U.S. government weighs on on Line 5 Pipeline dispute

Bad River Chair Robert Blanchard said the band is “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.”

The Story So Far

The U.S. itself is not part of the case between Enbridge Inc., a pipeline company based in Calgary, and the Bad River Band of the Lake Superior Tribe of Chippewa, one of six federally recognized Ojibwe tribes in Wisconsin.

The dispute centres on sections of the Line 5 pipeline that pass through the Bad River Reservation. In 1993, with the Band’s consent, the U.S. Department of the Interior issued 50-year rights-of-way for Enbridge over some part of the Reservation. But it granted other sections for only 20 years—and when those rights expired in 2013, the band did not consent to renewing rights-of-way through which 2.33 miles of the pipeline pass.

Following many years of negotiation and legal action, a June, 2023 district court ruling ordered Enbridge to shut down parts of the pipeline in three years and pay the band nearly US$5.2 million for trespassing, along with part of the profits gained until the shutdown is completed. It did not order an immediate shutdown, as the Band had asked.

Enbridge appealed the decision, and the current amicus brief responds to that appeal. It says the district court failed to adequately assess “all of the public interests” in the case, or to weight the 2023 order “in light of all the circumstances and equities”. On that basis, the U.S. says the case should be revisited by the district court “on remand.”

The brief positions the U.S.’ treaty obligations to Canada as a deciding factor in the dispute. “In most cases of trespass on Indian lands, the consideration of equitable factors should nonetheless result in immediate ejectment as the appropriate remedy,” It states. But the current issue is “an extraordinary case… where a transboundary pipeline governed by a treaty with a foreign government and the United States’ relationship with that government are at issue.”

The DOJ maintains it does not suggest how the district court should rule, nor “that the district court’s order should countenance Enbridge’s original trespass on the band’s lands or excuse its continuance.” But if the appeals court does remand the case, the district court should consider the U.S.’ many obligations that will be affected by the outcome.

While the brief tries to balance honouring the band’s sovereignty while keeping the pipeline—and relations with Canada—open, Indigenous legal groups take issue with that the attempt.

“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,” said Wesley James Furlong, staff attorney for the Native American Rights Fund.

Sovereignty in the Balance

Under the provisions of the expired rights-of-way, Enbridge had agreed to “remove all materials, equipment, and associated installations within six months of termination” and “to restore the land to its prior condition.” But it hasn’t done so, arguing instead that the 20-year rights-of-way were issued with an “implied duty of good faith and fair dealing” and “that the band expressly committed to do whatever it can reasonably do to ensure that Enbridge’s objectives are met.”

The amicus rejected that argument as it was “undisputed that Enbridge has not obtained new rights-of-way”, and the band’s alleged implied agreement to future consent “has no legal force.”

“Enbridge has no right to occupy the band’s lands until it actually obtains the rights-of-way from Interior,” the brief states. “This is not just a rubber stamp. Interior must make its own determination that any proffered written consent of the band meets the statutory and regulatory criteria.”

Moreover, the monetary penalty ordered by the district court is not enough, the brief says, reimbursing in only 0.25% of the costs the band incurred while leaving Enbridge “with nearly all of the financial benefit from its delay of a reroute.”

As a result, “The district court’s award does not deter similar conduct in the future—if anything, it encourages a trespasser to delay relocation,”

The brief says the district court was also wrong to consider a common law nuisance claim by the band, which argues that erosion, high river flows, and local geomorphology at Line 5’s proximity to the Bad River Meander create the risk that Line 5 will rupture. While the district court sought to reduce that risk by ordering Enbridge to adopt a monitoring and shutdown plan, DOJ says it had no authority to do so because the U.S. Pipeline Safety Act assigns that mandate to the Department of Transportation.

Blanchard said the band disagreed with the “11th-hour assertion” that the court was unable to “protect our reservation against an imminent rupture of the pipeline.”

“We trust that the appeals court will not strip away the hard-fought protections that we have secured for the Bad River watershed and Lake Superior through this litigation,” he added.

Conflicting Treaty Obligations

Like the district court’s initial ruling, which had rejected the band’s call for an immediate shutdown of the pipeline, the DOJ raised concerns about how disrupting the pipeline would affect trade relationships with Canada—though it also acknowledged that Enbridge’s “willful” trespass weighs heavily in favour of the Band. Canada, however, has already submitted an amicus brief on the issue, contending that “the district court’s shutdown order is inconsistent with the requirements of the Transit Pipeline Treaty.”

Unlike the district court, The DOJ assigns the U.S.-Canada relationship greater importance than the district court did, stating that the court “failed to fully consider all of the relevant public interests.” It questions whether a shutdown order would be upheld in a review of the U.S.’ international trade obligations, and raises concerns about monetary liability and damage to its relationship with Canada.

“It is possible that the United States could be subject to arbitration in which it could have exposure for significant damages if the arbitration panel found the United States liable for breaching its treaty obligations,” the brief states.

But the DOJ also warns about the ongoing harms to the band’s sovereignty and the impact of the U.S.’ relationship to the band. “The district court should consider both types of treaty-based public interests, and the implications for the United States’ relationship with each of the sovereigns with which it has entered into a treaty,” DOJ writes.

Earthjustice Managing Attorney Debbie Chizewer said the brief failed “to provide the legal analysis requested by the Seventh Circuit” concerning the treaty, which “allows states and Tribal Nations to protect the environment, and they must act because Line 5 poses an urgent threat to the band, other regional tribal nations, and all who rely on the Great Lakes.”

Blanchard echoed that concern, stating that “Line 5 remains an urgent threat, not only to the band’s fishing and gathering, but also to the health and welfare of our people and our neighbours.”

He added that the Bad River Band is “determined to protect the precious rivers and streams in our watershed, our coastal wetlands, and Lake Superior.”