On November 4, Judge James Alexander of the Oakland County Circuit Court issued his decision in the lawsuit filed by Don’t Drill the Hills, Inc. (DDHI) on behalf of its members against the City of Rochester Hills, Jordan Development Co., and Sunoco Pipeline.  DDHI is highly disappointed in, but not surprised by, the Judge’s decision.

The eleven page (double spaced) opinion, lacks thorough analysis of the law.  For example, the City Charter contains provisions joined by the word “or”.  The right to vote in the Charter applies to sales OR leases OR conversions of use, yet the Judge didn’t analyze DDHI’s claims under each alternate scenario.  Additionally when he does attempt legal analysis, he cites case law which contradicts earlier conclusions that he made.

Generally, the Judge denies that DDHI has “Standing” to have its case heard in Court.  Standing is a prerequisite to having the legal merits of a case decided by the Court.  Judge Alexander states that our claims/standing hinges on whether we have the right to vote on approval of the lease and easement.  He then goes on to say that we don’t have the right to vote for various (incorrect) reasons, described more thoroughly below.

However, his initial premise is wrong.  Standing to challenge the Charter or state law doesn’t hinge on the result of the challenge.  That would mean that we, or any citizen, would only have the right to bring a lawsuit when the result is already certain.  But, that is impossible! The reason DDHI filed suit was to ask the Court to rule on the merits of whether the lease and easement were legal, and if they weren’t, to void them.  To say that we can’t go to the court to have it decide if the lease and easement are legal, unless the lease and easement are illegal, is absurd.  If this current decision stands, that means DDHI, or any citizen, would essentially never have standing and thus the right to bring any challenges against the City.

Because the Judge states our standing hinges on whether we had a right to vote on the lease and easement, he goes on to give his rational on why we don’t get to vote (and therefore have no standing):

Sunoco Pipeline Easement:
The Judge states that entering a new easement in Bloomer Park is not a conversion to another use because originally there was an existing pipeline easement when the park became the City’s.  He then decides that changing the pipeline to a new, previously unencumbered area of the park is not converting that portion of the park to another use.  Under this logic the whole park could be converted to pipeline use because there was originally a small piece of park that was used for pipeline.

The Judge does not analyze the sale, lease, transfer, exchange, etc. language of the Charter or Home Rule City Act as it may apply to the Sunoco Pipeline easement.  (Despite the fact that the easement agreement, in BOLD states the City hereby grant, bargain, sell and convey an easement, which includes surface rights, to Sunoco.)  He simply concludes that the Sunoco pipeline realignment into a new easement is “slight” and therefore the people do not have the right to vote on it.  This begs the question – how slight must an action be impacting our parks before we DO get to vote? 

Home Rule City Act:
This law prohibits sale of any part of a park or cemetery without a vote of the city residents.  With no analysis or reasoning presented, the Judge simply concludes that the lease and easement are not a sale.  Again, this is even though the easement language itself states it is a sale, and the lease allows Jordan to sell the oil and gas (which is a property right) that were once part of the park property.

Lease of Parks:
The Judge states that no part of the park was included in the lease because only the surface of the land may constitute a park, but does not provide any legal justification for that conclusion.  The Judge goes on to state that the lease does not impact recreational use of parks, and therefore there is no conversion of the park to a non-recreation use.  But, he does not address the conservation language in the Charter, and whether the lease is a non-conservation use (presumably since he thinks a park is just the surface).

The Judge goes on to cite a case from California that states “park use not only carries all oil and minerals” to support his rationale that in other states slant drilling is occurring in parks because it doesn’t interfere with recreational surface use.  Ironically, this case supports the DDHI argument that oil and minerals ARE a part of the park, and the park is not just the surface.  Additionally, the California law only protects recreational park use, not conservation use like the language in our Charter/local law also protects.

The end result per the decision is that the lease doesn’t violate the Charter – therefore nobody has the right to challenge it.

Actual Controversy:
Another argument advanced by the City/Jordan is that there is no “actual controversy” which is also required to be asserted by DDHI in order for the Court to rule on the matter.  The Judge, with little analysis, concludes that because DDHI or its members (citizens of Rochester Hills) are not a party to the lease or a direct beneficiary of the lease, that the lease doesn’t affect us.  Therefore we have no right to question it.  (Does not the City act on our behalf?!  Who gets the financial benefit (if any) from the lease? Is it not the City, which operates as our agent?) He states that DDHI “members are citizens that are unhappy with our elected officials’ decisions” and goes on to say that the courtroom is not the forum for resolution, the voting booth is.  (DDHI would also remind you that citizens did vote – we voted in 2011 for expanding protections to the park by passing a Charter amendment so we could vote on park matters and take it out of the elected officials’ hands.)

The end result of this part of the decision means that even if the lease or easement were found to be improper and void, we would still have no right to challenge it because the Judge decided that the citizens present “no actual controversy” – therefore we would get tossed out of court anyway.

The fact that the opinion is so lacking in clear analytical reasoning and legal justification should make an appeal actually easier than if he gave a well-supported opinion.  DDHI legal insiders continue to assert that we have strong legal arguments on which to base our assertions.  Additionally, if this decision stands, the people of Rochester Hills will have little voice to pressure City Council to abide the law, since this ruling takes away access to the Court as an option for citizens to hold their representatives accountable to the law as we understand it.
The full text of Judge Alexander and the pleadings filed in Court by the parties are here: http://dontdrillthehills.org/lawsuit/

The appeal is fully funded through donations, and cannot proceed without financial support.  Donations can be made at: https://www.crowdrise.com/DontDrilltheHills/

Or, checks made payable to Don’t Drill the Hills can be sent to:

Don’t Drill The Hills, Inc
P.O. Box 82524
Rochester, MI 48308-2524


Download this page as a document: DDHI Court Decision Breakdown_11.19.14