As we reported earlier today, two more of Enbridge’s condemnation suits were dismissed this morning. Last week, Oakland County Circuit Court Judge James M. Alexander dismissed an Enbridge suit, ruling that their “good faith offer”– a requirement prior to any taking– was defective, since it included language claiming “use beyond that allowable under the Michigan Public Service Commission Order approving [Enbridge’s] application.” This morning, Judge Phyllis C. McMillen likewise accepted the defendant’s argument regarding the same Enbridge overreach. Judge McMillen puts it this way:
[Enbridge’s] good-faith offer is defective. The language in the proposed easement permits Enbridge to transport not just crude oil and petroleum and its derivatives, but also “any material or substance that can be conveyed through a pipeline or, over, under and across a strip of land.” The “good-faith offer” proposes an easement that would allow Enbridge to introduce into the pipeline a much broader variety of materials than what was approved by the MPSC.
Even better, Judge McMillen’s ruling went a step or two further than Alexander’s, finding (implicitly) that Enbridge did not “deal in a fair and honest manner with the landowner” (note to Larry Springer!). It appears that Enbridge tried a new tack in this case, evidently in response to Judge Alexander’s decision last week (though I’m not certain of that). According to McMillen’s ruling, “Enbridge does not concede that the language in the proposed easement is improper, and argues that even if the Court finds it to be improper, the Court may strike the offending language and permit the action to continue.” In other words, Enbridge tried to say, “okay, we’ll just take that language out and then the suit can go forward”– which is sort of like getting caught cheating at a game and then trying to argue that instead of forfeiting the whole game, you should just pretend like the cheating never happened and keep playing.
At any rate, McMillen didn’t buy it. Nor did she buy Enbridge’s further arguments, based on a handful of other past rulings, that their suit should be valid with or without the problematic language in question. Succinctly and powerfully, McMillen dispatched each of those cases as inapt.
The upshot of all of this? We now have two Oakland County judges who have reached the same conclusion independently. That is good news indeed, since It is our understanding that attorneys for defendants in Enbridge condemnation suits in other counties (Livingston, in particular) are making the same proven argument. It’s hard to imagine how Judges in those cases could arrive at different conclusions. We eagerly await word of more dismissals.
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