Traverse City, Mich.— On February 7, 2024, the U.S. Court of Appeals for the Seventh Circuit in Chicago heard oral arguments in the Line 5 case involving northern Wisconsin’s Bad River Band of Lake Superior Chippewa and Enbridge, Inc., a Canadian multinational pipeline and energy company headquartered in Calgary, Alberta, Canada. The panel of Appellate Judges was Frank H. Easterbrook, Michael Y. Scudder, Jr., and Amy J. St. Eve. Line 5 is a 71-year-old pipeline, threatening the Great Lakes with a catastrophic spill to deliver oil and gas to Canada.
In 2019, the Bad River Band initiated this litigation to evict Enbridge’s 12-mile stretch of Line 5 oil pipeline from their territory based on claims of trespass, nuisance, unjust enrichment, and injunctive. The band then filed for emergency injunctive relief in May 2023, following massive spring flooding events that caused alarming rates of erosion along the Medicine River and threatened to destabilize and rupture the pipeline. On June 16, 2023, U.S. Western District Court of Wisconsin Judge Conley issued a remarkable decision, finding Enbridge in “conscious and willful trespass” and ordering shut down by June 2026 of a Line 5 section running through the tribe’s sovereign territory, and pay the tribe $5.1 million. This is the first time a date has been set to shut down Line 5.
On appeal, Enbridge’s attorney Alice Loughran argued the Seventh Circuit should vacate Judge Conley’s order, relying on two key arguments: (1) the Bad River Band was not acting pursuant to the “best efforts” clause of the 1992 easement agreement; and (2) Judge Conley’s order violated the 1977 Pipeline Treaty between the U.S. and Canada, which limits the authority of each country to impede the flow of oil and natural gas through pipelines between the nations.
In response, the Bad River Band’s lawyer, Paul Clement, urged the appellate court to affirm the lower court’s order requiring Enbridge to stop trespassing, and require immediate compliance, not three more years on top of ten years of trespass. Clement also argued that Enbridge must turn over the Line 5 profits realized since its reservation easements expired in 2013. Three additional years of ongoing trespass is unreasonable, Clement said, particularly given the upcoming spring flooding threat, like last year’s, which eroded the land to within 11 feet of the pipeline.
The judges probed why federal agencies were not working faster to approve Enbridge’s proposed 41-mile pipeline re-route around the Bad River reservation. They also questioned why the tribe has not taken precautionary measures like using sandbags to mitigate the risk created by Enbridge. Clement countered that it is unreasonable and unfair to expect the tribe to take affirmative steps that sanction and reinforce the trespasser’s illegal and intentional occupation of the tribe’s land.
The hearing concluded with Judge Easterbrook announcing that the court would not decide this case until at least next month, after the court receives a briefing on the federal government’s position.
Next month on March 21, the U.S. Court of Appeals for the Sixth Circuit will hear oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Multiple anchor strikes have occurred, threatening to rupture the line and causing a catastrophic oil spill in the Great Lakes. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.
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