Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Inc. et al

Filing 369

OPINION and ORDER that all of the remaining claims and form of relief in this case shall be resolved by the court after a bench trial, which will commence on October 24, 2022. Signed by District Judge William M. Conley on 9/16/2022. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BAD RIVER BAND OF THE LAKE
SUPERIOR TRIBE OF CHIPPEWA
INDIANS OF THE BAD RIVER
RESERVATION,
Plaintiff and Counter Defendant,
OPINION AND ORDER
v.
19-cv-602-wmc
ENBRIDGE ENERGY COMPANY, INC., and
ENBRIDGE ENERGY, L.P.,
Defendants and Counter Claimants.
v.
NAOMI TILLISON,
Counter Defendant.
The issues remaining to be resolved in this case include: (1) the amount of profitsbased relief to which plaintiff Bad River Band is entitled on its trespass and unjust
enrichment claims; (2) the merits of the Band’s public nuisance claims; and (3) the form
of injunctive relief that should be imposed on Enbridge Energy to remedy its trespass and,
if the Band’s public nuisance claim is successful, to abate the public nuisance. The parties
agree that profits-based restitution and injunctions are equitable remedies to be decided
by the court. (Joint Stipulation (dkt. #366).) However, the parties dispute whether the
merits of the Band’s public nuisance claim should be resolved by a jury or a court. Enbridge
argues that it has a Seventh Amendment right to a jury trial on the liability portion of the
Band’s public nuisance claim, while the Band argues that the claim is one of equity that
should be resolved by the court.

The court agrees with the Band. The Seventh Amendment guarantees the right to
a jury trial on the merits in those actions that are analogous to “suits at common law.” Tull
v. United States, 481 U.S. 412, 417 (1987). In contrast, actions that are analogous to 18thcentury cases tried in courts of equity or admiralty do not require a jury trial. Id. To
determine whether a particular action is more similar to cases that were tried in courts of
law than to suits tried in courts of equity or admiralty, the court must examine both the
nature of the action and of the remedy sought. Id. First, the court must compare the
action to 18th-century actions brought in the courts of England prior to the merger of the
courts of law and equity.

Second, the court must consider the remedy sought and

determine whether it is legal or equitable in nature. Id. However, “[t]he abstruse historical
search for the nearest 18th-century analog is less important than determining whether the
remedy sought is equitable or legal in nature.” Dexia Credit Loc. v. Rogan, 629 F.3d 612,
625 (7th Cir. 2010) (citations and quotation marks omitted)ee also Tull, 481 U.S. at 421
(“[C]haracterizing the relief sought is more important than finding a precisely analogous
common-law cause of action in determining whether the Seventh Amendment guarantees
a jury trial.”). Indeed, the Seventh Circuit has repeatedly emphasized that “[i]f the only
relief sought is equitable, such as an injunction or specific performance (a type of
affirmative injunction), neither the party seeking that relief nor the party opposing it is
entitled to a jury trial.” Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299
F.3d 643, 648 (7th Cir. 2002) (citations omitted); see also Dexia Credit Loc., 629 F.3d at
626 (holding that there was no right to jury trial and that “it mattered not whether any of
the issues were legal in their nature” where “[t]he nature of the relief sought was purely

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equitable”).
Here, the Band is seeking only equitable relief on its public nuisance claim, so
Enbridge is not entitled to a jury trial under the Seventh Amendment. See Marseilles Hydro
Power, 299 F.3d at 648 (“A suit seeking only equitable relief is not a suit at common law,
regardless of the nature of the issues likely or even certain to arise in the case.”). Even
Enbridge concedes that “there are several causes concluding that public nuisance actions
are equitable in nature based upon the purely equitable relief sought.” (Enbridge Br. (dkt.
#364) 2.) Nonetheless, Enbridge argues that it has a right to a jury trial because the
existence of a public nuisance was a question historically tried in courts of law, citing two
cases from the 1800s and a secondary source from 1787. (Id. at 2.) But Enbridge’s position
conflicts directly with the Seventh Circuit precedent cited above, as well as the Supreme
Court’s statement in Tull that “[a] public nuisance action was a classic example of the kind
of suit that relied on the injunctive relief provided by courts in equity.” 481 U.S. at 423.
Accordingly, Enbridge is not entitled to have a jury decide whether Line 5 on the Bad
River Reservation constitutes a public nuisance or whether the Band has interfered
unreasonably with Enbridge’s attempts to abate the alleged nuisance.
The court will proceed with a bench trial on all remaining issues in this case on
October 24, 2022. The court recently extended the parties’ deadlines for filing pretrial
submissions to September 21. Because this trial will be a bench trial, the court will modify
the parties’ pretrial submission requirements as set forth in the order below. To the extent
the requirements below conflict with the court’s “Bench Trial Procedures for Pretrial
Submissions,” the parties should follow the requirements in this order. A final pretrial

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conference will be held on October 11, 2022, at 2:30 p.m. The parties also are reminded
that they may contact the clerk’s office to schedule mediation with Deputy Clerk Andy
Wiseman before trial.

ORDER
IT IS ORDERED that:
1) All of the remaining claims and form of relief in this case shall be resolved by
the court after a bench trial, which will commence on October 24, 2022.
2) On or before September 21, 2022, the parties shall submit the following:

•

A list of all witnesses that they intend to call at trial.

•

A list of all exhibits that they intend to offer at trial, using this court’s
trial exhibit form and following this court’s Procedures for Trial Exhibits.

•

Electronic copies of all exhibits.

•

A list of all depositions and portions of depositions to be admitted into
evidence.

•

Written stipulations setting forth the qualifications of all expert
witnesses.

•

An agreed statement of the contested issues of law supplemented by a
separate statement by each counsel of those issues of law not agreed to by
all parties.

•

A proposed special verdict, as if the case were to be tried to a jury.

3) On or before September 28, 2022, the parties shall submit the following:

•

Objections to exhibits and the grounds, using the opposing parties’ exhibit
list.

•

Objections to deposition designations and the grounds.

•

Trial briefs.
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Entered this 16th day of September, 2022.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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