Michigan tribes consider lawsuit to prevent Line 5's 'unacceptable risk'

Beth LeBlanc
The Detroit News

If the state’s bid to decommission Enbridge’s Line 5 oil pipeline falls short, Michigan’s Indian tribes say they’re ready to launch their own lawsuit.

Michigan’s five tribes with fishing rights in the Straits of Mackinac have penned their opposition to the dual pipeline in formal resolutions, held kayak rallies in the straits to protest it and have been kept informed about ongoing negotiations between Gov. Gretchen Whitmer and the Canadian oil company.

An April 24, 2018, photo shows damage to the east pipeline of Line 5 caused by an anchor strike.

They say they won’t hesitate to double down on their Wisconsin neighbors’ July lawsuit seeking the closure of a portion of the line running through the Bad River Band Reservation. Or, at the least, they want to find a way to intervene in the state’s lawsuit against Enbridge.

“If and when the time comes where the state’s answer, the federal government’s answer, is to keep the pipeline in place, we view that as an unacceptable risk. We’ll do anything we have to, including taking it to court,” said Bryan Newland, chairman of the Bay Mills Indian Community in the Upper Peninsula.

Bay Mills is one of five tribes named in an 1836 treaty with the federal government that guarantees them a continued right to fish in the Great Lakes and a legal stake in the Straits of Mackinac.

The prospect of suing Enbridge is not risk-free. The fate of a single tribe’s claim in court almost always applies to all five tribes incorporated under the treaty, and the effort is costly.

“The difficulty sometimes is that litigation can be very expensive and time consuming,” said Phil Rastetter, a lawyer for the Grand Traverse Band of Ottawa and Chippewa Indians. “If you’re going to throw the gauntlet down, you have to have sufficient resources.”

Enbridge said it is committed to engagement and dialogue with indigenous people along the pipeline’s path “based on mutual respect and trust.”

“We aim to develop mutual understanding through open, timely, two-way communication,” company spokesman Ryan Duffy said.

United opposition

Michigan Attorney General Dana Nessel filed suit against Enbridge Energy in June and sought an injunction on the continued operation of Line 5 in the straits.

The dual span across the straits is part of a pipeline that carries light crude and natural gas liquids shipped from Superior, Wisconsin, across the Upper Peninsula of Michigan, south through the lower Peninsula and then across the St. Clair River into Sarnia, Ontario.

The pipeline has long prompted concern among activists because of the catastrophic effects a potential leak in the Straits would have on Lakes Michigan and Huron. Enbridge maintains its pipeline is safe but would be safer in a tunnel 100 feet below the lake bed.

The five tribes with 1836 treaty rights to the Great Lakes fisheries — jointly forming the Chippewa Ottawa Resource Authority — have opposed the continued operation of Line 5 via tribal council resolutions, public comments and annual paddle protests. The seven other Indian tribes throughout the state also have voiced opposition, but they likely don't have the same legal claim as the CORA tribes.

“We believe that a spill is imminent,” said Aaron Payment, chairman of the Sault Ste. Marie Tribe of Chippewa Indians. “We are very concerned that our way of life that we have practiced for thousands of years could be eliminated with one spill of this pipeline.”

The authority tribes met jointly with Enbridge in spring 2018 but have not met since because Enbridge wanted to dictate what was discussed and how the conversation was conducted, Newland said.

“It was apparent that they were more interested in having the ability to tell the public that they met with us than in actually engaging us,” he said.

Nessel and Whitmer promised on the campaign trail to shut down the pipeline. Nessel has said the 2018 law allowing for an agreement to build a tunnel to house the pipeline was unconstitutional, and she filed a lawsuit shortly after Enbridge said it couldn't meet Whitmer's demand for a two-year deadline to decommission the line.

Michigan tribes have been kept informed throughout the negotiations with Enbridge, Whitmer said. 

"We've been in constant contact with them, and they're an important stakeholder in this conversation about where we're headed," she said.

Lawsuit to the west

Nearly a month after Nessel filed suit, the Bad River Band of Lake Superior Tribe of Chippewa Indians also sued Enbridge in federal court, alleging the Canadian oil company has operated its pipeline through 12 miles of the Bad River reservation with expired easements since 2013.

The lead lawyer on the Bad River Band suit is Ann Arbor attorney Riyaz Kanji, who also serves as longtime counsel for the Grand Traverse Band.

The Bad River Band’s 125,000-acre reservation established by treaty in 1854 gives the tribe rights to the lands, waters and natural resources within the reservation, resources the band feels are put at risk by Line 5.

The 15 expired easements on the reservation included language that required Enbridge to “remove all materials, equipment and associated installations within six months of termination.”

In negotiations, Enbridge has explored the possibility of rerouting the pipeline around the reservation, but the Band wants it pulled from the surrounding watershed completely.

Much like Michigan, the Band and Enbridge “were unable to reach consensus regarding the timing of cessation of pipeline operations," according to the lawsuit.

Enbridge said it had been discussing easement renewals with the band since before 2013 and negotiated in good faith for five years. The company was “surprised and disappointed” by the band lawsuit, but remains “committed to communicating with Bad River and are hopeful we can address the band’s concerns.”

The area of most concern for the band is at the pipeline’s crossing under the Bad River, according to the lawsuit. The river has eroded banks and soil so much over the decades that a bend in the river that was once 320 feet from the pipeline is now 28 feet away, threatening to expose the covered line. On Wednesday, the band found more than 48 feet of exposed pipeline near a creek due to embankment erosion, a development the band called “highly significant and alarming.”

Enbridge said it had requested access to the site to perform maintenance for more than a year, but the band didn't grant that permission until Thursday. The company said there is no imminent threat to the pipeline. 

Similar erosion is happening on the Straits of Mackinac's lake bottom, where currents and eroding soil have elevated the profile of pipelines that once sat on the lake bottom. Enbridge has agreed with the state to place screw anchors across unsupported spans, but even that solution is a cause for concern to some Indian tribes.

“That is actually, in our view, increasing the risk of an oil spill,” Newland said.

Legal options

While Michigan tribes haven’t ruled out a lawsuit to shut down Line 5, they also aren’t champing at the bit to do so. 

"We feel it is premature because of the other options that are in front of us,” said Payment, who served on Nessel’s transition team when she took office this year. Nessel met with tribes several times during her campaign and participated in a 2017 kayak rally with northern Michigan tribes in the Straits to protest the pipeline. 

The tribes said they’re watching Nessel's lawsuit closely, but not sitting on their hands in the interim.

The Grand Traverse Band is one of three parties appealing permits awarded to Enbridge by the state for screw anchors to support Line 5 along the lake bottom, tribe lawyer Rastetter said. 

“Grand Traverse Band is the only Michigan tribe now involved in litigation against Enbridge,” said Rastetter, who noted ironically that the state's Enbridge permits in the case are being defended by Nessel.

Pursuing a separate lawsuit in federal court is being carefully assessed for the resources required and the odds of success, said Kathie Brosemer, environmental director for the Sault Ste. Marie Tribe of Chippewa Indians.

In the meantime, she said, “we are in conversations with the state of Michigan about whether it would be appropriate for us to be an intervenor."

Entering Nessel's case as an intervenor would add the weight of treaty rights to the attorney general’s arguments and decrease the risk that Michigan tribes otherwise might gamble in a separate lawsuit, said Matthew Fletcher, a Michigan State University professor of law specializing in federal Indian law.

For better or worse, a judge’s ruling on a separate case involving treaty rights could have lasting effects for all five tribes and future generations, said Fletcher, who also is a member of the Grand Traverse Band.

“Going to court to basically assert a right to a homeland, which is really what the tribes do whenever they go into court, is dangerous,” Fletcher said. “You might lose it. It really is a last resort.”

The tribes are setting a high bar for what they deem a successful ending to Nessel’s lawsuit against Enbridge, which asks the judge to stop operation of the pipeline “after a reasonable notice period to allow orderly adjustments by affected parties.”

“We do want to get on a path to shut down that pipeline and remove it and do it in a safe and orderly fashion,” Newland said. “I don’t know if that’s months or years, but the process has to start immediately and it can’t be an indefinite process.”

Tribal leaders have also been dubious of Enbridge's plan to build a tunnel, couching it as a “Hail Mary” from former Gov. Rick Snyder’s administration and questioning whether the tunnel was ever viable with renewable energy making inroads against the fossil fuel industry.

“I think it’s a smokescreen. I don’t think Enbridge has any intention of building a half-billion-dollar tunnel,” Brosemer said. “They’re not going to remortgage the Straits for an industry that’s coming to a close.”

Enbridge has committed to spending $40 million on pre-construction this year and remains committed to the project, despite the threat of the state’s lawsuit, Duffy said. The company hopes to finish the project by 2024.

Support for Enbridge

Enbridge has supporters within the indigenous community.

On Wednesday, Canada’s First Nations leaders penned a commentary in Minnesota’s Star Tribune addressing Minnesota residents and tribes about the benefits of working with the Canadian oil company to ensure a Line 3 replacement through treaty lands is safe and would provide jobs for indigenous people.

“It wasn’t always easy for Enbridge, but they found a way to do the right thing,” the op-ed said.

In Northern Michigan, the former natural resources director for the Grand Traverse Band set off a firestorm when he left his position and took on Enbridge as a client at his newly formed consulting business.

Desmond Berry had written the tribe’s memo of opposition to Line 5 four years prior to sending out letters in June to various tribes formally requesting a meeting on behalf of his client, Enbridge. The consulting company’s role, Berry noted in the letter, was not to drive an agenda but “facilitate in the spirit of neutrality.”

Berry did not respond to a call and email seeking comment.

In response, Rastetter sent out a letter to tribes warning them Berry was not authorized to speak on behalf of the tribe and noted Berry’s actions were “inconsistent with official positions of the Grand Traverse Band.” He said Berry should “cease and desist his relationship with Enbridge” because of a non-compete clause in his contract with the tribe.

“It doesn’t impact the tribe’s position,” Rastetter said. “This hasn’t caused anyone to reconsider the opposition to the continuation of Line 5 in the Straits.”