Biden administration sides with tribes on Line 5

The Biden administration has weighed in, in court on a controversial Canadian oil pipeline known as Line 5, which runs through tribal lands, both agreeing with tribes that the Canadian pipeline owner is trespassing but opposing the court’s order to immediately shut the pipeline down.

The case is in the U.S. Court of Appeals after a lower court concluded that the pipeline owner, Enbridge Energy Company, is consciously trespassing on tribal land and ordered the pipeline’s closure.

In an amicus brief filed with the court, the U.S. Department of Justice (DOJ) agreed that Enbridge lacks any legal right to remain on tribal land. Line 5 moves millions of gallons of crude oil and natural gas liquids each day between Superior, Wisconsin, and Sarnia, Ontario, with approximately 12 miles of Line 5 crossing the Reservation of the Bad River Band in northern Wisconsin.

Within the pipeline corridor on the Reservation, the DOJ acknowledged, some parcels of land are owned by the Band, by individual members, or by the Band along with individual members, and are held in trust by the United States, while the remaining lands are held in fee, either by non-Indians or Indians. Rights-of-way over tribal-owned parcels expired in 2013 and the tribe has not consented to the renewal of rights of way over them.

That said, the DOJ asserted, while sovereign interests in the lands were protected by federal law that would carry dispositive weight in most cases of trespass, there was in this case another factor to consider: a 1977 treaty with Canada.

“In determining the proper injunctive relief in this unique case, the court should fully consider the Band’s treaty and sovereign rights in its lands — rights that the United States is obligated to respect,” the brief stated. “The court should also fully consider the possible consequences of an order requiring the shutdown of the pipeline, including its effect on the United States’ obligations under the Transit Pipeline Treaty and the United States’ diplomatic and commercial relationship with Canada.”

In sum, the brief argued, the United States has a strong interest in ensuring that courts properly consider whether injunctive orders affecting the operation of Line 5 may risk exposing the United States to claims that it has violated its obligations under the Transit Pipeline Treaty and that seek potentially substantial monetary damages, and may affect the United States’ trade and diplomatic relations with Canada.

“In particular, the court noted that Article II of the Transit Pipeline Treaty prohibits any ‘public authority’ from  ‘institut[ing] any measures’ that would impede the flow of oil through Line 5,” the brief states. “It also observed that Canada had recently invoked the dispute resolution provision of the treaty with respect to Line 5’s operation on the Reservation.”

The tribes met the DOJ brief with a less than enthusiastic response. Tribal chairman Robert Blanchard of the Bad River Band said that, for more than a decade, Enbridge had trespassed on sovereign land and imperiled the tribe’s waters and way of life. 

“Today, the United States agreed that Enbridge’s ongoing occupation of our land is illegal,” Blanchard said. “We are grateful the U.S. urged the court not to let Enbridge profit from its unlawful trespass.”

Nonetheless, Blanchard said the tribe was displeased with the overall government brief, especially the administration’s failure to call for permanent line closure.

“We are disappointed that the U.S. has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand,” he said. “Enbridge should be required to promptly leave our reservation, just like other companies that have trespassed on tribal land. We are hopeful that the appeals court will put an end to Enbridge’s shameful decade of trespass and not condone its exploitation of our land and sovereign rights.”

While the tribe was appreciative of the administration’s commitment to enforcing shutdown protections in the watershed, Blanchard said it disagreed with what he called the government’s 11th-hour assertion that the courts do not have the authority to protect the reservation against an imminent rupture of the pipeline. 

“We trust that the appeals court will not strip away the hard-fought protections that we have secured for the Bad River watershed and Lake Superior through this litigation,” he said. “Line 5 remains an urgent threat, not only to the Band’s fishing and gathering, but also to the health and welfare of our people and our neighbors. We are determined to protect the precious rivers and streams in our watershed, our coastal wetlands, and Lake Superior.”

The Native American Rights Fund said it was disappointed that the government would agree that Enbridge is trespassing without proposing any remedy to the harm caused to the Band.

“While the United States’ brief acknowledged both that Enbridge has been trespassing for more than 10 years and the importance of tribal sovereignty, we are perplexed by the false equivalency that the United States suggests between its tribal treaty and trust obligations to Indian Country and its diplomatic relationship with Canada,” said Native American Rights Fund (NARF) staff attorney Wesley James Furlong.

Last October, 28 tribal nations and four tribal organizations filed its own amicus brief in the case, calling for the ejection of Enbridge from tribal lands and for the removal of the pipeline. The Lac du Flambeau Band of Lake Superior Chippewa Indians is one of the signatories of the brief.

Back at justice, or lack thereof 

In its brief, while agreeing that Enbridge’s trespass was indefensible, the DOJ homed in on two arguments, the effects of any pipeline closure, for one, and the breach of the treaty for another.

Originally, the DOJ asserted, the court contemplated an injunction that would require Enbridge to complete a reroute of the pipeline outside the Bad River Reservation within five years, require the company to pay the Band a fee for the easement in the interim, and would subject Enbridge to a doubling of that fee if the reroute was not completed within five years.

However, in June 2023, the DOJ observed, the district court directed Enbridge to shut down Line 5 within three years. 

“But in adopting that remedy, the court did not specifically consider or failed to fully address the equitable and public-interest considerations it had previously identified,” the DOJ brief stated, among other things the consequences the order would have on energy supplies in the United States and Canada.

Then, too, the DOJ argued, the district court was skeptical that Enbridge would be able to complete a rerouting of Line 5 within the five-year period the court had previously contemplated, much less the three-year period it ultimately adopted.

Then there were the treaty obligations to consider. The DOJ pointed the court to Canada’s amicus brief in the case to put treaty obligations in context.

“Canada further asserts that a shutdown of Line 5 would have a ‘devastating impact’ on parts of the Canadian economy if an alternative pipeline is not in operation at the time of the shutdown,” the brief asserted. “And, as noted above, Canada has invoked the treaty’s dispute resolution provisions to address those contentions.”

Indeed, the DOJ pointed out, under the treaty, if diplomatic negotiations do not resolve the dispute, a party may seek arbitration. 

“The arbitration panel has the authority to decide the dispute, ‘including appropriate remedies,’” the brief stated. “Thus, if Line 5 were shut down before a replacement pipeline is put into operation — and that shutdown were to lead to the sort of economic harm Canada describes — it is possible that the United States could be subject to arbitration in which it could have exposure for significant damages if the arbitration panel found the United States liable for breaching its treaty obligations.”

The United States has a manifest interest in complying with its treaty obligations with all sovereigns — including both foreign nations and Indian tribes — and in avoiding potential monetary liability if it is found to have breached its obligations, the DOJ asserted.

“There is also a public interest in avoiding a dispute with Canada over whether a shutdown order would violate the Transit Pipeline Treaty and in recognizing the importance of the broader diplomatic and trade relationship with Canada,” the brief stated. “In crafting the appropriate remedy, the district court should fully consider those important public interests.”

Outta here!

The DOJ also addressed the Bad River Band’s argument that any remedy other than the immediate ejectment of Line 5 from the band’s lands would violate the Non-Intercourse Act, which prohibits the conveyance of Indian lands except as authorized by the United States. 

“The Band also argues that any injunctive relief that does not order Enbridge’s immediate expulsion is inconsistent with the 1854 Treaty with the Chippewa and that the Transit Pipeline Treaty does not alter that conclusion, as it is later in time and does not unambiguously address the Band’s treaty rights,” the brief stated. 

The administration did not concur with that argument, the DOJ asserted.

“Although the district court of course must take the statute and treaty into account in fashioning equitable relief, neither the Non-Intercourse Act nor the treaty with the Chippewa prevents the district court from considering other equitable factors relevant to the Band’s request for injunctive relief in the unique and weighty circumstances of this case, including the diplomatic and trade considerations,” the brief stated.

The Supreme Court has long recognized that the distinction between rights and remedies is fundamental, the DOJ argued, the former being a well founded or acknowledged claim and the latter being the means employed to enforce a right or redress an injury.

As applied, the DOJ continued, the Band’s land rights, both as a property owner and a sovereign, include the right to exclude others.

“But a violation of that right does not require immediate ejectment in all circumstances without consideration of the traditional equitable factors,” the brief stated. “Neither the act nor the treaty with the Chippewa prescribes specific remedies for violations of the rights they create, nor do they express an intent to restrict the court’s equitable discretion in remedying such violations.”

As such, the DOJ argued, remand to the lower court was appropriate to allow the district court to conduct a more complete analysis of the public interests and in particular to consider the possible effects of an equitable remedy on the United States’ international obligations under the Transit Pipeline Treaty, the Band’s sovereign rights, the effects of a shutdown of the Line 5 pipeline, and all other equitable considerations relevant to the crafting of appropriate injunctive relief.

Finally, the administration addressed the issue of restitution, arguing that the district court’s award of $740,699 for avoiding costs by delaying its reroute and trespassing on Indian land for a decade was woefully inadequate.

“Enbridge retains 99.75 percent of the costs it avoided by delaying a reroute, and thus it has not been deprived of any substantial portion of its ill-gotten gains,” the brief stated. “And by discounting this component of the restitution award to a mere 0.25 percent of the actual avoided costs, the district court’s award does not deter similar conduct in the future — if anything, it encourages a trespasser to delay relocation.”

Neither did the overall restitution award pass muster, the DOJ declared.

“Enbridge is required to pay $5 million for its nearly ten-year trespass, while in the same period it reaped $1.1 billion net profit from Line 5, including $296 million in avoided costs by not promptly pursuing a reroute,” the brief stated. “The total restitution award constitutes 0.47 percent of Enbridge’s profits and avoided costs attributable to Line 5 as a whole, a paltry amount that permits Enbridge to profit handsomely from its trespass. It also sends a troublesome message to others who may want to trespass on Indian lands that they may retain a substantial amount of their profits that are appropriately attributable to the trespass.”

In that instance, the DOJ argued, remand was appropriate to allow the court to recalculate the award.