In fact, this week we learned just how true that it. Our agent left us with a couple of new land agent contacts for the restoration phase. We called one of them to check on the status of restoration and because we wanted to ensure that our topsoil situation would be handled properly. The agent was not responsive. He seemed annoyed by the call, didn’t have any information for us regarding when we could expect restoration to begin on our property, and was disinclined to even bother looking into our situation. So you can imagine our surprise when, the very next day, crews arrived to begin restoring our property.

So we called him again. Same response: he just wasn’t interested. He didn’t even want to come out and talk with us as we asked. Frankly, he was so unhelpful and apparently annoyed that we were even calling him, that we’re tempted to do something we’ve never done before and name him by name. But we won’t. (However, if you’re on phase one and you want to know who NEVER to call, send me a note and I’ll tell you who to avoid.)

The good news is that the supervisor of the restoration crew and the environmental inspector were both VERY helpful. We had satisfying conversations with both about the items on our line list and what we wanted to happen with restoration. And they appear to have made sure all of those things happened. As always, we took some photos:

The crew– here’s more good news: almost all of them, they told us, are from Michigan– worked remarkably fast. First, they moved our pile of timber (which they were supposed to have moved when the took the trees down).

Then they decompacted the subsoil (or so the environmental inspector said; we’re a little nervous about this).

Then they brought in the new topsoil, as agreed to after they spoiled our original topsoil by mixing it with heavy subsoil.

Then– but only because I asked about it– they moved the big pile of wood chips we wanted saved. These chips were supposed to be hauled away when construction started. But since they didn’t take them away, we thought we’d keep them for mulch. Our line list said to move them to the back of the property, but the crew apparently didn’t know that (more on this in a minute).

But finally, they were placed in the right spot– it’s a much bigger pile than we thought!

We did get a couple of nice surprises. This daisy was on the edge of the temporary workspace– and survived.

Even better, buried underneath that pile of shredded wood were these bearded irises, white for lack of sunlight for months, but still alive. True survivors!

Crews aren’t quite finished yet, though things look a lot better now– no more orange fence! And we are (mostly) satisfied with this phase of restoration. Yet lots of questions marks about re-vegetaation remain. And there are some important lessons for those of you yet to go through this, whether you are on phase one or on phase two. For instance,

• Be sure you touch base with your land agent before restoration begins on your property. Reiterate the items on your line list and mention any new concerns or instructions you might have.
• The only downside to doing that, unfortunately, is that not all right of way agents are reliable or effective communicators. So no matter what you say, it might not make it to the construction crews. Therefore, if at all possible, try and find the restoration crew supervisor before they begin. Repeat your concerns to him.
• Similarly, if you can find the environmental inspector– there should be one on your property at some point– seek her or him out and discuss any concerns.
• We are fortunate to have the kinds of work schedules that allow us to be here to see what’s happening most of the time. We’re sure that’s not true for everyone. So this next piece of advice will be more difficult for some of you. Nevertheless, as best you can, BE VIGILANT. Check on what’s happening on your property. Watch when you can. As much as you are able, be your own inspector. The crews are generally good people (in our experience) and respectful. But communication from land agents isn’t always what it should be, so they might make unwitting mistakes. Watch for them.
• Lastly, if you are on phase two and won’t experience restoration for a very long time, it’s not too early for you to be thinking about these things also– even if you don’t yet have an agreement with Enbridge. Think about what you want to happen on your property once the project is completed. Think about what is unique about your property and important to you and what measures should be taken to ensure that those concerns or unique features are appropriately addressed– then have those things put into your line list. If phase two readers would like it, we’d be happy to work up a separate post on the kinds of things one might have put on a construction line list.

In the meantime, we’ll continue to report on restoration matters as they progress. Please let us know what’s happening– good or bad– on your property as “clean up” continues.

Haven’t meant to be neglectful of late; sometimes spring activities get a little out of hand!

For now, we just want to say that restoration– by which we mean restoration headaches– have begun. We are already irritated and concerned. Details coming soon.

How are things on your property?

Friday was devoted to the Marshall disaster and its aftermath. The journalists met and interviewed officials from the EPA, the Michigan DNR and DEQ, representatives from Enbridge (well, Jason Manshum), MSU scientist Steve Hamilton (who at this point probably knows more about cleaning up dilbit than anyone on the planet), our friends Beth Wallace from the NWF, Josh Mogerman from the NRDC (nice to finally meet him in person!), and Sue Connolly and Deb Miller. We also made new friends in fellow landowners (on phase 2) David and Karin Gallagher– we’ll bring you their grisly story in the second installment of the series– who graciously invited all of the Institute participants to their home.

One of the highlights of the day was a canoe trip along a two-mile stretch of the Kalamazoo River, following the path of the oil. Although there’s more to be done, the good news is that the river is bouncing back and it really is quite beautiful. Here’s a shot:

In all, it was a terrific experience and we’re deeply grateful to Dave Spratt and Adam Hinterthuer from IJNR for letting us tag along and speak to the journalists. We met lots of smart, interesting people– and we’re looking forward to seeing what kinds of stories the fellows produce. But as we wait, we plan to do some ruminating of our own on the experience in a few installments. In the meantime, here’s a video from the Battle Creek Enquirer taken at Dave Gallagher’s house. If you watch closely, you might even catch us in a brief (but silent) cameo!

Just when the disheartening spectacle of snow in late April threatened to extinguish the last remaining shred of hope that springtime in Michigan would ever return, we experienced this afternoon what for months has seemed an impossible fantasy, nothing more than a (ahem) pipe dream: a view of our backyard utterly free of visible green steel pipe. It’s true! Just look:

Of course, there’s still the orange fence and the shredded remains of our beloved trees and the big yellow tractor-things and all the piles of timber and the mud…. But hey, we’re trying to look on the bright side: the steel pipe is gone!

This morning we’ve fought our way to the surface from beneath a mountain of end-of-term student papers to bring you a brief tour of local news reports. Line 6B construction activity has been pretty quiet recently owing first to frost-law restrictions and, more recently, to rain, rain, rain. (We hope you’re staying dry!) But other things are happening, among them negotiations with landowners along phase two (about which we hope to bring you more very soon). In the meantime, we’ll just call your attention to some recent local news reports, some of them rather revealing (and not in a good way):

First, up, some unfortunate news out of Howell Township. The Livingston Daily Press & Argus reported yesterday that Enbridge apparently breached water and sewer lines at the intersection of Burhkart Road and Grand River Avenue:

[Township Treasurer Jonathan] Hohenstein said the lines were likely breached sometime in March while Enbridge was boring underground to make room for new pipeline.

For now, the damaged portion of the sewer line has been abandoned and sewage is being hauled from a pump station to the treatment plant. The damaged portion of the water line has been plugged to halt leaking.

The article contains no statement from Enbridge on the damage, but it will be interesting to see how satisfactorily this situation is resolved. Generally, we don’t like to indulge in “I-told-you-sos,” but surely someone on the Howell Township Board of Trustees is wishing they would have enforced their pipeline ordinance months ago– an ordinance that, despite Enbridge’s and the Howell Township attorney’s claims, appears to be entirely enforceable and not pre-empted by federal law, at least according to a recent federal Circuit Court decision.

Moving westward, last week a group of demonstrators gathered outside the Enbride offices in Calhoun County to protest against tar sands oil– the stuff that spilled into the Kalamazoo River, the stuff that spilled into a suburban neighborhood in Arkansas earlier this month, the stuff that the proposed Keystone XL pipeline would transport. The stuff that will be flowing through our backyards. In response to the protests, Enbridge spokesman Jason Manshum offered this extraordinarily disingenuous comment:

“The term tar sands is a misnomer. That is a slang term. There is no tar, there’s never been tar in it,” Manshum said, “It is a normal crude oil it’s just a different type. so no it is not more environmentally damaging.”

It is true that “tar sands” is a colloquial term and it is true that there is no tar in diluted bitumen. But those facts are apropos of nothing. Nobody (that we’re aware of) is claiming, or has ever claimed, that the problem with dilbit is that there is tar in it. So Manshum appears to be responding to a phantom of his very own making. It’s part of a name game that Enbridge has been playing for a long time– as our friend Josh Mogerman at the NRDC explained about three years ago.

Even farther west, late last month the good people at The Hermitage retreat center in Three Rivers held their service of lament and hope. We couldn’t make it, but about 50 people attended. As people who know a thing or two about grieving lost trees, we were struck by one ritual in particular that the participants engaged in:

To embody their prayers of lament, the group moved meditatively toward the woods, pausing to pray at several locations. They tied strips of fabric to trees tagged for cutting. The strips came from a sliced painted mural portraying a young man grieving the loss of a cut tree. The group gathered in a circle to dance and sing their prayers of hope.

Headed back to the eastern part of the state, Bruce Township last week received a $38,000 dollar check from Enbridge as payment for 5 acres of new easement in the township. And evidently Supervisor Richard Cory– no, not that Richard Cory!– has learned from other township supervisors how to (misguidedly) shrug his shoulders in resignation:

Cory said a big company like Enbridge gained approval at the state level for the pipeline so the township can’t do much about it. However, he said Enbridge has given its word to work with landowners.

“When a pipeline cuts through residential streets and people’s septics and wells, it’s huge, it’s a big concern for those people,” he said.

Even further east, according to this morning’s Detroit Free Press, Enbridge made a presentation to the Macomb County Commissioners on the Line 6B project earlier this week. The Freep article is devoid of any detail whatsoever; it doesn’t say who was there from Enbridge. Nor does it say whether the Commissioners bothered to ask any questions. It does note, however, that “Some residents in the state and environmental groups have criticized Enbridge for its plans to leave the old pipeline.”

Somewhat more entertaining is the comically hapless version of the story produced by UPI (the same people who not long ago described the NWF’s Beth Wallace as a “global warming advocate”). Almost every single sentence in the short article is wrong or imprecise, contains some typographical error or otherwise demonstrates an embarrassing lack of even the most rudimentary understanding of the Line 6B project, the Marshall spill, and dilbit. Here are just three:

-Part of a pipeline in Michigan will be filled with inert gas to make way for the construction of a new section of the line that leaked in 2010, Enbridge said.

-The company will fill the old section with inert place and leave it in place as per federal safety regulations, the Detroit Free Press reports.

-Line 6B was carrying Canadian crude oil, a type that sinks in water and is more difficult to clean than conventional crude oil.

Thankfully, the UPI article makes the one published earlier this month in a local Macomb County paper seem almost less bad by comparison. And while we think it’s perfectly appropriate to take a national, 100-year old news outlet to task for shoddy work, it gives us no pleasure to pick on little guys like reporter Matthew Fahr. But, as the Brandon Citizen’s Susan Bromley has amply demonstrated, there is no reason why a local reporter can’t be clear, thorough, and effective. Unfortunately, Matthew Fahr also doesn’t seem to have a strong understanding of the basics of the project, which he reports “ is currently going through the regulatory approval process in Oakland, Macomb and St. Clair counties.” We confess that we’re not really sure what that means. Even worse, though, is this:

Enbridge will be replacing 285 miles of natural gas pipeline, referred to by the company as Line 6B, that spans from Griffith, Ind., to Port Huron. The pipe delivers natural gas across the state to cross the border for use in Ontario, Canada.

And not to nitpick, but in addition to correcting such basic factual errors, the teacher in us would also like to help Fahr correct some of his awkward verb constructions: the project, he writes, “will be affecting counties.” Enbridge, he says, “will be replacing” pipeline. And then there’s our favorite, which gave us a chuckle not for its use of the passive voice, but for its unique rendering of the name of a familiar Enbridge spokesman: “Jason Mansion, from the Enbridge Public Affairs group, explained all aspects of how the company will be handling the project both locally and statewide.”

Happy Earth Day week everybody!

How’s this for some great news: the ace reporters over at Inside Climate News– David Hasemyer, Lisa Song, and Elizabeth McGowan– have just been awarded the Pulitzer Prize for national reporting

If those names sound familiar, and they should, it’s because they’ve featured us (and by “us,” we mean landowners along Line 6B) in a number of their reports. They were recognized not just for the brilliant series “The Dilbit Disaster,” about the Marshall spill and its aftermath, but also for the follow-up stories they did on the difficulties faced by landowners like ourselves (like this one and this one and this one and this one). Here is the list of stories the Pulitzer committee cited specifically. We’ve been praising and promoting their work for months and we are so pleased that they’ve received this prestigious national honor. Hooray!

It’s been a while– about four months– since we last provided an update on the lawsuit filed by POLAR (the non-profit legal defense fund Protect Our Land and Rights started by our friend Jeff Axt) in Oakland County Court. If you’ll recall, the suit sought an injunction against Enbridge, seeking Enbridge’s compliance with the “local consent” provision of the Michigan State Constitution, the state Highway Act, and the securing of all requisite environmental permits. If all of this is new to you or you’ve simply forgotten, our archives will provide you with a primer and some extended discussions of these matters.)

Eventually, Enbridge sought to remove the case to federal court, where they expected to get a friendly hearing and have the case dismissed.  The federal judge did not dismiss the case, though he did rule that POLAR lacked standing in federal court. As a result, he remanded the case back to Oakland County. This seemed, at the time, potentially good news for POLAR (or so we thought), since the county court, we hoped, would have much more interest in addressing the substantive state Constitutional matters at stake– waters into which we never thought the federal judge would want to wade. We were even more hopeful given the history of the Oakland County Judge assigned to the case, Phyllis McMillen, who ruled favorably toward landowners in some of Enbridge’s condemnation suits.

Well, two weeks ago, Judge McMillen dismissed the POLAR case, finally ending the suit. The grounds of her dismissal? Not surprisingly, it was the old issue of standing. The ruling states, “At issue in the present case is whether POLAR has alleged damages of a special character distinct and different from the injury suffered by the public generally.” Then, after rehearsing POLAR’s claims about damages to its members, McMillen says,

To the extent that these paragraphs allege damages to the community as a whole, they would not qualify as special damages. As it relates to allegations of damage to POLAR’s members’ property, the alleged harm does not result from Enbridge’s alleged violation of the laws cited, i.e., failure to obtain consents and permits. Even if the proper consents and permits are acquired, Enbridg’e activities will have the same impact on the members’ proerty, and same will be perfectly lawful. Without a showing that the potential harm is “resulting from” the failure to obtain the consents and permits, POLAR has failed to allege special damages. Because POLAR has failed to allege special damages, it lacks standing to pursue the claims.

On the bright side, what this means is that Judge McMillen– not unlike the federal judge– did not rule on the substantive questions in the suit (ie, whether Enbridge is required to seek “local consent,” whether Enbridge is a “common carrier,” etc.). What’s more, Enbridge asked to have the suit dismissed “with prejudice,” which essentially would have meant that POLAR could not refile the suit. But McMillen chose to dismiss “without prejudice,” which means that her ruling was confined strictly to the procedural matter of standing. So the substantive questions live and could be raised again in a new filing.

So POLAR’s not finished yet. They are pursuing other legal avenues as well, including appeals of the MPSC rulings in both Phases 1 and 2, appeals that are still pending. We will do our best to keep you updated.

As the rain rains and the poor, nervous dog shakes and cowers from the thunder outside, we’re playing some catch-up here on the blog. Frankly, we’re a little swamped with posts-that-need-to-be-posted and not quite sure which ones to type up first. Earlier today, we brought you news of a promising legal development in Indiana, and we’ve got bad legal news from Michigan to share as well. We’ve also been bookmarking links to articles about the dreadful spill in Arkansas and plan to do a roundup post about that incident and its relation to Line 6B. And there are restoration matters to discuss and describe– specifically, an overdue tree post–as well. We’re not sure if we can get to all of it today, but we’ll get to some of it.

But this post is about none of those things. Instead, it’s an update on the frustrating dirt story we brought you last week. If you recall, construction crews mindlessly piled a mountain of subsoil right on top of our top soil– something that is not just bad practice, but in clear violation of their own stated procedures and our line list agreement. Needless to say, we contacted our right of way agent to try and resolve the matter.

As we’ve said before, during the construction phase of this project, our ROW agent has been quite responsive (more so, as we understand it, than many other agents, unfortunately). So last week, he came out along with the project’s environmental inspector. The inspector confirmed that we had, as he put it, a “legitimate gripe” and agreed that all of our top soil was compromised. To rectify the matter, our agent agreed to add to our line list a couple of important revisions: significant decompaction of our subsoil– our property has taken a real beating with heavy equipment, as it has more or less been the primary staging area for the immediate neighborhood– and, equally important, bringing in new top soil to replace the stuff ruined by mixing last week.

In terms of (hopefully) restoring our property to some remote semblance of what it was before– a green-wall of beautiful trees and a lush perennial garden, this is very important and give us a glimmer of hope that plants will grow and flourish back there again.

One of the things we have said repeatedly here at the blog is that Enbridge is largely in control of what we write about them. They have no one but themselves to blame that most of what we’ve written here has been critical. But here’s a post that illustrates the former point: on this matter of our dirt, Enbridge worked with us promptly, efficiently, and cooperatively to correct their mistake. We’re grateful for that.

There is some interesting– and promising– news out of northern Indiana this week. As you may recall, the hardworking folks at Save the Dunes have been trying to ensure that the Line 6B replacement does not harm sensitive wetlands. In that effort, they have been talking with local officials in LaPorte County. Now the LaPorte Herald-Argus reports that LaPorte County officials plan to “require a review of the project because it appears to fall within the regulations of its joint zoning ordinance.”

The wind in LaPorte County’s sails comes from a recent federal court decision. On March 25, the U.S. 4th Circuit Court issued a ruling in Maryland stating that federal law does not preempt the enforcement of local zoning laws. (Super legal nerds can read the ruling here.) Specifically, the Court upheld an earlier court ruling dismissing a complaint from Washington Gas Light Company declaring that the National Gas Pipeline Safety Act (PSA), the Natural Gas Act (NGA) and state law preempt Prince George County zoning plans. Washington Gas therefore sought an injunction preventing the county from enforcing its zoning laws.

But the Court rejected Washington Gas’s complaint, noting that the federal laws apply to matters of safety, not to siting and routing. The Court ruled: