White Earth files Rights of Nature lawsuit against Minnesota DNR

August 5, 2021

READ COMPLAINT HERE

First “Rights of Nature” Enforcement Case Filed in Tribal Court to Enforce Treaty Guarantees


Action filed against Minnesota Department of Natural Resources to Stop Diversion of 5 Billion Gallons of Water for Enbridge “Line 3” Pipeline

Press Release

August 4, 2021

Contact:

Frank Bibeau
Plaintiff’s Attorney frankbibeau@gmail.com 218-760-1258

Thomas Linzey, Senior Counsel
Center for Democratic and Environmental Rights tal@pa.net
509-474-9761

White Earth, MN: On August 4, an action was filed in the Tribal Court of the White Earth Band of Ojibwe in Minnesota, by Manoomin (wild rice), the White Earth Band of Ojibwe, and several tribal members, to stop the State of Minnesota from allowing the Enbridge corporation to use five billion gallons of water for the construction of the oil pipeline known as “Line 3.”

This is the first case brought in a tribal court to enforce the rights of nature, and the first rights of nature case brought to enforce Treaty guarantees.

In December 2018, the business committee of the White Earth Band of Ojibwe adopted a “rights of manoomin” tribal law, which recognized wild rice as having the rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, and preservation.

P.O. Box 418 | White Earth, Minnesota 56591 | Tel. (218) 983-3285 | whiteearth.com

The rights of manoomin law is the first tribal law to recognize legal rights of a plant or animal species.

This action was brought to enforce both the rights of manoomin (pursuant to the tribal law), as well as Treaty rights held by the tribe and tribal members. The Treaty rights, recognized in the 1825, 1837, 1854, and 1855 Treaties with the Chippewa and U.S. government, guaranteed the rights of the tribe to gather wild rice and other aquatic plants from public waters on Treaty lands.

Plaintiffs assert that the diversion of 5 billion gallons of water for an oil pipeline will interfere with both the rights of manoomin, as well as the rights of tribal members to use Treaty lands to hunt, fish, and gather wild rice.

Frank Bibeau, lawyer for the plaintiffs, stated, “The State of Minnesota is ignoring its treaty obligations and tribal laws in allowing the Enbridge corporation to take five billion gallons of water for the construction of the pipeline. This action is about upholding manoomin’s right to exist and flourish as established by tribal law, and about Minnesota’s legal obligations pursuant to the Treaties signed with the Chippewa. All we are demanding is that those Treaties be honored, and manoomin recognized as having the sacred status as recognized by tribal law.”

Mari Margil, the Executive Director of the Center for Democratic and Environmental Rights (CDER), who assisted with the drafting of the tribal law, explained, “This is the second rights of nature enforcement action filed this year, and the first filed by a tribe seeking to enforce those rights in tribal court. These corporate giveaways that destroy ecosystems and species, and violate Treaties, must stop. It’s time to pull the plug on Line 3 and other pipelines across the country that are a clear and present danger to communities and the planet.”

The action was filed in the White Earth Band of Ojibwe’s Tribal Court, and the complaint will be served on Minnesota officials.

###

Joint Chippewa Tribal Request for Immediate NEPA Review
and Suspend Line 3 Permits

White Earth Band of Ojibwe and Red Lake Band of Chippewa Indians CONSULTATION with U.S. Army Corps of Engineers – June 21, 2021

Chippewa have 44 Treaties with United States and we RECOGNIZE and ARE CONCERNED about the same environmental issues identified in the Department of Defense 2014 Climate Change Adaptation Roadmap.

Among the future trends that will impact our national security is climate change. Rising global temperatures, changing precipitation patterns, climbing sea levels, and more extreme weather events will intensify the challenges of global instability, hunger, poverty, and conflict. They will likely lead to food and water shortages, pandemic disease, disputes over refugees and resources, and destruction by natural disasters in regions across the globe.
Line 3 fossil-fuel extraction needs NEPA Review.

Line 3 exists in a 6 pipeline corridor along the orange route. New east –west corridor for Line 3 no existing pipelines

On June 4, 2021 the MN DNR unilaterally granted Enbridge Line 3 a Water Appropriation Permit Amendment (No. 2018 – 3420) for an increase of the initial permitted volume water from 510.5 million gallons up to 4.98 billion gallons, a ten-fold increase.

Minnesota is facing drought conditions, river and lake water levels are dropping and fluctuating during the most critical growth time for wild rice. Wild rice or “Manoomin” is the Chippewa’s treaty reserved primary food, along with fish and maple which are all high quantity and quality water resource dependent.

East-West Line 3 Route crosses mostly public lands and public waters which are the primary places for the Chippewa to exercise usufructuary property rights to hunt, fish, trap and gather. See Minn. v Mille Lacs, 1999 U.S Supreme Court

CHIPPEWAS OF THE MISSISSIPPI TREATY TERRITORIES AND RESERVATIONS

NEW 106 CONCERNS FOR LINE 3 ROUTE

Shell River cultural corridor missed and misunderstood by Enbridge’s Tribal Cultural Resource Management Survey Team – White Earth not included in TCRM Survey Team

SHELL RIVER CULTURAL CORRIDOR


CONCERN is Line 3 crosses Shell River Cultural Corridor five separate times from Crow Wing River to Shell Lake on White Earth Reservation, which connected the Crow Wing Band by cultural corridor, river roadway from wild rice country to Shell Lake on White Earth reservation to buffalo hunting on the plains.

PUC/DOC and Enbridge transferred Sandpiper route application information to Line 3 route permit application (apparently without previously e-filed archeological comments)

2016 TASC Report is not identified as resource consulted for the Tribal Cultural Resource Management Survey of the Enbridge Line 3 Replacement Project Submitted to the U.S. Army Corps of Engineers · July 2019, nor Exhibit K of the final publicly e-filed version in 2020 Line 3 e-docket.

TASC Identified traditional, cultural and historical properties with Grant Goltz former Mn SHPO, not considered by Tribal Cultural Resource Management Survey of the Enbridge Line 3 Replacement Project Submitted to the U.S. Army Corps of Engineers · July 2019

REASONS SUPPORTING IMMEDIATE NEPA REVIEW

• “Re-evaluating the circumstances and conditions of the Line 3 permit” … “and initiat[ing] action to modify, suspend, or revoke a permit as may be made necessary by considerations of the public interest” is the NEEDED environmental justice here. 33 C.F.R. § 325.7.
• Tribes have been historically marginalized and overburdened by pollution and projects like Line 3
• significant objections to the authorized activity were intentionally ignored earlier by Minnesota PUC and MPCA CWA 401 Permitting and USACE 2020
• Tribes have NOT exhausted state appeals
• Construction IS Active
• Pipeline construction is active in critical habitats for wild rice and fisheries
• Water Protector camps and tribal arrests increasing
• Prevent more American Indian Religious Freedoms violations
• a temporary rescission of the Army Corps permits, and a temporary cessation of construction until the proper NEPA review demonstrates commitment to
• honoring treaties, reserved rights, trust responsibility
• reducing climate change impacts, and
• protecting existing fresh, clean water ecosystems

MINNESOTA INTENTIONALLY IGNORING TREATY RIGHTS

• ALJ for Line 3 EIS concluded in-trench replacement of Line 3 in existing 6 pipeline corridor least impacts to tribal resources
• PUC decided not to adopt the ALJ Findings about Chippewa Treaties in the Line 3 EIS
• PUC granted route permit across mostly new, aquatic ecosystems, pipeline-free greenfields, wetlands, rivers, lakes and aquifers where wild rice grows
• POLLUTION CONTROL AGENCY (MPCA) CWA 401 ALJ found Chippewa treaty rights, waters rights and PL 280 issues federal; excluded Red Lake’s and White Earth’s legal arguments from contested case proceedings
• MPCA granted Line 3 CWA 401 permits without Chippewa consent and over objections to Minnesota regulating water rights and other important treaty protected resources

VIOLATION OF THE TRUST RESPONSIBILITY

• Corps did not engage in a joint environmental review with Minnesota state agencies
• Corps never issued a draft EA for public comment and did not make the EAs public once finalized
• Corps ignored off-reservation usufructuary rights
• Corps did not consider the Anishinabe Cummulative Impacts Assessment prepared by the Minnesota Chippewa Tribe for Line 3 PUC process
• Corps did not analyze the climate impacts of Line 3
• Corps did not consider the no-action alternative

JOINT CHIPPEWA TRIBAL REQUEST FOR IMMEDIATE NEPA REVIEW
AND SUSPEND LINE 3 PERMITS

Will:
• Help secure environmental justice and spurring economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution
• moot current Line 3 federal Tribal litigation with USACE
• Help protect Manoomin (wild rice) immediately for 2021 harvest
• Help protect existing clean, fresh water help prevent drought
• help protect important cultural and tribal natural resources

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