Pipeline Company Targets Individual Tribal Members in Court Battle for Line 5

Enbridge is getting personal with the Bad River Ojibwe tribe over the company’s Line 5 pipeline route through tribal lands in Wisconsin.

In recent lawsuits, Enbridge has targeted individual tribal members and staff, seeking the court’s permission to question them under oath about their “thought process” in opposing renewal of the company’s easement through the reservation.

Bad River leaders and citizens, however, view the issue as a personal matter.

Bad River or Mashkiziibii Ojibwe people have an inexorable, enduring connection with the Medicine River. Bad River is more that geography. It is central to their spirituality and world view, and a reminder of their connection with traditional foods. According to Aurora Conley, a citizen from Bad River tribe and a member the Anishinaabe Environment Protection Alliance, the river and land are Ojibwe blood memories.

“The land is what makes us who we are here but it’s not so much the land we are trying to save as much as we are determined to keep ourselves strong,” Conley said.

The court ruled against the company’s request, but the legal battles continue to drag on.

“Ours is a long memory of the fact that we’ve been here for thousands of years,” said Bad River Band Chairman Mike Wiggins. “We have a long vision forward rooted in water resources, in the quality and purity of our water.”

Enbridge is fighting to keep oil flowing along the 12-mile section of its 645-mile-long oil and natural gas pipeline route, which runs through Bad River tribal lands.

The 69-year-old Line 5 originates in Superior, Wisconsin, and travels east through Bad River before it runs through Michigan’s upper peninsula, then under the Straits of Mackinac toward its final destination at a terminal in Sarnia, Ontario.

Line 5 opponents point to Enbridge’s history of pipeline leaks and failures. According to Enbridge, the line has been leaking at least 29 times between 1968-2017. data published by the National Wildlife Federation, including a 2007 oil spill near Clearbrook, Minnesota, and the company’s Line 6B leak in 2010 in which more than 843,000 gallons of tar sands oil spilled into a tributary of the Kalamazoo River.

Michigan Governor Michigan Gov. November 2020 to halt the flow of crude oil through Line 5, ordering the state’s Department of Natural Resources to revoke and terminate the company’s easement. Dana Nessel, Michigan Attorney General, filed a complaint in Ingham County Circuit Court seeking to revoke this easement.

Five tribes from Michigan, including the Bay Mills Indian Community and Grand Traverse Bands of Ottawa and Chippewa Indians as well as the Little Traverse Bay Bands of Odawa and Nottawaseppi Huron Bands of Potawatomi, signed friend-of the-court briefs supporting the legal action. And in May 2021, the Bay Mills tribal council voted to banish Enbridge’s Line 5 pipelines from tribal lands.

Warning Signs of Environmental Disaster

Enbridge secured its first easements for its pipeline from Bad River tribe in 1950. They were renewed in 1970 and 1990. These easements expired in 2013.

Enbridge was sued in federal court in 2019 by Enbridge after the tribe voted not renew the easement. The lawsuit demanded that Enbridge stop the flow and removal of petroleum products from the reservation.

The tribe claims it has the right to refuse to renew pipeline easements. This is a matter of basic property and legal rights. Enbridge is also offering $45 million in damages to the tribe for trespassing.

“We want Enbridge out of our watershed and the system of waters where we get our drinking water,” Wiggins said.

The 2019 lawsuit by the tribe stated that the potential for environmental catastrophe is high.

“While the risk of a rupture or leak of Line 5 is significant along the entire reservation corridor, the circumstances just east of the location where the pipeline currently passes beneath the Bad River portend a looming disaster,” the suit says.

According to the lawsuit the Bad River is removing its banks and soils which conceal and protect the pipeline and will soon expose it for damage.

“These circumstances represent an existential threat to the tribe, its reservation resources and its way of life and pose a dire threat to the treaty-protected rights of the Band and its members in the lands and waters of the reservation,” according to court documents.

Line 5 opponents are also concerned about the potential environmental threats point to Enbridge’s proposed use of horizontal drilling, which can lead to “frac-outs” of drilling fluid used to drill under bodies of water. According to the Minnesota Environmental Partnership, Enbridge’s use of horizontal drilling along Line 3 has polluted numerous bodies of water in Minnesota with drilling mud.

Enbridge offered the tribe a $30million settlement in 2019 for expired easement leasings. It paid $2 million per annum until the pipeline is retired and $10 million to start a rerouted pipe south of reservation lands. The reroute, according to Wiggins, however, is still within the Bad River watershed and poses danger to the tribe’s water and wild rice.

The tribe declined Enbridge’s settlement offer.

Enbridge filed a countersuit in May 2021. They claim that Enbridge’s requirements to obtain access permits for maintenance on the line were unreasonable and illegal. Among the defendants named in the lawsuit are Naomi Tillison, the Bad River tribe’s natural resource director.

“Director Tillison’s purported ‘requirements’ for Enbridge Energy to obtain access permits for accessing Line 5 are unlawful and not supported by any legal authority,” according to Enbridge’s lawsuit.

The company asked the court for permission to take statements under oath from tribal council members about their opposition to Line 5 and other issues.

Wiggins stated that the suit is taking an adversarial approach towards the tribe.

“Enbridge is suing us, litigating adversarily as though we’re enemies, because we want them out of our watershed,” Wiggins said.

According to media reports, Enbridge’s six-member tribal council split the decision to close its pipeline and stop petroleum products from flowing through reservation lands. Wiggins cast the decisive vote. According to pipeline opponents, this scenario motivated Enbridge to seek depositions from individual tribal council members.

Angelique Eaglewoman, professor and co-director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law in St. Paul, Minnesota, described Enbridge’s legal strategy as intimidation tactics.

“Bad River tribal government is simply determining how they will protect their natural resources,” said Eaglewoman, a citizen of the Sisseton-Wahpeton Dakota Oyate.

She said Enbridge’s insistence on a jury trial is a strategy designed to capitalize on the lack of education about tribal government authority, sovereignty and treaty rights.

Interview with Gizmodo, Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University’s College of Law, agreed.

“For some people who don’t know the history of tribes, it’s really easy to be unsympathetic,” said Fletcher, a citizen of the Grand Traverse Band of Ojibwe.

Promises of jobs and money

Wiggins stated that Enbridge is also using a strategy of division through short-term jobs, and payments for projects.

“This is a typical page out of their playbook, throwing money around in order to buy their way through,” he said.

Enbridge officials are touting the project’s economic impact on local communities.

“The relocation project will create 700 direct construction jobs,” said Juli Kellner, spokesperson for Enbridge in an email to Indian Country Today.

“An estimated $46 million will be spent specifically with Native owned businesses, communities and training and hiring Native American workers who will make up 10 percent of the project workforce,” Kellner said.

Enbridge signed a project labor agreement at the Steamfitters Local 601 training center in Madison, and several trade unions signed a friend-of-the-court brief in April opposing Bad River’s lawsuit and supporting the Line 5 project.

“The public interest weighs against ejectment because shutting down the pipeline would have devastating effects on workers whose jobs and communities depend on it,” according to the brief.

Some Bad River residents have expressed their belief that Enbridge will win, so they should agree to a settlement.

Conley is aware of the problem. Enbridge has lured some Bad River citizens to accept jobs. Among those is one of Conley’s cousins, who now works for the company.

“He knew I’d be disappointed when he told me he took a job with Enbridge,” Conley said. “I think he was even a little disappointed with himself. But he’s got five kids and I understand how hard it is.”

Conley also understands why some want to accept Enbridge’s settlement.

“Sure, the tribe can use the money,” she said. “There are so many challenges here and we don’t have the capacity to address them.”

She said that Enbridge is divisive in the community, and that people are being forced to compromise their values in order to provide for their families.

“I would love to accept their money, to take their word that they won’t harm our community,” she said. “But it doesn’t feel right. The things we value here — the rice, the land and the water — are being put at risk.”

Enbridge employed similar tactics During its Line 3 construction in Minnesota. Enbridge chose to replace its pipeline on reservation land in Minnesota, instead of pursuing a route that could potentially endanger a larger area of ceded land. This was the difficult decision made by the Fond du Lac Band of Ojibwe in 2018. Enbridge paid the tribe an undisclosed amount and tribal leaders agreed to not publicly oppose the project.

“As a sovereign nation, we are confounded that we are forced to choose between two evils as both routes pass through our lands,” Fond du Lac tribal Chairman Kevin Dupuis Sr. told Minnesota Public Radio.

Enbridge was granted permission to run its pipelines through the reservation lands of the Lac Courte Oreilles Band, Lake Superior Chippewa, Wisconsin in 2017 for an annual payment of approximately $60 million.

Continuing Concerns

Enbridge is seeking approval from the U.S. Army Corps of Engineers, and the Wisconsin Department of Natural Resources in order to reroute Line 5.

In a March 2022 letter to the Army Corps, Bad River leaders expressed concern that the Corps’ call for public comment on the project failed to accurately describe the full scope of the pipeline’s environmental impacts. The tribe is also asking for an environmental impact statement from the Corps.

The potential problems were mentioned in a March 2022 letter The U.S. Army Corps of Engineers is the U.S. Environmental Protection Agency.

“We believe that the proposed project may result in substantial and unacceptable adverse impacts to the Bad River and the Kakagon-Bad River sloughs wetland complex,” the EPA wrote.

EPA officials said in the letter they don’t believe there is enough evidence to support the conclusion that the proposed project is the least environmentally damaging alternative.

“The Kakagon-Bad River Sloughs wetland complex has been recognized as performing important and irreplaceable functions within the Lake Superior Watershed,” the letter stated. “We request that the Corps evaluate the recommendations provided to determine whether modifications to the proposed project can be made to avoid and minimize aquatic resource impacts.”

Bad River leaders suggested that Enbridge use its existing Line 61, which runs south from Superior in Wisconsin through Illinois. It connects with smaller lines that can reach the exact same destination in Ontario.

Line 61 may be older and more extensive, but the 42-inch pipeline was built in 2009, Enbridge claims that it doesn’t have the capacity to absorb oil diverted from Line 5.

Looking ahead

The tribe’s lawsuit will likely go to trial in the fall, according to Wiggins.

In the meantime, grassroots organizations continue to oppose Line 5 projects. More than 200 organizations, including Honor the Earth, the Sierra Club, and others, joined Indigenous women in submitting a petition in April. letter To the Army Corps of Engineers, urging the agency not to grant Enbridge permits for Line 5 Project.

Communities United by Water, A water protector group is planning a celebration in Ashland, Wisconsin on June 25, near Bad River. They will also inform the public about the impact Line 5 has had on their lives.

Water protectors may be in for a rude surprise if the opposition to pipelines in Wisconsin grows like it did in Minnesota along Line 3

Wisconsin joined nine other states to pass a critical infrastructure protection bill in 2019. This law makes it a felony for anyone to trespass upon property owned or leased from petroleum companies. Because Wisconsin is a “Public Law 280” state, where Congress has granted criminal jurisdiction to Indian Country states, anyone engaging in pipeline protests, actions, or even on tribal lands, may be arrested.

The Bad River tribe handed a letter to the Wisconsin governor. Tony Evers, a Democrat asked that he veto this bill. Evers signed the bill at the end.

“Enactment of this law may have a significant impact on the Bad River Band, impeding the ability of our nation to use our land and exercise our reserved treaty rights,” the letter reads.

“Private companies should not be given new property rights, especially with respect to Indian lands.”