Judge declares Line 5 pipeline will be shut down: “It’s just a question of when”

May 19, 2023

Barbara With and Rebecca Kemble

At a hearing on an emergency motion filed by the Bad River Band of Lake Superior Chippewa on May 18, Western District Court Judge William Conley stated that it was only a matter of time before the 70-year-old Enbridge Line 5 crude oil pipeline that runs across the Bad River Band’s territory would be shut down.

Severe flooding in April created erosion at a meander of the Bad River near the decrepit pipeline. On May 5, 2023 when Enbridge met with two engineering firms, Region 5 Environmental Protection Agency staff, and Bad River Band of Lake Superior Chippewa’s Department of Natural Resources, the river bank at the meander was approximately 10-12 feet away from the pipeline. 

While Conley denied the Band’s request for immediate shut down as a remedy to protect the watershed from the dangerous situation, he acknowledged that Enbridge is operating illegally, that the Band has the authority to evict them, and that since the November 2022 trial, the threat of a rupture in the line has increased.

At the November trial, Bad River requested that the threshold to shut down Line 5 be established at the point when the river reaches within 20 feet of the pipeline. Conley deemed that figure too conservative but failed to put a different standard in place.

By December, Bad River requested that the Judge set a threshold of 15 feet, but Conley failed to respond, which prompted him to admit his negligence at the hearing on Thursday, saying “I realize that burden is on me.”

After the flooding, by May 5 the distance between the riverbank and pipeline had been reduced to 11 feet, prompting the Band to file an emergency motion for injunction. “If there is indeed an imminent risk as to environmental hazards, there is grounds and there is precedent to support injunctive relief,” Conley confirmed.

Seventy years ago, the Bureau of Indian Affairs issued an easement on the Bad River Reservation to the Lakehead Pipeline Company who installed a pipeline with an anticipated 50-year life span. When Bad River did not renew the easement in 2013 and exercised its legal right to order the pipeline company, now Enbridge, to vacate the watershed and decommission the pipeline, Enbridge refused.

The Band spent six years in mediation with Enbridge working to get them to vacate the line, reroute Line 5’s oil through other existing pipelines, and to prepare the public for its shut down. Enbridge refused to cease operations and has been operating Line 5 without an easement. In 2019, the Band was finally forced to file a lawsuit, which went to court in November 2022. 

At that trial, Judge Conley found Enbridge guilty of criminal trespass and illegal enrichment for nine years, but stopped short of ordering the shut down of the pipeline. At the time, the river was 26 feet from the pipeline and Conley did not consider it an immediate threat. The Band was told that the “public interest” in fuel markets outweighed their concerns about environmental dangers.

At the May 18 hearing, Judge Conley admitted to being frustrated with Bad River, saying, “They are hoping I get this right. I would prefer they try to come up with better solutions.” Throughout the hearing he accused them of not taking action and chastised them for not coming to an agreement with Enbridge to address the risk at the meander sooner, since he ordered them to do so in November. 

Yet the reason Bad River filed a lawsuit asking the Court to adjudicate the dispute was because after six years of negotiations, Enbridge was not responsive to Bad River’s concerns. Enbridge submitted an application in 2021 to the Band to use rip rap in an attempt to address erosion at the meander, but their application was incomplete. Again in 2022, their next application to remedy the problem using rip rap was also incomplete.

On May 8, 2023, Enbridge submitted a plan to the tribal Natural Resources Department (MNRD) to use sandbags dropped from helicopters to shore up the erosion, since the area of the river that needs support is not accessible by vehicle. MNRD has been been delegated the authority by the US Environmental Protection Agency (EPA) to regulate activities in and around water on the reservation. After receiving the sandbag plan, MNRD expedited their regulatory process, going from several months to a few weeks, to accommodate the review of the plan due to the emergency.

The Judge agreed there would be more environmental degradation and weakening of the river banks with the remedies that Enbridge has proposed. At the same time, he continued to admonish Bad River for “dragging their feet ” and not responding to Enbridge’s proposed remedies, when in reality MNRD responded in a timely fashion to Enbridge’s incomplete applications and last-minute sandbag plan. The Judge himself admitted responsibility to not setting a threshold back in December.

When the Judge chided MNRD Director Naomi Tillison for not supporting the helicopter sandbag plan, she reminded the court that the last time Enbridge brought in helicopters to do temporary repairs, they accidentally dropped a payload of padding mats, weighing 7,800 pounds, compressing the land beneath by three feet. With the erosion of the land under the pipeline progressing rapidly, a similar mishap with two 2,500 pound sand bags could create a rupture.

Even after Tillison outlined the timelines and steps that Bad River has taken to address the risk at the meander since the November 2022 ruling, Conley kept insisting that they were complicit in any future pipeline mishap because of their “lack of action,” completely disregarding Enbridge’s willful and illegal lack of action to decommission the pipeline as they continue to violate the law. Tillison testified that Bad River has spent over 200 hours preparing for the eight erosion protection meetings that they held since December with Wright Water Engineering, Enbridge engineers Paul Eberth, Julie Molina, Andy Duncan, and contractors from Barr Engineering.

Conley allowed Enbridge witness John Wagner of the United Refining Company to speak for 20 minutes on how many barrels of oil they would be down if Line 5 was shut down. But he cut off the La Pointe Town Chairman Glenn Carlson before he could share that Madeline Island is 2.7% of Ashland County’s population but provides 22% of the Ashland County tax base and has $17 – $18 million of commerce, not including property taxes. A pipeline rupture would devastate all that.

Bryan Bainbridge, CEO of Great Lakes Intertribal Council and commercial fisherman from Red Cliff talked about the devastation to the fisheries. “If there was a spill coming out of Bad River, that would devastate and decimate our commercial and subsistence fishery. I don’t believe in my lifetime, as it takes several hundred years for the lake to turn over and heal itself, my great, great grandchild would never see it again.”

In the end, Conley declared that he didn’t find grounds to shut down the pipeline based on the ongoing criminal trespass, which he will allow to continue. “A pipeline that’s been underground for 70 years – I don’t think can be closed based on the lack of right-of-way alone,” he said. “I think that there are monetary remedies for that.”

Bad River’s attorney Riyaz Kanji disagreed, arguing that having already ruled that Enbridge is trespassing on Bad River land, the Judge can’t allow them to trespass indefinitely. That would amount to the Judge condemning Tribal land, which is illegal under the Non Intercourse and Indian Leasing Acts. Judge Conley wished him luck with those arguments in the 7th Circuit Court of Appeals.

Though Judge Conley emphasized that he didn’t think he had the authority to shut down Line 5 because of the trespass, he does have the authority to shut down the pipeline due to imminent risk of a rupture. “I could exercise those rights if I thought they were sufficiently weighty, I definitely could do that.” But he added, “I’m disinclined to find the event is imminent now.”

Judge Conley said he would deliver his ruling within the next week or two. In his concluding remarks he said plainly, “There’s going to be a shutdown in this portion in the meander. It’s just a question of when.” 

Afterward, Bad River Chairman Mike Wiggins issued a statement:

“As a sovereign Tribal nation, we did not file this injunction for protection lightly or frivolously. We’ve watched the river live its life and do what it does as a beautiful, pristine life force within our sovereign boundaries. It’s done what we knew it would, continued to erode and pound away at the meander at a particular place where the pipeline crosses, and it’s within a point of imminent threat of blowing that particular area out and rupturing Line 5.

“Filing for an injunction was a responsible governmental action on behalf of our tribe and our Tribal Council. Protecting our our lands, our ecosystems, our waters and our people is at the heart and soul of what we want to do for our people in real time and also all those future generations.

“Today in court was a very difficult day, to be honest. We heard testimony and different opinions about our sovereign home. It’s a very difficult thing to listen to folks that have never lived around our river, folks who do not have a relationship with our river, who do not know the peculiarities and the power of our river give “expert testimony” on those types of things—the powers and and the forces and the “flashiness” of the hydrology of our river.

“We know as inhabitants of this place for thousands of years what our waterways are capable of, and there’s a lot of things that were not allowed to be said in that courtroom, both during our litigation last fall and also today about factuality of how our river interacts with our place. All of that culminates as us, as ancient people in our ancestral homeland, being the true experts of what’s going on here. We know from the site visits and from the relationship we have that there is an imminent threat that is playing out there and one that spells forever changes to our ways of life.

“We have the existence of the people, in their home, their ways of life, their ecosystems, being characterized as an “equity” that’s got to be measured against Enbridge’s equities, i.e. profits. That Enbridge profits and the notion of potential impacts to refineries in Quebec and other places like that being given even keel consideration, it’s a very difficult thing.

“I found myself thinking back to our treaties and how, from a legal point of view, our treaties are filtered and looked at by the Court of Law through the eyes of all of those ancient chiefs who signed those treaties. In this court, it was clear that it’s being looked at through the eyes of Enbridge executives who see profit, and that’s a very, very difficult thing.

“Because we’re here for our life. We’re here for the life of our river. I think we were mischaracterized by the Court for some of our efforts to protect our home, as though it’s an issue that is solely about Enbridge and their operations. Today was all about protection and preservation and the sending forward of our ecosystems and the lifeways of our people.

“We still are very optimistic that the judge reviews the totality of what was said today and comes to understand that the power of our river is real and the imminence of a Line 5 rupture is real and there’s a whole web of life—the Big Lake, Lake Superior—that is set to be impacted.

“At the end of the day we represent Americans, we represent the freshwater stronghold of America. I believe that there’s an awakening that needs to take place in terms of the weight and gravity and the importance of the sanctity of clean water. Today is a great opportunity for the judge to look at the resources of America, to look at the preservation of a sovereign people and and act accordingly.”