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### STATE OF MICHIGAN

COURT OF APPEALS

JOHN BUGGS and DANIEL BONAMIE,

Plaintiffs-Appellants, UNPUBLISHED May 16, 2017

v No. 329782 Court of Claims DEPARTMENT OF NATURAL RESOURCES and KEITH CREAGH, LC No. 15-000119-MB

Defendants-Appellees.

Before: M ARKEY , P.J., and M URPHY and M ETER , JJ.

P ER C URIAM

. Plaintiffs, John Buggs and Daniel Bonamie, appeal as of right an order of the Court of Claims granting summary disposit ion to defendants, the Departme nt of Natural Re sources and its director Keith Creagh, and dismissing plaintiffs’ complaint for a writ of mandamus to compel defendants to take steps to re voke gas line easements granted t o Encana Oil & Gas, Inc., on stateowned land in Kalkaska and Cra wford counties. We affirm.

In January 2013, Encana Oil filed applications with the Michig an Public Service Commission (PSC) requesting authority to build natural gas pipe lines on state-owned land in Crawford and Kalkaska counties. The PSC issued ex-parte orders on January 31, 2013, approving construction and operati on of the pipelines. In Febr uary and June of 2013, the Department of Natural Resources (DNR) conveyed easements, known as the Beaver Creek easement and the Garfield easement, to Encana Oil to allow it t o build the pipelines. 1 The pipelines were completed i n September 2013 and have been in ope ration since that time.

Plaintiffs are property owners in Crawford County and are conc erned about the environmental impact of the pipelines. Plaintiffs sought to in tervene in the PSC proceedings. The PSC denied plaintiffs’ motions to intervene; nevertheless, plaintiffs appealed the PSC’s January 31, 2013, orders to this Court. In Buggs v Mich Pub Serv Comm , unpublished opinion per curiam of the Court of Appeals, issued January 13, 2015 (Do cket Nos. 315058, 315064), this Court held that the PSC violated the Michigan Environmental Pro tection Act (MEPA), MCL

1 Subsequently, the easements wer e assigned to DTE Michigan Gath ering Holding Company.-2- 324.1701 et seq ., by failing to address the environmental impact of the pipeli ne project. Therefore, this Court vacated the PSC’s orders and remanded for new necessity determinations in both cases, with instructions that the PSC address environme ntal impact concerns under MEPA and relevant case law. Buggs , unpub op at 11. On remand, plaintiffs filed a new motion to intervene in the PSC proceedings.

While the remand proceedings were pending with the PSC, plaint iffs filed the instant action against the DNR and its director, seeking a writ of mand amus and an injunction requiring the DNR to revoke the easements. The complaint alleged that: ( 1) the 35-foot wide Beaver Creek easement violated the DNR’s policy mandating a maximum ea sement width of 20 feet, (2) the Beaver Creek easement was im properly altered and its implem entation violated the statute of frauds, (3) Encana Oil violated the Beaver Creek and Garfield e asements by excavating outside the easement widths and failing to report to the DNR the deaths of two suspected Kirtland’s Warblers, and (4) the Beaver Creek and Garfield easements termi nated by their terms because PSC-approved use did not begin within two years.

The DNR moved for summary disposition pursuant to MCR 2.116(C) (4), (8), and (10), arguing that summary disposition was appropriate because plaint iffs failed to file a timely notice of intent to file suit against the state, and because the DNR’s challenged acts were not illegal and were proper exercises of the DNR’s discretion.

In the interim, the PSC issued orders on September 23, 2015, d enying plaintiffs’ second motion to intervene and again app roving Encana Oil’s applicatio ns to build the pipelines.

Thereafter, the Court of Claims issued an opinion and order gr anting summary disposition to defendants pursuant to MCR 2.116(C)(8) and (10). The Court of Claims held that plaintiffs were not entitled to mandamus because they had not s hown that the DNR had a duty to revoke the easements. The Court of Claims also denied plaintif fs’ motion to amend their complaint, finding that any amendment would be futile because a n amendment could not overcome the defects in the original complaint.

A writ of mandamus is issued by a court of superior jurisdicti on to compel a public officer to perform a clear legal duty. Jones v Dep’t of Corrections , 468 Mich 646, 658; 664 NW2d 717 (2003). In order to obtain a writ of mandamus, a plai ntiff must have a clear legal right to the performance of the specific duty sought to be comp elled, the act sought must be ministerial, the defendant must have a clear legal duty to perf orm the act, and the plaintiff must be without another adequate legal or equitable remedy. Casco Twp v Secretary of State , 472 Mich 566, 577; 701 NW2d 102 (2005); Lickfeldt v Dep’t of Corrections , 247 Mich App 299, 302; 636 NW2d 272 (2001). The extent of the defendant’s duty i s a question of law. See Lansing Sch Ed Ass’n v Lansing Sc h Dist Bd of Ed (On Remand) , 293 Mich App 506, 513; 810 NW2d 95 (2011).

We review for an abuse of discr etion a lower court’s decision to grant or deny a writ of mandamus. Id

. The remedy of mandamus is not a vailable to plaintiffs given th e nature of their challenges to the DNR’s actions of conveyi ng easements for the building of the pipelines.-3- The DNR is authorized to grant easements “upon terms and condi tions the department determines just and reasonable[.]” MCL 324.2129. The DNR’s of ficial policy recommends a 20-foot wide easement for a pipeline up to twelve inches in wid th. DNR Policy 28.46-05, Easement for the Use of State Lands, p 7. In an affidavit, Ger ald Grieve, a Land Use Forester with the DNR, stated that the B eaver Creek pipeline is a “high pressure gathering line” and that a wider easement was therefore warranted “for safety reasons.” T he Court of Claims correctly found that nothing precluded the DNR from granting an easement in excess of 20 feet for the Beaver Creek pipeline. This reasoning applies with equal force to the Garfield pipeline; Grieve attested that the Garfield pipeline, too, is a high pressure ga thering line and requires a wider easement for safety reasons. 2

The correction of a typographical error in the original Beaver Creek easement and the insertion of the corrected page into the easement document also was not improper. The only alteration made was a correction to the description of the land that comprised the easement, and that alteration was agreed to by the parties. The parties to a contract may agree to alter that contract. See Port Huron Ed Ass’n v Port Huron Area Sch Dist , 452 Mich 309, 326-327; 550 NW2d 228 (1996). Moreover, the conveyance was in writing and, therefore, did not violate the statute of frauds, MCL 566.106. P laintiffs have pointed to no improper conduct by any party and have not established that the alteration of the easement requir ed the Court of Claims to order the DNR to take steps to revoke the Beaver Creek easement.

The Court of Claims noted that the DNR acknowledged that it re ceived a report concerning the dead birds, but that when the DNR asked the indi vidual to provide the birds, the person said he had buried them. Plaintiffs rely on an affidavi t from Gary Cooley, the person who saw the dead birds. In the affidavit, Cooley denied that he to ld the DNR that he had buried the birds, and claimed that when he returned to the location with a camera, the birds were gone. Plaintiffs assert that they do not claim that Encana Oil’s acti vities killed the birds, but argue that because Encana Oil did not preserve the birds, which were suspe cted to be a protected species, it breached its duty under the easement, and the DNR should be ord ered to take steps to revoke the
easement.

Plaintiffs are not entitled to mandamus relief on this issue. As aptly stated by defendants:

2 Plaintiffs seem to be arguing that Grieve’s description of the Garfield pipeline does not comport with the opinion of the Court of Claims, which stated t hat the Garfield easement was 50 feet. However, Grieve stated that the easement was 35 feet, co mbined with “15 feet of county road right-of-way.” The Court of Claims likely considered thes e two figures when citing the figure of 50 feet. Plaintiffs also argue that Garfield easemen t was supposed to be limited to 20 feet but have failed to adequate ly support this argument and ha ve not demonstrated that the DNR had a clear legal duty, involvi ng no exercise of discretion or judgment, to take steps to revoke the Garfield easement based on the alleged “overstepping of boundar ies.” Lickfeldt , 247 Mich App at 302.-4- [T]he fact that a lay person claims to have informed an indepen dent contractor working for Encana that he saw two dead birds which may have be en protected species . . . does not provide a basis for the Court of Claims to order the DNR to sue Encana and DTE for breach of contract and seek rescission o f the easement agreements.

The DNR did not have a clear l egal duty, involvi ng no exercise of discretion or judgment, to take steps to revoke the Beaver Creek easement based on plaintiffs’ argument concerning the birds. Lickfeldt , 247 Mich App at 302.

Next, plaintiffs argue that the Court of Claims should have or dered the DNR to revoke both easements because the easements were not properly used wit hin two years of their issuance. We disagree.

Paragraph 22 of each easement provides:

In case the said easement herein conveyed shall not be used by Grantee, its successors and assigns, for a period of two (2) years, from and after the date of issuance, then and in that event sa id easement shall terminate.

Plaintiffs do not dispute that the easements were used for the purposes for which they were granted within two years after they were issued. Plaintiffs ar gue, however, that the easements were not “lawfully” used within this period because the 2013 PS C orders authorizing the pipelines were vacated by this Court in Buggs , unpub opn at 11, and the PSC’s order on remand approving the pipelines was issued more than two years after th e easements were issued. However, no language in paragraph 22 requires that a determinat ion of the legality of the grant of the easement be made before the commencement (or completion) of the project for which the easement was granted. Plaintiffs have pointed to no legal auth ority to support interpreting paragraph 22 in the way they desire. A party cannot merely ann ounce a position and leave it to this Court to search for and rationalize the basis for the clai m. Bronson Methodist Hosp v Mich Assigned Claims Facility , 298 Mich App 192, 199; 826 NW2d 197 (2012).

Finally, plaintiffs argue that the Court of Claims abused its discretion by denying their motion to amend their complaint. We disagree. We review for a n abuse of discretion a decision on a motion to amend a complaint. Weymers v Khera , 454 Mich 639, 654; 563 NW2d 647 (1997).

MCR 2.118(A)(2) provides that leave to amend a complaint “shal l be freely given when justice so requires.” Plaintiffs argue only that the Court of Claims abused its discretion by denying their motion to amend the complaint because justice req uired the amendment. The Court of Claims made findings regarding why the amendment was n ot required, Ben P Fyke & Sons v Gunter Co , 390 Mich 649, 658; 213 NW2d 134 (1973), but plaintiffs do not address those findings or explain why an amendment would enable them to show entitlement to mandamus. Plaintiffs quote MCR 2.118(A)(2), but otherwise do not argue th e merits of their claim. This failure constitutes an abandonment of the issue. See PIC Maint
, Inc v Dep’t of Treasury , 293 Mich App 403, 414; 809 NW2d 669 (2011) (failure to articulate h ow statute violates due process constitutes abandonment of argument).-5- Affirmed.

/s/ Jane E. Markey /s/ William B. Murphy /s/ Patrick M. Meter