Friday, August 16, 2019

Michigan Attorney General Nessel files State reply to Enbridge brief on lame duck legislation creating Mackinac Straits Corridor Authority

Michigan Attorney General Dana Nessel. (Photo courtesy Michigan.gov)

LANSING --  On Aug. 15, 2019, the State of Michigan filed its reply brief to Enbridge’s Aug. 1 brief in Enbridge Energy, et.al. v State of Michigan, et.al. (No. 19-000090-MZ). The Office of Michigan Attorney General Dana Nessel noted Enbridge "repeatedly mischaracterizes the State Defendants' arguments" and Enbridge's legal arguments "improperly attempt to re-write the title of Act 359, inventing a new, broader object -- providing for 'infrastructure' connecting the peninsulas ...."

The case, originally filed in Court of Claims by Enbridge June 6, 2019, involves the constitutionality of 2018 PA 359 and the creation of the Mackinac Straits Corridor Authority. The State argues, as Attorney General Opinion No. 7309 concluded, that the statute creating the Authority is unconstitutional because it violated the Title-Object Clause. The crux of the dispute is that the title of Act 359 -- which was pushed through the Legislature in lame duck at the end of 2018 -- violated that provision of the Michigan Constitution in two ways. First, the title did not provide fair notice to legislators and the public of substance of the bill. Second, it improperly combined two unrelated purposes: the Mackinac Bridge and a proposed "utility tunnel" meant to house a new Enbridge oil pipeline.

The court will determine if it wants to hear oral argument before issuing a decision.

A copy of the State of Michigan’s Reply Brief can be found here.

Please note: Briefing will begin on September 16 in the Attorney General’s separate lawsuit in the Ingham County Circuit Court against Enbridge. That lawsuit seeks a determination that the Line 5 pipelines in the Straits should be decommissioned due to the significant risk of a catastrophic spill from an anchor strike or operational failure.*

*Editor's Note: See our June 29, 2019, article, "Attorney General Nessel takes legal steps to decommission Line 5; Gov. Whitmer seeks to dismiss Enbridge lawsuit."

Monday, August 12, 2019

Federal proposal to de-list gray wolves from Endangered Species List opposed by Attorneys for Animals, Michigan wolf experts, many scientists, Michigan AG Dana Nessel

By Michele Bourdieu

Photo courtesy National Wolfwatcher Coalition.

CANTON, Mich. -- Attorneys for Animals (AFA), a Michigan non-profit, has submitted a response to the United States Fish and Wildlife Service (USFWS) proposal to de-list gray wolves from the Endangered Species List in all the lower 48 states. 

It was December 2014, when a U. S. District Court ruled to overturn an earlier USFWS decision to strip federal protection for Great Lakes wolves. In 2011 wolves had been left unprotected after being removed from the federal Endangered Species Act. Once again, wolves are in danger.

Strongly opposed to the removal of federal protection for the majestic species, Attorneys for Animals cites the considered opinion that Michigan, one of a handful of states most impacted by the proposed legislation will ignore input from the scientific, natural resource, conservation and animal welfare communities, and disrespect the deafening public outcry from citizens to protect the wolves within its boundaries.

"Of the estimated 1.8 million comments submitted in response to the USFWS proposal, we believe that AFA has an important perspective to offer in opposition to the plan to de-list gray wolves," said Kate Brindle, JD, and board secretary of AFA, who researched and assisted in drafting the AFA response.*

"As a Michigan non-profit of legal professionals and animal advocates, AFA has actively followed legislation for many years," Brindle said. "We have carefully observed the divisive issue of wolf de-listing in Michigan and have taken positions in support of continued federal protection. We therefore are in a unique position to provide a critical assessment of how the de-listing of wolves, followed by a likely opening of this species to a hunt, would affect both Michigan and its gray wolves," Brindle said.

John Vucetich, distinguished professor from Michigan Technological University's School of Forest Resources and Environmental Science, expressed agreement with the AFA response.

"In alignment with Attorneys for Animals, I believe that wolves have not met the legal requirements to be delisted," Vucetich said.

Earlier this year, Vucetich led the development of a letter that came to that conclusion. The letter was signed by more than 100 scientists and submitted to the Fish and Wildlife Service.**

Nancy Warren, National Wolfwatcher Coalition director, noted that the wolf is subject to over-utilization for commercial and/or recreational purposes and states lack initiatives that would protect wolves. Wolfwatcher also opposes delisting and has submitted comments to USFWS.

"The threats to wolves have not been sufficiently reduced to allow delisting," Warren told Keweenaw Now. "Delisting will expose wolves to inconsistent and unwieldy state management. State programs seek to reduce wolf populations to levels just above the numerical quota to prevent federal relisting. Research shows these low population levels are not sustainable and will not provide the ecological benefits of a thriving population. Policies governing wolf management in states where delisting has occurred are based on misinformation, fear and hatred -- not peer reviewed scientific data."***

Michigan Attorney General Dana Nessel recently submitted a comment letter to the U.S. Fish and Wildlife Service urging it to abandon its flawed proposal to remove the gray wolf from the endangered and threatened wildlife list, saying, "The Service’s strategy to delist the gray wolf seems to be 'if at first you don’t succeed, try, try again.'"

This is the 10th attempt to remove the gray wolf from the endangered list by the Service in less than 20 years. The gray wolf species has a population of less than 16,000 nationwide, 11,000 of which are in Alaska.

In its proposal, the U.S. Fish and Wildlife Service fails to analyze whether the gray wolves living in 13 other states -- Washington, Oregon, California, North Dakota, Utah, Colorado, Nevada, Missouri, Indiana, Illinois, Nebraska, and Kansas -- are in danger of extinction. Instead, the Service only asks whether the gray wolves in Michigan, Minnesota and Wisconsin can survive if all the other gray wolves die off.

"That is neither responsible, nor lawful," Nessel said.

The Service’s proposal uses the same flawed methodology the D.C. Circuit Court ruled it could not use to justify delisting the species.

"Simply put, the U.S. Fish and Wildlife Service has not adequately accounted for why this species should be removed from the endangered list," Nessel added. "This flawed proposal is the first step toward allowing gray wolves to be hunted to near extinction once again."****

In support of its position, AFA also submitted a Timeline of Efforts to Protect Wolves in Michigan, from late 2011 through late 2016. A summary of the Timeline indicates the following:
• The Michigan legislature passed four different bills, all with the purpose of authorizing a wolf hunt. Of the four,
two were overturned by a clear majority of Michigan voters in November 2014 after successful referendum campaigns against the wolf hunt. One was held unconstitutional by Michigan courts in 2016. One, still on the books awaiting de-listing decision, was made referendum-proof by adding appropriation language.
• A wolf hunt was held in 2013, killing 22 wolves; further hunts have been halted by the 2014 federal court decision overturning the 2011 agency action to de-list the wolves.
• Investigative reports expose deceptive methods used to promote and justify a wolf hunt in Michigan, including
false, exaggerated "scare stories" about wolves; irresponsible, criminally negligent ranching methods behind a claim that wolves were destroying livestock; and destruction of public comments by government officials.

Notes:

* AFA’s comment is available on the federal regulations.gov website here.
 
** Click here for details on the scientists' letter to the US Fish and Wildlife Service. See also our July 29, 2017, Keweenaw Now article, "Michigan Tech Professor John Vucetich testifies before Senate Committee: S. 1514 would weaken Endangered Species Act, strip wolves of protection."

*** See comments from Wolfwatcher here. See also our 2013 article on Nancy Warren's presentation "Co-existing with Wolves": "Video report: Presentation on wolves offers facts, petition signing opportunity."

**** A copy of Attorney General Nessel's comment letter can be read here.