DOJ weighs in on Line 5 trespass on tribal land in Wisconsin

UPPER PENINSULA — The Enbridge Line 5 pipeline has been found to be illegally trespassing on tribal land in Wisconsin, but will not be moved any time soon.

After years of court arguments, lawsuits and delays, the federal government announced this week that Enbridge is in fact trespassing on land owned by the Bad River Band of Lake Superior Chippewa, but made no move to force the pipeline off the land.

Tribal groups in the Great Lakes region expressed relief that Enbridge's trespassing is being viewed as a crime after more than 10 years, but are still angry that no move is being made to remove the pipeline.

The Department of Justice announcement urged the courts to penalize Enbridge for its continued trespassing but also suggested the courts could allow Enbridge to continue trespassing illegally.

"Today, the United States agreed that Enbridge’s ongoing occupation of our land is illegal. We are grateful the U.S. urged the court not to let Enbridge profit from its unlawful trespass," said Bad River Band Chairman Robert Blanchard 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, just like other companies that have trespassed on tribal land. 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."

Built in 1953, Enbridge Energy’s Line 5 spans 645 miles from Superior, Wisconsin to Sarnia, Ontario. The line transports light crude oil and natural gas liquids. Four miles of the pipeline — consisting of two, 20-inch pipelines — crosses through the Straits of Mackinac.

Line 5's continued presence in the Straits of Mackinac has sparked serious concern from environmental groups and other advocates about the devastating risk of rupture. On the other side, proponents of the pipeline point to the economic impact and need for fuel transportation.

More: As legal sparring continues, Army Corps pushes Line 5 permit timeline to 2025

All 12 of Michigan’s federally recognized tribes, as well as tribes in Wisconsin, Minnesota and Canada, have passed resolutions calling for the decommissioning of Line 5.

While tribal communities express concerns about a possible oil spill and potential ecological harm, the Great Lakes are also significant in the creation stories of the Anishinaabe tribes.

On March 21, Michigan Attorney General Dana Nessel delivered oral arguments at the Sixth Circuit U.S. Court of Appeals in an attempt to bring the Line 5 decommission lawsuit back to the state of Michigan.

The Nessel vs. Enbridge lawsuit was originally filed in 2019 in Michigan, arguing that the 1836 Treaty of Washington guarantees these tribes the right to maintain their way of life in the ceded territory — a right, they claim, that will be destroyed if an oil spill from the pipeline contaminates the waters.

"We expect a fair trial that upholds the promises the United States government made to our ancestors," said Sault Ste. Marie Tribe of Chippewa Indians Chairman Austin Lowes. "We are going to present the facts behind our case and will never stop standing up for our rights as Indigenous people and the sovereignty of our nation."

Enbridge has successfully delayed the case multiple times and had it removed from state to federal court.

"If the United States supports Enbridge, it would destroy not only both tribal sovereignty but also state sovereignty with respect to the ability to manage land, resources and water for their citizens," said Bay Mills Indian Community President Whitney Gravelle.

Lowes added that "Our treaty with the United States government predates any treaty that Enbridge is using in an attempt to justify its illegal pipeline operations."

"Our case isn't just about whether Enbridge can continue operating Line 5, but it could impact every federally recognized tribe's right to control what happens on their land," he said.

The Seventh Circuit Court of Appeals requested federal input in December 2023. After this, in early March, leaders of 30 Tribal Nations in the Great Lakes region sent a letter to President Joe Biden urging the United States to take action against Line 5’s trespass on the Bad River Band’s sovereign territories.

The Biden Administration has not responded to either request.

Subscribe: Get unlimited access to our coverage

More than 60 Tribal Nations supported Nessel in a motion to bring the case back to state court. The arguments for keeping the case in federal court or moving it back to state court were heard during the March 21 hearings at the Sixth Circuit U.S. Court of Appeals in Cincinnati.

Nessel maintains that this case belongs in state court based on Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes. She argued to the court that taking the case out of state court because Enbridge prefers a federal forum violates Michigan’s right to have state claims resolved in state court.

"The case law regarding a Tribal Nation’s sovereign right to maintain their homelands and thus their reservations is a core aspect of tribal sovereignty and any position to the contrary would be unexpected and shocking," said Gravelle.

Assistant Attorney General Dan Bock argued to the Sixth Circuit that by waiting more than two years to move the case to federal court, Enbridge’s removal was untimely and must be rejected. Bock also argued that, timing issues aside, the federal court misapplied the law when it ruled that the case belongs in federal court rather than state court.

Enbridge’s attorney Alice Loughran argued that the removal to federal court was timely, and it should remain in federal court because federal issues dominate the case. Those issues include the impact of the 1977 U.S.-Canada transnational pipelines treaty, the federal Submerged Lands Act and the extensive federal regulation of oil pipelines.

Enbridge argued that the state's rights to protect the waters of the Great Lakes and the company's right to protect commerce profits are federal issues.

The arguments were presented to a three-judge panel of the Sixth Circuit Court of Appeal: Judges Richard Griffin, Amul Thapar and John Nalbandian.

On April 9, the Department of Justice weighed in on the appeal and came to a final decision that Enbridge is illegally trespassing. Though it acknowledges the trespassing, it does not call for immediate removal and even suggested the courts could allow the trespassing to continue indefinitely.

Many tribal groups spoke out about the dangers of such a decision, as it continues to threaten both environmental safety in the area and tribal sovereignty.

"The filing leaves more questions than answers. It also leaves Bad River, other Tribal Nations throughout the region, and the 40 million people that rely on the Great Lakes at risk of a catastrophic spill. We fear it will take Line 5 failing again, and the disaster of an oil spill for our position to be taken seriously. This isn't just about tribes, it is about clean water, it is about life. It is about every U.S. citizen and preserving our natural resources for generations to come," said Gravelle.

Requests for comment from Enbridge were not returned.

— Contact Brendan Wiesner: BWiesner@Sooeveningnews.com

This article originally appeared on The Sault News: DOJ weighs in on Line 5 trespass on tribal land in Wisconsin