State files complaint against mediator in Line 5 case

By: - September 15, 2021 3:31 pm

“Enbridge eviction” celebration at McGulpin Point Lighthouse | Laina G. Stebbins

Updated, 2:23 p.m., 9/16/21, with new comments from Whitmer’s office and MackinawOde

New filings in federal court Tuesday suggest that the court-ordered mediation process between the state of Michigan and Canadian oil company Enbridge has gone awry, just mere weeks away from the late September date they had anticipated the process would be complete.

Attorney General Dana Nessel filed a document Wednesday in federal court arguing that the agreed-upon facilitative mediator between the state and Enbridge, former Judge Gerald E. Rosen, plans to essentially violate the terms of his duties by proposing unauthorized additional filings.

Rosen has been working with the parties in State of Michigan v Enbridge for the past five and a half months, as required by federal Judge Janet Neff. After mediation is completed, Neff will be free to make her long-awaited ruling on which court — state or federal — will preside over Michigan’s lawsuit against Enbridge to back up Gov. Gretchen Whitmer’s shutdown order.

Whitmer gave notice in November that Enbridge must shut down the Line 5 pipeline under the Mackinac Straits by May 12. Enbridge has refused to comply, and instead has been attempting via federal court to make sure Whitmer’s shutdown lawsuit will be moved from state court to a federal court, which is expected to be more sympathetic to Enbridge.

Rosen was selected as the facilitative mediator by both parties in March. The court then entered its notice appointing him to the position and established terms and conditions of his duties.

Among those was the stipulation that, upon completion of the mediation session: “The Mediator will file a brief report with the ADR [Alternative Dispute Resolution] administrator, stating only who participated in the mediation session and whether settlement was reached. Such a post-mediation report is not to contain any additional information which may breach the principles of confidentiality and privacy noted herein.”

On Sept. 14, the parties made a court filing to report that the mediation session on Sept. 9 was “completed without a settlement.”

No further mediation sessions have been scheduled or agreed to by the parties. Therefore, the state argues, mediation is concluded.

Enbridge sign, St. Ignace | Laina G. Stebbins

But despite finishing out the last session without a settlement, Rosen recently told Whitmer’s chief legal counsel that he intends to file an additional report within the next few days.

According to the state’s new filings, that proposed filing from Rosen will include recommendations to the court regarding continuing mediation, regardless of the state’s objections. Nessel argued in the Tuesday filings that this proposed action would violate the terms of conditions of Rosen’s appointment in “at least two ways”:

  • The submission is not authorized by the court’s specific limitations on post-mediation reporting.
  • Rosen’s proposed action could violate the notice’s established confidentiality requirements and principles.

When asked for further comment, Nessel spokesperson Lynsey Mukomel said Wednesday, “Given the mediation process is confidential, we will not expand beyond what’s in our latest filings.”

Enbridge spokesperson Ryan Duffy said the company is committed to continuing to seek resolution, whether through mediation or pursuing diplomatic solutions consistent with the U.S.-Canada Transit Pipelines Treaty and by asserting our rights in the courts.

“The mediation proceedings are confidential. We greatly appreciate the on-going opportunity the Court and mediator are providing to constructively address the issues at hand,” Duffy added.

“Under legal obligations from the court, I don’t have anything to offer on the mediation process,” Whitmer spokesperson Bobby Leddy said in an email.*

Rosen was nominated to the U.S. District Court for the Eastern District of Michigan in 1989 by GOP former President George H.W. Bush. He was also a professor of law at numerous universities around Michigan and has served on the Board of Directors of the Federal Judges Association. He is a member of the Michigan Chapter of the Federalist Society, a right-wing lawyers’ group.

Mackinac Bridge | Susan J. Demas

Because of what Rosen has signaled he plans to do, Nessel is now asking Neff quickly consider:

  • Entering an order to prohibit Rosen from submitting anything other than what the mediator’s terms and conditions authorize him to.
  • Striking any other report or document submitted by Rosen following the completion of the Sept. 9 mediation session.
  • Scheduling an in-chambers conference only with the parties and the court, if the court wishes to further consider this motion.
  • Granting any other relief the court finds “appropriate and just under the circumstances.”

Environmental and Indigenous groups opposing the pipeline view this latest issue as yet another delay in an already drawn-out process. As of Wednesday, it has been 187 days since Whitmer’s Line 5 shutdown order went into effect but has been effectively ignored by Enbridge.

Nathan Wright, founder of the Indigenous water protector group MackinawOde and a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, wrote in a Facebook post Tuesday that the lack of a settlement should mean no further delays in the court case.

“There’s been no compelling evidence to show the two parties are close to reaching an agreement,” Wright also told the Advance. “We as water protectors would like to see this case moved to court immediately. No more time needs to be wasted on mediation. Clearly, mediation is not working.”*

All 12 federally recognized Anishinaabe tribes in Michigan are opposed to Line 5 and its proposed tunnel-enclosed replacement under the Mackinac Straits. The tribes believe any risk of an oil spill in the Great Lakes is unacceptable and that Enbridge’s presence infringes on their tribal fishing rights.

“Enbridge brought this case in federal court to delay shutting down Line 5. But every day oil flows through the pipeline is another day we risk incredible environmental and economic disaster for the entire state.” said David Holtz, spokesperson for the anti-Line 5 Oil & Water Don’t Mix coalition. “Judge Neff should end the delay immediately.”

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).

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