On Wednesday, the U.S. government filed briefs in an ongoing lawsuit between the Bad River Band of Lake Superior Chippewa and Canadian pipeline company Enbridge.
In a brief to the Seventh Circuit Court of Appeals, the federal government said the U.S. District Court for the Western District of Wisconsin ordered Enbridge to operate on 12 parcels of land owned in part or in whole by the Bad River Band. He argued that he was correctly sentenced for trespassing because he continued to do so. Enbridge's right-of-way for these parcels expired in 2013.
However, the United States also recommended that the case be remanded to the district court to reconsider the fairness and public interest considerations in granting trespass relief.
“In determining the appropriate injunctive relief in this particular case, the court should give due consideration to the band's treaties and its sovereign rights in the land, rights that the United States is obligated to respect,” the brief states. “it is written like this.
“The court should also give due consideration to the possible consequences of an order requiring the closure of the pipeline, including the United States' obligations under the Transportation Pipeline Treaty and the impact on the United States' diplomatic and commercial relations with Canada.'' .”
Enbridge's Line 5 pipeline stretches from northwestern Wisconsin through Michigan and along the bottom of the Straits of Mackinac to Sarnia, Ontario. The pipeline will transport up to 540,000 barrels of crude oil and natural gas liquids per day.
When the Western District Court of Wisconsin ruled that the pipeline company had trespassed on the band's sovereign territory, it ordered the company to: Close the pipeline by 2026 The tribe was ordered to pay more than $5 million in damages.
The Bad River Band filed an injunction seeking an immediate halt to the pipeline, citing the following reasons: Concerns that erosion could expose and rupture pipelinesthe request was denied.
Both Bad River Band and Enbridge are appealing the ruling.The band is Seeking a greater share of Enbridge's profits Although Enbridge argued that the pipeline should be shut down within six months, a 1992 contract between Enbridge and the band meant that the company would not be able to operate Line 5 on the Bad River Reservation until 2043. He argued that he was allowed to continue until the end.
The Canadian government is I also considered this matterargued that the pipeline closure violates the 1977 Transit Pipeline Treaty, which limits the ability of the United States and Canada to impede the flow of oil and natural gas between the nations.
The U.S. government argued in its brief that the 1992 treaty does not give Enbridge the right to occupy the band's territory and to abide by its treaty obligations to all sovereigns, including foreign countries and tribal nations. He pointed out that he was interested in.
It also argued that the district court failed to properly calculate the amount to be paid to the band.
“The district court properly sought to require a proper case. Deprivation of net profits from Enbridge related to trespassing But the calculation of that remedy was flawed. In particular, the court “We incorrectly applied various 'discount' factors to Enbridge's avoided costs, resulting in only 0.25% of costs,” the brief said.
“This court's award of $5 million in total damages, compared to the more than $1 billion in profits related to Line 5 during the period, achieves the award's goal of addressing unjust enrichment and deterring similar conduct. It says, “I haven't been able to do it.”
Continue Oral argument at the appellate courtAt the February trial, Judge Frank Easterbrook, one of three judges on the panel reviewing the case, noted that the court was seeking input from the U.S. government.Later that month, his more than 30 tribal nations in the Great Lakes region sent a letter to the U.S. government asking it to consider this case..
In a statement released Wednesday, Bad River Band Chairman Robert Blanchard issued the statement following the U.S. government's brief.
“Today, the United States agreed that Enbridge’s continued occupation of our land is illegal. We appreciate that the United States asked the court to prevent Enbridge from profiting from its trespass. “We are disappointed that the United States has not explicitly called for an immediate end to Enbridge's ongoing trespasses, as the law requires,” Blanchard said.
“Enbridge, like other companies that have trespassed on tribal lands, should be asked to leave our reservations immediately. We look forward to putting an end to incursions and not tolerating the exploitation of our lands and sovereignty,” he said.
Blanchard said the band appreciates the U.S. government's support, but disagrees with the government's argument that courts don't have the authority to protect the reservation from an impending pipeline rupture.
“We believe the Court of Appeals will not take away the protections we fought so hard to secure for the Bad River Basin and Lake Superior through this litigation,” Blanchard said.
In the email to forwardEnbridge spokesman Ryan Duffy argued that closing the pipeline would violate the 1977 transit treaty.
“The Government of Canada has made its position clear: Such a closure would negatively impact the businesses, communities, and millions of individuals who rely on Line 5 for energy in both the United States and Canada. It’s not in the public interest,” Duffy said.
Duffy also said the company had begun moving the pipeline off the Bad River Reservation long before the court order, but Enbridge's 1992 agreement with the Bad River Band The company claimed it was allowed to remain on the reservation until 2043.
“We appreciate that the leaders in both Ottawa and Washington are engaged in the treaty resolution process and recognize that Line 5 is critical energy infrastructure,” Duffy said.
Whitney Gravel, president of the Bay Mills Indian Community, one of the tribal nations opposed to Enbridge's Line 5 tunnel project in the Straits of Mackinac, also commented on the U.S. government's brief.
“This application leaves us with more questions than answers. It also puts Bad River, other tribal nations in the region, and the 40 million people who depend on the Great Lakes at risk of a catastrophic spill.” “I'm concerned that Line 5 will fail again and there will be an oil spill for our position to be taken seriously,” Gravel said.
“This is not just a tribal issue, it's a clean water issue, and it's a life issue. It's about all Americans, and it's about preserving our natural resources for future generations,” Gravel said. Told.
The brief also drew criticism from a number of environmental groups, including the Sierra Club, National Wildlife Foundation, Environmental Law and Policy Center, For Love of Water, Women's Earth and Climate Action Network, and the Michigan League of Conservation Voters. Collected.
“Considering the Tribe’s most important sovereign interests, Enbridge’s trespasses on the Bad River Band must be stopped immediately. To this end, we immediately cease Enbridge’s trespasses and We regret that the U.S. government did not clearly support the Bad River Band's right to prevent a catastrophic oil spill from occurring in the United States.'' Liz Kirkwood, For Love of Water Executive Director He said in a statement:
