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Federal judge finds Enbridge trespassed on Bad River lands, but stops short of shutting down Line 5

Oil and gas pipeline will operate across northern Wisconsin for now

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A post marks where Enbridge’s Line 5 crosses the reservation of the Bad River Band of Lake Superior Chippewa on Friday, June 24, 2022. The Canadian energy firm is proposing to reroute Line 5 for 41 miles around the tribe’s reservation. Danielle Kaeding/WPR

A federal judge has ruled Canadian energy firm Enbridge Inc. trespassed on Bad River tribal lands and profited at the tribe’s expense but stopped short of shutting down an oil and gas pipeline across the Bad River reservation.

U.S. District Judge William Conley ruled Wednesday that Enbridge was unjustly enriched by continued operation of its Line 5 pipeline on the Bad River reservation, entitling the tribe to a monetary remedy based on the company’s profits. Even so, Conley denied the tribe’s request to immediately shut down the pipeline, saying it would have “significant public and foreign policy implications.”

“While inclined to grant alternative injunctive relief to the Band, requiring Enbridge to reroute its pipeline outside the Reservation, the court will seek input from the parties before deciding the terms of a permanent injunction,” said Conley in his ruling.

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The 69-year-old Line 5 carries up to 23 million gallons of oil and natural gas liquids per day and spans 645 miles from Superior through northern Wisconsin and Michigan to Sarnia, Ontario. The Bad River Band of Lake Superior Chippewa wants the pipeline shut down due to the risk of a spill as high river flows and erosion threaten the pipeline. Enbridge contends the pipeline has been safely operating, serving as a vital energy link to the region.

In 2019, the tribe sued the Canadian energy firm in federal court to shut down and remove Line 5 from 12 parcels of tribal lands. In response, Enbridge is now proposing a $450 million plan to build a new line that would run 41 miles around the Bad River reservation.

Conley noted an immediate shutdown would not only affect regional economies and energy supplies but also the U.S. trade relationship with Canada. The Canadian government has invoked a 1977 treaty with the U.S. that guarantees the flow of oil and natural gas across the border as part of a separate legal challenge in Michigan seeking to shut down Line 5 in the Great Lakes.

Conley said he was inclined to require Enbridge to complete the Line 5 reroute outside the tribe’s reservation within five years. The court also would require the company to pay the tribe a fee for the pipeline easements that expired, which would be doubled if the project isn’t finished within that timeframe.

Bad River Tribal Chairman Mike Wiggins, Jr. said the ruling makes clear that Enbridge is not above the law, calling it a positive step for protecting the tribe’s water resources and members.

“We’ve indicated from the get go that this is a water resources issue and protecting our watershed home for the preservation of all people, for our tribal members to have a home forever,” Wiggins said. “Protecting the watershed home is of upmost importance. Enbridge activities and their proposed reroute are in very sensitive areas where surface waters and subsurface groundwater interact. So, the current reroute as it’s proposed is very, very problematic. It’s in the tribe’s hydrology.”

Wiggins said he will consult with the tribe’s attorneys and tribal council on next steps in the case. He said it’s “worth fighting to the end for” protection of the Bad River watershed as part of the tribe’s sovereign responsibility to ensure their rights to hunt, fish and gather under treaty with the federal government.

In a statement, Enbridge said the ruling upheld the importance of Line 5, allowing the pipeline to continue to operate in the Upper Midwest.

“The court further recognized that the Line 5 relocation project needs to move forward in a timely fashion,” said Juli Kellner, Enbridge spokesperson. “For more than two years, Enbridge has been actively pursuing a 41-mile re-route of Line 5 around the Bad River Reservation. Agreements have been reached with 100 percent of private landowners along the new route for the pipeline.”

The judge will hold a video conference with parties on Friday to determine whether the Line 5 reroute can be built within five years or less, as well as how to determine appropriate compensation for the tribe.

Background on Bad River’s case against Enbridge

The Bad River tribe has argued Enbridge has been unlawfully operating and profiting on tribal lands where pipeline easements had expired. Bad River said the expiration of a 20-year lease on those parcels in 2013 required the company to remove the pipeline within six months of their expiration.

Enbridge had argued Bad River failed to act in good faith and that the tribe was obligated to renew easements for the 12 parcels since Bad River signed a 1992 agreement, which allowed the continued operation of Line 5 across most tribal lands until 2043. The company also argued it wasn’t trespassing because it had applied to renew the easements before they expired, adding the tribe’s trespass claims were barred by the federal Pipeline Safety Act.

Conley rejected those arguments and disputed Enbridge’s claim that profits-based payments are an inappropriate resolution.

“Enbridge argues that permitting the Band to recover a profits-based remedy would be a ‘windfall’ to the Band because it obtained ownership of the allotment parcels ‘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 in these lands.’ This argument is tone-deaf and meritless,” said Conley.

Wiggins said the judge’s words highlight Enbridge’s “cold and callous” disregard for tribal communities and their members.

Enbridge said it remains open to resolving issues with the Bad River tribe as the company provides energy to the region.

Enbridge experts have said in court filings that shutting down Line 5 could result in the loss of more than 6,000 jobs and nearly $5 billion in lost economic output in the Upper Midwest, as well as increase fuel costs by an estimated $20 million each year in Wisconsin and $30 million annually in Michigan. The tribe’s experts have disputed those estimates.

Wisconsin Republican lawmakers, labor unions and the state’s largest business lobby support Enbridge’s proposed Line 5 reroute. They have touted the 700 jobs that would be created along with the $135 million economic impact it would create for the state.

Environmental, tribal and citizen advocates oppose the company’s plans, saying the risk of harm to Bad River and Lake Superior is too great. They have criticized the state’s draft environmental review of the project.

WPR previously reported the U.S. Environmental Protection Agency said the state has so far failed to fully analyze the risk of spills, tribal resources and treaty rights, the effects of climate change and whether the project would violate state and tribal water quality standards.

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