Enbridge is rerouting a $1-billion, 41-mile-line pipeline off of tribal lands in Wisconsin while still operating a disputed pipeline on a reservation
A federal appeals court has upheld a lower court’s ruling that Canadian firm Enbridge is trespassing on land owned by the Bad River Band of Lake Superior Chippewa in northwestern Wisconsin and must remove its existing 12-mile-long oil and gas pipeline—part of the original Line 5 pipeline running from Canada to the U.S.—from reservation land.
While it didn’t set a deadline, the three-judge panel for the 7th Circuit U.S. Court of Appeals found on Aug. 6 that Enbridge should have a “reasonable opportunity” to finish re-routing the Line 5 pipeline, a $1-billion project that is already underway as the company continues to use its other pipeline on tribe-owned land.
It also said the lower court should revisit the $5.15-million in restitution that U.S. District Court Judge William Conley awarded to the tribe in 2023 when, at the same time, he gave Enbridge three years to complete the reroute, which has not happened.
“Enbridge’s trespass cannot continue unchecked across the band’s sovereign land. To decide otherwise would be substantially in tension with the 1854 Treaty and the statutory scheme governing rights-of-way on tribal lands,” the court wrote in the most recent ruling.
It added, however, that halting Line 5’s operation “without an alternative in place risks violating the Transit Treaty, sparking international fallout with Canada, and inflicting harmful effects on energy consumers.”
The 1977 treaty is intended to ensure the uninterrupted, safe and efficient movement of hydrocarbons, such as crude oil and natural gas, across the U.S.-Canadian border.
The easements for the pipeline that traverses 12 parcels of Bad River Band territory expired in 2013, and the tribe did not renew them. The tribe sued Enbridge in July 2019 seeking the removal of Line 5 from the reservation.
In response to the newest decision, Enbridge spokesperson Juli Kellner said “it recognized the Line 5 Wisconsin Segment Relocation Project as the practical long-term solution to this dispute. Currently, Enbridge is safely operating Line 5 across the Bad River Reservation and construction of a new 41-mile segment of Line 5 around the Reservation is well underway.”
In determining the restitution amount, the Seventh Circuit said the lower court “likely double-counted by giving Bad River a portion of Enbridge’s overall profits tied to Line 5’s trespass in addition to the company’s economic benefit from delaying the cost associated with rerouting Line 5.”
Stefanie Tsosie, an attorney for Earthjustice, a nonprofit representing the tribe, said the recent court ruling is a win for the tribe.
“It’s important that the court affirmed the band’s sovereign right to govern their own lands,” she said. “Each day, Enbridge operates Line 5 in illegal trespass and makes more than a million dollars in profit. We are hopeful that Enbridge will face meaningful consequences.”
Even though a new deadline has not been set, Timna Axel, an Earthjustice spokesperson, said meaningful consequences would be for Enbridge to “be required to remove its pipeline from the Bad River Reservation in the near future and relinquish the profits it has gained by trespassing on the band’s sovereign land for many years.”
The current pipeline transports over 20 million gallons of crude oil and natural gas liquids each day from Superior, Wis., to Sarnia, Ontario. It is part of a larger network of pipelines carrying petroleum products from Western Canada to refineries in the Midwest, Ontario and Quebec. Line 5’s path through the Reservation is approximately 60 ft wide, and makes up less than 2% of the pipeline’s total length of 645 miles, according to Enbridge.
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