Enbridge’s Line 5 Pipeline

Attorney: David L. Gover, Wesley James Furlong

The Native American Rights Fund (NARF) and Earthjustice have teamed up with the Bay Mills Indian Community to fight a proposed oil pipeline tunnel, which would impact communities, local businesses, and the environment. The proposed tunnel would encapsulate oil giant Enbridge’s Line 5 pipeline under the Straits of Mackinac, purportedly to prevent another oil spill.

Enbridge continues to operate the Line 5 pipeline in defiance of a state order to cease operations and without a valid lease to submerged lands for the project. A repeat offender of U.S. environmental regulations, the Canadian oil company has incurred over $6.5 million in fines to repair and maintain existing Line 5 infrastructure. You don’t have to look far to see the potential impact a devastating oil spill can cause, in fact, Enbridge was responsible for the largest inland oil spill in 2010 in Michigan’s Kalamazoo River, which resulted in nearly 1 million gallons of oil being released into Michigan’s waterways.

Background:

The Anishinaabe people of Bay Mills say life as we know it today, began in the Straights of Mackinac. They consider the waters where Lake Huron and Lake Eerie meet a sacred space. The area remains integral to daily practice of cultural lifeways and is full of historic and archaeological sites. From time immemorial to today, communities, local businesses, and tribal members depend on the abundant fish and wildlife in the Straits of Mackinac. Commercial and subsistence fishing and hunting continue to provide economic survival for the majority of tribal members.

In the 1950s, without tribal consultation nor seeking public input, the State of Michigan granted Enbridge a lease and permission to build the original Line 5 dual pipeline in spite of the risk of oil spills in the Great Lakes. In 2021, Enbridge seeks to build a tunnel to house a new segment of the Line 5 oil pipeline to continue transporting non-consumer oil and gas products from one part of Canada to another with little financial benefit to local residents. Meanwhile, Enbridge is ignoring that Governor Whitmer terminated the easement that permits the dual pipeline to cross the Straits of Mackinac. Enbridge is now trespassing as it continues to operate Line 5 in violation of the termination notice.

Case Updates:

Public Agency Requests Further Insight into Line 5 Safety Risks

On July 7, 2022, Michigan Public Service Commission requested additional information concerning the safety risks posed by the Enbridge Line 5 pipeline segment in the Straits of Mackinac, and its proposed tunnel replacement. The Commission’s order followed frontline tribal nations stressed that continuing to operate Line 5 jeopardizes the health, safety, and livelihoods of Indigenous communities native to the Great Lakes Basin. Pipeline safety expert Richard Kuprewicz also underscored to the Commission the increased likelihood of an explosion in the Straits when transporting crude oil through a tunnel, which would have catastrophic impacts to water supply, wildlife, and air quality.

“Any decision that may jeopardize the very livelihoods of Tribal Nations deserves serious and careful consideration,” said Bay Mills Indian Community President Whitney Gravelle. “We are grateful the Commission is examining the serious safety risks posed by Line 5 and its proposed tunnel replacement. The Straits are the center of creation for our people, and the construction of a tunnel through this sacred area endangers our livelihoods, our fisheries, and our culture. Every day that the Line 5 dual pipelines continue to pump oil and gas through the Great Lakes amounts to a violation of our treaty-protected rights and an acceleration of climate change. We must stop the tunnel project and shut down Line 5.”

NARF Staff Attorney David L. Gover agreed. “It is reassuring to know that the Commission is doing its due diligence in order to accurately consider the impacts, risks, and damages the existing Line 5 oil pipeline and a tunnel would cause for the public, in particular tribal citizens”, said Gover. “I am hopeful that the Commission will join tribal and state governments in guarding public safety, the local economy, and the Great Lakes ecosystem from a risky and unnecessary project.”

Permit for New Pipeline Tunnel Under Consideration

The week of February 14, 2022,  a coalition of tribal nations, public safety experts, and environmental groups brought together all the pieces of their powerful case before the Michigan Public Service Commission (MPSC) to deny a permit for the Enbridge Line 5 Tunnel Project. In their initial briefs submitted to the Commission, the groups underscored the serious risks the pipeline tunnel in the Straits of Mackinac would pose to Tribal treaty rights, public safety, and efforts to combat the climate crisis.

The Bay Mills Indian Community (BMIC) has lived along the Straits of Mackinac for centuries and retains treaty-protected access to the waterway. One of the intervening parties opposing the project, the Tribe has been a vocal opponent of the existing pipeline and tunnel replacement and has been battling Enbridge for nearly a decade.

The Tribe stressed to the Commission how constructing an underwater tunnel to transport crude oil through such ecologically sensitive waters poses an untenable risk to its frontline Indigenous communities, fish populations, sacred burial sites, and medicinal plant species. “The Straits of Mackinac are a precious and culturally sacred part of our ecosystem that should not be jeopardized in the name of corporate greed,” said BMIC President Whitney Gravelle.

“It’s more than just our food and water that’s at stake. It’s our connectedness to the natural world, our cultural identity, and deep sense of community that this landscape keeps alive. This is not just a tribal fight; we are fighting on behalf of all who value the Great Lakes and our environment,” said President Gravelle.

Due to the proposed tunnel’s design, the likelihood of a catastrophic explosion that would cause irreparable harm to the Great Lakes and to surrounding communities is also a serious concern. “Enbridge’s proposal to run a liquids pipeline through an enclosed tunnel has never been done before and creates the conditions for a catastrophic explosion in the Straits,” said Christopher Clark, attorney with Earthjustice, which represents the Tribe before the public service commission along with the Native American Rights Fund (NARF). “This is not the right time or right place for such a dangerous experiment.”

“Climate change is disproportionately ravaging the natural resources, economic livelihoods, and safety of the Tribal Nations located in Michigan,” said NARF Staff Attorney David L. Gover. “These are the very same communities that are bearing the brunt of the unacceptable risks posed by the existing Line 5 pipeline and this tunnel replacement.”

All of the parties had submitted their initial briefs to the Commission and will formally respond to each other’s arguments by March 11. For the first time in Michigan history, the potential climate impacts of proposed fossil fuel infrastructure are being considered under the Michigan Environmental Protection Act (MEPA) during a separate but simultaneous permit hearing. That hearing is also before the MPSC. “This decision to allow consideration of potential climate impacts sets precedent that climate change is within the scope of MEPA,” said Environmental Law Policy Center Senior Attorney Margrethe Kearney. “This means, moving forward, MEPA can be a much more powerful tool in preventing investments in fossil fuels that create a worst-case climate scenario.”

Tribal Voices Sidelined in Line 5 Tunnel Permitting Process

On January 13, 2022, an administrative law judge in Michigan excluded valuable witness testimony from the information the Michigan Public Service Commission (MPSC) will consider as it deliberates whether to issue a permit for the proposed Enbridge Line 5 pipeline tunnel through the Straits of Mackinac. In his ruling, the judge granted Enbridge Energy’s request to strike from the record portions of testimony about serious risks that the tunnel poses to public safety, climate change, and Tribal sovereignty.

The Bay Mills Indian Community (BMIC) intervened in the review process to alert the public service commission to threats that a new pipeline tunnel would pose to the Tribe’s food and water supply, medicinal plant species, economic livelihood, and treaty rights. The Tribe has lived along the Straits of Mackinac since time immemorial and retains treaty-protected access for hunting, fishing, and cultural traditions.

Portions of the excluded testimony explained the cultural and spiritual significance of the Straits to the Anishinaabe people and stressed the catastrophic impact an oil spill in these waters would have on every aspect of their existence:

Photo of Bay Mills Point by Whitney Gravelle.

“The Straits of Mackinac is a place of deep spiritual and cultural meaning to my people, where there are important cultural and historic resources still being learned of, and where Bay Mills and other Tribal Nations have Treaty rights,” testified BMIC President Whitney Gravelle. “It is dangerous to construct a tunnel and route a pipeline through lands and waters that are central to our existence as Indigenous people and as a Tribal Nation.”

The administrative law judge also struck a portion of the testimony from BMIC Vice President Jacques Leblanc, a lifelong commercial fisherman who detailed the ecological, economic, and cultural impacts of a spill in the Straits:

“If the Great Lakes ecosystem is harmed, I will have no means to continue supporting my family through treaty subsistence and commercial fishing or harvesting of medicines and animals,” testified BMIC Vice President Leblanc. “Beyond the harm that an oil spill or other event would have on the health of lake trout and whitefish, any disruption of the fishery for an extended period would stifle the transfer of fishing knowledge to younger generations.”

Photo of tribal fishers Jade LeBlanc and Dan Lothrop on Lake Superior by Whitney Gravelle.

On a positive note, the judge allowed to remain on record the testimony of chemical engineer and pipeline expert Richard Kuprewicz who testified about the serious risk of an explosion in the proposed underwater pipeline tunnel. This means in determining the merit of the project for the public, the MPSC must consider how Enbridge’s proposed design for a Line 5 pipeline tunnel could cause a loss of human life for workers in the tunnel, an oil spill into the Great Lakes, and an environmental catastrophe in the Straits should the volatile mix of fuel and ignition sources encased in a Line 5 oil pipeline tunnel explode.

Protest sign: People Over Pipelines. Pax Ahimsa Gethen [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)]

“As a public agency, the Michigan Public Service Commission needed to know the critical information these witnesses presented for consideration on behalf of the impacted tribal communities. In the next few months, MPSC will now have to weigh the value of increased corporate profit for Enbridge against the impacts, risks, and damages a Line 5 oil pipeline tunnel would cause for the public, while hearing only part of the story,” said NARF Staff Attorney David L. Gover.

Earthjustice attorney Christopher Clark expressed grave concerns about how the judge’s decision to exclude these vital witness testimonies will hinder the Commission’s ability to properly assess the scope of the tunnel project’s real-world impacts.

“The Commission must evaluate the long-term impact of this project on climate change and on the cultural and historic resources that are indispensable to Tribes”, said Clark. “But the judge struck critical portions of the testimony of experts including Frank Ettwageshik, a tribal leader and leading climate change expert and advocate, and Dr. Chuck Cleland, a renowned ethnohistorian with decades of experience studying the affected area. This is deeply troubling. Despite today’s decision, we are looking forward to making our case to the Commission that the serious and irreversible risks of this project are too great to permit.”

Cross-examination of witnesses before the MPSC began on January 14.

September 2021: Experts Sound Alarm On Line 5 Oil Pipeline Tunnel Climate Impacts

The Bay Mills Indian Community (BMIC), tribal citizens, climate scientists, and academic experts submitted written testimony to the Michigan Public Service Commission (MPSC) the week of September 13. Expert testimony explained the climate change and grave impacts the Enbridge Energy corporation would cause if MPSC allowed the Canadian company to construct a new Line 5 oil pipeline tunnel under the Great Lakes.

BMIC President Whitney Gravelle submitted testimony describing the negative impacts the project would have to the waters and land in and around the Straits of Mackinac and the Great Lakes, which the tribe has reserved access to through treaty for fishing, hunting, and gathering. “It is dangerous to construct a tunnel and route a pipeline through lands and waters that are central to our existence as indigenous people and as a Tribal Nation,” wrote Gravelle. “The project poses a serious threat to our treaty rights, our cultural and religious interests in the Great Lakes, our economy, and the health and welfare of our tribal citizens.”

Bay Mills tribal fishing Boat. Courtesy of Whitney Gravelle

Enbridge has a long-documented record of oil leaks that have caused environmental damage to tribal lands and treaty-reserved gathering, hunting, and fishing. Since May 13, 2021, Enbridge is breaking the law by trespassing. The state of Michigan revoked Enbridge’s easement to the bottomlands due to the corporation’s repeated violations of the easement agreement.

The corporation continues to operate Line 5 illegally in the Straits of Mackinac while seeking approval from the Commission to build a replacement pipeline encased in a tunnel underneath the lakebed. If approved by MPSC, the tunnel would allow Enbridge to operate the pipeline for decades, perpetuating greenhouse gas emissions and further jeopardizing the lifeway of tribal communities native to the Great Lakes Basin.

Several academic experts underscored how numerous species critical to the Upper Peninsula’s larger ecosystem and economy already struggle to adapt to warming temperatures due to the effects of climate change. Since 1985, the “lakes in the Great Lakes region have warmed more than the global average,” the experts’ testimony states. This warming has forced many species, including the Walleye fish, which support tribal subsistence, commercial, and recreational fisheries, to live in warmer environments that inhibit their chances for survival. Experts also highlighted the rapid loss of wild rice, a crop revered as an “irreplaceable cultural, spiritual, nutritional, and commercial resource and sacred relative” to members of the Bay Mills Indian Community and other Native peoples in Michigan.

Expert climate change witnesses submitted written testimony detailing their concerns about the tunnel project’s detrimental climate impacts. Director and Senior Economist of the Applied Economics Clinic Elizabeth A. Stanton, Ph.D., explained how shutting down Line 5 and not building a replacement was a “reasonable and prudent” alternative in light of the pressing need to shift to clean energy sources.

The parties in the Michigan Public Service Commission’s contested case submitted testimony on September 15, 2021, with the opportunity to submit rebuttal testimony on December 14, 2021. Cross-examination of witnesses began in January 2022, with a decision expected from the Commission later in the year.

Army Corps Announced Environmental Impact Study on Line 5 Pipeline Tunnel in June 2021:

On June 23, 2021, the U.S. Army Corps of Engineers announced it would conduct an environmental impact study (EIS) on the Enbridge Energy Inc. plan to build an underground oil and gas pipeline tunnel under The Great Lakes to house the Line 5 pipeline. The Bay Mills Indian Community (BMIC), represented by the Native American Rights Fund (NARF) in partnership with Earthjustice, welcomed this examination of how the company’s proposed plan would impact this sacred area located between Michigan’s upper and lower peninsulas.

“The U.S. Army Corps of Engineers recognizes the federally mandated responsibility to thoroughly investigate the impacts Enbridge would create by tunneling under the Great Lakes,” said BMIC President Whitney Gravelle. “An environmental review is vital as the Straits of Mackinac are a treaty-protected spiritual and sacred space that provides income, and food resources for Native and non-Native communities alike. Every community requires clean water, air, and soil as well as healthy fish, game, and plant populations to survive. Our ancestors understood this common human need when they negotiated the Treaty of March 28, 1836, with the United States. By treaty, we agreed to share part of our tribal lands with the United States and what became the State of Michigan but we reserved continued tribal-use of our treaty protected resources, including in the Straits of Mackinac.”

Lake Michigan and Lake Huron converge at the Straits at the narrowest point between the upper and lower part of Michigan. The Bay Mills Indian Community and other Anishinaabe peoples of the region consider the Straits a sacred place on Turtle Island.

“The Enbridge Line 5 tunnel and continued operation of the pipeline has the potential to cause profound damage to the Straits of Mackinac. The impacts need to be thoroughly studied and the necessary protections and alternatives identified,” said NARF Staff Attorney David L. Gover.

A long history of environmental damage caused by Enbridge’s continued operations throughout the area led to Bay Mills banishing Enbridge’s Line 5 from the reservation and the lands and waters of their ceded territory. Reasons for the banishment include:

  • Enbridge’s existing system that includes Line 5 has already leaked at least 33 times spilling more than 1,100,000 gallons of oil.
  • Enbridge has incurred $6.5 million in fines for failing to properly maintain and repair the existing system that includes the Line 5 dual pipeline.
  • Enbridge continues operating existing Line 5 pipeline structures under an expired easement and in spite of years of tribal and public opposition.

The State of Michigan terminated the easement that allowed Enbridge to operate the Line 5 system citing, among other reasons for the revocation: “unreasonable risks of continued operation” and potential impact on Tribal Treaty rights at the Straits. Governor Whitmer demanded that Line 5 operations cease by May 12, 2021. In defiance of the state order, Enbridge is trespassing as it continues to use the existing Line 5 pipeline structures to transport oil and gas from one part of Canada to another for processing, looping down through Michigan and through the Bay Mills treaty protected Ceded Territory.

“Throughout its length, the pass-through Line 5 pipeline system puts people and ecosystems at risk of more oil leaks and spills. At the Line 5 portion where Enbridge proposes an underwater pipeline tunnel, the Anishinaabe people and many local residents currently depend upon the health of the Straits of Mackinac to support commercial and subsistence fishing and hunting,” said Gover. “For millennia human beings have lived, fished, and hunted at this sacred waterbody with a feeling of respect to be alive and present in such a unique place. Oil leaks and spills into the Great Lakes would be tragic.”

Relevant Articles:

May 10, 2021:

On May 10, Bay Mills Indian Community Executive Council passed a resolution to banish Enbridge Energy, Inc.’s Line 5 dual pipelines from  all Tribal lands—including the Straits of Mackinac. Reasons for the banishment include:

  • Enbridge’s existing system that includes Line 5 has already leaked at least 33 times spilling more than 1,100,000 gallons of oil.
  • Enbridge has incurred $6.5 million in fines for failing to properly maintain and repair the existing system that includes the Line 5 dual pipeline.
  • Enbridge continues operating existing Line 5 pipeline structures under an expired easement and in spite of years of tribal and public opposition.

Tribal governments do not enact banishment lightly. This historical and customary form of tribal law has existed since time immemorial. Tribes exercise banishment only to address especially egregious acts of harm to the community.

“Banishment is a permanent and final action that is used to protect all that we hold dear. Enbridge’s continued harm to our treaty rights, our environment, our history, our citizens, and our culture, is a prime example of how banishment should be used,” said President Whitney Gravelle of the Bay Mills Executive Council.

The banishment resolution requests that any regulatory body with oversight authority enforce the banishment. This includes the Chippewa Ottawa Resource Authority, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Sault Ste. Marie Tribe of Chippewa Indians, the State of Michigan, and the United States.

“While the pipeline segment beneath the Straits has thankfully not burst, in 1999, the pipeline leaked 226,000 gallons of crude and natural gas liquid, forcing 500 residents to evacuate,” added Gravelle. “Line 5 has spilled 33 times since 1968, leaking over 1.1 million gallons of oil. And those are just the documented spills.”

In November 2020, Gov. Gretchen Whitmer ordered Enbridge to cease operations by May 12, revoking the easement it needs to operate. To date, Enbridge has refused to comply with the order.

The dispute over the easement revocation remains in federal court. Bay Mills Indian Community filed an amicus brief in State of Michigan and Michigan Department of Natural Resource v. Enbridge Energy supporting remand to state court.

On behalf of BMIC, Earthjustice with NARF’s assistance challenged a permit issued by the Michigan Department of Environment, Great Lakes, and Energy to Enbridge allowing the company to build a massive tunnel beneath the Straits of Mackinac to house a new segment of its Line 5 pipeline.

February 23, 2021:

On February 23, 2021, a Michigan administrative law judge issued a new ruling over the scope of evidence the Michigan Public Service Commission (MPSC) would consider in the hearing over Enbridge’s request for an operating permit for the Line 5 tunnel construction project in the Straits of Mackinac. The opinion revised the October 2020 determination in light of the November 2020 order from Michigan Governor Whitmer to revoke and terminate the 1953 easement that allowed Enbridge to operate the pipeline. The new ruling again excluded evidence concerning the public need or lack of a need to extend the life of Line 5 by constructing a new pipeline tunnel, the environmental risks (i.e., oil spills) of the entire potentially no longer needed Line 5 pipeline, and the climate change impacts that continuing to operate Line 5 would impose.

Intervening parties in the MPSC decision included the Bay Mills Indian Community that calls the Straits of Mackinac home and has Tribal treaty rights to the waters to hunt, fish, and gather. “The unfathomable damage that Line 5 could inflict upon our treaty-protected waters, cultural resources, and critical plant and fish populations is too great to justify the pipeline’s continued operation or potential replacement”, said Bay Mills President Whitney Gravelle. “We are deeply disheartened that today’s ruling will exclude critical evidence about environmental risks and climate change from the scope of the Commission’s permitting consideration, but we remain determined to stop this project from moving forward.”

Native American Rights Fund and Earthjustice, representing BMIC in this proceeding released the following statements:

“Today’s ruling is deeply concerning, because evidence related to the public need for this pipeline and the environmental risks of its operation are both essential parts of the decision about whether to approve the tunnel project”, said NARF Staff Attorney David Gover. “We will continue to support Bay Mills and shine a light on the very real threats this project poses to the Tribe’s treaty rights, livelihoods, and cultural resources.”

“We are disappointed by today’s ruling, which adopts an overly narrow interpretation of the scope of this contested case and the Michigan Public Service Commission’s authority”, said Earthjustice attorney Mary Rock. “Given the fact that the existing pipeline in the Straits of Mackinac must shut down because of the Governor’s revocation and termination of the 1953 easement, it only makes sense to assess whether building a massive tunnel so that the pipeline can transport oil beneath sensitive and critical waters for decades to come is really necessary and environmentally sound. We will continue our advocacy on behalf of Bay Mills and its opposition to the tunnel project.”

December 9, 2020:

The Michigan Public Service Commission released a decision  on December 9, 2020, announcing that the revocation of the 1953 easement for a problem-plagued pipeline through the Straits of Mackinac was a “fundamental change” to the agency’s proceeding to determine whether Enbridge, a Canadian oil company, should be permitted to replace part of the pipeline with an invasive tunnel. The Commission asked an administrative law judge to consider how the easement revocation affects the scope of this proceeding, including risks of and need for the continued operation of a pipeline through the Great Lakes.

“The Commission’s decision is another important step in an ongoing battle to protect our water. The waters of the Great Lakes are part of our tribe’s identity. These waters are protected by treaty and we depend on healthy water for fishing and sustenance,” said Bay Mills Indian Community Chairman Bryan Newland

Attorneys on the case released the following statements:

  • “We applaud the Commission’s decision. More time is needed to consider the impact that the Line 5 Project will have on Bay Mills’ Treaty-protected rights across the length of the pipeline, and in the Great Lakes and Straits of Mackinac,” said NARF Staff Attorney David Gover.
  • “We appreciate that the Commission recognizes the revocation of the easement for Enbridge’s existing pipelines is a game changer,” said Earthjustice Attorney Mary Rock. “We look forward to presenting evidence of the risks that the pipeline continues to pose to invaluable waters, fisheries, and cultural sites.”

November 13, 2020:

On November 13, 2020, Governor Gretchen Whitmer and Michigan Department of Natural Resources (DNR) Director Dan Eichinger notified Enbridge that  the state will revoke and terminate the 1953 easement allowing the oil giant to operate dual pipelines in the Straits of Mackinac to transport petroleum and other products. This decision comes after years of advocacy and litigation from local tribes and communities that have depended on the Straits for their livelihood.

“We are thrilled and thankful for Governor Whitmer’s decision to revoke the easement for Enbridge’s pipeline to run beneath the Straits”, said President Bryan Newland of the Bay Mills Indian Community. “Enbridge has consistently shown that it only cares about its profits and not about the communities of the Great Lakes. This is a monumental first step in rectifying the harm that the company has already inflicted upon Bay Mills and other tribal nations for decades.”

The Governor’s Office explained the decision came after reviewing the corporation’s compliance with easement terms. From the official statement: “Today’s action to revoke and terminate the 1953 easement is the culmination of a careful review of Enbridge’s compliance with the easement, the threats posed by the continued operation of the dual pipelines, and the state’s energy supply. On June 7, 2019, the governor issued Executive Order 2019-14, creating the UP Energy Task Force to assess the region’s energy needs and alternative sources of supply. The Task Force issued a report on April 17, 2020. Moreover, on June 27, 2019, the governor directed the DNR to undertake a comprehensive review of Enbridge’s compliance with the 1953 easement. That review is now complete and supports this action.”

August 12, 2020:

On August 12, 2020, a Michigan administrative law judge granted Bay Mills Indian Community the right to intervene in the ongoing pipeline fight that united tribes, environmental groups and community members against oil giant Enbridge. The decision allowed Bay Mills to be a party in the contested case process evaluating Enbridge’s Michigan Public Service Commission’s permit application. “Enbridge’s Line 5 pipeline puts our treaty rights and our way of life at risk every single day,” said Bay Mills Indian Community Chairman Bryan Newland, “We are going to continue to fight to protect our rights, our waters, and our way of life.”

June 25, 2020:

On June 25, 2020, a judge granted Michigan Attorney General Nessel’s request for a temporary restraining order, requiring Enbridge to immediately cease operation of the approximately 4-mile long segment of the Line 5 oil pipeline that crosses the bottom of  the Straits of Mackinac. This decision came just a week after Governor Whitmer learned about significant damage to the Line 5 pipeline infrastructure. The State called on Enbridge to disclose all information about the issue. After no response to the state, Nessel then filed a request for a temporary restraining order to cease operations until the state can conduct a full review and examine all documentation. Enbridge refused to provide Bay Mills Indian Community (BMIC) and other tribes with information on what went wrong and how the corporation placed the treaty-protected waters at risk.

In its order, the judge wrote, “the severe risk of harm that may result from Defendants’ operation of the West Line … is so substantial and irreparable, and endangers so many communities and livelihoods and the natural resources of Michigan, the danger far exceeds the risk of financial loss to Defendants.”

BMIC has been on the frontlines of this fight for years and recently teamed up with Earthjustice and the Native American Rights Fund (NARF) in order to defend its treaty-fishing rights, and culture and traditions.

“The court’s decision today was a great step forward in protecting our Great Lakes from this uniquely dangerous pipeline. Bay Mills will not stop until this threat to our waters and treaty rights is removed.  In addition, this situation shows once again that Enbridge cannot be trusted to safely operate any pipeline,” said Bryan Newland, Bay Mills Indian Community tribal chairman. “Enbridge continues to withhold information from us, from regulators, and from the public. We want to know what they’re hiding and why they’re hiding it.”

According to NARF Staff Attorney David Gover, “The court’s decision to put a hold on the damaged Enbridge pipeline is absolutely right. Both the state and the Bay Mills Indian Community are still waiting for information from Enbridge as to what exactly happened last week. The pipeline poses a real threat to the tribe’s water and lifeways. The people deserve to know the risks that Enbridge is taking with their homelands.”

May 11, 2020:

Photo of the Straits of Mackinac, beach and bridge

Straits of Mackinac. Photo credit: H.G. Judd / CC BY-SA (http://creativecommons.org/licenses/by-sa/3.0/)

On May 11, NARF and Earthjustice teamed up with the Bay Mills Indian Community to fight a proposed oil pipeline tunnel, which would impact communities, local businesses, and the environment. The proposed tunnel would encapsulate oil giant Enbridge’s Line 5 pipeline under the Straits of Mackinac, purportedly to prevent another oil spill. Enbridge was responsible for the largest inland oil spill in 2010 in Michigan’s Kalamazoo River, which resulted in nearly 1 million gallons of oil being released into Michigan’s waterways.

On behalf of Bay Mills Indian Community, NARF and Earthjustice attorneys filed a Petition to Intervene to participate as a party in the Enbridge Line 5 Tunnel Project proceedings before the Michigan Public Service Commission. They also will submit comments, on behalf of Bay Mills, opposing Enbridge’s request  to issue a declaratory ruling. The oil giant is claiming that, due to the original 1953 Easement under the Great Lakes, the project can now skirt any additional review by the Commission—including any review of environmental impacts. The public was able to submit comments on the request for declaratory ruling till May 13, 2020.

“It is extremely important for Bay Mills Indian Community to take up this battle against Enbridge” explained Whitney Gravelle, In-House Counsel for Bay Mills Indian Community. “Since time immemorial, the Great Lakes have been an integral part of Bay Mills’ way of life, and they will continue to be an integral part of tribal culture, tradition, and economy for many generations to come. By failing to consider the dangers Line 5 poses to treaty-fishing rights, cultures, and traditions of the Anishinaabe, we risk killing the heart of Turtle Island, the heart of North America.”

“With their application to move a section of the Line 5 pipeline to a tunnel dug under the Straits of Mackinac, Enbridge proposes a significant project that could have extreme impacts on the area’s waterways and wildlife,” NARF Staff Attorney David Gover explained. “The Bay Mills Indian Community relies heavily on fishing in the area, and the tribe has a treaty-protected right and a responsibility to keep the region’s fisheries healthy and available to tribal citizens. Over the years, the tribe has consistently fought to protect their fishing and hunting rights. Today’s filing continues that fight. The Native American Rights Fund is proud to stand with the Nation to ensure that the Bay Mills Community’s fishing lifeways and tribal homelands are adequately protected for generations to come.”

“Bay Mills consistently has voiced its concerns about the continued operation of Line 5 through the Straits of Mackinac and across other ceded territory in Michigan where it holds treaty- protected rights,” said Gussie Lord, Director of Tribal Partnerships at Earthjustice. “We are pleased to expand our presence in the Midwest and stand with Bay Mills in defense of the Great Lakes—the largest freshwater system in the world—and the incredible and complex ecosystems that have sustained the Anishinaabe people for generations.”

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