It’s part of Manoomin (wild rice) litigation before White Earth Appeals Court
The construction of Enbridge Line 3 tar sands pipeline resulted in as many as six aquifer breaches, in addition to the three we already know about.
That information was included in a Friday filing with the White Earth Appeals Court by Manoomin (wild rice), the White Earth Band of Ojibwe, and others. It was part of a formal request that the court reconsider their complaint against the Minnesota Department of Natural Resources (DNR) for granting Enbridge massive dewatering permits to build Line 3. That dewatering damaged Manoomin and harmed the well being of White Earth residents, the filing said.
The White Earth Court of Appeals dismissed the case March 10. Plaintiffs have provided new information to bolster their motion for reconsideration.
The DNR has made public three Line 3-related aquifer breaches.
- Jan. 21, 2020: Line 3 workers breached an aquifer in Clearbrook County. It released at least 57 million gallons of groundwater over a one-year period before Enbridge got around to fixing it.
- Aug. 2: Workers breached an aquifer at Line 3’s LaSalle Creek crossing in Hubbard County. It released 10 million gallons of groundwater.
- Sept. 10: Workers breached an aquifer in St. Louis County near the Fond du Lac Reservation. It released 220 million gallons of groundwater and counting. (The breach is not yet completely fixed, the DNR reported March 21.)
Many have questioned whether the DNR did its due diligence to monitor Line 3 construction and identify all aquifer breaches. The White Earth Band hired a drone operator to get aerial footage along Line 3’s route. It used “high-definition thermal imaging” to identify “upwelling groundwater,” the court filing said. The upwelling of groundwater could indicate additional aquifer breaches.
An initial analysis of those images show as many six new sites the DNR hasn’t identified, the court filing said. Researchers are planning field verification. Final thermal imaging reports will be available this summer.
Manoomin’s court filing includes a report from Geologist Jeffrey S. Broberg, who is familiar with northern Minnesota’s hydrology. His goal was to “identify risks to Manoomin that were not adequately addressed in State and Federal Permits and where Tribal Consultation might have helped avoid and/or mitigate risks.”
According to Broberg’s report:
Enbridge initially sought to dewater 510 million gallons along Line 3’s route. Enbridge returned to the DNR later seeking permission to dewater 5 billion gallons, a massive increase. This happened during a drought and without tribal or public input.
Broberg found no evidence in the public record that anyone reviewed the ecological impacts of such a massive dewatering increase before approving Enbridge’s 5 billion gallon request.
“As a professional geologist this raises significant concerns about the standards of care Enbridge and the State/Federal regulators used in assessing impacts to wild rice along the route,” Broberg wrote.
Between Enbridge, state and federal regulators, no one was concerned about sustaining healthy wild rice Line 3’s route, he wrote.
Seeking reconsideration of Manoomn lawsuit in White Earth Appeals Court
Plaintiffs made three arguments about why the White Earth Appeals Court should reconsider their complaint against the DNR:
- The Court didn’t properly apply tribal law.
The Appeals Court dismissed the case because the dewatering itself didn’t occur on tribal lands, the plaintiffs said. Yet the core issue isn’t where the dewartering happened but where the harm occurred. Plaintiffs cited the tribe’s lower court ruling, that White Earth’s Judicial Code said harm could include “actions taken off the reservation that impact on-reservation rights.”
2. The Court’s Order Failed to Adequately Consider On-Reservation Impacts to Manoomin.
As one example, the plaintiffs said the dewatering harmed Lower Rice Lake — “the Band’s crown jewel” of wild rice beds.
DNR’s dewatering permit resulted in impacts “observable in the rice lakes and other waters and wetlands in the region,” according to a report by Renee Keezer, Pesticide Coordinator at the White Earth Department of Natural Resources. “The water levels in Lower Rice Lake on the White Earth Reservation are so low that it will be difficult if not impossible to harvest wild rice.”
The motion to reconsider seeks a declaration that DNR has “intentionally and knowingly violated the Rights of Manoomin” by unilaterally granting 5 billion gallons dewatering permit without official notice to tribes or tribal consent.
Plaintiffs also seek injunctive relief to prevent DNR from “further, continued waste of fresh water resources, both surface and groundwater,” on reservation and across the ceded territories. That water is necessary “for the Manoomin to live and flourish; and so tribal members may enjoy their rights to harvest manoomin[.]”
3. New Evidence Relating to DNR’s Activities Warrants Reconsideration. This includes the evidence of additional aquifer breaches described above.