

State. See, e.g., Schumacher v. Dep’t of Nat. Res., 663 N.W.2d 921

(Mich. Ct. App. 2003).

9

A. States’ immunity from suit

over

sovereign lands is an important federal

question.

This case implicates not one, but two bedrock legal

principles: the “fundamental” principle of state sovereign immunity, Alden v. Maine, 527 U.S. 706, 729

(1999), and the “ancient” principle that a territorial

sovereign has a “unique” interest in its ownership and

control of lands underlying navigable waters, Coeur

d’Alene, 521 U.S. at 283–86.

The Court has recognized that “States entered the

federal system with their sovereignty intact; that the

judicial authority in Article III is limited by this sovereignty; and that a State will therefore not be subject

to suit in federal court unless it has consented to suit,

either expressly or in the plan of the [constitutional]

convention.” Blatchford v. Native Vill. of Noatak, 501

U.S. 775, 779 (1991) (citations and internal quotation

marks omitted). That is because “the generation that

designed and adopted our federal system considered

immunity from private suits central to sovereign dignity.” Alden, 527 U.S. at 715.

In Ex parte Young, however, the Court created a

“narrow exception” to state sovereign immunity.

Whole Woman’s Health v. Jackson, 595 U.S. 30, 39

(2021). This exception allows federal courts to issue

prospective relief against state officials to prevent ongoing violations of federal law. Id. But it “is limited to

that precise situation, and does not apply when ‘the

state is the real, substantial party in interest.’ ” Va.

Office for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255

(2011) (VOPA) (quoting Pennhurst, 465 U.S. at 107).

10

To determine whether the State is the real party

in interest, a court must look past “elementary mechanics of captions and pleading,” Coeur d’Alene, 521

U.S. at 270, and examine “the effect of the relief

sought,” VOPA, 563 U.S. at 256 (quoting Pennhurst,

465 U.S. at 107); see Hawaii v. Gordon, 373 U.S. 57,

58 (1963) (“The general rule is that relief sought nominally against an officer is in fact against the sovereign

if the decree would operate against the latter.”). So Ex

parte Young does not apply “when the judgment

sought would expend itself on the public treasury or

domain,” “interfere with public administration,” or require “specific performance of a State’s contract,”

among other situations. VOPA, 563 U.S. 255, 257.

For instance, in Coeur d’Alene, the Coeur d’Alene

Tribe sought an injunction to prevent Idaho officials

from “taking any action in violation of the Tribe’s

rights of exclusive use and occupancy, quiet enjoyment, and other ownership interest in the submerged

lands” of Lake Coeur d’Alene. 521 U.S. at 265. Because

this relief would diminish the State of Idaho’s control

over lands and waters integral to its sovereign territory, the Court rejected the Tribe’s suit on sovereign

immunity grounds and, in doing so, stressed the

“unique status in the law” of state lands beneath navigable waters. Id. at 282–83.

In an extended discussion joined by a majority of

the Court, Justice Kennedy explained what makes

state-owned submerged lands “unique.” Id. at 283; see

id. at 283–86. These lands “have historically been considered ‘sovereign lands,’ ” and “[s]tate ownership of

them has been ‘considered an essential attribute of

11

sovereignty.’ ” Id. at 283 (quoting Utah Div. of State

Lands, 482 U.S. at 195). A State has a special interest

in maintaining “sovereign control over submerged

lands” because such lands are “infused with a public

trust the State itself is bound to respect.” Id.

Under “ancient doctrines” as old as the common

law itself, id. at 284, “the State holds the title to the

lands under the navigable waters … in trust for the

people of the State, that they may enjoy the navigation

of the waters, carry on commerce over them, and have

liberty of fishing therein, freed from the obstruction or

interference of private parties,” Ill. Cent. R.R. Co. v.

Illinois, 146 U.S. 387, 452 (1892). 4 This duty to maintain the public trust “can only be discharged by the

management and control of property in which the public has an interest, [and] cannot be relinquished by a

transfer of the property.” Id. at 453. 5

4 While Illinois Central was a statement of Illinois law, see PPL

Montana, LLC v. Montana, 565 U.S. 576, 603–04 (2012), Michigan “[l]ong ago” incorporated the decision as part of Michigan

common law, Obrecht v. Nat’l Gypsum Co., 105 N.W.2d 143, 149

(Mich. 1960).

5 The public trust doctrine limits the State’s ability to alienate

submerged lands to private use. Ill. Cent., 146 U.S. at 453–54,

460. “Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the State

can be resumed at any time.” Id. at 455. “There can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and

manage it.” Id. at 460; Phillips Petrol. Co. v. Mississippi, 484 U.S.

469, 494 (1988) (O’Connor, J., dissenting) (“To the extent that the

conveyances to private parties purported to include public trust

lands, the States may strike them down, if state law permits.”).

12

This case thus implicates two distinct sovereignty

interests: first, “[a]n integral component” of States’

sovereignty—“their immunity from private suits,”

Franchise Tax Bd. v. Hyatt, 587 U.S. 230, 238 (2019)

(quoting Fed. Mar. Comm’n v. S.C. State Ports Auth.,

535 U.S. 743, 751–52 (2002)); and second, the unique

“ties between … submerged lands and the State’s own

sovereignty,” Coeur d’Alene, 521 U.S. at 287. These

combined interests go to the heart of the dignity reserved to States by the Constitution. Cf. Asociación de

Reclamantes v. United Mexican States, 735 F.2d 1517,

1521 (D.C. Cir. 1984) (Scalia, J.) (“A territorial sovereign has a primeval interest in resolving all disputes

over use or right to use of real property within its own

domain.”).

B. Coeur d’Alene left unsettled the scope of

States’ immunity from suit

over

sovereign lands.

While Coeur d’Alene recognized both “the dignity

and respect afforded a State, which [sovereign] immunity is designed to protect,” as well as the “special

sovereignty interests” implicated by suits over public

trust lands, 521 U.S. at 268, 281, the decision left the

law of this area unsettled.

“Coeur d’Alene involved multiple and fractured

opinions,” leaving courts and commentators confused

about “the state of the Supreme Court’s Ex parte

Young jurisprudence.” Hill, 478 F.3d at 1257 & n.25

(Gorsuch, J.). Writing for himself and Chief Justice

Rehnquist, Justice Kennedy advocated a “case-by-case

approach” that considers a “broad” range of factors,

13

including the availability of a state forum to vindicate

federal rights, and that engages in “a careful balancing” of the federal and state interests at issue. Coeur

d’Alene, 521 U.S. at 279–80; see id. at 270–78.

As to the Tribe’s claim, Justice Kennedy began by

noting “common ground” that “the Tribe could not

maintain a quiet title suit against Idaho in federal

court, absent the State’s consent.” Id. at 281. Justice

Kennedy then reasoned that the Tribe’s suit could not

proceed—lest “the real interests served by the Eleventh Amendment” be “sacrificed to elementary mechanics of captions and pleading,” id. at 270—because

the requested declaratory and injunctive relief was

“the functional equivalent of a quiet title action,” id. at

281. Justice Kennedy explained that this was an “especially troubling” result because it “would diminish,

even extinguish, the State’s control over” sovereign

lands held in public trust. Id. at 282.

In an opinion concurring in part and concurring in

the judgment, Justice O’Connor, joined by Justices

Scalia and Thomas, rejected Justice Kennedy’s “unnecessar[y] recharacteriz[ation]” of the Court’s Ex

parte Young jurisprudence as requiring “a case-specific analysis of a number of concerns.” Id. at 291. Instead, Justice O’Connor favored a simpler rule—“that

a Young suit is available where a plaintiff alleges an

ongoing violation of federal law, and where the relief

sought is prospective rather than retrospective.” Id. at

294; see id. at 288 (“A federal court cannot award retrospective relief, designed to remedy past violations of

federal law.”).

14

Justice O’Connor agreed, however, that the Tribe’s

suit was “the functional equivalent of an action to

quiet its title to the bed of Lake Coeur d’Alene.” Id. at

289. And, in Justice O’Connor’s view, “[a] federal court

cannot summon a State before it in a private action

seeking to divest the State of a property interest.” Id.

Because the Tribe’s requested relief would have this

effect, “it simply cannot be said that the suit is not a

suit against the State.” Id. at 296.

Yet even as to suits over sovereign lands—an area

of apparent agreement between Justices Kennedy and

O’Connor—Coeur d’Alene is unclear. Something less

than a dispute over ownership must suffice, otherwise

there would have been no need to speak of being “close

to the functional equivalent” of quiet title. Id. at 282

(principal opinion); see id. at 289 (O’Connor, J., concurring in part and concurring in the judgment). But

how “close” is close enough? To borrow from Coeur

d’Alene, what if the suit in question would “diminish,”

but not necessarily “extinguish,” the State’s ownership

or control of sovereign lands? Id. at 282 (principal

opinion).

Not only do Coeur d’Alene’s key phrases—“close to

the functional equivalent” and “diminish, even extinguish, the State’s control,” id.—leave open important

questions about the scope of sovereign immunity, but

so too does the basic term “quiet title.” Generally

speaking, the “particular type of action, known as a

quiet title suit” means “a suit by a plaintiff asserting a

‘right, title, or interest’ in real property” owned by another. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012)

15

(quoting 28 U.S.C. § 2409a(d)). Accordingly, under

both state and federal law, a suit to establish an easement over another’s land is a quiet title action. See,

e.g., Great Lakes Gas Transmission Co. v. MacDonald,

485 N.W.2d 129, 130–31 (Mich. Ct. App. 1992); True

Oil, LLC v. Bureau of Land Mgmt., 154 F.4th 1236,

1243–45 (10th Cir. 2025). But parts of Justice Kennedy’s opinion appear to have used the term in a more

limited sense, stating that the Tribe’s suit was “close

to the functional equivalent of quiet title in that substantially all benefits of ownership and control would

shift from the State to the Tribe.” 521 U.S. at 282.

Justice O’Connor stated the relevant legal principle more broadly: State sovereign immunity bars “a

private action seeking to divest the State of a property

interest.” Id. at 289. “[A] property interest” could include many different legal or equitable claims to, or

rights in, the State’s property. Similarly, this Court in

VOPA described the principle at a higher level of generality, explaining that Ex parte Young does not apply

“when the judgment sought would expend itself on the

public treasury or domain.” 563 U.S. at 255 (emphasis

added) (quoting Dugan v. Rank, 372 U.S. 609, 620

(1963)); 6 see also id. at 269 (Roberts, C.J., dissenting)

(referencing “the State’s property rights”). Yet Justice

O’Connor’s analysis also mentioned other factors, including whether the relief sought was retrospective.

6 “Domain” in this context refers to a State’s lands and waters.

See Dugan, 372 U.S. at 620; see also, e.g., Green v. Biddle, 21 U.S.

(8 Wheat.) 1, 12 (1823) (Story, J.) (“Every government has, and

from the nature of sovereignty must have, the exclusive right of

regulating the descent, distribution, and grants of the domain

within its own boundaries … .” (emphasis added)).

16

See 521 U.S. at 288–89, 294–95. So, what if a private

suit seeks to reinstate an easement that the State has

already terminated and revoked?

Unsurprisingly, the fractured opinions in Coeur

d’Alene have led to confusion in the lower courts as to

the scope of Ex parte Young, and even to divergent outcomes in the specific context of sovereign lands and

waters. See infra II. This Court’s intervention is urgently needed to clarify the law.

II. Coeur d’Alene has been inconsistently

applied in the lower courts, including as to

whether requested relief must completely

extinguish a State’s ownership and control

over sovereign lands.

In applying Justice Kennedy’s and Justice O’Connor’s separate opinions in Coeur d’Alene to this case,

the Sixth Circuit’s approach departed from that of the

Second, Fifth, and Ninth Circuits, providing yet another reason to grant the petition. See Sup. Ct.

R. 10(a).

Enbridge’s suit is like the suit in Coeur d’Alene in

that Enbridge seeks declaratory and injunctive relief

to prevent state officials from interfering with

Enbridge’s alleged property rights in the State’s submerged lands. Specifically, Enbridge seeks a declaration that its easement rights to occupy and use the

State’s lands are exempt from the terms and conditions of the easement that the State negotiated in

1953, cannot be terminated by the State’s invocation

of the easement’s express termination clause, and

17

cannot be revoked by the State under the public trust

doctrine.

Yet the Sixth Circuit held that Ex parte Young applies because Enbridge’s requested relief would not

“divest the State of full ownership” and “eliminate the

State’s regulatory power over the land.” Pet. App. 20a.

(emphasis added). The Sixth Circuit understood those

to be necessary conditions to “satisfy the high bar set

forth in Coeur d’Alene.” Id. The Second, Fifth, and

Ninth Circuits, however, have not adopted the Sixth’s

Circuit’s rule. They instead have held that sovereign

immunity applies if the requested relief would diminish—but not completely extinguish—a State’s ownership and control over its sovereign lands.

In Western Mohegan Tribe & Nation v. Orange

County, 395 F.3d 18 (2d Cir. 2004), the plaintiff Tribe

brought claims against New York officials that it alleged were “of a more limited nature than those considered by the Coeur d’Alene Court,” involving only

“the right to camp, to hunt, to fish, and to use the waters and timbers in the contested lands and waterways” and “to exclude all others” from them, id. at 22

(internal quotation marks, brackets, and emphasis

omitted). The plaintiff did not seek to deprive the State

of New York of every stick in the bundle of property

rights. And the Second Circuit acknowledged that,

even if it granted the relief requested, the State would

retain fee title to the lands. Id. at 23. Yet the Second

Circuit held that the suit was barred by sovereign immunity because it sought a ruling that “New York’s exercise of fee title remains ‘subject to’ the [plaintiff’s]

rights,” which was “fundamentally inconsistent with

18

the State of New York’s exercise of fee title.” Id. (citation omitted). 7

The Fifth Circuit has dealt specifically with the

application of Coeur d’Alene to a private plaintiff’s

claim to an easement over state-owned land, and it

reached the opposite conclusion of the Sixth Circuit. In

Baker Farms, Inc. v. Hulse, the plaintiff alleged that it

had “a property interest in easements” over sovereign

lands owned by the State of Texas. 54 F. App’x 404,

2002 WL 31687704, at *1 (5th Cir. 2002). The Fifth

Circuit held that “[a] federal court may not adjudicate

a State’s interest in property without the State’s consent.” Id. (citing Ysleta Del Sur Pueblo v. Laney, 199

F.3d 281, 289 (5th Cir. 2000)). 8 Because the plaintiff’s

suit over disputed easements “sought to adjudicate

limitations of the State of Texas’s interest in its property, its suit was barred” by sovereign immunity. Id.

The Ninth Circuit has similarly held that a suit

need not seek to extinguish the State’s regulatory

7 Accord Silva v. Farrish, 47 F.4th 78, 85 (2d Cir. 2022) (holding

that sovereign immunity did not apply because, unlike in Western

Mohegan, the plaintiffs did not seek relief that would allow them

to exclude all others from disputed waters); Unkechaug Indian

Nation v. Seggos, 126 F.4th 822, 830 (2d Cir. 2025) (“The relief

sought by plaintiffs ‘in this case is not a right to exclude all others.” (quoting Silva, 47 F.4th at 85 n.7)). The Sixth Circuit got

this right-to-exclude inquiry backwards. See infra III.

8 In Ysleta Del Sur Pueblo v. Laney, the Fifth Circuit held that a

Tribe’s outright claim to title was a sufficient—not necessary—

condition for Coeur d’Alene to apply. See 199 F.3d at 290 (“[T]he

Tribe is asking this court to determine that the State has no title

to the Property because title rests in the Pueblo.”). Petitioners

agree.

19

power for sovereign immunity to apply. In Lacano Investments, LLC v. Balash, the plaintiff alleged ownership rights in submerged lands in Alaksa. 765 F.3d

1068, 1070 (9th Cir. 2014). It tried to distinguish

Coeur d’Alene on the ground that because it was not

itself a sovereign, its ownership of the land would remain subject to state regulation and would not deprive

the State of “all regulatory power” over the lands. Id.

at 1075. The Ninth Circuit held that “[t]his is not a

sufficient distinction of Coeur d’Alene,” noting Justice

O’Connor’s view that States “must possess actual control over submerged lands in order to regulate

properly the use of navigable waters.” Id.

Other lower courts have more narrowly applied

state sovereign immunity along lines similar to the

Sixth Circuit. See Elephant Butte Irrigation Dist. v.

Dep’t of the Interior, 160 F.3d 602, 611–13 (10th Cir.

1998) (describing Coeur d’Alene as a “suit to divest the

State of Idaho of all authority and ownership over submerged lands”); Hollywood Mobile Ests. Ltd. v. Cypress, 415 F. App’x 207, 210–11 (11th Cir. 2011) (distinguishing Coeur d’Alene on the ground that the “requested injunction would merely affect the [defendant’s] possessory rights” and “not remove the land

from the [defendant’s] jurisdiction”).

But there is widespread agreement on one thing:

the contours of the doctrine are unclear. See, e.g., Pet.

App. 12a (suggesting that reconciling Ex parte Young

with Coeur d’Alene and VOPA is “not an easy” task);

Elephant Butte, 160 F.3d at 608 (stating that “[t]he

struggle to define the limits of Ex parte Young doctrine

is evident from … Coeur d’Alene”); id. at 612 (noting

20

the difficulty of finding “a principled means of distinguishing the real property interest at stake in Coeur

d’Alene Tribe with New Mexico’s asserted right to income under the assignment provision of the lease in

the present case”); Hill, 478 F.3d at 1257 n.25 (citing

law review articles describing Coeur d’Alene as “[t]he

most unsettled aspect” of Eleventh Amendment case

law). This Court should grant the petition to establish

a uniform rule that would eliminate this confusion and

provide clear guidance to the lower courts.

III. The Sixth Circuit’s decision is wrong.

The Sixth Circuit’s two necessary conditions for

state sovereign immunity from suit over sovereign

lands—requested relief that would “divest the State of

full ownership” and that would “eliminate the State’s

regulatory power over the land,” Pet. App. 20a—also

conflict with Coeur d’Alene, this Court’s other cases,

and basic principles of property and sovereign immunity.

This Court has repeatedly emphasized that Young

is a “narrow exception” to state sovereign immunity.

Whole Woman’s Health, 595 U.S. at 39; accord Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 76 (1996);

Pennhurst, 465 U.S. at 114 n.25. Because “[t]he real

interests served by the Eleventh Amendment are not

to be sacrificed to elementary mechanics of captions

and pleading,” Coeur d’Alene, 521 U.S. at 270, courts

must resist “reflexive reliance on an obvious fiction,”

id., and consider whether “the effect of the relief

sought” makes the State—and not its officers—the

21

real, substantial party in interest, VOPA, 563 U.S. at

256 (quoting Pennhurst, 465 U.S. at 107).

That test is equally satisfied when a party seeks

relief that would diminish a State’s rights in sovereign

lands as when it would extinguish them. Here,

Enbridge seeks a declaration that essential terms and

conditions of the 1953 easement are unenforceable,

such that the State’s revocation and termination of the

easement was unlawful. But the grantor of the easement was the State, which owns the land and has a

sovereign duty to manage its possession and use—not

any state official. A federal court ruling that Enbridge

may continue to occupy sovereign land without the

State’s consent and without complying with the terms

of a land-use contract to which the State is a party

would operate against the State itself. See, e.g., Bd. of

Comm’rs of Lowndes Cnty. v. Mayor & Council of Valdosta, 848 S.E.2d 857, 858 (Ga. 2020) (stating that the

State is the real party in interest where “the claimed

relief would control or take the State’s real property or

interfere with contracts to which the State is a party”);

id. at 861–62 (citing cases applying sovereign immunity where private parties sued state officials regarding

the use and occupation of state land).

The Supreme Court of Georgia’s reference in

Board of Commissioners of Lowndes County v. Mayor

& Council of Valdosta to the taking of state land is instructive. See id. This Court has long held that when

federal law divests a landowner of the right to exclude

and compels it to accept an easement on its land, “the

appropriation of an easement constitutes a physical

taking” even if the landowner’s rights in the land are

22

not completely extinguished. Cedar Point Nursery v.

Hassid, 594 U.S. 139, 150–52 (2021) (discussing

cases). And here, it is sovereign land that would be encumbered by Enbridge’s perpetual physical occupation. Just as the Fifth Circuit correctly held in Baker

Farms, Inc., 2002 WL 31687704, at *1, the State itself

is the real party in interest to such a suit, so sovereign

immunity applies.

The Sixth Circuit reasoned that “the State [of

Michigan] would still retain the right to exclude entities and individuals other than Enbridge from the parcel.” Pet. App. 16a (emphasis added). But the relevant

consideration is the extent to which the requested relief would allow Enbridge to exclude all others—including and especially the State—from the disputed

lands and, therefore, to deprive the State of its rights

to possess the lands and to exclude Enbridge (the occupier). In this case, Enbridge’s occupancy is exclusive: There is simply no way for the State—or any

other entity, for that matter—to occupy or possess

land that is already physically occupied by an oil pipeline. See Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 435 (1982) (“[A] permanent physical occupation of another’s property … is perhaps the

most serious form of invasion of an owner’s property

interests. … [T]he owner has no right to possess the

occupied space himself, and also has no power to exclude the occupier from possession and use of the

space.”).

The Sixth Circuit’s ruling also has the troubling

result of putting state and federal governments on unequal footing. See Sossamon v. Texas, 563 U.S. 277,

23

285 n.4 (2011) (discussing the close analogy between

state and federal sovereign immunity). It has long

been understood that claims “asserting title to or the

right to possession of lands claimed by the United

States” are barred by sovereign immunity. Block v.

North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461

U.S. 273, 282 (1983) (emphasis added). Federal sovereign immunity is not limited to claims that would completely extinguish the United States’ ownership and

authority over land; it extends to any action “asserting

a ‘right, title, or interest’ in real property that conflicts

with a ‘right, title, or interest’ the United States

claims”—the ordinary understanding of a quiet title

action. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, 567 U.S. at 215 (quoting 28 U.S.C.

§ 2409a(d)). There is no good reason why state sovereign immunity should be construed more restrictively.

In any event, Enbridge’s suit is “close to the functional equivalent” of an action asserting title because

it would subject the State’s fee ownership and control

over its sovereign lands to a perpetual easement that

the State has decided to renounce, divesting the State

of its contract and property rights, and preventing it

from ending an unauthorized physical occupation of

its sovereign territory. Coeur d’Alene, 521 U.S. at 282.

“The dignity and status of its statehood allow [the

State of Michigan] to rely on its [sovereign] immunity

and to insist upon responding to these claims in its

own courts.” Id. at 287–88.

Finally, because “the effect of the relief sought,”

VOPA, 563 U.S. at 256, would be to undo the State’s

prior revocation and termination of the 1953

24

easement, Enbridge’s suit impermissibly seeks “retrospective relief,” Coeur d’Alene, 521 U.S. at 288 (O’Connor, J., concurring in part and concurring in the judgment) (citing Edelman v. Jordan, 415 U.S. 651, 668

(1974)). The State’s revocation and termination of the

easement was “effective 180 days after the date of [the]

Notice,” which issued on November 13, 2020. Dist.

Dkt. 1-1:21. There has been no restraining order or injunction preventing that occurrence. Accordingly, under state law, the easement was revoked and terminated on May 12, 2021. Enbridge asks a federal court

to set aside the State’s completed action and to restore

an easement that no longer exists. That relief is impermissibly retrospective because it seeks to remedy

past rather than future wrongs. See Verizon Md. Inc.

v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002) (citing

Coeur d’Alene, 521 U.S. at 296 (O’Connor, J., concurring in part and concurring in the judgment)).

IV. This case is an ideal vehicle to resolve the

question presented.

This case presents an ideal vehicle for clarifying

the scope of States’ immunity from suit over sovereign

lands. The facts of the case are undisputed and touch

on the “special sovereignty interests” discussed in

Coeur d’Alene, providing an opportunity for this Court

to resolve the confusion created by the fractured opinions in that case.

The Sixth Circuit’s resolution of the issue turned

on its view that under Coeur d’Alene, state sovereign

immunity applies only where the requested relief

would “divest the State of full ownership” and

25

“eliminate the State’s regulatory power over the land.”

Pet. App. 20a. That issue was outcome-determinative

and departs from decisions of other circuits. This

Court should weigh in to ensure that the dignity and

sovereignty of States are respected uniformly nationwide.

26

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

Keith D. Underkoffler

Assistant Attorney General

Environment, Natural

Resources, and Agriculture

Division

Spencer D. Smith

Special Assistant Attorney

General

Attorneys for Petitioners

Dated: NOVEMBER 2025