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Mary Annette Pember
ICT

A U.S. federal judge in Wisconsin has ordered Enbridge to pay still-to-be-determined financial compensation to the Bad River Band of Lake Superior Chippewa for trespassing on tribal lands with its Line 5 oil pipeline.

But in an odd legal twist, U.S. District Judge William M. Conley in the Western District of Wisconsin stopped short of granting Bad River’s request that Enbridge be ordered to immediately halt use of the pipeline, saying the “public interest” outweighed Bad River’s concerns about environmental dangers.

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Instead, the judge asked for additional arguments on whether to allow the Canadian company to continue operating the pipeline until it completes the new routing of Line 5 within the next five years as planned – essentially allowing court-sanctioned trespassing.

He indicated Enbridge would be required to pay the tribe during that period for the easement he acknowledged the tribe has a right to reject, but left hanging the question of whether Enbridge would be required to share a portion of the profits it makes from the pipeline operation during the five-year period.

“The court concludes that the Band is entitled to a remedy for Enbridge’s trespass and unjust enrichment … but that the court is not required to issue a permanent injunction that would eject Enbridge immediately from the allotment parcels without considering the relevant equities,” the judge wrote in a 56-page order issued Sept. 7.

Conley was set to hold a conference Friday, Sept. 9, with the parties to discuss whether Enbridge can complete the new pipeline within five years and how the appropriate measure of past and future rent and damages to the Band should be determined.

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Conley’s decision is the latest development in a long battle between the tribe and the pipeline company, with Bad River claiming the pipeline presents a high potential for environmental disaster.

Bad River tribal leaders did not respond to ICT’s request for comment, but Enbridge officials praised the ruling in a statement emailed to ICT.

“The importance of Line 5 was affirmed today by the federal court judge’s decision ensuring the pipeline will continue to provide energy to millions of people in the Upper Midwest while Enbridge moves forward with the relocation of Line 5 around the Bad River Reservation,” wrote Juli Kellner, Enbridge communications specialist.

Foreign relations

The judge’s sharply worded order at times chastised Enbridge for its legal arguments, saying some were “strained and unpersuasive” as well as “tone deaf and meritless.”

But he agreed with the company’s position that the immediate shutdown of Line 5 would have widespread economic consequences for the United States and Canada.

Map shows existing route of Enbridge Line 5 through Bad River tribal lands and proposed reroute to the south. (Map courtesy of Carl Sack) March 2022

Line 5 falls under the 1977 Transit Pipeline Treaty between Canada and the U.S. that prohibits either nation from instituting measures that would impede the flow of oil in certain cross-border pipelines.

“There are concerns raised … about the impact on foreign relations, consumers, refineries, regional economies and international energy supply, resulting from an immediate shutdown of the Line 5 pipeline,” he wrote.

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Enbridge obtained easements to build the pipeline in northern Wisconsin across 12 miles of the Bad River Reservation, which was established by treaty with the Chippewa Tribe in 1854. Some of the land was owned by the tribe and others by individuals, including non-Natives.

Enbridge first secured easements through the tribe's lands in the 1950s, renewing them in the 1970s and 1990s.

The most recent agreements expired in 2013, just a few years after the widely publicized failure of an Enbridge pipeline in 2010 that spilled more than a million gallons of water into a Michigan river.

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. The suit seeks $45 million in damages.

Conley’s order speaks strongly about Bad River’s right as a sovereign nation to control activities in its territories, and said the tribe should receive compensation based on the profits Enbridge has made in those years transporting oil through the pipeline.

He flatly rejected Enbridge’s brazen claim that the ruling would allow a “windfall” to the tribe, which they argued acquired the land “at taxpayer expense through federal programs, and for a minute fraction of the amounts it is now seeking in damages as a result of its ownership of these lands.”

Conley’s response was swift and to-the-point.

“The argument is tone deaf and meritless,” he said. “As Enbridge is well aware, the allotment parcels were part of the Band’s original territory, and were severed as a result of the federal government’s allotment policy, the purpose of which was ‘simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries and force the assimilation of Indians into society at large.’”

Next step

The next step appears to be crafting an order that will allow Enbridge to continue operating the pipeline until it completes construction on the new Line 5 outside the Bad River territories.

The judge noted that Enbridge claims it is working on a reroute of Line 5 that should take about five years to complete.

The judge notes in his order that he would be “inclined” to issue an injunction that requires Enbridge to complete the rerouting of the pipeline within five years and pay the tribe for the easement, with a doubling of the fee if the pipeline is not completed on time. 

“Such an injunction would balance the equities between the Band’s sovereign interests, broader economic concerns, and foreign relations,” he wrote.

Enbridge officials said the pipeline project will create about 700 jobs, including at least 10 percent Indigenous workers, and the company will spend about $46 million with tribally owned businesses.

“Enbridge remains open to resolving issues amicably with the Bad River Band of the Lake Superior Tribe of Chippewa Indians as we also continue to focus on providing consumers and industry in the region with safe, reliable energy,” according to the company statement.

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