Enbridge Energy has been trespassing on Bad River tribal land for almost a decade and must pay the tribe a portion of its revenue from oil that flowed through its Line 5 over that time, a federal judge has ruled.
U.S. District Court Judge William Conley stopped short of ordering Line 5 immediately shut down, saying that doing so would have had “significant public and foreign policy implications.” But he went on to set a hearing to help determine how Enbridge will compensate the tribe.
“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,” Conley ruled.
Bad River sued Canada-based Enbridge in 2019 in an effort to force Line 5 off its land. The pipeline carries 23 million gallons of oil and natural gas from Superior to Sarnia, Canada every day, and Bad River officials said a leak would threaten tribal lands and waters. Since then, Enbridge has begun rerouting the pipeline around the reservation, but that didn’t resolve the matter.
At issue in the federal lawsuit were leases Enbridge signed with the tribe and tribal members in the early 1990s on 28 parcels of land in the Odanah area.
Some of those leases, signed directly with the tribe, spanned 50 years. But others, negotiated on behalf of individual tribal members by the Bureau of Indian Affairs, stretched just 20 years, according to the ruling.
By the early 1990s, the tribe owned 13 parcels through which Line 5 runs. Another 15 parcels on which the pipeline sits were owned by individuals.
At the time, Enbridge wanted long-term leases on all the land, but the Bureau of Indian Affairs said it would not sign leases for longer than 20 years on the 15 parcels owned by individuals.
In June of 1992, Enbridge and the tribe signed an $800,000, 50-year lease covering the 13 parcels owned by the tribe. At the same time, Enbridge and the BIA signed 20-year leases on the other 15 parcels, giving the individual owners of that land a total of $179,000.
Those 15 leases expired on June 2, 2013, and the leases contained this provision: “At the termination of the grant of easement, (Enbridge) shall remove all materials, equipment and associated installations within six months of termination and agrees to restore the land to its prior condition.”
But between 1994 and 2013, the tribe itself had come to own several of those 15 parcels, in whole or in part.
Enbridge tried to renew the 20-year leases, but the tribe declined as it grew increasingly concerned about Line 5’s safety.
“The band was particularly concerned about these issues because a different pipeline operated by Enbridge had failed and spilled more than 1 million gallons of crude oil into a Michigan river in 2010, and federal investigators had concluded that Enbridge’s actions were responsible for the environmental consequences of the spill,” Conley’s ruling said.
In 2017, the Bad River Tribal Council formally voted not to renew any leases.
“Nonetheless, Enbridge has refused to remove the pipeline from reservation lands and continued to transport petroleum and natural gas liquid products across the Bad River Reservation,” Conley found.
Enbridge argued that when the tribe took complete or partial ownership of the 15 parcels in question, those parcels should have been governed by the tribe’s 50-year lease, not the 20-year leases that had expired. But Conley said the language of the lease specifically said the 50-year deal covered only the parcels the tribe owned in 1992.
“Enbridge’s arguments rely on a strained and unpersuasive reading of the 1992 agreement,” Conley ruled.
Enbridge officials did not return calls seeking comment on the ruling. They did issue a press release saying, “The importance of Line 5 was affirmed today by the federal court judge’s decision ensuring the pipeline will continue to provide energy to millions of people in the Upper Midwest while Enbridge moves forward with the relocation of Line 5 around the Bad River Reservation.”
The release did not mention the court’s ruling that the company had been trespassing for nine years.
Attorneys for the Bad River Tribe did not return calls seeking comment but did issue a statement to the Daily Press, saying, “the court issued a resounding affirmation of the Band’s sovereignty and treaty rights in holding that Enbridge has been in trespass on the Band’s Reservation since 2013 and that the Line 5 pipeline must be decommissioned from further operation on the Reservation and removed. The Band greatly appreciates the court’s fair-minded and well-reasoned decision. The Court has invited the parties’ input as to the appropriate timeline for implementing its order and the Band looks forward to engaging in that process and educating the court as to the imperatives of ceasing operation of Line 5 on the Reservation with all deliberate speed as it remains an urgent threat to the Band and to the fragile network of wetlands and waterways surrounding the pipeline, including the Kakagon-Bad River Sloughs and Lake Superior, a source of drinking water to millions.”