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. Line 5 has already leaked at least 33 times and discharged more than 1.1 million gallons of oil. 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 Michigan 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:

April 11, 2024: Michigan Tribes Ask Court to Overturn Line 5 Tunnel Permit

On April 11, 2024, four Tribal Nations filed a brief asking the Michigan Court of Appeals to overturn the Michigan Public Service Commission’s (MPSC’s) recent approval for Canadian oil giant Enbridge to build the Line 5 tunnel project beneath the Straits of Mackinac. The tunnel project would extend the operational life of the pipeline, pumping oil through the middle of the Great Lakes for decades. The Tribes argue that the Commissioners unlawfully barred key evidence about the public need for Line 5 and about the risk of future oil spills along the pipeline’s length.

“We agree the dual pipelines must be removed from the Straits, but the Commissioners never considered that Michigan does not need to keep this pipeline operating at all. They’ve simply acted as a rubber stamp for Enbridge, gambling our most important resource for the sake of foreign oil profits. Every Tribal Nation and ever Michigander deserves better than this.” — Bay Mills Indian Community President Whitney Gravelle

Since it was constructed in 1953, Line 5 has spilled over 1.1 million gallons of oil. The Commission also barred the Tribal Nations from submitting evidence about the history of spills and the risks that they will continue in the future.

Earthjustice and the Native American Rights Fund (NARF) filed the challenge on behalf of the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Band of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi, who have lived on the lands of present-day Michigan since time immemorial. Six other organizations, including national and local business and environmental groups, are also challenging the permit.

Enbridge’s own analysis shows that Line 5 could be decommissioned with almost no impact on Michigan gas prices, a decision that would also hasten the state’s transition to clean energy sources. Yet the MPSC refused to allow the Tribal Nations to submit evidence on these topics.

December 22, 2023: Four Tribal Nations Appeal MPSC Decision

The Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little Traverse Bay Band of Odawa Indians, and Nottawaseppi Huron Band of the Potawatomi have lived on the lands of present-day Michigan since time immemorial. The four Tribal Nations have vigorously opposed the Line 5 tunnel project before the MPSC.

On December 22, the four Tribal Nations filed notice that they will appeal the Michigan Public Service Commission’s (MPSC) recent approval of a permit for Canadian oil giant Enbridge to build the Line 5 tunnel project beneath the Straits of Mackinac. Opening briefs will be submitted with MPSC in early 2024.

Bay Mills Indian Community President Whitney Gravelle said:

“The MPSC made a bad decision, plain and simple. Although we fought to be heard, they put on their blinders and chose to ignore the critical perspective of Tribal Nations throughout the Great Lakes. Indigenous communities have not once been consulted since 1953 when this pipeline was first constructed. Let me be clear: Line 5 remains a threat to not only the tribes, but anyone and everyone who utilizes the Great Lakes. The question is not if the pipeline will leak, it is when.”

“Studies show that Line 5 could be decommissioned with almost no impact on jobs, gas prices, or fuel supply. Yet the MPSC did not even pause to ask if we still need this pipeline. Instead, they approved a permit to extend the life of Line 5 for another century. They are prolonging the danger of another oil spill in the Great Lakes, the source of 84 percent of North America’s surface freshwater.”

“The tunnel project is based on a flawed design that has never been tried anywhere else and would produce a mountain of waste rock as tall as a twenty-story building and as long as a football field. Worst of all, it would perpetuate the transfer of 23 million gallons of oil per day just when we need to switch to clean energy sources. The MPSC’s decision is a disaster for all of us.”

“It’s important to remember that Enbridge does not yet have the final permit they need from the US Army Corps of Engineers to build the tunnel project. As we appeal the MPSC’s disastrous decision, we also demand and expect that the Army Corps conduct a thorough and meaningful environmental impact statement and uphold the treaty trust responsibilities of the United States. We cannot allow history to repeat itself through the destruction of sacred land for private profit.”

Enbridge’s proposed tunnel project is opposed by multiple Tribes, businesses, and environmental groups. Line 5 is currently operating in violation of a shutdown order from the Governor of Michigan and in unlawful trespass on the reservation of the Bad River Band of Lake Superior Chippewa in Wisconsin.

December 1, 2023: Michigan Approves Permit for Disastrous Line 5 Oil Tunnel Under Great Lakes

On December 1, 2023, the Michigan Public Service Commission (MPSC) granted Canadian oil giant Enbridge a permit to replace the existing Line 5 dual oil pipelines in the Straits of Mackinac with an untested underground pipeline tunnel. The Bay Mills Indian Community, represented by the Native American Rights Fund (NARF) and Earthjustice, fought to prevent this outcome in a lengthy contested case before the MPSC. Safety experts warn that the tunnel project could lead to a massive explosion and an oil spill in the heart of the Great Lakes, which hold 84 percent of North America’s surface freshwater.

The Tribal Nation and their legal partners condemned the decision:

Bay Mills President Whitney Gravelle: “Instead of complying with a Governor’s public safety order to decommission Line 5 in Michigan, individuals working at a state agency granted Enbridge a permit for a project for which they hold no property rights and no safety track record in good standing. Today’s decision is another notch in a long history of ignoring the rights of Tribal Nations. We must act now to protect the peoples of the Great Lakes from an oil spill, to lead our communities out of the fossil fuel era, and to preserve the shared lands and waters in Michigan for all of us.”

NARF Attorney David L. Gover: “While Enbridge Energy may have a permit from a state agency to proceed, the idea to build a pipeline tunnel under the Great Lakes at the Straits of Mackinac remains unsound and too risky. The proposed project still needs other permits to move forward. We cannot allow one corporation to imperil the ecosystems and lives of all those that live nearby or depend on the Straits for their well-being.”

The Bay Mills Indian Community is currently challenging a separate permit for the tunnel project that was granted in 2021 by Michigan’s Department of Environment, Great Lakes and Energy (EGLE). In addition, Bay Mills is advocating with the US Army Corps of Engineers, which is expected to release a draft federal review of the tunnel project’s environmental impacts in spring of 2025.

September 2023: Over 60 Tribal Nations Side with AG Nessel in Line 5 Lawsuit

A coalition of more than 60 Tribal Nations from across the Midwest and Canada led by the Bay Mills Indian Community has weighed in on Michigan Attorney General Dana Nessel’s lawsuit to remove the Line 5 oil pipeline from the heart of the Great Lakes. The Tribes submitted an amicus brief supporting Nessel’s claims and asking the US Court of Appeals for the 6th Circuit to remand Nessel v. Enbridge to state court, a move opposed by the Canadian giant Enbridge, which owns Line 5. Line 5 is an outdated oil-and-gas pipeline that poses unacceptable risks of an oil spill, especially as it travels along the lakebed through the Straits of Mackinac in a four-mile section known as the dual pipelines.

Amicus brief asks 6th Circuit Court of Appeals to remand Nessel v. Enbridge to state court

“Near and far, Anishinaabe people have united to protect the Great Lakes,” said Bay Mills Indian Community President Whitney Gravelle. “We stand behind Attorney General Nessel because we know that shutting down Line 5 is the only way to protect everyone who depends on the land, water, and natural resources within the Great Lakes, including Anishinaabe people exercising our treaty rights.”

Not only do the Great Lakes provide fresh drinking water to more than 40 million people, but in the creation stories of the Anishinaabe, the Straits of Mackinac are where the Great Turtle emerged after a flood to create the North American continent, which the Anishinaabe refer to as “Turtle Island.” Bay Mills and other Tribal Nations have hunted, fished, and gathered medicines in the Straits for thousands of years – since time immemorial. In 1836, they ceded vast acres of land and water including the Straits to the US government.

“That 1836 treaty guarantees these Tribes the right to maintain their way of life in the ceded territory – a right that will be irrevocably destroyed if an oil spill from the dual pipelines contaminates the waters and aquatic life of the Straits,” said Native American Rights Fund (NARF) Staff Attorney David L. Gover.

Nessel sued Enbridge in Ingham County Circuit Court in June of 2019, alleging that Enbridge is violating the Michigan Environmental Protection Act (MEPA), state public nuisance laws, and the public trust doctrine by operating Line 5 in the Straits of Mackinac. Although the case has been ready for a decision by the state court for more than two years, Enbridge has prolonged it by removing the case to federal court, missing the deadline by over 850 days.

“Enbridge is plainly trying to game the system, but no oil company is above the law,” said Earthjustice Associate Attorney John Petoskey. “The 6th Circuit should remand this case to state court, where the attorney general’s claims can be swiftly resolved.”

NARF and Earthjustice represent Bay Mills Indian Community, Fond du Lac Band of Lake Superior Chippewa, Grand Traverse Band of Ottawa and Chippewa Indians, Keweenaw Bay Indian Community, Lac Vieux Desert Band of Lake Superior Chippewa Indians, Little River Band of Odawa Indians, Little Traverse Bay Bands of Odawa Indians, Match-E-Be-Nash-She-Wish Band of Pottawatomi, Nottawaseppi Huron Band of the Potawatomi Tribe, Saginaw Chippewa Indian Tribe, Sault Ste. Marie Tribe of Chippewa Indians, Bad River Band of the Lake Superior Chippewa, Grand Portage Band of Lake Superior Chippewa, Ho-Chunk Nation, Lac du Flambeau Band of Lake Superior Chippewa Indians, Leech Lake Band of Ojibwe, Menominee Indian Tribe of Wisconsin, Mille Lacs Band of Ojibwe, Minnesota Chippewa Tribe, Prairie Island Indian Community, Red Cliff Band of Lake Superior Chippewa, Red Lake Band of Chippewa Indians, St. Croix Chippewa Indians of Wisconsin, Stockbridge-Munsee Community Band of Mohican Indians, and the Anishinaabek Nation of Ontario as amici in this case.

The Tribes and First Nations are based in Michigan, Wisconsin, Minnesota, and Canada. All 12 of Michigan’s federally recognized Tribes have passed resolutions calling to decommission Line 5.

May 2023: UN Reports Recommends to Shut Down Line 5

The United Nations Permanent Forum on Indigenous Issues (UNPFII) released the draft report from its April 2023 session, where Bay Mills Indian Community and the Anishinabek Nation rebuked the Canadian government for protecting the Enbridge Line 5 pipeline. The report recommends that Canada and the United States decommission the Line 5 pipeline because of its impact on the region’s Indigenous communities.

The pipeline, which snakes oil and gas products from one part of Canada to another for processing, takes a short-cut through the Great Lakes in the United States. The route threatens the health and safety of tribal and other communities along its path.

The aging Line 5 pipeline already has leaked at least 33 times and discharged more than 1.1 million gallons of oil. The UNPFII draft 2023 report states:

“The Permanent Forum calls on Canada to re-examine its support for Enbridge Line 5 oil pipeline that jeopardizes the Great Lakes in the United States. The pipeline presents a real and credible threat to the treaty-protected fishing rights of Indigenous Peoples in the United States and Canada. The Permanent Forum recommends that Canada and the United States decommission Line 5.”

Canadian Prime Minister Justin Trudeau’s government has used diplomatic and legal channels to keep Line 5 operational. Canada’s advocacy intensified after Michigan Governor Whitmer determined that—for public safety—Enbridge should decommission the segment running through the Straits of Mackinac. The corporation ignored the Governor’s order and continues to operate Line 5 without a valid state easement. The Canadian government has supported Enbridge in federal court proceedings in Michigan.

“The U.N. Permanent Forum on Indigenous Issues recommendation adds to the chorus of voices demanding the decommissioning of Line 5. I hope President Biden and Prime Minister Trudeau hear everyone urging them to choose people over profit and protect 84% of North America’s fresh water from the risk of an oil spill, for their nations, our frontline communities, and the planet,” said BMIC President Whitney Gravelle.

Line 5 is an existential threat to treaty-protected rights, resources, and the fundamental way of life of the Anishinaabe people. Accordingly, all twelve Tribal Nations located in Michigan oppose the continued operation of Line 5 and support its decommissioning.

“One oil spill in the Great Lakes would be devastating to our home and way of life,” said BMIC President Gravelle.

February 2023: MPSC Learns Proposed Tunnel Project Creates Explosion Risks

On Feb. 3, 2023, the Michigan Public Service Commission (MPSC) received testimony that the Enbridge plan to dig a pipeline tunnel beneath the Straits of Mackinac could lead to an explosion. Geologist and engineer Brian O’Mara and pipeline safety expert Richard Kuprewicz testified that the release of oil from such an explosion would devastate the freshwater, wildlife, and shorelines of Great Lakes.

“I am very concerned about a methane explosion occurring in the proposed tunnel,” wrote engineering consultant Brian O’Mara in his testimony. “A methane explosion in a confined space like the tunnel project would be like a shotgun blast…”

The experts identified two sources of flammable gas present that could set off an explosion under the Straits: the crude oil and natural gas liquids transported through Line 5, and methane that could leak into the tunnel through groundwater. The testimony comes almost two years after Enbridge received a state order to shut down the existing Line 5 dual pipelines due to the company’s “persistent and incurable” violations.

After Kuprewicz first flagged the serious risk of an explosion in the tunnel during a hearing before the Commission last year, the Commission ordered Enbridge to provide more details about the tunnel’s safety features. Instead, Enbridge has submitted a probability analysis that attempts to dismiss the concerns as unlikely to occur.

Kuprewicz explains that downplaying the risks of an explosion in the tunnel project undermines federal pipeline safety regulations. “An operator who adopts this approach to the construction and operation of a pipeline will inevitably drive the line toward failure,” wrote Kuprewicz.

BMIC President Whitney Gravelle wrote in her additional testimony that Enbridge’s analysis “does not negate that fact that it could happen in year one of operation, or year two of operation, or year 99 of operation […] All it takes is one time and one spill to destroy my people and destroy all that we hold dear.”

The Native American Rights Fund and Earthjustice represent the Bay Mills Indian Community as an intervening party before the MPSC. An administrative law judge scheduled a hearing on this matter for April 11-14, 2023.

July 2022: 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.”

February 2022: 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.”

January 2022: 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:

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.”

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.

“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.

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

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.

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.”

May 2021: Bay Mills Indian Community Banishes Line 5 From Tribal Lands

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 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 2021:  Ruling On Scope of MPSCL Hearing Evidence 

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 2020: MPSC Calls Easement Revocation a Fundamental Change

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

“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.

November 2020: State Revokes Easement for Line 5

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 2020: Bay Mills Intervenes in Case Against Line 5

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 2020: Order to Temporarily Cease Line Operation

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 2020: Bay Mills Seeks to Intervene in Line 5 Fight

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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