2018-02-10 / News

Coal Dock: Arnold Freight Owners Ask Court To Reconsider

By Jacob A. Ball

Mackinac Island Ferry Capital, owners of Arnold Freight Company, have asked the 11th Circuit Court of Mackinac County to reconsider its ruling about ownership of the coal dock on Mackinac Island. The company claims the court was incorrect in applying an old court case retroactively to this decision, and that even so, they are still entitled to possession of the coal dock, given the circumstances. In addition, the company asks that Judge George Mertz reconsider their request to reform a 1997 settlement that intended to settle ownership questions involving the coal dock. If this motion is denied by the court, then the company still could appeal the decision to the Michigan Court of Appeals.

There is no timeline in which the judge must respond to the motion, and subsequent appeals could last up to two years.

A Motion for Reconsideration requires that the moving party can “demonstrate a palpable error by which the court and the parties were misled,” and that a different outcome would result from correction of this error. In MIFC’s case, three issues will be reconsidered by the circuit court, however, only one might affect the city’s claim.

The retroactive application of a case by Judge Mertz was used to declare that riparian rights could not be severed from the adjacent upland property. By doing so, MIFC lost its claim to a portion of the coal dock, since it was determined that multiple parties owned the property adjacent to the coal dock’s bottomlands. In addition, MIFC does not agree that, even if the upland property has many owners, they are not still entitled to possessory interest. This relates to the right of a person or business to occupy and exercise control over a property they do not technically own. Possessory rights cannot be severed from riparian rights, so these rights are split as well in accordance with the court’s decision. According to city attorney Tom Evashevski, neither of these arguments has any impact on the city’s claim, and is not of concern.

A third issue does involve the city’s claim, and could require a response if requested by the court. MIFC had asked that the 1997 Settlement Agreement be reformed, since MIFC argues the existing contract does not reflect its actual intent. The agreement should have allowed Union Terminal Piers, the previous Arnold owner, to obtain a permit for the submerged and filled bottomlands adjacent to the end of Astor Street. The state would not grant this permit, since UTP was not the legal owner of Astor Street.

Owing to these circumstances, MIFC asked the court to consider reforming the agreement. This claim for reformation was initially disallowed, given that 20 years have passed since the agreement was finalized, and, until now, no issues had been raised about the performance of the agreement. Judge Mertz also stated that ruling in favor of reformation of the agreement would be unfair to the city

There are two options for how the court will proceed with this motion. Either, Judge Mertz will request a response from the city or he will grant or deny it without city input. The city is not permitted to offer a response to the motion for reconsideration without a request from the court.

Regardless of the outcome of this motion, there may be cause for further mediation of the dispute. Mr. Evashevski said that he has been in contact with MIFC attorney Matthew Vermetten, and that interest has been expressed. He added that, even if the current decision is upheld during the appeals process, “there remain issues if we want to own the dock.”

The current decision split the riparian rights among at least three owners, which means, to own the dock, the city would need a consensus on several issues, including price and the exact location of each parcel. Mr. Evashevski said the court’s decision does not resolve any of these issues, and mediation could be effective.

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