Manoomin (wild rice) is suing the DNR in White Earth Tribal Court

Manoomin (wild rice), the White Earth Nation, and others are suing the Minnesota Department of Natural Resources (DNR) in White Earth Tribal Court over the DNR’s decision to approve excessive dewatering as part of Enbridge Line 3 pipeline construction.

Those speaking on behalf of Manoomin, the lead plaintiff, said Manoomin requires water to live and thrive and the Line 3 dewatering threatened its very existence during a severe drought.

Power Point slide by The Center for Democratic and Environmental Rights

This falls in line with a growing number of Rights of Nature cases.

As Indian Country Today explained, the Rights of Nature argument “recognizes that nature has rights just as human beings have rights; rather than treating nature as property under the law, rights of nature cases contend that nature, rivers, forests and ecosystems have the right to exist, flourish, maintain and regenerate their life cycles. Further, humans have a legal responsibility to enforce those rights.

In December 2018, the White Earth’s business committee 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,” according to the Stop Line 3 website.

Frank Bibeau, White Earth Tribal Attorney, and Thomas Lenzey, Senior Legal Council for The Center for Democratic and Environmental Rights (CDER), spoke on a webinar this week to update viewers on the case.

The Manoomin lawsuit against the state relies both on the Tribal law and treaty law. Treaties gave Anishinaabe bands “usufractuary rights,” or the right to hunt, fish, and gather on the lands they ceded to the United States.

The complaint has six counts, five of which rely on treaty law, and the last of which relies on Rights of Manoomin:

Count 1: Treaty Rights override the claims of ownership with respect to Manoomin, and wild plants/animals in the public waters and public lands of ceded treaty territories.

Count 2: State has “taken” treaty recognized usufractuary property without due process, as required by the U.S. Constitution.

Count 3: State has treated different treaties differently, thus violating equal protection guarantees of the U.S. Constitution.

Count 4: Water rights unjustly seized and taken pursuant to the 4^th Amendment to the U.S. Constitution. [The 4th Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …”]

Count 5: State has violated religious/cultural rights by failing to adequately train state staff, in the lawful status of federal treaty rights.

Count 6: State violated the rights of Manoomin by permitting 5 billion gallons of water to be taken, with such taking of water affecting Manoomin’s ability to exist and flourish.

The Center for Democratic and Environmental Rights

The lawsuit seeks to have the state of Minnesota: “Rescind all water appropriation permits issued for the Line 3 project; and establish joint permitting agreements between the State and the Chippewa for all future permitting.”

The case was filed in Tribal Court Aug. 4.

The state of Minnesota argued the Tribal Court had no jurisdiction. It appealed to Tribal Court to dismiss the case and lost. The state next appealed to federal district court to dismiss the case. It lost again.

The state then appealed to the 8^th Circuit Court of Appeals. It will hear the case Dec. 16.

To watch the webinar, click here.

Dewatering

Line 3 crosses more than 200 waterbodies and 78 miles of wetlands. In the many wet areas, Enbridge needed to dewater trenches to keep them dry enough to work.

The DNR initially approved Enbridge’s request to dewater 510 million gallons. After construction started, it asked the DNR for a nearly ten-fold increase in dewatering to 5 billion gallons. The DNR quietly approved it, with no public input.

In particular, White Earth and Red Lake said they weren’t adequately consulted about the DNR’s decision to increase dewatering, the Star Tribune reported.

It seems hard to believe that a company like Enbridge, with an army consultants at its disposal, could have been so far off estimating its dewatering needs, especially during a drought which should have decreased the need. My suspicious side thinks that Enbridge knew that getting permission to dewater 5 billion gallons would have been a tough sell initially, so it low-balled the estimate and asked for the increase after construction started.

Rights of Nature

White Earth’s suit is the second rights of nature case in the United States and the first in Tribal Court.

The first U.S. case started in Orange County, Fla. last April, “when the state’s waterways filed suit against a housing developer and the Florida Department of Environmental Protection,” Indian Country Today reported. “The suit says that a proposed residential development will destroy acres of wetlands.”

Rights of Nature cases are nothing new internationally.

Ecuador’s highest court ruled unconstitutional plans for copper and gold mines in a protected cloud forest, saying they violated the Rights of Nature, Cuenca High Life, an expat news source in Ecuador, reported.

In a landmark ruling, the Constitutional Court of Ecuador decided that mining permits issued in Los Cedros, a protected area in the northwest of the country, would harm the biodiversity of the forest, which is home to spectacled bears, endangered frogs, dozens of rare orchid species and the brown-headed spider monkey, one of the world’s rarest primates.

Cuenca High Life, Dec. 3

The 300 kilometer Magpie River in Eastern Quebec, or the Muteshekau Shipu (in the Innu language), also has been granted rights, according to a Feb. 23 story in Observatoire Nature.

The Regional County Municipality of Minganie and the Innu Council of Ekuanitshit agreed by resolution to grant the river nine rights, it said:

“1) The right to live, exist and flow; 2) the right to respect its natural cycles; 3) the right to evolve naturally, to be preserved and to be protected; 4) the right to maintain its natural biodiversity; 5) the right to maintain its integrity; 6) the right to perform essential functions within its ecosystem; 7) the right to be protected from pollution; 8) the right to regeneration and restoration; 9) the right to take legal action.”

Observatoire Nature