PUC Commissioner makes strong case against Line 3 plan and strengthens legal cases poised to stop it

Commissioner Matt Schuerger.

After years of research, testimony, organizing, letter writing, pleas, protests, and other public pressure by Indigenous Nations, environmental groups and regular citizens, one Minnesota Public Utilities Commission (PUC) Commissioner came around to vote “no” on Enbridge’s proposed Line 3 tar sands pipeline expansion.

Commissioner Matthew Schuerger’s lone “no” vote Monday didn’t change the outcome; the PUC approved Line 3’s Certificate of Need and Route Permit on 3-1 votes. Significantly, however, Schuerger’s arguments will lend credibility to the pending lawsuits seeking to overturn the PUC’s ill-considered decisions. Continue reading

Anishinaabe ‘Rights of Manoomin’ Laws Create Legal Basis to Protect Sacred Wild Rice

‘This would be the first law to recognize the legal rights of a plant species

The White Earth Band of Ojibwe and the 1855 Treaty Authority are taking action to address the growing threats to native wild rice, such as potential crude oil pipeline spills or the spread of genetically modified wild rice. They are establishing new laws and claiming treaty rights to protect their culture and sacred food.

The 1855 Treaty Alliance was established to protect the treaty rights of Leech Lake, Mille Lacs, White Earth, East Lake and Sandy Lake bands. The Alliance covers those lands the Anishinaabe ceded as part of their 1855 Treaty with the United States. (Among those treaty rights, bands claim the right to hunt, fish and gather — including harvesting wild rice — on ceded lands.)

According to a media statement from the 1855 Treaty Alliance:

Recently the White Earth Band of Ojibwe and the 1855 Treaty Alliance adopted Rights of Manoomn for on and off reservation protection of wild rice and the clean, fresh water resources and habitats in which it thrives. The Rights of Manoomin were adopted because “it has become necessary to provide a legal basis to protect wild rice and fresh water resources as part of our primary treaty foods for future generations” …

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Episcopal Church Takes a Stand Opposing Line 3

The current Line 3 crosses the Leech Lake reservation. The proposed Line 3 reroutes to the south, but still crosses lands where Anishinaabe bands retain off-reservation rights to hunt, fish and gather.

The General Convention of the Episcopal Church is meeting in Texas this week, and today it passed a resolution supporting the Anishinaabe in exerting their treaty rights in opposition to Enbridge Line 3. (Saw the news on a Facebook Post by Rev. John Floberg, an Episcopal priest from North Dakota who stood with Standing Rock in opposing the Dakota Access Pipeline.)

The resolution says in part:

Resolved: That the Episcopal Church provide its historic moral standing among the indigenous peoples of Minnesota to stand with our congregations St. John’s in Onigum and St. Peter’s in Cass Lake, the Episcopal Church in Minnesota, our ecumenical partners and tribal governments to oppose the threat of pollution to sacred lands and the manoomin (wild rice) that has been given to these people to sustain them and provide a sovereign food source that nourishes body and soul. …

As a church we support prayerful, peaceful and non-violent approaches to express our concerns of the risks to the environment and the people of these territories. As a church we call on all elected officials to guide and direct their conduct to be above reproach. As a church we call upon all levels of government to support and honor treaty obligations. We believe the Ojibwe Bands of northern Minnesota are right to assert their opposition to the pipeline under the treaties that were made on their behalf by their ancestors.

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Leech Lake Band Opposes Option to Keep Line 3 Pipeline in the Same Trench

Enbridge’s current Line 3 route (blue) and Enbridge’s preferred route (red).

Part I of a series looking at Ojibwe Band response to Administrative Law Judge Ann O’Reilly’s report and recommendations on the Enbridge Line 3 tar sands pipeline.

Native American nations and their community members are not monolithic in their opinions. That fact becomes apparent when reading the Leech Lake Band of Ojibwe’s response to Administrative Law Judge Ann O’Reilly’s recommendations on the Enbridge Line 3 crude oil pipeline. According to Leech Lake’s May 9 letter:

The [Leech Lake] Band is different than the White Earth, Red Lake, Mille Lacs, and Fond du Lac Bands. The [Judge’s] Report fundamentally fails to understand this. The Band is again trying to make that clear so that the [Public Utilities] Commission will not miss the point, as well.

Two Kinds of Treaty Rights

The Enbridge Line 3 crude oil pipeline proposal affects two kinds of treaty rights:

First, each of the Ojibwe bands has treaty rights to operate as a sovereign government and control land. (The colonial term is “reservation.”) Second, they have treaty rights with the cumbersome title: “usufructuary rights.” This refers to rights to hunt, fish and gather on “ceded territory,” that is, lands outside of reservation boundaries. (These hunting and gathering rights are complicated.  More on this in a later blog.)

What is important from Leech Lake’s perspective is that Line 3 crosses its sovereign lands. (In fact, Line 3 runs in Enbridge’s Mainline Corridor which has a total of six pipelines. These pipelines also cross the Fond du Lac Reservation. Leech Lake and Fond du Lac are two of the seven sovereign Ojibwe Bands in Minnesota.)

Enbridge, a Canadian energy transportation company, has proposed a 1,000+ mile crude oil pipeline from Alberta to Superior Wisc., crossing northern Minnesota. It wants to reroute Line 3 through part of Minnesota, opening a brand new pipeline corridor to avoid Leech Lake and Fond du Lac lands. That route would still cross lands where various Ojibwe Bands have reserved “usufructuary” rights to hunt, fish and gather.

In-Trench Replacement Proposed

O’Reilly’s recommendations say if a pipeline is to be built, the best option is to remove the current Line 3 and rebuild in the same trench. She argues that plan has the environmental benefits of removing the old, decaying pipeline, and avoiding the environmental damage of opening a new pipeline corridor. The plan also has the economic benefit of creating jobs to remove the old pipeline, a project estimated to cost $1.2 billion.

Writing for the Leech Lake Band of Ojibwe, attorney Grace Elliott called O’Reilly’s plan “a terrible choice.”

Any suggestion of negotiation on in-trench replacement of Line 3 is offensive to the Band, whose sovereign government has legislatively passed an ordinance/resolution stating its official position against in-trench replacement. …

The Band does not accept the Report’s assumption that the Project’s impacts on off-reservation natural resources would have a greater negative socioeconomic impact on the tribal community than in-trench replacement of the pipelines across reservation lands.

Enbridge’s Mainline Corridor easements expire in 2029. Leech Lake’s letter said the Band won’t renew the agreement in 2029 “because it wants the pipelines removed as soon as possible.”

The Leech Lake Band said the impact of a new Line 3 “would be more favorable if the Commission approved a route outside the Reservation.”

The Band’s interests in this Project cannot be understated … With respect, the Band’s Reservation is different than ceded territories, and crossing the Reservation is different than crossing private property within a ceded territory …

‘Best and Most Plentiful Wild Rice Waters’

Leech Lake Band members harvest wild rice on Mud Lake. (Photo Courtesy of the U.S. Army Corps of Engineers through Creative Commons license.)

The Minnesota Public Utilities Commission is expected to vote on Line 3 in late June. It will rely on O’Reilly’s report for its deliberations.

The Leech Lake Band says that O’Reilly’s analysis is skewed, ignoring Line 3’s impacts on Leech Lake simply because the pipeline corridor already exists. The letter continues:

The Leech Lake Reservation has the best and most plentiful wild rice in the State. As [Leech Lake Band of Ojibwe Environmental Director Levi] Brown stated, ten percent of Minnesota’s fresh water lies within the Leech Lake Reservation boundaries, and Leech Lake has the most abundant wild rice resources. The existing Line 3 pipeline runs through the very heart of wild rice country where it crosses through the Leech Lake Reservation. …

The Leech Lake Band argues that rebuilding in the same trench “has the greatest impacts on wild rice of any alternative.”

Impacts on the Chippewa National Forest

O’Reilly’s report also fails to acknowledge the impact on the Chippewa National Forest of removing the old pipeline and installing a new one, the Band says. Leech Lake co-manages the Chippewa National Forest with the U.S. Forest Service. The current Line 3 affects 157 acres of that forest.

Elliot writes:

The Band has a memorandum of understanding with the U.S. Forest Service that was signed “to recognize treaty rights of tribes to hunt, fish, and gather wild plants on national forest lands.” Thus, to the extent [O’Reilly] was concerned about impacts on treaty rights, the record is clear that [the in-trench replacement plan] would have real and concrete impacts. The [PUC] should not ignore these facts.