Court Upholds Enbridge Line 5 Trespass Finding But Stops Short of Shutdown
A federal appeals court upheld a ruling that Enbridge is trespassing on portions of the Bad River Reservation with its Line 5 pipeline but sent the case back to the district court to reconsider the remedies, including the pipeline's removal timeline.
(P&GJ) — A federal appeals court has upheld a lower court's finding that Enbridge is trespassing on portions of the Bad River Reservation in northern Wisconsin by continuing to operate its Line 5 pipeline after easements on certain tribal allotment parcels expired.
However, the court sent the case back to the district court to reconsider the remedies, including an order requiring the pipeline's removal and other injunctive relief.
In a decision issued July 30, the U.S. Court of Appeals for the Seventh Circuit concluded that Enbridge lacks legal authority to continue operating Line 5 across 12 allotted parcels where easements expired in 2013. The court affirmed that the company is trespassing but determined the lower court must revisit the remedies imposed.
The dispute centers on approximately 12 miles of Line 5 that cross the Bad River Reservation. The pipeline transports more than 20 million gallons of crude oil and natural gas liquids each day between Superior, Wisconsin, and Sarnia, Ontario, as part of Enbridge's 645-mile Line 5 system serving refineries in the Midwest and Canada.
The Bad River Band sued Enbridge in 2019 after easements covering allotted tribal lands expired in June 2013. The tribe argued that Enbridge continued operating the pipeline without the required rights-of-way and cited erosion along the Bad River that could expose the pipeline and increase the risk of a spill.
A federal district court previously awarded the tribe more than $5.1 million in restitution, ordered Enbridge to continue disgorging a portion of its profits while Line 5 remained on the affected parcels, and directed the company to remove the pipeline from those lands. The district court also ordered Enbridge to implement enhanced monitoring and response measures to address erosion risks near the Bad River meander. Both sides appealed.
The appeals court agreed that Enbridge's continued operation across the allotted parcels constitutes trespass because the company no longer holds valid easements and did not obtain the tribal consent required for renewed rights-of-way.
"We agree that Enbridge is trespassing. We remand, however, to the district court to refashion the remedies it imposed for this violation."
The court also ruled that federal statutory law displaces the tribe's federal common-law nuisance claim, overturning that portion of the district court's decision.
In reaching its decision, the court rejected Enbridge's argument that a 1992 agreement required the Bad River Band to consent to renewed easements over the allotted parcels. The panel found the agreement applied only to separate tribal parcels covered by a 50-year easement that remains in effect until 2043 and did not obligate the tribe to approve future rights-of-way on subsequently acquired allotted lands.
The opinion leaves unresolved what remedies ultimately will apply while Enbridge continues pursuing a proposed reroute of Line 5 around the reservation, a project that remains subject to state and federal permitting.