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Justice Department Says Enbridge Line 5 Pipeline Is Trespassing on Tribal Land

However, the “filing leaves more questions than answers,” says Bay Mills Indian Community President Whitney Gravelle.

The Biden administration has weighed in for the first time on legal challenges against Enbridge’s Line 5, a 645-mile, oil-and-natural-gas pipeline crossing Wisconsin and Michigan before terminating in Ontario, Canada.

In court brief filed with the 7th Circuit Court of Appeals, attorneys for the U.S. Department of Justice agreed with a lower-court ruling that Enbridge is trespassing on about 12 miles of Bad River Band of Lake Superior Chippewa lands.

But they also urged the court to reconsider its order shutting down the pipeline altogether, saying the pipeline falls under international commerce regulations in the U.S. dealings with Canada.

“The court should also fully consider the possible consequences of an order requiring the shutdown of the pipeline, including its effect on the U.S.’ obligations under the Transit Pipeline Treaty and the U.S.’s diplomatic and commercial relationship with Canada,” attorney’s wrote in the brief published Wednesday, April 10.

Government attorneys also wrote that the lower court underestimated the $5.1 million restitution payment Enbridge should make to Bad River, and said the amount due should be greater.

“The total restitution award constitutes 0.47 percent of Enbridge’s profits and avoided costs attributable to Line 5 as a whole, a paltry amount that permits Enbridge to profit handsomely from its trespass,” the attorneys wrote. “The district court’s calculation was in error. Remand is appropriate to allow the court to recalculate this award.”

In 2022, U.S. District Judge William Conley in the Western District of Wisconsin ruled that Enbridge was illegally trespassing on Bad River lands. In 2023, the same court ruled that Line 5 posed a public nuisance and ordered Enbridge to shut down the pipeline crossing the tribe’s lands within three years, and ordered the company to pay the tribe $5.1 million in unlawfully accrued profits.

Both Bad River and Enbridge appealed to the 7th Circuit Court of Appeals. Bad River wants the court to order Enbridge to shut down its pipeline immediately. The 7th Circuit Court called upon the U.S. government to weigh in on the issue before the court issued a ruling.

The Department of Justice response drew mixed reactions.

“We are grateful the U.S. urged the court not to let Enbridge profit from its unlawful trespass,” Bad River Chairman Robert Blanchard said in a statement, “But we are disappointed that the U.S. has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand.

“Enbridge should be required to promptly leave our Reservation,” Blanchard said. “We are hopeful that the appeals court will put an end to Enbridge’s shameful decade of trespass and not condone its exploitation of our land and sovereign rights.”

Bay Mills Indian Community President Whitney Gravelle said the potential for disaster remains.

“The filing leaves more questions than answers,” Gravelle said in a statement provided by the Native American Rights Fund. “It also leaves Bad River and other tribal nations throughout the region and the 40 million people that rely on the Great Lakes at risk of a catastrophic spill.”

In a statement emailed to ICT, Juli Kellner of Enbridge Communications said the brief is part of the ongoing dispute over the pipeline.

“This latest step traces back to June 2023, when a federal judge ruled on a legal challenge brought by the Bad River Band regarding Line 5, which the Band argues is trespassing and poses a threat to its land and lifeways,” Kellner wrote. “The judge ordered Enbridge to remove the pipeline from the tribe’s land within three years or face a shutdown. Both sides appealed the decision — the tribe thought that was too generous, the oil company thought it was too drastic.”

Kellner also noted in the statement that justice department attorneys supported dismissal of a claim by the band that a public nuisance claim against Enbridge should be dismissed. In the brief, attorneys said that the district court erred in making a decision on the nuisance claim, saying that the Pipeline Safety Act provides authority to the U.S. Department of Transportation to address environmental risks and damage caused by pipeline operators.

The legal barrier presented by the 1973 International Transit Pipeline Treaty has been an effective legal sticking point for Enbridge against challenges to Line 5.

In a separate case, Enbridge invoked the treaty in its arguments that a lawsuit filed by Michigan against the pipeline should be kept in federal court. That decision is pending.

Michigan Attorney General Dana Nessel recently asked the U.S. Sixth Circuit Court of Appeal to reject U.S. Circuit Court Judge Janet Neff’s decision to shift Michigan’s case against Enbridge out of the federal court and back to the state.

The giant Canadian energy company has been fighting Bad River to keep oil flowing through its oil-and-natural-gas pipeline for more than 10 years. The line originates in Superior, Wisconsin, and travels east through Bad River before it runs through Michigan’s Upper Peninsula and Ojibwe lands, then under the Straits of Mackinac toward its final destination at a terminal in Sarnia, Ontario.

Enbridge first secured easements for its pipeline from the Bad River tribe in the 1950s, renewing them in the 1970s and the 1990s. Initially, the Bureau of Indian Affairs negotiated the 20-year easement agreement, for which Enbridge paid $3,800. All of this was conducted without tribal consent.

The easements expired in 2013. The tribe balked at renewing the easements, and in 2017, the tribe’s governing body approved a resolution outlining their unwillingness to agree to new easements, noting that the lands, rivers and wetlands on tribal lands were considered sacred and that an oil spill would be “catastrophic.”

The tribe filed a lawsuit in July 2019, claiming Enbridge’s pipeline was trespassing on tribal lands and calling for an immediate halt to the flow of oil and removal of the pipeline. In the lawsuit, the tribe argues that it has the right not to renew pipeline easements as a matter of basic property rights.

Looking Ahead

Native American Rights Fund staff attorney Wesley James Furlong said the Department of Justice’s arguments seem to put treaty rights with Canada over treaty rights with tribal nations.

“While the United States’ brief acknowledged both that Enbridge has been trespassing for more than 10 years and the importance of tribal sovereignty, we are perplexed by the false equivalency that the United States suggests between its tribal treaty and trust obligations to Indian Country and its diplomatic relationship with Canada,” Furlong said in a statement.

As of now, the 2023 federal court decision allowing Enbridge to operate Line 5 across Bad River lands until 2026 still stands as the appeal process moves forward.