A legal brief by the Department of Justice (DOJ) agreed that a Canadian pipeline company is trespassing on a tribal reservation but stopped short of asserting that the government can take meaningful action to shut down the fossil fuel infrastructure. The amicus brief, filed April 10 in the 7th Circuit Court of Appeals, marks the first time the federal government has offered its own legal analysis in the case since the Bad River Band of Lake Superior Chippewa sued the pipeline operator for trespass in 2019. In 2022, a district court judge found that Enbridge, the corporation that operates the pipeline, lacked permission to operate within the reservation.
“Enbridge thus lacks the rights-of-way required by federal law for its pipeline to traverse these parcels of tribal trust lands,” the brief states. “Enbridge has been fully aware of this fact since the easements expired in 2013 but continues to operate the pipeline on those parcels.”
Line 5, a section of pipeline belonging to a larger transport system that moves crude oil through Wisconsin and Michigan to customers in Canada, runs through the Bad River reservation. Constructed in 1953 with permission from the Department of Interior—but without consent from the Band—Line 5 now sits precipitously close to the Bad River. The surrounding watershed’s lifeline and Band’s namesake would suffer untold pollution if the aging pipeline were to rupture.
“We appreciate the U.S.’ commitment to enforcing shutdown protections in the watershed, but we disagree with the government’s 11th-hour assertion that the courts do not also have the authority to protect our Reservation against an imminent rupture of the pipeline,” Bad River Band Chairman Robert Blanchard said in a press release.
The pipeline itself was only built to last 50 years before replacement, though aging infrastructure is just one of Line 5’s problems. Record flooding in 2023 severely eroded sections of the riverbank, closing the gap between where the pipeline meets the water. The erosion is so stark that in some places, there’s no dirt to support the weight of the pipeline, leaving it suspended in midair.
Jadine Sonoda, a campaign coordinator with the Wisconsin chapter of the Sierra Club, told Prism last year that healthy rivers naturally shift their course; it’s part of how they function.
“The issue isn’t with the river,” she said. “The issue is with the pipeline.” In June, a judge agreed and ordered the pipeline shutdown within three years.
But Enbridge has refused to decommission and remove the pipeline since 2013 when its easement agreement with the Band expired.
“It’s hard to imagine another circumstance in which someone was allowed to trespass for that long or would just ignore the requests to leave the property,” Debbie Chizewer, a lawyer with Earthjustice, told Prism. “Enbridge, the court, and other actors have been prioritizing the profits of this one company over the ability of the Bad River Band to control its reservation land.”
The company’s proposal to reroute the pipeline around rather than through the reservation still threatens the Bad River watershed. Tribal members and leaders say the reroute proposal is a veiled distraction from its ongoing trespass.
Though Federal Indian Law gives the Band the final say about who or what entities are allowed within the reservation’s boundaries, the federal government refused to assert the Band’s tribal sovereignty. Moreover, trust obligations enshrined by treaties in 1854, 1842, and 1837 between the Band and the federal government mean that the U.S. has a responsibility to the tribe.
The brief noted that the $5.1 million in restitution awarded by the lower courts would likely encourage trespassing corporations to violate tribal sovereignty rather than deter illegal behavior. The DOJ wrote that from 2013 to 2022, while the company knowingly illegally operated on Bad River land, Enbridge profited more than $1.1 billion.
Restitution is not the end goal, however. “The pipeline poses an existential threat to the Band’s way of life, and no monetary restitution can remove that danger,” Josh Handelsman, an attorney representing the Bad River Band in this case, wrote to Prism in an email.
Still, the DOJ brief sidesteps the “existential threat” to the Band’s existence, instead exploring other questions regarding which entities or agencies possessed the authority to hold Enbridge to account or prevent the Bad River’s pollution. The brief discusses at length a pipeline treaty signed with Canada in 1977 that prevents either country from impeding the flow of oil. Enbridge has previously implied that not renewing an agreement for pipeline operation constitutes a kind of imposition.
To Handelsman, the salient point remains that “the U.S. government admits that the courts have the full right to enforce a shutdown and that the 1977 treaty doesn’t immunize Enbridge from its trespass.”
Handelsman said that Enbridge could instead “re-route much of the Line 5 oil through its Line 78 pipeline, which does not pose a similar threat to the Great Lakes.”
Both parties to the case will have the opportunity to respond to the amicus brief. A determination by the judge is expected later this year.
