‘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.)
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” …
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’
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.
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.
The Minnesota Department of Natural Resources (DNR) and the Minnesota Pollution Control Agency (MPCA) both weighed in on the Administrative Law Judge Ann O’Reilly’s report and recommendations on Line 3, clarifying, amplifying, and critiquing them.
Both agencies generally compliment Administrative Law Judge Ann O’Reilly’s report for being, as the DNR put it, “comprehensive” and “neutral.” Neither agency takes a position on how the Minnesota Public Utilities Commission (PUC) should vote on the Line 3 permits.
Still, the agency comments provide further illumination on why the PUC should reject Line 3. The DNR comments show that Enbridge’s current plans fails to provide adequate protections to northern Minnesota’s waters and environment. The MPCA comments reinforce O’Reilly’s critiques of the project’s risks.
To repeal legislation that ensures and maintains a level of sulfate entering our waters is illegal as well as negligent,” Budreau wrote. “Before the State considers throwing out water quality regulations in order to satisfy industry or commerce, we urge the State to honor the human rights of the Ojibwe Nations and people and treat us with respect.” …
“To repeal legislation that ensures and maintains a level of sulfate entering our waters is illegal as well as negligent,” Budreau wrote. “Before the State considers throwing out water quality regulations in order to satisfy industry or commerce, we urge the State to honor the human rights of the Ojibwe Nations and people and treat us with respect.”
Fifth in a series of critiques of the Minnesota Department of Commerce’s final environmental impact statement (EIS) on Enbridge Line 3, a proposal to expand and reroute a tar sands crude oil pipeline through northern Minnesota. Commerce is taking public comments on the adequacy of the EIS until 4:30 p.m. Oct. 2. To learn how to submit comments, click here.
The Minnesota Department of Commerce got swamped with comments to its draft Environmental Impact Statement (EIS). Appendix T of the Final EIS chronicles the hundreds of pages of comments received and the hundreds of pages of the Department’s responses.
The final EIS is inadequate because some of the department’s responses do not adequately address the questions and criticisms raised by the public and government officials. Let’s look at a few examples.
The state’s point person working to elevate Native voices around a proposed crude oil pipeline in northern Minnesota has quit her job, citing a lack of transparency and good faith effort by the state, according to a story in The Intercept.
Danielle Oxendine Molliver, a member of the Lumbee tribe from North Carolina, worked as the tribal liaison for the Minnesota Department of Commerce, the lead agency in shepherding the Enbridge Line 3 project through the regulatory process. Line 3 would carry tar sands crude oil from Alberta, Canada to Superior, Wisconsin, traveling 337 miles through northern Minnesota.
Oxendine Molliver explained her decision to resign in a July 24 letter, quoted in The Intercept article.
“There are a multitude of reasons why I have come to this decision. The single most important one is the failure of the state of Minnesota to fulfill its obligations of good faith and fair dealing with the tribes in connection with the Line 3 project.”
She added, “I feel as though my resignation is the only option to maintain my integrity, commitment, and standing with the tribal communities as both a liaison and indigenous woman.”
It is the latest controversy over Enbridge Line 3. In related news, the first non-violent direct action against Enbridge Line 3 is set for Cloquet this Monday. Here is a link to the event page.