Indian Country Today

Mediator Gerald Rosen filed a court document Aug. 18 indicating he wants to delay mediation proceedings in a federal lawsuit involving Michigan Gov. Gretchen Witmer’s order to shut down Enbridge’s Line 5.

In November 2020 — warning of an imminent threat from a Line 5 rupture in the Straits of Mackinac — Gov. Whitmer gave Enbridge 180 days to shut down the aging pipeline built in 1953, and filed a lawsuit in Ingham County Circuit Court. Enbridge then sued Michigan in federal court accusing the state of overstepping its bounds, arguing that the pipeline was under the sole jurisdiction of the U.S. Pipeline and Hazardous Materials Safety Administration.

In March, U.S. District Judge Janet Neff ordered mediation between Enbridge and the state indicating that mediation should not delay court proceedings. According to a press release issued by Oil and Water Don’t Mix, a citizens environmental group, Rosen has not offered any evidence in court filings of any progress made in negotiations.

(Previous: Army Corps plans extensive review of Enbridge tunnel)

“Each and everyday oil flows through Line 5 in the Straits of Mackinac is another day we risk an incredible environmental and economic disaster for the entire state,” said David Holtz, Oil & Water Don’t Mix spokesperson. “At substantially more than $1 million a day in profits from Line 5, delay is Enbridge’s friend. Michigan takes all the risk every day this ticking time bomb is allowed to operate in the Great Lakes.”

This July 19, 2002, file photo, shows the Mackinac Bridge that spans the Straits of Mackinac from Mackinaw City, Michigan. Supporters and opponents of a proposed oil pipeline tunnel beneath the Great Lakes channel are making their case to federal officials. The Army Corps of Engineers hosted an online public hearing Monday, Jan. 11, 2021, on Enbridge's application for a permit. The Canadian pipeline company wants to drill a nearly 4-mile (6.4-kilometer) tunnel through bedrock under the Straits of Mackinac that would house a replacement for twin pipes that have run along the bottom of the waterway connecting Lake Huron and Lake Michigan for 67 years.(AP Photo/Carlos Osorio, File)

According to Rosen’s document filed with the U.S. District Court Western District of Michigan, parties will meet on Sept. 9 and anticipate that the mediation could be completed by or about Sept. 30.

Holtz noted, however, that completion of mediation doesn’t mean parties have arrived at a decision. Judge Neff will decide the next steps.

Whitney Gravelle, chairwoman for the Bay Mills Indian Community, which voted to banish Enbridge Line 5 from the reservation, wrote in an email to Indian Country Today, “Considering the dual pipelines are ticking time bombs that can cause irreversible harm to the Great Lakes. There is no time to waste in looking for a compromise. We must protect the Great Lakes.”

Gov. Whitmer did not respond to a request for comment.

The State of Michigan wants Judge Neff to dismiss Enbridge’s federal suit so a state court is free to order Line 5’s decommissioning.

Meanwhile, in Minnesota a tribal court ruled the “rights of nature” case can move forward.

On Aug. 18, the White Earth Tribal Court rejected the State of Minnesota’s effort to dismiss the case enforcing the rights of wild rice or manoomin on and off its reservation. In an order released by the Court, the Court noted:

Manoomin or wild rice is more than food for Ojibwe; it conveys culture and tradition. 2020. (Photo by Mary Annette Pember)

The activity at issue here impacts the ecosystem of Manoomin in that it allows Defendants to control the water quantity and quality on which the plant depends…The possible impact of Defendant's activities has a "direct effect on the political integrity, political security or the health or welfare of the Tribe …"

(Related: 'Rights of nature’ lawsuits hit a sweet spot)

On Aug. 4, the White Earth Band of Ojibwe, and several tribal citizens, filed a case in the tribal court of the White Earth Band of Ojibwe to enforce the rights of nature and Chippewa treaty rights. This is the first ‘rights of nature’ lawsuit filed in a tribal court.

The case, brought against the Minnesota Department of Natural Resources, asserts that the state’s recently granted five billion gallons of water appropriation to the Enbridge corporation violated the rights of manoomin as well as treaty rights which guarantee the tribe’s right to gather wild rice on off-reservation lands.

As explained by the Court, the White Earth Band adopted tribal laws recognizing the rights of manoomin both on and off the reservation, and in so doing “the Band is exercising its inherent authority to protect a necessary and vital resource.” The court added that protection of manoomin “predates the U.S. Constitution and is reflected in the numerous treaties made between the United States and the Anishinaabeg peoples.”

In its order, Chief Judge David DeGroat stated that the state’s claims in its motion to dismiss “must give way to the Band’s inherent sovereignty” and that “the Band must also be able to exercise the jurisdiction” to enforce its tribal laws protecting wild rice. DeGroat ruled that “to hold otherwise reduces Tribal sovereignty to a cynical legal fiction.”

Frank Bibeau, lawyer for the plaintiffs, stated, “The State of Minnesota is ignoring its treaty obligations and tribal laws in allowing the Enbridge corporation to take five billion gallons of water for the construction of the pipeline. The Court, in rejecting the state’s motion to dismiss, is acknowledging manoomin’s rights, and the sovereign authority of tribes and Minnesota’s legal obligations pursuant to the Treaties signed with the Chippewa. All we are demanding is that those Treaties be honored, and Manoomin recognized as having the sacred status as recognized by tribal law.”

On Aug. 19, attorneys for the Department of Natural Resources filed a motion to stay proceedings in tribal court and also filed a complaint in U.S. District Court seeking a judgement that the tribal court lacks jurisdiction to hear the tribal lawsuit. 

It’s anticipated that White Earth will deny the request to stay proceedings. A hearing to decide the merits of the case in Manoomin v. Minnesota Department of Natural Resources is scheduled for August 25 in tribal court. 

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