Category: Michigan Eminent Domain

Ohio Trial Courts Again Deal With Rights of Entry for Nexus

Nexus desires to survey property that the company desires to acquire. There is little choice but for the oil pipeline companies to move forward unless the companies know what kind of soils will be dealt with. Challenges of environmental hazards, especially wetlands, rivers and the like, make it mandatory for the pipeline companies to assess what effects will occur on the environment from the pipeline.

A number of Ohio trial courts have already granted temporary restraining orders in favor of the pipeline company. One very well can expect this to continue.

The real issue is whether compensation must be made as part of the entry. In many states, the requirement may be one in which the compensation estimate for the entry must be made prior to the filing of a complaint for entry.

On Monday, attorneys for the gas company argued that Ohio law allows them to go onto private property to conduct surveys whether the property owners want them there or not. Medina County Prosecutor Dean Holman has already issued an opinion believing that the surveyors are committing criminal trespass if they enter property where they are not welcome. Attorneys for the project say that is not consistent with opinions in other courts across the state.

“We believe that under Ohio law we have the right to enter your property and it’s not a criminal trespass,” said attorney Jim Hughes.

Hughes is seeking an injunction against the property owners who are turning away surveyors for the project. He argued the company is not seeking to acquire property for the pipeline, only to survey the properties along the route where the pipeline is proposed for “native species, geological formations, cultural artifacts and environmental issues, such as wetlands,” said Hughes.

An attorney for property owners argued that they have rights too.

“A private property owner ought to be able to look at a gas company representative and decide whether they want to allow the survey or not and if I’m paying my mortgage payment and I’m paying my real estate taxes I would expect that I could say no I don’t want you to do this,” said Greg Huber.

Attorneys for the Nexus project also claim that the company will be irreparably harmed if the project is not completed by November 2017.

“That is a critical date, they will lose several million dollars per month that it is not online after 2017, their construction cost will go up and their reputation within the industry will be made,” argued Hughes.

Tax Cuts For Oil Drilling In Michigan


With the March passage of a tax cut for oil drilling, the prospect of further mineral removal in the State is increased. While there may be those who think nothing should be taken out of the ground, the reality is that Michigan is still in a position of cost competition with other jurisdictions.

Carbon dioxide is one of the alternatives in fracking. The downside of carbon dioxide is that the wells will no longer be available for gas storage in future years. However, the utilization of carbon dioxide removes the product as a negative force in the general environment.

“Under House Bill 4885, sponsored by state Rep. Aric Nesbitt, companies that use an enhanced method of extracting oil, also called enhanced oil recovery (EOR), will benefit from reduced taxes. Under this bill, EOR projects will be taxed at a 4% severance rate, rather than 6.6% for oil and 5% for natural gas, as has been the case under Michigan’s Severance Tax Act.

The method uses CO2, which is injected into depleted oil and natural gas wells to push the once-unattainable oil toward other wells where it may be pumped to the surface. It offers the environmental benefit of permanently trapping the CO2underground.”

Michigan Supreme Court Finding That Public Pension Plans Are Not A Property Right Has Important Relevance to Municipal Bankruptcy

In the recent Michigan Supreme Court decision opposing the changes to the Michigan pension system for teachers, the Supreme Court has found that “just compensation” is not to apply.

This likely will mean that in the case of a future community bankruptcy in Michigan, the pension will not be a protected property right in Federal Court, as claimed by pensioners in the recent City of Detroit bankruptcy.

One can foresee the application of this case in other states, such as Illinois, which is underwater due to the community pension obligations.

Justice Stephen Markman, writing for the court, rejected unions leaders’ contention that the law unconstitutionally impaired employment contracts between workers and their school districts and resulted in private property being taken without just compensation.

The increased salary deductions are not mandatory, and the employees were given a choice, he said.



Ugh, Eminent Domain Alone Will Not Revive Detroit


For twenty-six years, the City of Detroit utilized eminent domain as an economic development tool. John Mogk writes about the successes of GM Hamtramck and Chrysler Jefferson Avenue North as clear examples of the benefits of public acquisition of private property.

There seems to be a failure in the Crain’s opinion here on two counts. First, the projects were not always so beneficial, and only inflation and other failures of the City administration makes those projects “good” now. Second, people did get hurt despite studies prepared years after with an incomplete response from the then residents of the Poletown community. Finally, one only needs to look at what is going on in downtown Detroit now. Without eminent domain, redevelopment is occurring every day. Detroit’s downtown never had this rebirth during the whole period of this acquisition for private gain is how public policy did occur from 1978 through 2003.

Detroit does not have the ability to quickly assemble land in large enough tracts to support major projects. The last two auto plants built in the city — the GM Hamtramck and Chrysler Jefferson Avenue North assembly plants — each required more than 450 acres and the use of eminent domain to acquire their sites. However, the use of eminent domain for economic development is no longer available in Michigan. The state constitution was amended in 2006 to prohibit its use for economic development, no matter how beneficial the projects might be for alleviating unemployment, rebuilding the city’s economy and increasing the tax base.

While eminent domain can still be used to eliminate blight, the term is narrowly defined, requires a high level of proof and must be demonstrated separately on each parcel to be taken. Large development sites are required to be assembled by separately negotiating the purchase of hundreds and often thousands of parcels, making site preparation costly, time consuming and practically impossible. Moreover, interspersed properties that are not blighted and held by speculators or absentee landlords can stop any future project.

When Is A Song A Song? Rover Reroute


ET Rover maintains it will eliminate 110 miles of a proposed pipeline. In a recent Livingston Daily article, a local resident notes that ET Rover could still “expand their capacity” by providing a “loop” pipeline around the existing pipeline.

Owners should review the original easement documents to determine limitations on pipe expansion created by the easement itself as well as the original MPSC delegation.

So that takes us back to the original route but without new pipe through most of Livingston County and to the east. On the surface that sounds really good, but it is still clouded by the fact that ET Rover could still “expand their capacity” by installing a “loop” pipeline along the existing line. Their statement which says they have no plans to do so “at this time” makes many of us uneasy. As Jeff Insko says in his “Line 6B Citizens’ Blog,” “Landowners along the Vector line are now, as a friend of ours put it, living with a second shoe dangling over their heads, waiting to drop.”

The four Sierra Clubs in southeast Michigan plan to continue to oppose the pipeline by holding a series of meetings with federal legislators. Our hope is to present information to them that would certainly not have been suggested by the pipeline companies.

Mackinac City Moves Forward with Eminent Domain

After years of bickering with local property owner(s), the City of Mackinac is now attempting to acquire the “coal dock” property by eminent domain. This is something which will effect far more than a simple individual property in the community.


The City of Mackinac Island has filed a lawsuit in 11th Circuit Court against Union Terminal Piers, requesting financial information on the company’s Coal Dock, which the city wants to purchase or take by eminent domain. Mayor Margaret Doud authorized city attorney Tom Evashevski to file the lawsuit Tuesday, February 3, and announced it to the city council Wednesday, February 4.