Line 5 Is Trespassing on Tribal Land, D.O.J. Says

The Department of Justice has weighed in on a court battle over an oil and gas pipeline in Wisconsin, saying that a Canadian oil company has been willfully trespassing on tribal lands in the state for more than a decade.

On Wednesday, lawyers for the Justice Department filed a brief saying that the company, Enbridge, “lacks any legal right to remain” on the land, part of a reservation of the Bad River Band, an Ojibwe group. But the brief largely sidestepped the question of whether a 1970s treaty between the United States and Canada gives Enbridge the right to operate the pipeline indefinitely, as the company asserts.

Enbridge is fighting demands by state, tribal and judicial authorities to shut down the pipeline known as Line 5, which crosses 645 miles of Wisconsin and Michigan, in lawsuits pending in federal appellate court in each state.

The cases are being watched closely by tribes that see them as important for their sovereignty as well as by states that want greater control over pipelines within their boundaries. Environmentalists in both states have raised concerns about the deteriorating condition of Line 5 and the company’s proposals to shore it up.

In December, the 7th Circuit Court of Appeals in Wisconsin asked Justice Department attorneys to submit an amicus brief specifically addressing the pipeline treaty.

But despite being asked to directly address the treaty, and after requesting multiple extensions, department lawyers essentially avoided the issue in their brief, saying that a lower court judge had “failed to adequately assess all of the public interests” related to the treaty issue.

The brief asserted that trade implications, diplomatic relations and tribal sovereignty were all factors the courts should reconsider.

In its filing, the Justice Department criticized a lower court decision from last year that ordered Enbridge pay $5 million in restitution to the Bad River Band, calling the sum a “paltry amount” that would fail to deter any company from trespassing on tribal land in the future.

Members of the Bad River Band said they were heartened at the DOJ’s clear reaffirmation of the trespass finding, but disappointed that they stopped short of calling for an immediate shut down of Line 5.

“Enbridge should be required to promptly leave our Reservation, just like other companies that have trespassed on tribal land,” Robert Blanchard, chairman and chief executive officer for the Bad River Band, said in a statement to The Times.

In a statement to The New York Times, Enbridge said the company “continues to work diligently to find an equitable and amicable solution with the Bad River Band that recognizes the Band’s sovereignty and addresses their concerns while also allowing the continued delivery of vital energy that millions of people rely on every day throughout the Great Lakes region.”

A spokesman for the Canadian Global Affairs ministry declined to immediately comment. Canada has backed Enbridge in court filings, saying that any shutdown of Line 5 could hurt Canadian customers.

The Justice Department’s brief was 60 pages, nearly double the length allowed, but the court on Wednesday allowed it to stand.

Enbridge has invoked the treaty in the Michigan case, too, claiming it gives the company the right to continue transporting oil and gas unless or until the United States or Canadian federal governments say otherwise.

Tribal officials and supporters who had hoped to gain clarity on the federal government’s position said they were frustrated with the Justice Department’s filing.

“The courts passed the mic to the U.S., and the U.S. handed the mic right back to the courts,” said Debbie Chizewer, an attorney for Earthjustice who is representing the Bay Mills Indian Community in the Michigan case.

Tribes assert that century-old treaties between the Bad River Band and the United States, which were signed decades before the United States and Canada agreed to the pipeline treaty, trump any agreements with Canada.

“We’re talking about the very essence of what tribal sovereignty is,” said David Gover, an attorney with the Native American Rights Fund working on the Line 5 litigation in Michigan.

Enbridge has taken steps in both Wisconsin and Michigan to address concerns.

In Michigan, where the pipeline crosses the narrow waterway between Lake Michigan and Lake Huron, Enbridge has proposed encasing a new segment of pipeline in a concrete tunnel to better protect it from shipping traffic in the Straits of Mackinac.

In Wisconsin, the company says it is prepared to reroute the pipeline around the Bad River Band’s reservation, but lacks the permits necessary to do so.

The cases are playing out in two battleground states in the upcoming presidential race, and the pipeline issue is likely to surface in the campaign.

The Wisconsin appellate court has given the tribe and Enbridge an opportunity to respond to the Justice Department’s brief by April 24.

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