FLOW President Jim Olson made the following statement to the Mackinac Straits Corridor Authority during a February 3, 2021, public meeting regarding the Line 5 Easement, Assignment, Tunnel Agreement, and 99-year lease.
FLOW and many organizations, appeared and testified before this Authority on Friday, March 6, 2020. At that time, FLOW submitted a legal analysis and comment, dated March 5, 2020, and on March 6, 2020 made an oral presentation to the Authority that is part of the record in this matter. I realize that there are new members of the Authority, so, I have attached a copy of this analysis in the “Chat Box” for your convenience and because of the limited time for public comment at this meeting. Without waiving the several points contained in FLOW’s analysis and comments, today, I want to underscore the fact and law that the DNR Easement, the Assignment from you to Enbridge, and the Tunnel Agreement provisions calling for a 99-year lease have not been authorized under the rule of law of the public trust doctrine:
- These documents are subject to the GLSLA, 324.32502-32508 and rules, but to date the agreements and conveyance documents have not been authorized under the GLSLA;
- The DNR Tunnel right of way or Easement purports to be authorized under Act 10, now MCL 324.2129, for a public utility easement. However, the DNR has never authorized it based on the required findings under the public trust doctrine, an absolute necessity based on the position of the State, AG Nessel, and DNR in the Ingham County cases: Nessel v Enbridge; and State Governor and DNR Director v Enbridge.
Until this authority is obtained by Enbridge, no contracts should be signed, no monies spent, and no construction commenced; to do so, would be at MSCA’s and Enbridge’s own risk. For this reason, you, the members of MSCA, are requested, respectfully, to ask for an Opinion of Attorney General Dana Nessel, on the serious question of the lack of required authorization of the 2018 Easement, the Assignment of Easement, and the Tunnel Agreement/99-Year Lease Agreement for occupancy and use of the State’s sovereign public trust bottomlands and waters of the Great Lakes.
Thank you. Should you have any questions, or your AG staff have questions, we remain available to discuss the same.