Enbridge Energy, Limited Partnership v. Town of Lima et al

Filing 18

ORDER directing clerk to send copies of this order and plaintiff's conmplaint to the Wisconsin Attorney General in accordance with 28 U.S.C. § 2403. Signed by District Judge Barbara B. Crabb on 3/21/2013. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ENBRIDGE ENERGY, LIMITED PARTNERSHIP,
ORDER
Plaintiff,
13-cv-187-bbc
v.
TOWN OF LIMA and DAVID KYLE,
in his official capacity as Town Board Chair,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Under 28 U.S.C. § 2403(b), a district court is required to notify the state Attorney
General in any case in which the constitutionality of a state statute is “drawn in question.”
In this case, plaintiff Enbridge Energy is arguing that Wis. Stat. § 349.16(1)(c) “as
interpreted and applied” by defendants Town of Lima and David Kyle violates both the
supremacy clause, U.S. Const. Art. VI, cl. 2, and the commerce clause, U.S. Const. Art. I,
§ 8, cl. 3. The Court of Appeals for the Seventh Circuit has applied § 2403 to challenges
under both the supremacy clause, Matter of Dunn, 988 F.2d 45, 46 (7th Cir. 1993), and the
commerce clause. Dynamics Corp. of America v. CTS Corp., 794 F.2d 250, 259 (7th Cir.
1986).

Accordingly, I will send a copy of this order and plaintiff’s complaint to the

Wisconsin Attorney General so that he may decide whether he wishes to intervene on behalf
of the state.

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ORDER
IT IS ORDERED that the clerk of court is directed to send copies of this order and
plaintiff Enbridge Energy’s complaint to the Wisconsin Attorney General, in accordance with
28 U.S.C. § 2403.

Entered this 21st day of March, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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