Enbridge pipeline litigation, and its (potential) impact on tribal treaty rights in the Great Lakes

Written by: Bryan Newland

Primary Source : Turtle Talk, September 19, 2016.

In 2010, Enbridge Energy Partners’ Line 6 Oil Pipeline burst near the Kalamazoo River in southern Michigan, spilling 1.1 million gallons of crude oil into the Kalamazoo River system. At the time, it was the worst inland oil spill in the history of the United States. Later that same year, another Enbridge pipeline burst in Illinois, spilling crude oil into a tributary of the Des Plaines River.

On July 20th of this year, the U.S. Department of Justice and the Environmental Protection Agency filed a lawsuit against Enbridge the U.S. District Court for the Western District of Michigan relating to those spills under various federal statutes – along with a proposed Consent Decree. A Consent Decree is a negotiated court order; and, once entered by the Court, has the force of law.

That Consent Decree addresses a number of issues, and requires Enbridge to take steps to improve the safety of its pipelines – a worthy objective. But, the Consent Decree also addresses Enbridge’s Line 5 Pipeline in northern Michigan in a manner that potentially impacts tribal treaty rights.

The Line 5 Pipeline carries oil through Michigan’s Upper and Lower Peninsulas. To do so, it crosses the bottom of the Straits of Mackinac, which is a narrow stretch of water between Michigan’s two peninsulas, and it links Lake Michigan to Lake Huron. In normal winters, the Straits of Mackinac are completely covered in ice for three months.

This pipeline has been in operation since 1953, and has become increasingly controversial due to its age, Enbridge’s safety record, and the fact that Enbridge has not complied with its requirements to maintain structural supports for the pipeline on the bottom of the Straits. The State of Michigan has been reviewing the pipeline for the past several years, as a number of citizens and groups have called for it to be shut down. A number of Indian tribes have expressed concern about the pipeline, and its potential impact on the Great Lakes and the tribal fishery. NCAI has adopted a resolution in opposition to the Line 5 Pipeline.

A rupture of Line 5 at any time could result an a catastrophic oil spill in the Straits of Mackinac that would impact both Lake Michigan, Lake Huron, and other connected waters. A rupture in the winter would be even more devastating, because containment and cleanup efforts would be made harder by the ice covering the Straits. A spill would also have an unknown impact on the fishery in Lake Michigan and Lake Huron.

Five of the twelve federally-recognized Indian tribes in Michigan are parties to the 1836 Treaty of Washington, which reserved off-reservation hunting and fishing rights throughout the ceded territory, which comprises approximately 40 percent of present-day Michigan – including in Lake Michigan and Lake Huron. The Straits of Mackinac are located in the center of that ceded territory.

In 1973, the United States Department of Justice filed a lawsuit against the State of Michigan on behalf of the Bay Mills Indian Community to enforce the 1836 Treaty. In 1979, Judge Fox of the United States District Court for Western District of Michigan issued the “Fox Decision,” which upheld the continued existence of tribal fishing rights in the Great Lakes under the Treaty of 1836.

In 1985, the Department of Justice, the 1836 Treaty Tribes, and the State of Michigan negotiated a consent decree to govern how tribes would exercise those rights. The parties negotiated a new consent decree in 2000, which expires in 2020. The parties – the United States Department of Justice, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, the Sault Ste. Marie Tribe of Chippewa Indians, and the State of Michigan – are set to begin negotiations soon on a new consent decree in United States v. Michigan to replace the decree that expires in 2020.

Enbridge’s Line 5 Pipeline was/is certain to be a topic of discussion during those negotiations. There are many members of the five treaty tribes who are commercial fishermen, and depend upon the Great Lakes fishery for their livelihood. Many of those tribes have tourism-based economies that depend on the Great Lakes. The cultural importance of the Great Lakes to the Tribes does not require explanation. Leaders of the Tribes have been vocal about their concerns with the Line 5 Pipeline, and its potential to harm tribal cultural and economic resources.

The Department of Justice serves as the law firm for the 1836 Treaty Tribes during the consent decree negotiations (after all, the case is captioned United States v. Michigan).  The same lawyers within the United States Attorney’s Office in the Western Michigan District who participated in the United States v. Enbridge negotiations are also representing the 1836 Treaty Tribes in negotiations under United States v. Michigan.

Those tribes were caught off-guard by the Department of Justice’s proposed consent decree with Enbridge Energy Partners, and its provisions related to the Line 5 Pipeline crossing.  The Department of Justice and the EPA did not consult with the 1836 Treaty Tribes about how their negotiations would affect their treaty fishing rights.

The oil spill that gave rise to the Department of Justice’s lawsuit against Enbridge occurred near Marshall, Michigan – 275 miles south of the Straits of Mackinac. There was no indication to the 1836 Treaty Tribes that the Department of Justice’s and the EPA’s negotiations with Enbridge would address the Line 5 Pipeline.  In fact, the proposed consent decree in United States v. Enbridge does not mention the words, “tribe,” “tribes,” or “treaty.”

Last month, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in that case objecting to the proposed Consent Decree and demanding that the federal agencies consult with the 1836 Treaty Tribes on the provisions related to the Line 5 Pipeline. That pleading is here: tribe-objects

Without further action or amendment, the proposed Consent Decree in United States v. Enbridge could take effect. In practical terms, that could limit the ability of the Department of Justice to seek additional protections on behalf of its tribal clients in upcoming consent decree negotiations in United States v. Michigan.

The Department of Justice has published notice that it will accept public comments on the proposed consent decree in United States v. Enbridge until October 21, 2016. The Federal Register Notice is here.

That notice was published on the very same day that the Department of Justice published a separate statement announcing a temporary halt to the construction of the Dakota Access Pipeline.

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Bryan Newland
Bryan Newland is a citizen of the Bay Mills Indian Community (Ojibwe) in northern Michigan. He is a partner in the law firm of Fletcher Law, PLLC where he represents tribal clients on issues including the regulation of gaming facilities, negotiation of tribal-state gaming compacts, the fee-to-trust process, and leasing of Indian lands. Bryan also serves as the Chief Judge of the Bay Mills Indian Community Tribal Court and as a member of the Board of Trustees for the Michigan State University College of Law. In 2008, Bryan served as the Michigan Native Vote Coordinator for Barack Obama’s Presidential Campaign, and was a member of the Obama-Biden Presidential Transition Team. From 2009 to 2012, he served as Counselor and then Senior Policy Advisor to the Assistant Secretary of the Interior – Indian Affairs. In that capacity, he helped develop the Obama Administration’s policies on Indian gaming and Indian lands, reforming the Department of the Interior’s policy on reviewing tribal-state gaming compacts. He also led a team that reformed the BIA’s Indian leasing regulations and worked with key officials to help enact the HEARTH Act of 2012.