Great Lakes Exploration Group LLC v. Unidentified Wrecked and (For Salvage-Right Purposes), Abandoned Sailing Vessel, The

Filing 107

OPINION; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc)

G r e a t Lakes Exploration Group LLC v. Unidentified Wrecked and (For Sa...bandoned Sailing Vessel, The

D o c . 107

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

G R E A T LAKES EXPLORATION GROUP LLC, P l a in tif f , F ile No. 1:04-CV-375 v. H O N . ROBERT HOLMES BELL T H E UNIDENTIFIED, WRECKED A N D (FOR SALVAGE-RIGHT PURPOSES), ABANDONED SAILING VESSEL, ETC., D e f e n d a n t, v. S T A T E OF MICHIGAN DEPARTMENT O F HISTORY, ARTS, and LIBRARIES, et. al., I n te r v e n o r s. / OPINION O n August 21, 2006, the Court issued an order directing Plaintiff to provide Interv en o rs with the precise location of Defendant within ten days of the entry of the order. (A u g . 21, 2006 Order, Docket #103, at 1.) That order further indicated that the Court would d i sm is s the case without prejudice if Plaintiff failed to provide Intervenors with the precise lo c a tio n of Defendant within the allotted time period. (Id. at 2.) In response to the Court's A u g u s t 21 order, Plaintiff did not file the precise location of Defendant, instead Plaintiff filed

Dockets.Justia.com

tw o motions. The Court has reviewed Plaintiff's motions and Intervenors' reply. For the re a so n s that follow, the Court denies Plaintiff's motions and dismisses the complaint pursuant to the Court's August 21, 2006, order. I. P la in t if f originally filed this complaint on June 7, 2004. Plaintiff also sought an arrest w a rra n t for Defendant and to be appointed custodian for Defendant. The entirety of P la in tif f 's description of Defendant was that Defendant was a shipwreck, lo s t in Lake Michigan, and located within a circle located within a circle [sic] h a v in g a radius of 3.5 statute miles, whose center point is at coordinates 45E 3 2 .8 ' North latitude and 86E 41.5' West longitude . . . . On information and b e lief , the vessel was owned by a foreign research expedition operating with th e authority of, and possibly under the auspices and/or control of, a foreign s o v e re ig n until it became wrecked, lost and abandoned. ( V e r if ie d Compl. ¶¶ 2-3, Docket #1.) On June 23, 2004, the Court held that there was an in su f f icie n t basis for issuing a warrant for the arrest of the vessel because the complaint did n o t comply with the requirement that the property be described with reasonable particularity. (J u n e 21, 2004 Order, Docket #5, at 1-2.) O n September 13, 2004, Plaintiff filed an amended complaint. c o m p lain t added the following to the original description of Defendant: T o the best of Defendant's [sic] current information and belief, the Defendant s h ip w re c k had, at the time of its sinking, the following characteristics: (a) p o w e r system: sail(s) and oars; (b) hull construction: wooden; (c) hull d im e n s io n s : (1) length- approximately 40'-60'; (2) breadth- approximately 10'2 2 ; (d) method of construction: hand; (e) approximate crew size: five; (f) a p p r o x im a te tonnage: 45 tons (or tuns); (e) time of construction: believed to b e of significant age, prior to 20th century . . . . The Defendant res is unique 2 The amended

a n d there are no other shipwrecks known or believed to be within the g e o g ra p h ic area identified above, or at or near the vicinity thereof, having the f o r e g o in g characteristics. (V e rif ie d Am. Compl. ¶¶ 6-7, Docket #6.) On November 18, 2004, the Court granted the M ic h ig a n Department of History, Arts and Libraries and the Michigan Department of E n v iro n m e n ta l Quality's motion to intervene. Intervenors filed a motion to dismiss, which th e Court denied on May 10, 2005. (May 10, 2005 Order, Docket #39, at 1) The denial of th e motion to dismiss was "predicated upon Plaintiff's compliance with Intervenors' request f o r documents and exhibits and the precise location of Defendant." (Id. at 2.) The order also in d ic a te d that it was "anticipated that the Defendant's precise location will be filed under seal w ith this Court." (Id.) On July 13, 2005, the Court issued a protective order to govern in f o rm a tio n disclosed about Defendant. (Order Concerning Docs. Filed Under Seal, Docket # 4 4 .) On October 20, 2005, the Magistrate Judge granted Plaintiff's motion to file a second a m e n d e d complaint. (Oct. 20, 2005 Order, Docket #71, at 1.) The second amended

c o m p la in t1 changed the description of the Defendant to the following: D e f en d a n t [is a ] wrecked and abandoned (for salvage-right purposes) sailing v e ss e l, here tackle, apparel, appurtenances, cargo, etc. (hereinafter "the s h ip w re c k " or "shipwreck site" "believed to be the Griffin, lost in Lake M ic h ig a n and located within three circular areas, each having a radius of one

The second amended complaint was filed as an exhibit to Plaintiff's renewed motion t o file a second amended complaint. (Docket #60.) Though the Magistrate Judge granted P la in tif f 's motion to file a second amended complaint, Plaintiff never actually filed the s e c o n d amended complaint. For the purposes of the matter before the Court, the second a m en d e d complaint is deemed to have been filed as if it had been properly filed as its own s e p a ra te pleading. 3

1

h a lf a statute mile, as follows: First area- circle whose center point is 45-32-23 N 86-44-12 W; Second area- circle whose center point is 45-34-48 N 86-43-05 W ; Third area- circle whose center point is 45-32-24 N 86-40-00 W.") lost in L a k e Michigan, located within a circle having a radius of 3.5 statute miles w h o s e center point is at coordinates 45E 32.8' North latitude and 86E 41.5' W e s t longitude and believed to be The Griffin . . . . To the best of Defendant's c u rre n t information and belief, the Defendant shipwreck had, at the time of its sin k in g , the following characteristics: (a) power system; [sic] sail(s) and oars; (b ) hull construction; [sic] wooden; (c) hull dimensions; [sic] (1) length a p p ro x im a te ly 40' - 60'; (2) breadth - approximately 10' - 22'; (d) method of c o n stru c tio n ; [sic] hand; (e) approximate crew size; [sic] five; (f) approximate to n n a g e : 45 tons (or tuns); (g) time of construction: believed to be the 17th c e n tu ry; (h) date of sinking: approximately September 1679; (i) name of v e s s e l: The Griffin. . . . The Defendant res is unique and there are no other s h ip w re c k s known or believed to be within the geographic area identified a b o v e , or at or near the vicinity thereof, having the foregoing characteristics. (S e c o n d Am. Compl. ¶¶ 2, 6, 7, Am. Mot. to Am./Correct Compl., Docket #60, Ex. 3.) O n October 25, 2005, the Court entered an order holding this case in abeyance for th irty days to allow the parties to consult regarding the "terms and conditions of a cooperative in v e stig a tio n concerning whether the target is the Griffin." (Oct. 25, 2005 Order, Docket #75, a t 1-2.) On November 17, 2005, Intervenors filed a renewed motion to dismiss. On F e b ru a ry 2, 2006, when no response had been filed to the motion to dismiss and the parties h a d not advised the Court about the consultation regarding the cooperative investigation, the C a s e Manager sent a letter to the parties requesting a joint status report within ten days. A jo in t status report was filed by Plaintiff on February 13, 2006, and the report indicated that th e parties were continuing to engage in discussions about a cooperative investigation. On A p ril 17, 2006, Plaintiff filed another joint status report indicating that the discussions about a cooperative investigation were continuing. On May 16, 2006, Intervenors filed a joint 4

s t a tu s report advising the Court that the parties had been unable to reach an agreement b e c a u s e the "Intervenors continue to lack information on which to base responsible p a rtic ip a tio n in a cooperative investigation or to authorize further investigations by the c la im a n t ." (May 16, 2006 Joint Status Report, Docket #83, at 1.) On May 22, 2006, the C o u rt issued an order establishing a briefing schedule for Plaintiff's response to the motion to dismiss and Intervenors' reply. (May 22, 2006 Order, Docket #89, at 2.) On June 22, 2 0 0 6 , the Court granted Plaintiff's request for a four-day extension to the due dates in the b rie f in g schedule. (June 20, 2006 Agreed Order Am.'g Br.'g Schedule, Docket #91, at 1.) O n July 20, 2006, the Court issued a show cause order which directed Plaintiff to s h o w cause why it had failed to provide the precise location of Defendant to Intervenors. (Ju ly 20, 2006 Order to Show Cause, Docket #98, at 4.) The order directed the parties to file b rie f s addressing whether the complaint should be dismissed for Plaintiff's failure to provide D e f e n d a n t's precise location. (Id.) On August 21, 2006, after reviewing the briefs filed in re sp o n s e to the July 20, 2006 order, the Court ordered Plaintiff to advise Intervenors of the p re c is e location of the Defendant within ten days. (Aug. 21, 2006 Order 1.) The order f u rth e r advised Plaintiff that failure to provide Defendant's precise location would result in d is m is s a l of the case. (Id. at 2.) Plaintiff did not comply with the Court's order, instead P la in t if f filed two new motions. Intervenors promptly filed a response to the new motions.

5

II. A. W h e th e r Plaintiff has Complied with the Court's Orders to Disclose the Precise Location of Defendant

T h e Court's local rules provide that "[a] judicial officer may issue an order to show c a u se why a case should not be dismissed for lack of prosecution or for failure to comply w ith these rules, the Federal Rules of Civil Procedure, or any court order." W.D. MICH. L C iv R 41.1. If good cause is not shown, the Court may order dismissal of the case with or w ith o u t prejudice. Id. R u le C of the Supplemental Rules for Certain Admiralty and Maritime Claims re q u ire s the complaint to "describe with reasonable particularity the property that is the s u b j e c t of the action . . . ." FED. R. CIV. P. SUPPL. C(2)(b).2 The Supplemental Rules also re q u ire that the complaint state "the circumstances from which the claim arises with such p a rticu lar ity that the defendant or claimant will be able, without moving for a more definite s ta te m e n t, to commence an investigation of the facts and to frame a responsive pleading." F ED. R. CIV. P. SUPPL. E(2)(a). 3 These standards are compelled by the fact that "[a]n a d m ira lty action in rem involves arrest and seizure of the offending vessel simply upon filing a verified complaint." Riverway Co. v. Spivey Marine & Harbor Serv. Co., 598 F. Supp. 909, 9 1 3 (S.D. Ill. 1984). The requirements of Supplemental Rule E(2)(a) are part of the process
2

The amendment to Supplemental Rule C that is set to take effect December 1, 2006, d o e s not alter this provision of the Rule. The amendment to Supplemental Rule E that is set to take effect December 1, 2006, d o e s not alter this provision of the Rule. 6
3

th a t guards against the improper use of the admiralty arrest and seizure powers. United S ta te s v. Mondragon, 313 F.3d 862, 864-65 (4th Cir. 2002); Riverway Co., 598 F. Supp. at 913. In response to the order to show cause Plaintiff claimed that it was "unable to provide a more precise location because the Defendant shipwreck does not rest at a single g e o g ra p h ic a l point . . . ." (Pl.'s Br. in Resp. to Order to Show Cause, Docket #100, at ¶ 6.) P la in tif f further claimed that "the location of the Defendant shipwreck has been identified a s precisely as the circumstances permit." (Id. at ¶ 9.) But Plaintiff acknowledges the in a d e q u ac ie s of the prior disclosures in its briefing in response to the Court's August 21 o rde r: U n d e r the status quo, Great Lakes Exploration has not provided the precise l o c a t io n of the artifacts believed to be associated with the Defendant. Since In te rv e n o rs lack such information, under the status quo they may not currently u tiliz e such information about the location of the shipwreck artifacts to take, o r attempt to take, actual possession of the shipwreck. Given their lack of such in f o rm a tio n , under the status quo, Intervenors may not utilize such information f o r purposes other than asserting or protecting its interest in this proceeding. (P l.'s Br. in Support of TRO, Docket #104, at 8 (citation omitted).) Plaintiff's concern is that In te rv e n o rs will be able to locate Defendant and take actual physical possession of D e f en d a n t. Implicit in Plaintiff's contention that Intervenors currently cannot not take p o s s e s s i o n is the fact that Plaintiff has not provided Intervenors with the information n e c e ss a ry to locate Defendant. If Intervenors already had the information necessary to locate D e f en d a n t , then Plaintiff's concerns about Intervenors taking actual physical possession

7

w o u ld be moot. Plaintiff's claim with regard to the temporary restraining order make clear th a t in Plaintiff's view, the information provided to date is insufficient for Intervenors to lo c a te Defendant. Thus, as the Court stated on August 21, 2006, the description of

D e f en d a n t in the second amended complaint "does not allow the State to investigate the D e f e n d a n t, rather, it forces the State into, for lack of a better term, a fishing expedition." (A u g . 21, 2006 Opinion, Docket #102, at 8.) In order for Intervenors to frame a responsive pleading Intervenors must be able to lo c a te Defendant in order to investigate whether Defendant is embedded. If Defendant is an a b a n d o n ed shipwreck that is embedded in the submerged lands of the State of Michigan, then th e Abandoned Shipwreck Act of 1987 ("ASA") transfers title of the ship to Michigan. 43 U .S .C .A . § 2105 (West Supp. 2006); (Aug. 21, 2006 Opinion 4-5.) As the Court previously c o n c lu d e d , and is now admitted by Plaintiff, Plaintiff has not disclosed the precise location o f Defendant such that Intervenors would be able "to commence an investigation of the facts a n d to frame a responsive pleading." FED. R. CIV. P. SUPPL. E(2)(a). S u p p lem e n tal Rule C(2)(b) requires that the property be described with "reasonable p a r tic u l a rity." FED. R. CIV. P. SUPPL. C(2)(b). Plaintiff presumably knows of the exact l o c a ti o n of the specific artifacts it has discovered. However, Plaintiff's second amended c o m p la in t does not provide the location of those artifacts. Though the remnants of

D e f en d a n t may be dispersed over a large area, "reasonable particularity" requires Plaintiff to provide the locations of the artifacts that have been discovered. Providing the specific

8

lo c a tio n of these artifacts is reasonable for two reasons. First, Plaintiff is already in p o s s e s s io n of the necessary information, so it imposes no additional cost on Plaintiff. S e c o n d , the location of the artifacts links Defendant to particular items. In the absence of a connection to any particular artifacts, there is no reference point for defining Defendant. T h u s , if any party discovered an artifact generally matching Plaintiff's description of D e f en d a n t, then that party would need to clear the discovery with Plaintiff to know whether th e artifact was part of Defendant. (See Aug. 21, 2006 Opinion 9-11.) But if Plaintiff p ro v id e d the location of the known artifacts, then Intervenors and other parties would have e x p lic it reference points for what constitutes Defendant. The second amended complaint d o e s not meet the "reasonable particularity" requirement because it not disclose a part of D e f en d a n t's description that is known to Plaintiff and which is important to defining D e f e n d a n t. T h e re f o re , Plaintiff has not complied with the Court's May 10, 2005, order. The Local R u le s provide if a party has not complied with the Federal Rules, then the Court may issue a show cause order. W.D. MICH. LCIVR 41.1. The Court issued such a show cause order on J u ly 20, 2006. On August 21, 2006, in an opinion and order the Court rejected Plaintiff's e x p la n a tio n for refusing to provide Defendant's precise location and gave Plaintiff ten days in which to provide Defendant's precise location. Plaintiff did not provide Defendant's p re c is e location. As indicated in the August 21, 2006, order and in the Local Rules, the

9

c o n s e q u e n c e of Plaintiff's refusal to provide Defendant's precise location is that Plaintiff's c o m p la in t is dismissed without prejudice. B. P la in tiff's Request for an Arrest Warrant

In response to the Court's August 21, 2006, order, Plaintiff renews its request that the C o u rt issue an arrest warrant for Defendant. Supplemental Rule C specifies that to issue an a rre st warrant the Court "must review the complaint and any supporting papers. If the c o n d itio n s for an in rem action appear to exist, the court must issue an order directing the c le rk to issue a warrant for the arrest of the vessel or other property that is the subject of the a c tio n ." FED. R. CIV. P. SUPPL. C(3)(a)(ii)(A).4 To establish that the conditions for an in rem a c tio n have been met, Plaintiff must meet the requirements of Supplemental Rules C(2) and E ( 2 )( a ). The requirements for the issuance of an arrest warrant are required by due process. F ED. R. CIV. P. SUPPL. C cmt. 1985 Amendment; Riverway Co., 598 F. Supp. at 912, 914. P lain tiff has not complied with the requirements of Supplemental Rules C(2) and E(2)(a). S e e supra Part II.A. Until Plaintiff complies with the requirements of Supplemental Rules C (2) and E(2)(a), issuance of an arrest warrant would be improper. In support of the request for the arrest warrant Plaintiff directs the Court to Fathom E x p lo ra tio n LLC v. The Unidentified Shipwrecked Vessel or Vessels, 352 F. Supp. 2d 1218 (S .D . Ala. 2005). Plaintiff argues that Fathom Exploration supports the Court issuing the

The amendment to Supplemental Rule C that is set to take effect December 1, 2 0 0 6 , does not alter this provision of the Rule, however the citation will change to C(3)(a)(i) a f te r December 1, 2006. 10

4

a rre st warrant prior to resolving the deficiencies in Plaintiff's second amended complaint. F a th o m Exploration is distinguishable for several reasons. First, the appropriateness of issuing an arrest warrant for an insufficiently described defendant was not before the court in Fathom Exploration. The court in Fathom Exploration issued the arrest warrant, and then th e State of Alabama and the United States intervened and moved for a more definite s ta te m e n t. Id. at 1220-21. At the time the motion for a more definite statement was before th e court, the arrest warrant for the shipwreck had not been executed. Id. at 1221 n.2. The c o u rt in Fathom Exploration therefore was not forced to confront any issues arising from a rre stin g a ship based on an insufficient complaint. Second, the plaintiff in Fathom

E x p lo r a tio n had recovered several artifacts from the shipwreck. Id. at 1220. The recovery o f the artifacts established a basis for in rem jurisdiction over the artifacts. See Yukon R e c o v e r y , L.L.C. v. Certain Abandoned Prop., 205 F.3d 1189, 1195 (9th Cir. 2000) ("Filing an in rem arrest of recovered items merely confers in rem jurisdiction in the district court o v e r the recovered property.") The recovered artifacts allowed the court in Fathom E x p lo r a tio n to proceed in rem, independent of the shipwreck. Therefore, Fathom

E x p lo r a tio n does not provide a basis for issuing an arrest warrant when the complaint does n o t comply with Supplemental Rules C(2) and E(2)(a). C. P la in t iff's Request for a Temporary Restraining Order or Preliminary I n j u n c t io n

A s discussed previously, instead of providing the precise location of Defendant, P la in t if f seeks a temporary restraining order or a preliminary injunction against Intervenors. 11

P la in tif f seeks to restrain Intervenors "from utilizing information provided by Plaintiff re g a rd in g the precise location of the artifacts believed to be part of the Defendant shipwreck f o r (a) the purpose of taking, or attempting to take, actual possession or custody of any such artifa cts, and (2) [sic] for any purpose other than asserting and protecting their interests in th is proceeding." (Pl.'s Br. in Support of TRO 1.) As Intervenors have had an opportunity to respond, the Court will analyze Plaintiff's motion as one for a preliminary injunction, not a temporary restraining order. T h e Court must have personal jurisdiction over a party, before the Court can issue in ju n c tiv e relief against that party. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 2 3 4 -3 5 (1917); Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir. 2006) (" B e c a u se personal jurisdiction is a threshold determination linked to any subsequent order is s u e d by the court, we must determine whether the exercise of jurisdiction over Malease was p rop er before deciding whether the district court erred in the injunctive order."). Intervenors f ile d a restricted appearance pursuant to Supplemental Rule E(8). (Intervenors' Br. in Supp. o f Mot. to Intervene, Docket #9, at 3.) Intervenors' appearance was limited to filing a motion to dismiss. (Id.) Supplemental Rule E(8)5 provides that: [ a ]n appearance to defend against an admiralty and maritime claim with re sp e c t to which there has issued process in rem, or process of attachment and g a rn ish m e n t, may be expressly restricted to the defense of such claim, and in

The amendment to Supplemental Rule E that is set to take effect December 1, 2 0 0 6 , does not alter this provision of the Rule. 12

5

th a t event is not an appearance for the purposes of any other claim with respect to which such process is not available or has not been served. F ED. R. CIV. P. SUPPL. E(8). Intervenors' restricted appearance under Supplemental Rule E (8 ) did not subject them to the Court's personal jurisdiction. See Ventura Packers, Inc. v. F /V Jeanine Kathleen, 424 F.3d 852, 863-64 (9th Cir. 2005); Offshore Marine Towing, Inc. v . MR23, 412 F.3d 1254, 1255 (11th Cir. 2005); Sembawang Shipyard, Ltd. v. Charger, Inc., 9 5 5 F.2d 983, 989-90 (5th Cir. 1992); United States v. Marunaka Maru No. 88, 559 F. Supp. 1 3 6 5 , 1370-71 (D. Alaska 1983). As the Court lacks personal jurisdiction over Intervenors, th e Court does not have authority to issue an injunction that would operate against I n te r v e n o r s. I f the Court did have the authority to issue a preliminary injunction against In ter v e n o rs, the four factors the Court would need to consider in determining whether to g ra n t or deny the preliminary injunction are: (i) the Plaintiff's likelihood of success on the m e rits, (ii) whether the Plaintiff may suffer irreparable harm absent the injunction, (iii) w h e th e r granting the injunction will cause substantial harm to others, and (iv) the impact of a n injunction upon the public interest. See Deja Vu of Nashville, Inc. v. Metro. Gov't of N a s h v ille & Davidson County, Tenn., 274 F.3d 377, 400 (6th Cir. 2001). The first factor is the likelihood of Plaintiff's success on the merits. Only upon P lain tiff disclosing Defendant's precise location will it be possible for Intervenors to in v e stig a te whether Michigan has possession of Defendant pursuant to the ASA. In the a b se n c e of information about Defendant's precise location, it is not possible to assess the 13

lik e lih o o d of Plaintiff's success on the merits. Therefore, the first factor does not weigh in f a v o r of either party, because the condition of Defendant is unknown. T h e second factor is whether Plaintiff may suffer irreparable harm absent the in ju n c tio n . As a preliminary matter, the Court has already issued a protective order designed to eliminate the risks that could come from public disclosure of Defendant's precise location. ( O r d e r Concerning Docs. Filed Under Seal; see also Aug. 19, 2005 Mem. Op. & Order, D o c k e t #55 (rejecting Plaintiff's request to modify the protective order).) Since the Court has a lre a d y addressed the risk that could come from public disclosure, Plaintiff's theory of irrep ara b le harm is unclear. Plaintiff's theory of irreparable harm might be that if Intervenors a re provided the precise location of Defendant then Intervenors will have the information n e c e s s a ry for a Rule 12(b)(6) or Rule 56 motion. If this is Plaintiff's theory, then Plaintiff's th e o ry of irreparable harm is rejected because to accept the theory would be to make a m o c k e ry of the Federal Rules of Civil Procedure. (Aug. 21, 2006 Opinion 11-12 (analyzing this theory in greater depth and ultimately rejecting it).) Alternatively, Plaintiff's theory m ig h t be that disclosing the precise location of Defendant will permit Intervenors to take a c tu a l physical possession of Defendant. This theory is premised on Intervenors, Michigan, e f f e c tiv e ly acting in bad faith in an effort to deprive the Court of subject matter jurisdiction. T h e Court has no basis for ascribing such intentions to Intervenors. Additionally, Plaintiff h a s not offered any evidence which could be construed to support an inference that

14

In te rv e n o rs intend to take actual physical possession of Defendant. So the second factor w e ig h s in favor of Intervenors. The third factor is whether granting the injunction will cause substantial harm to o th e rs and the fourth factor is the impact of the injunction upon the public interest. In the c o n te x t of the proposed injunction, the third and fourth factors largely overlap because the o th e rs who would be implicated are the people of Michigan and other users of Lake M ichig an . Therefore the Court will analyze the third and fourth factors together. P l a in tif f is seeking a broad injunction against Intervenors. The injunction Plaintiff s e e k s would bar Intervenors, Michigan, from using the information for any purpose not r e la te d to this proceeding. So if Michigan used the information in reference to the

e n f o rc e m e n t of Michigan law directed at securing its bottomlands, Michigan would violate th e injunction. E.g., MICH. COMP. LAWS SERV. § 324.32512 (LexisNexis 2006) (requiring a permit for certain activities involving submerged lands in the Great Lakes). Michigan's law s related to the Great Lakes are presumable intended to further environmental, cultural, re c re a tio n a l and commercial interests. Limiting the ability of Michigan to enforce its laws w o u ld impair those four interests. For example, if Michigan learned of a new environmental c o n c ern related to it bottomlands through this proceeding, then the injunction Plaintiff seeks w o u ld severely impair the ability of the State to respond to that new environmental concern. A d d itio n a lly, the people of Michigan and anyone using the Great Lakes could be harmed by th e State inconsistently enforcing its laws as a result of the injunction. For example, a person

15

m ig h t apply for a permit related to certain activity on the Great Lakes, but in order to grant th e permit the State would need to use information obtained as part of this proceeding. If the in ju n c tio n were granted then the State would be forced to deny the permit, even though the p a rty seeking the permit is entitled to the permit. This would create an inconsistency in the p e rm ittin g process based on whether information obtained through this proceeding was r e le v a n t. In the foregoing examples, the use of the information has no apparent adverse c o n se q u e n ce s for Plaintiff, which demonstrates the absence of any need for the injunction. In contrast to the absence of injury to Plaintiff, the injunction could harm the interest of M ic h ig a n , the people of Michigan and anyone using the Great Lakes. Thus, the third and f o u r th factors weigh in favor of Intervenors. T h re e of the factors weigh against an injunction and the fourth is neutral. Thus, even if the Court had jurisdiction to issue the injunction against Intervenors, the issuance of such a preliminary injunction would be improper. D. P la in tiff's Request for an Extension of Time

T h e predicate for Plaintiff's request for an extension of time to disclose Defendant's p re c is e location is the Court granting Plaintiff's request for a preliminary injunction. As the C o u rt has explained, issuing the requested injunction would be improper. Moreover, P la in tif f has had ample time to disclose Defendant's precise location. The Court first directed P la in tif f to provide a more precise location for Defendant over eighteen months ago. (May 1 0 , 2005 Order 2.) Over those eighteen months the Court has repeatedly directed Plaintiff

16

t o provide Defendant's precise location. (July 13, 2005 Mem Op. & Order, Docket #43, at 2 ; Aug. 19, 2005 Mem. Op. & Order 2; July 20, 2006 Order to Show Cause 2.) Moreover, m o st recently the Court indicated that failing to disclose Defendant's precise location would re s u lt in dismissal of Plaintiff's complaint. (Aug. 21, 2006 Order 2.) Considering the Court's re p e ate d orders and Plaintiff's persistent non-compliance, no extension of time is justified. I I I. F o r the foregoing reasons, Plaintiff's motions for a preliminary injunction and for an e x te n s io n of time are denied. As a result of Plaintiff's failure to comply with the Court's A u g u s t 21, 2006, order the complaint is dismissed without prejudice. An order will be e n te re d consistent with this opinion.

D a te:

November 20, 2006

/s/ Robert Holmes Bell ROBERT HOLMES BELL C H IE F UNITED STATES DISTRICT JUDGE

17