After months of inaction, federal judge lets Nessel appeal Line 5 jurisdictional ruling

Nessel also files writ of mandamus, alleging improper action by judge

By: - February 22, 2023 3:50 pm

Laina G. Stebbins

A federal judge, who for the last year has been tasked with overseeing a high-profile court case involving the Canadian-owned Line 5 oil pipeline, has granted Attorney General Dana Nessel’s request to have an appeals court take another look at her own court’s jurisdictional ruling.

Nessel has also taken another, more aggressive last-ditch effort to prevent the ruling from standing by filing a petition for a writ of mandamus with the U.S. Court of Appeals for the Sixth Circuit. The Advance first reported in early January that Nessel’s legal team had been considering whether to go this route.

Attorney General Dana Nessel, Feb. 15, 2023 | Laina G. Stebbins

The “clear error” of the U.S. District Court for the Western District of Michigan “offends the State of Michigan’s sovereignty,” Nessel’s Friday petition for a writ of mandamus reads, further alleging that Judge Janet Neff’s court usurped power, abused its discretion and failed to discharge its judicial duty.

Before Friday, Nessel v. Enbridge had laid nearly dormant since early fall. Neff had ruled in late August that Nessel’s case — which many see as the state’s last hope to shut down the nearly 70-year-old oil pipeline — belongs within her domain in federal court.

That was a big win for Enbridge, the company behind the controversial pipeline. If Neff’s jurisdictional ruling stands, Nessel’s case has a severely lessened chance of succeeding without the home advantage of the state case where it originated.

Within less than two weeks of Neff’s ruling, Nessel asked the federal judge on Aug. 30 to certify the decision for interlocutory appeal. This would allow the Sixth Circuit to take up the jurisdictional ruling and examine whether it was proper.

Nearly six months passed without a decision from Neff on whether to allow the mid-case appeal to go through — that is, until Tuesday, just four days after Nessel alleged improper action from the judge in the AG’s petition for a writ of mandamus.

Neff on Tuesday granted Nessel’s motion to certify her Aug. 18 order for interlocutory appeal, starting the appeals process after months of inaction.

New: Michigan exploring options to seek higher court input on Line 5 battle

“Enbridge initially agreed that this case belonged in state court and waited two years to move it to federal court. I am grateful that the district court has now recognized that an appeal is appropriate, and I look forward to raising these important issues in the Sixth Circuit,” Nessel said in a statement Wednesday.

Enbridge spokesperson Ryan Duffy said in an email that the company is “confident that Judge Neff’s August 2022 decision is correct.She said the Attorney General’s case properly belongs in federal court, and the AG ‘desires a race to judgment and a collision course between the state and federal forum’ and to ‘perpetuate a forum battle.’

“ … The AG seeks to undermine these considerations and promote gamesmanship and forum shopping, while ignoring the substantial federal issues that are properly decided in federal court and not state court,” Duffy continued.

Nessel brought the lawsuit in June 2019 to challenge the validity of Enbridge’s 1953 easement with the state of Michigan which allowed Line 5 to be placed on the bottomlands of the Mackinac Straits.

“Enbridge initially agreed that the state court was a proper forum, as it litigated the case there for well over a year,” Nessel’s Friday filing states.

Enbridge eventually removed the case to Neff’s federal court more than two years after the 30-day removal deadline laid out in 28 U.S.C. § 1446(b) had expired.

Nessel argues that Neff’s denial of her motion to remand abuses the court’s discretion by excusing Enbridge’s “untimely removal,” refusing to consider whether it had subject matter jurisdiction and estopping Nessel from raising that issue.

“The District Court has since failed to rule on the Attorney General’s motion to certify those decisions for interlocutory appeal, filed on August 30, 2022 and now pending for more than five months, leaving a writ of mandamus as the only remedy since the Attorney General will be prejudiced if forced to press these claims on an appeal from a final judgment,” the filing reads.

The appeals court is now asked to consider these factors while weighing whether to issue a writ of mandamus:

  • Neff excused Enbridge’s non-compliance with a statute requiring the removal of a case from state to federal court within 30 days of service (in this case it was over a year), and denied Nessel’s motion to remand.
  • Nessel moved for remand based on the mandatory removal deadline but also on the basis that Nessel believes Neff’s court lacked subject matter jurisdiction, but Neff refused to consider this and “went so far as to estop [Nessel] from raising the question.”
  • Nessel’s party has no other adequate means to attain the relief desired, given a direct appeal is not available at this time.
  • Nessel’s case would be damaged or prejudiced in a way “not correctable on appeal” if Neff’s order is allowed to stand.
  • “[Neff’s] order is clearly erroneous as a matter of law.”
  • Neff’s order “raises new and important problems, or issues of law of first impression.”

“The District Court committed clear error and abused its discretion — first by excusing Enbridge’s failure to remove this case within the time limitations prescribed by 28 U.S.C. § 1446(b), and second by refusing to consider the limits of its own subject matter jurisdiction and going so far as to estop the Attorney General from even raising the issue,” Friday’s filing reads.

“These errors resulted in the District Court ‘snatching’ this case which a State brought from the courts of that State without any clear rule that demands it, and in direct contravention of clear rules that forbid it.”

The merits of whether Line 5 should be decommissioned ahead of its proposed tunnel-encased replacement being built have still not been debated on in court, as the question of where those arguments will play out continues to be the current focus of contention.

“Every day this outdated 1950s crude oil pipeline is in the Great Lakes is a day when beautiful Lake Michigan could end up being a disaster zone,” said Sean McBrearty, campaign coordinator of the anti-Line 5 Oil & Water Don’t Mix coalition. “Delay is not our friend and this legal development moves us closer to a decision.”


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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins is a former Michigan Advance reporter. 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.