DNR takes fight against novel Line 3 lawsuit to federal appeals court

Having lost one key federal court decision, state natural resource regulators this week went to a higher court to stop a unique Line 3-related lawsuit from moving forward.

The suit, which names "manoomin" or wild rice as the lead plaintiff, is aimed at forcing the Minnesota Department of Natural Resources (DNR) to rescind water permits it made earlier this year for the construction of Enbridge's new oil pipeline across the northern part of the state.

The White Earth Band of Ojibwe filed the suit last month in White Earth Tribal Court in northwestern Minnesota. The DNR then asked for a federal injunction to halt the suit, saying the White Earth court doesn't have jurisdiction over the state.

On Sept. 3, U.S. District Judge Wilhelmina Wright in St. Paul ruled against the DNR, saying White Earth, its tribal court and an individually named tribal member are protected from the state suit by "sovereign immunity."

The Department of Natural Resources Monday asked the St. Louis-based 8th U.S. Circuit Court of Appeals to overturn Wright's decision.

"No federal case has ever held that that trial courts have jurisdiction over state officials engaged in the administration of state regulatory programs, let alone for projects located off-reservation," the DNR said in its appeal.

Frank Bibeau, an attorney for the White Earth Band, said the lower U.S. court correctly found that it lacked authority to intervene in the DNR's favor. The DNR "is just trying to hold things up," he said.

Indeed, an appeals court decision may not occur until November, and Enbridge's 340-mile pipeline could be finished by then. It's already 90 percent complete, and Calgary-based Enbridge has said it expects to start shipping oil from Canada in the fourth quarter.

Once oil starts flowing, efforts to rescind the DNR's water permits — since they are related to the pipeline's construction — could be moot.

White Earth, along with some other Ojibwe bands and environmental groups, accuse the DNR of failing to protect the state's water by allowing Enbridge to pump up to 5 billion gallons of groundwater near construction trenches during a devastating drought.

In early June, the DNR approved Enbridge's request to move 10 times as much water as originally planned. The DNR concluded that Enbridge's increase in "dewatering" — temporarily moving water from the construction site — was necessary for the safety of workers in the pipeline's trench.

When construction dewatering is done, Bibeau said that Enbridge still must do hydrostatic testing of Line 3, which involves forcing water at high pressure down the pipeline to look for leaks.

"I think there is still a lot of water that they are going to need," he said.

The White Earth suit against the DNR, challenges all of the agency's water permits — not just the "dewatering" during construction, Bibeau added.

The lawsuit is the first "rights of nature" case to be brought in a tribal court, and the second such case to be filed in any court in the United States. Manoomin, which grows in water, is sacred in Ojibwe culture, and a traditional source of food.

The $3 billion-plus pipeline will replace Enbridge's current Line 3, which is corroding and operating at only 51 % of capacity. New Line 3, which partially follows a new pipeline route, will restore the full oil flow, and Enbridge says it is a significant safety improvement.

Environmental groups and Ojibwe tribes say the new pipeline will open a new region of Minnesota's lakes, rivers and streams to contamination from oil spills, as well as exacerbate climate change.