Biden Administration Slams Enbridge for Ongoing Trespass on Bad River Reservation But Says Pipeline Treaty With Canada Must Be Honored
Biden Administration Slams Enbridge for Ongoing Trespass on Bad River Reservation But Says Pipeline Treaty With Canada Must Be Honored
Court should increase “paltry” $5 million payment for the Wisconsin tribe, but balancing tribal sovereignty and a binding international agreement is “not a simple matter,” DOJ says.
By Phil McKenna
April 11, 2024
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The U.S. Department of Justice weighed in on a federal court case between the Bad River Band of the Lake Superior Tribe of the Chippewa Indians and Canadian pipeline giant Enbridge in a legal brief that offered both good and bad news to the northern Wisconsin tribe. The tribe is seeking the removal of an aging petroleum pipeline from its reservation.
The brief, filed to the 7th Circuit Court of Appeals and made public on Wednesday, reaffirmed a portion of the prior court ruling in stating that Enbridge is “consciously trespassing on tribal land.” The pipeline company continues to operate its Line 5 pipeline on the Bad River reservation 11 years after portions of its 12-mile easement through the reservation expired.
However, the Department of Justice went further, criticizing the U.S. District Court for the Western District of Wisconsin, which made the initial ruling, for only awarding the tribe a “paltry amount that permits Enbridge to profit handsomely from its trespass.”
In June 2023, Judge William Conley awarded the tribe $5.1 million in restitution for 10 years of past and ongoing trespass by Enbridge. Since 2013, the company netted more than $1 billion in “ill-gotten gains” associated with Line 5, according to the DOJ.
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The Department added that allowing Enbridge’s action to continue “sends a troublesome message to others who may want to trespass on Indian lands that they may retain a substantial amount of their profits that are appropriately attributable to the trespass.”
The Department recommended that the 7th Circuit Court of Appeals, which is now hearing the case, send it back to the District Court for reconsideration, including providing additional money for the tribe, though the department did not suggest a specific dollar amount.
While the DOJ was unequivocal in its views on Enbridge’s trespass and the need for additional financial compensation for the tribe, the department noted that the fate of the 71- year-old pipeline on the reservation presented a thornier challenge.
At issue are two competing U.S. treaties, one with the tribe, the other with Canada.
The 1854 treaty between the United States and the Bad River Band, one of six bands of the Chippewa Nation, established their reservation. The treaty provides the tribe the power to “exclude or place conditions on Enbridge’s continued presence on tribal lands within the Reservation,” the department wrote in an unusually long, 70-page brief to the court.
However, the U.S.-Canada Pipeline Transit Treaty of 1977 ensures the uninterrupted transmission of hydrocarbons by pipeline between the two countries.
Judge Conley ruled in 2023 that Enbridge had three years to either reroute the pipeline or otherwise prepare for its shutdown. Enbridge is seeking state and federal permits for a reroute through wetlands that skirt the reservation’s boundary, a process that could take more than three years and has no guarantee of success.
If Enbridge is forced to shut down its pipeline before alternate transit can be secured, the U.S. risks violating a treaty with one of its top trading partners and may be subject to “substantial monetary damages,” the DOJ noted.
“We are grateful the US urged the court not to let Enbridge profit from its unlawful trespass,” Chairman Robert Blanchard of the Bad River Band said in a prepared statement. “But we are disappointed that the US has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand.”
Enbridge spokeswoman Juli Kellner said an immediate shutdown would negatively impact millions of people who depend on Line 5 for energy in both the U.S. and Canada.
“Enbridge continues to work diligently to find an equitable and amicable solution with the Bad River Band that recognizes the Band’s sovereignty and addresses their concerns while also allowing the continued delivery of vital energy that millions of people rely on every day throughout the Great Lakes region,” Kellner said. “Enbridge does not intend for operations to remain on the Bad River Reservation a moment longer than it takes to relocate the segment of Line 5 around the Reservation.”
“We appreciate that leaders in both Ottawa and Washington are engaged in the Treaty resolution process and recognize Line 5 is critical energy infrastructure,” Kellner added.
The Department of Justice noted in its brief that a court order allowing Enbridge to trespass perpetually would not be justifiable, but added that “devising the appropriate remedy for this trespass in this case is not a simple matter.”
“We’re hopeful that the Seventh Circuit will decide that a decade is more than enough to endure a trespass, and will order a quick end to Enbridge’s illegal activity,” Riyaz Kanji, an attorney who represents the Band in this case, said in a written statement.
Line 5 is a 645-mile pipeline from Superior, Wisconsin, to Sarnia, Ontario. The 30-inch diameter pipe transports up to 540,000 barrels per day of crude oil and natural gas liquids that originate further upstream in western Canada before flowing through Wisconsin and Michigan and then back into Canada in Ontario. The Bad River Band filed its lawsuit against Enbridge in 2019 after erosion from a severe flood reduced the banks of the Bad River to within 28 feet of the buried pipeline.
The tribe and its fight against Enbridge is gaining increasing media attention. Bad River, a documentary about the tribe and the pipeline, was released in theaters across the U.S. last month and will be available for streaming on Monday, April 22—Earth Day—on Comcast’s Black Experience on Xfinity.
Pat Parenteau, an emeritus professor at Vermont Law and Graduate School, characterized the Department of Justice’s long anticipated brief as “well done” and “labored” as it tried to balance two competing sovereign interests.
However, striking an appropriate balance, something the DOJ is now asking the District Court to do, will not be easy.
“I wouldn’t want to be this judge,” Parenteau said. “I, honest to God, don’t know how you balance all this out.”
The 1977 pipeline treaty with Canada, which Enbridge cited in its appeal of the District Court ruling, had rarely, if ever, been invoked in prior legal disputes and had been written off by some as a “Hail Mary” attempt by Enbridge. This week’s brief from the Biden Administration makes it clear that the pipeline treaty cannot be dismissed.
Parenteau noted that the pipeline treaty’s origin was largely driven by then-Sen. Ted Stevens (R-Alaska), who sought a pipeline that would deliver natural gas from Alaska to the lower 48 states. Stevens wanted to ensure that, if built, the flow of gas wouldn’t be interrupted by Canada, Parenteau said.
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The treaty was signed in 1977, but the pipeline sought by Stevens was never built. Now, more than 40 years later, pipelines from Canada ship large volumes of crude oil, including diluted bitumen, or diluted tar sands oil, from Alberta across the border into the U.S.
“I don’t think, at the time Stevens was talking about getting gas from Alaska, anybody knew about the massive deposits of bitumen in Alberta, where this stuff is coming from,” Parenteau said.
In its brief, the DOJ also opposed a nuisance complaint raised by the tribe and granted in the District Court ruling. The complaint focused on the potential for imminent rupture of the pipeline due to erosion along the banks of the Bad River. The Department argued that the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration displaces tribal authority in making such a determination and had deemed the pipeline safe.
The tribe strongly disagreed.
“Line 5 remains an urgent threat, not only to the Band’s fishing and gathering, but also to the health and welfare of our people and our neighbors,” Blanchard said. “We trust that the appeals court will not strip away the hard-fought protections that we have secured for the Bad River watershed and Lake Superior through this litigation.”
It is time to write a narrative about dictatorship. Towards the end of Steven Beschloss's Substack message on 5/10, he wrote: "If Trump is convicted in his hush money/election interference case, we can expect more Republicans and other fence-sitters to abandon him. Recall a February Reuters/Ipsos survey which found that 51 percent of Republicans claimed they would not vote for Trump if he’s a convicted felon. That number may ultimately be overstated. But it’s a reminder that November’s outcome remains in the hands of voters, even if the courts don’t hold Trump accountable and top Republicans continue to spread disinformation and telegraph to voters their unwillingness to support our democratic project."
The key words are the "November's outcome remains in the hands of voters." Yes, we need another seven-million voter-advantage that mirror's the Biden lead in the 2020 election. However, this lead did not change Trump's lies, violence, and the insurrection. He did not accept the outcome of that election and he again will not accept or swallow the results in 2024 if he looses. Most of us already know this. What that means is still unknown.
Donald Trump cannot deal with reality, and has a typical cult-like leadership mentality. Jim Jones, also thought of himself as God, and he amassed a following of about 900 individuals. He ordered them all to drink Kool Aid laced with poison and they all perished. Trump's followers, of which over 800 have been convicted of crimes and many are now in prison, have experienced the same level of coercive mind control as the people who followed Jim Jones. With his "us-versus-them mentality" most of the Trumpers are now in a state of blind loyalty.
The dark and dangerous world of mind manipulation was first used in totalitarian countries about 100 years before - Germany, Austria, Italy, Russia, China, and so on. The Holocaust is the best-known example of brainwashing. Hitler converted an entire peaceful country into mass murderers using slogans of hatred toward others - just like Trump. Brainwashing is defined as telling lies over and over until it is perceived as the truth. (wikipedia) Once converted, a person has little or no independent thought. Over six million people were tortured and killed in Germany. In Russia, Stalin murdered over twenty million humans. Donald Trump's threatening behavior, disturbing words, and his duplication of Putin/Hitler's leadership methodologies echoes other treacherous historical crises and mass murders.
This is not a coincidence, it is learned behavior combined with a long list of personality disorders. He learned it from Putin who spent his spy years in East Germany. Trump is caught up in a complex web. He truly believes that "only he can fix America," without grasping the basic concepts/events that formed the United States. He talks about re-writing or scrapping our Constitution, but his many-sided destructiveness over-rides the true meaning of how a democratic country operates. The only option then is a dictatorship.
A dictatorship can be defined by a list of words: tsarism (Russia), despotism, autocracy, totalitarianism, oppression, Nazism (Germany), and domination. The word that jumps out to me is "oppression." Can you envision the United States having: (1) No public media. All TV channels and newspapers are government and dictator-controlled. All sources of information are inhibited. (2) No independent and free enterprise. MicroSoft, Walgreens, Utilities and all other corporations are privately retained by the dictator who receives a large percentage of the profits. and (3) Security services are combined (CIA, DIA, FBI, DOJ, and others) into one organization controlled by the dictator and will mimic the gestapo who reported on private citizens, arrested and imprisoned innocent people, murders were rampant, and fear was contagious. Anyone not loyal to the "leader" may be murdered: poisoned, shot, thrown out windows in tall buildings, etc. A vote for Donald Trump is a vote for a dictatorship. He has openly admitted to preferring this form of government without an inkling of what that means. Our entire Congress would operate from fear and there would no longer be a two party system. Trump has already amassed a group of people - gangsters - who threaten anyone (and their families) who opposes him. The askew aptitudes of the Supreme Court judges already has demonstrated proclivities and partialities toward Trump, and other judges have also succumbed to delivering asymmetric justice. Many across the U.S. have lost faith in our system of justice. And during the Trump impeachment, many Republicans voted our of fear of Trump's revenge. Gonzales (R) Ohio voted to impeach. Then due to death threats, he refused to run for re-election and hired 24 hour protection for his family.
Trump sold his soul and our country to the Russians decades ago. Trump followed Putin's example in his role-out of a meticulously planned and savage PR campaign, similar to what happened in Moscow after the bombing of several apartment buildings - a maneuver to perpetuate apprehension and terror. It resulted in a national sense of emergency and instilled fear. The financial scandal surrounding Yeltsin was pushed to the sidelines, and Putin was thrust to the front lines. Officially, the blame was assigned to the separatist rebels and Chechnya independence fighters, but in the "unofficial" word on the street, Russian people said these bombings were like the Stalin purges. Putin has been compared to Stalin, and he appears to appreciate this assessment. "Could Putin's security men have bombed their own people - hundreds died in these bombings - in a cynical attempt to create a crisis that would ensure Putin took the Presidency?" (Putin's People, by Catherine Belton). This type of deception is widely known in Russia and other dictatorship countries. This is exactly why I questioned the mass shooting at the Crocus in Moscow as Putin-inspired, or even the container ship who lost power and rammed into a a major bridge in Baltimore - the same waterway passage used by military transports and aid to Ukraine and Israel. The FBI is investigating, but my question is who was working on the ship's engine right before that ship left it's dock?
In 2024, Trump is still saying the 2020 election was stolen. He used these words after the 2016 election and said "Clinton stole the popular vote from him." (www.npr.org) How many times can he twist the same lie? Trump began traveling to Russia in 1987. He became entangled with Russian business men who were all later found to be KGB operatives. This is a period when Trump was buried in debt and at the same time, the KGB was searching for new ways to transfer black cash into the U.S. instead of just bank transfers. Bayrock Group, founded with all KGB men as a real estate firm, was housed in a Trump-owned building, one floor below the Trump Organization at 725 Fifth Avenue in New York. They offered Trump multi-million dollar real estate deals and bailed him out of another bankruptcy. He was hooked. Both Trump elder sons have confirmed that the Trump Organization has received about $100M from Russian banks. (www.businessinsider.com). Russian banks are 100% controlled by the KGB/FSB and give funds to foreigners to either filter black cash into another nation's economy or to entrap the foreigner to work for Russia. Russian banks also gave more than nine million dollars to Marie LePen who is the foremost presidential opposition leader in France so she could overthrow the French government.
Republican voters across the U.S. think they are supporting their political party - the same party as Abraham Lincoln. Instead, they are voting to instill a man who has been compromised by Russian KGB/FSB and who will turn our nation into a Putin-owned and operated dictatorship. Also in Putin's People, Belton states: "Even as Trump ramped up his bid for the presidency, the same Russian network stepped up its courtship of him... In a letter to Michael Cohen, Sater (Bayrock) boasted that they would build a tower in Moscow that would be Europe's tallest building and would bring Trump a $100M licensing deal. Sater promised to leverage all of his Kremlin connections to get it done. The letter said he would get Putin on this program, and we will get you (Trump) elected." (ibid) The rest is history, except the role of William Barr in squashing the Mueller Report - a two-year $32 million dollar (www.cnn.com) investigation into the 2016 Russian interference of our election and the Trump relationship to Russia. Why did Barr preempt the publication of that report with false conclusions? Twelve Russians were arrested, but nothing changed and Trump was elected to the presidency with enormous Russian "behind the scenes" support, cyber attacks, hacking, propaganda, and misinformation fed to the American public. The Russians have openly said that U.S. election interference will continue. Believe them. Will this Russian election interference win the election again for Trump?
Since 1993, I have been saying to anyone who would listen that the Cold War did not die. In Putin's People, (Revenge of the KGB, page 479) Catherine states: "Putin's security men reveled in Trump's victory. To many, it seemed like revenge for the Soviet collapse (which Russians blame on the U.S.) 'While the West was playing James Bond . . .we turned our attention to gaining respect... When the West thought the Cold War competition was over, they lost respect for their opponent (Russia). Now they are waking up to this again."
This upcoming election is critical. If Trump wins, we all loose.
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Elizabeth Graham spent 20 years living and working as the senior manager of U.S.-based nonprofits in six dictator countries. She wrote From Democracy to Democrazy as a warning to all Americans. It is a bestseller book on Amazon.
http://www.democrazy2020.org