Mary Annette Pember
Indian Country Today
The Minnesota Court of Appeals on Monday affirmed state regulators’ key approvals of Enbridge Energy’s Line 3 oil pipeline replacement project, in a dispute that drew more than 1,000 water protectors opposing the project last week.
A three-judge panel concluded 2-1 that the state’s independent Public Utilities Commission correctly granted Enbridge the certificate of need and route permit that the Canadian-based company needed to begin construction on the 337-mile Minnesota segment of Line 3.
Although Enbridge describes the project as a replacement effort to replace a 1960s-era crude oil pipeline that has deteriorated and can run at only half-capacity, opponents say that the new line in in effect a new pipeline, with a larger circumference designed to carry tar sands oil.
Several bands of Minnesota Ojibwe, environmental groups and the Minnesota Department of Commerce had asked the appeals court to reject the Public Utilities Commission approvals, arguing that Enbridge’s oil demand projects failed to meet legal requirements. The court, however, said there was reasonable evidence to support the commission’s decision.
Water protectors opposing Line 3 expressed disappointment at the court's decision.
“I guess I didn’t have any hope in our court.” said Dawn Goodwin, citizen of the White Earth Band of Ojibwe. “I wanted to, but I did not.”
Goodwin is co-founder of the Rise Coalition, an Indigenous-led environmental conservation organization that is currently occupying a camp called the Fire Light camp on an Enbridge easement along the Mississippi River near Solway, Minnesota.
“The good thing is that one of the judges gave us a powerful dissenting opinion,” she said. “He hears our voices; I thank him for that.”
Judge Peter Reyes Jr. offered the dissenting opinion. He wrote in the 78-page decision document, “This case is about substitution, substituting an agency’s will for its judgment.”
According to Reyes, the Minnesota Public Utilities Commission, in granting the original certificate of need for the pipeline, failed to consider the state’s energy needs, made unsupported findings regarding the safety of the existing Line 3 and failed to evaluate the societal costs — an estimated $287 billion —to Minnesota.
“Among other negative consequences, the pipeline project will affect hunting, fishing, and other rights of relators Red Lake Band of Chippewa Indians and White Earth Band of Ojibwe, with no benefit to Minnesota,” Reyes concluded.
“Such a decision cannot stand. Enbridge needs Minnesota for its new pipeline. But Enbridge has not shown that Minnesota needs the pipeline.”
Juli Kellner, communications specialist for Enbridge wrote, praised the decision in an email to Indian Country Today,
“This is an important acknowledgement of the Minnesota Utilities Commission thorough review of the Line 3 replacement project,” Kellner said. “The decision was not unexpected. Line 3 passed every test through six years of regulatory and permitting review.”
Frank Bibeau, attorney for the White Earth Band of Ojibwe and Honor the Earth, an Indigenous environmental justice organization, said opponents are considering another appeal but are focusing mainly on persuading President Joe Biden to intervene.
The Biden administration hasn’t taken a clear position on Line 3 but a legal challenge is pending in federal court on the U.S. Army Corps of Engineers’ approval of a wetland permit that opponents say should be withdrawn.
“Our first federal action is to use our treaty rights in a meaningful way with the Army Corps of Engineers,” Bibeau said.
According to Bibeau, neither the Red Lake nor White Earth Ojibwe bands were allowed to adequately participate in the state’s water permitting process.
Indigenous water protectors have constructed several camps on public lands along the Line 3 route and are continuing to oppose the pipeline.
On June 13, Enbridge delivered a letter to occupants of the Fire Light camp. Camp leaders shared the letter with Indian Country Today.
“Enbridge hereby provides notice that any implied consent to the presence of this group of individuals is hereby withdrawn and revoked and it hereby demands that all persons not specifically authorized by Enbridge or its contractors shall immediately depart the premises,” Rich Kern, Enbridge supervisor, wrote to Clearwater County Sheriff Darin Halverson.
Kellner added, “While we respect the rights of individuals to protest peacefully and legally, Enbridge has engaged with law enforcement over the past week in connection to the illegal trespassing on a work site. Yesterday we issued a formal letter advising the trespassers to leave. Trespassers remain at our site and that is unacceptable.”
Goodwin said the sheriff has actively been supporting the groups' treaty rights to hunt, fish and gather on the land, which is part of ceded territories under the treaties of 1837, 1854 and 1855.
But she said several members of law enforcement officers from various counties were gathering on Monday, June 14, at a staging site near the camp, which has about 100 water protectors.
“We are here in peace and we intend to stay in peace,” Goodwin said. “We are upholding our treaty rights.”
Halverson did not respond to Indian Country Today’s request for comment.
Bibeau said that several Department of Justice liaisons have been in the area observing local law enforcement’s handling of water protectors during actions.
“The places where these camps are located are our treaty lands; I believe that the Department of Justice is going to be involved in what’s going on here,” Bibeau said.
Department of Justice officials did not respond to Indian Country Today’s request for comment.
“I don’t think they (federal officials) want this to turn into another Standing Rock Dakota Access standoff,” Bibeau said.
Tara Houska, a citizen of the Couchiching First Nation and founder of the Giniw Collective, one of the Indigenous groups involved in recent actions, said opposition will continue.
“There were a number of mass actions in different locations,” Houska said. “I hope this sends a very clear message to the Biden administration about the risk of civil unrest. The intervention of the Army Corps of Engineers needs to be swift and it needs to be now.
“Resistance is clearly growing. We cannot stop and we will not stop,” she said.
The Associated Press contributed to this report.