Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.258 Page 1 of 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) Case No. 1:16-cv-00914-GJQ-ESC v. ) ) Hon. Gordon J. Quist ENBRIDGE ENERGY, LIMITED ) PARTNERSHIP, et al., ) ) Defendants. ) ___________________________________ ) OBJECTION, DEMAND FOR TRIBAL CONSULTATION, AND REQUEST FOR EXTENSION OF COMMENT DEADLINE UNTIL 90 DAYS AFTER COMPLETION OF THE TRIBAL CONSULTATION PROCESS Grand Traverse Band of Ottawa and Chippewa Indians William Rastetter Tribal Attorney 420 E. Front Street Traverse City, MI 49686 231-946-0044 bill@envlaw.com Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.259 Page 2 of 9 Objection, Demand for Tribal Consultation, and Request for Extension of Comment Deadline Until 90 Days After Completion of the Tribal Consultation Process Introduction This pleading is filed by the undersigned counsel for one of the intervening-plaintiff Indian Tribes in the United States v. Michigan litigation (W.D. Mich. Case No. 2:73-cv-00026). Usufructuary rights reserved by the Indian Tribes in the March 28, 1836 Treaty of Washington (7 Stat. 491) – including fishing rights within the Straits of Mackinac through which Line 5 of Enbridge's Lakehead pipeline system extends – are the subject matter of the United States v. Michigan litigation which has been pending in this Court since 1973. Separately the 1836 Treaty Tribes and others are submitting comments pursuant to the process prescribed in the notice published July 25, 2016 in the Federal Register (81 Fed. Reg. 48462). In part the purpose of this pleading is to notify this Honorable Court and the parties that – to the extent that terms of the Enbridge Line 6 settlement address Line 5 matters – the 1836 Treaty Tribes have an interest in the subject matter of the above-captioned litigation including claims under the Clean Water Act ("CWA") 1 pertaining to Line 5 as it extends through the Straits of Mackinac as well as inland portions of the 1836 Treaty cession. The proposed consent decree filed July 20, 2016 purportedly deals with Line 6; but there are provisions addressing Line 5. 2 The 1836 Treaty Tribes' immediate concern is whether the Line 5 provisions might preclude the Tribes (and/or the United States as trustee for the Tribes) from litigating CWA and/or other potential claims against Enbridge with respect to the imminent 1 2 See PageID.2-3. See paragraphs 67-73 (pp. 75-80), paragraphs 81-83 (pp. 85-86), and paragraph 122 (p. 12526). PageID.105-110, 115-116, 155-156. Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.260 Page 3 of 9 likelihood of a catastrophic failure of Line 5 within the Straits of Mackinac 3 adversely affecting the Tribes' treaty-reserved property rights to the fishery resources. Had the 1836 Treaty Tribes been informed that the DOJ and EPA were including Line 5 issues in the discussions with Enbridge concerning settlement of Line 6 claims – and had the Tribes been consulted as required by federal law and policy – then it would not be necessary to request an extension of the comment period. Yet despite prior knowledge of the 1836 Treaty Tribes' concerns regarding Line 5, 4 DOJ and EPA negotiated and apparently resolved Line 5 issues within the Enbridge Line 6 settlement – a settlement that directly impacts the Tribes' legally-protected interest in the subject matter of any Line 5 litigation. 5 But the 1836 Treaty Tribes never had an opportunity to consider possible intervention in the above-captioned civil action because no notice existed until the complaint was filed on July 20, 2016, and because the DOJ and EPA breached their trust responsibility to 3 "There exists an imminent risk of catastrophic harm to one-third of North America's surface water that is Lakes Michigan and Huron (one lake)." Exhibit 9, July 27, 2016 statement of Stanley ("Skip") Pruss, former Chief Energy Officer for the State of Michigan, former director of the Michigan Department of Energy, Labor and Economic Growth, former deputy director of the Michigan Department of Environmental Quality, and former Assistant Attorney General. http://5lakesenergy.com/other-hidden-costs-of-line-5/ See also https://www.nwf.org/pdf/Great-Lakes/NWF_SunkenHazard.pdf ("Sunken Hazard: Aging oil pipelines beneath the Straits of Mackinac an ever-present threat to the Great Lakes"). 4 See section II.B., infra at pages 6-7; see also Exhibits 4A, 4B & 4C; 5, 5A, 5B & 5C; 6; 7; and 8. 5 See order entered August 5, 2016 in Eastern District of Michigan Case No. 2:16-cv-11727 [Doc # 25] granting intervention as parties-plaintiff to two of the 1836 Treaty Tribes in the litigation captioned National Wildlife Federation v. Administrator of the Pipeline and Hazardous Materials Safety Administration; Line 5 is the subject matter of this case. Exhibit 10 is the Rule 24 motion and brief [Doc # 21] filed July 15, 2016 establishing, in the words of FED.R.CIV.P 24(a), that the 1836 Treaty Tribes have "an interest relating to the property or transaction" of any litigation involving portions of Line 5 extending through the 1836 Treaty cession area including the Straits of Mackinac. 3 Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.261 Page 4 of 9 consult with the 1836 Treaty Tribes. Pursuant to the motion enacted July 28, 2016, by the Chippewa Ottawa Resource Authority, the 1836 Treaty Tribes object to the proposed consent decree to the extent that it addresses Line 5 matters, demand consultation as required by the federal trust responsibility, and request an extension of the comment deadline until 90 days after completion of the tribal consultation process. I. 1836 Treaty Tribes' legally-protected interest in subject-matter of Line 5 litigation The Chippewa Ottawa Resource Authority ("CORA") is comprised of five Indian Tribes signatory to the March 28, 1836 Treaty of Washington (7 Stat. 491): Bay Mills Indian Community, Sault Ste. Marie Tribe of Chippewa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, and Little Traverse Bay Bands of Odawa Indians (collectively, "the 1836 Treaty Tribes"). 6 In the 1836 Treaty these Tribes reserved off-reservation fishing rights in the Great Lakes including the Straits of Mackinac that have been confirmed by the federal courts, see United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979), aff'd. 653 F.2d 277 (6th Cir. 1981), cert. denied, 454 U.S. 1124 (1981). 7 In the 1836 Treaty these Tribes also reserved usufructuary fishing, hunting, trapping and gathering rights in inland portions of the cession that were confirmed by the November 2, 2007 Consent Decree (Dkt. 1799 in W.D. Mich. Case No. 2:73-cv-00026). 8 6 See Exhibit 5 (Declaration of Jane TenEyck) and attached Exhibits 5A, 5B & 5C. 7 A map of the portions of Lakes Michigan, Huron and Superior in which the 1836 Treaty Tribes possess treaty-reserved fishing rights is designated as Exhibit 1; see also United States v. Michigan, 471 F. Supp. 192, at 277 (W.D. Mich. 1979). 8 A map of the 1836 Treaty cession in which the 1836 Treaty Tribes possess inland treatyreserved usufructuary rights is designated as Exhibit 2 (Appendix A at page 69 of November 2, 2007 Consent Decree, 2:73-cv-00026 PageID.1654). 4 Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.262 Page 5 of 9 The 1836 Treaty Tribes' treaty-reserved fishing rights in the Great Lakes' fishery resources (including Straits of Mackinac) "are property rights protected by the United States Constitution." Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, 971 F. Supp. 282, 288 (W. D. Mich. 1995), aff'd. 141 F.3d 635 (6th Cir. 1998), cert. denied, 525 U.S.1040 (1998). These property rights in the treatyreserved fishery resources in Lakes Michigan, Huron and Superior (and in particular the Straits of Mackinac) are likely to be adversely impacted by inevitable discharges of oil from Line 5, see Exhibit 3 (Declaration of Mark Ebener); see also footnote 3, supra at page 2. Similarly, the 1836 Treaty Tribes have property rights in treaty-reserved fauna and flora resources within inland portions of the 1836 Treaty cession area through which Line 5 extends including rivers and streams tributary to Lakes Michigan, Huron and Superior that also are likely to be adversely impacted by inevitable discharges of oil from Line 5. II. Objection: Breach of Trust Responsibility A. U.S. v. Michigan litigation With respect to the federal government's trust responsibility in the context of these Tribes' 1836 Treaty-reserved rights, see United States v. Michigan, supra, 471 F. Supp. at 205, 218 and 228. See also the Department of the Interior's web site: "The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and http://www.bia.gov/FAQs/ 5 Alaska Native tribes and villages." Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.263 Page 6 of 9 B. DOJ and EPA awareness of 1836 Treaty Tribes' concerns re: Line 5 The federal government's trust responsibility obligation and concomitant duty to consult with Tribes is not dependent upon a request initiated by Tribe(s). This duty flows from "the solemn obligation of the federal government" to protect "[t]he treaty-guaranteed fishing rights preserved to the Indians in the 1836 Treaty." United States v. Michigan, 653 F.2d 277, 278 (6th Cir. 1981). Nonetheless, the breach of the trust responsibility in this particular situation is even more egregious because both the Department of Justice ("DOJ") and Environmental Protection Agency ("EPA") had been apprised specifically about the 1836 Treaty Tribes' concerns regarding Line 5. 1. DOJ ENRD -- The DOJ Environmental & Natural Resources Division ("ENRD") represents the 1836 Treaty Tribes in the United States v. Michigan litigation (W.D. Mich. Case No. 2:73-cv-00026); the docket of that case reflects that ENRD attorneys John Turner and Steven Miskinis currently are counsel of record for the 1836 Treaty Tribes. -- Three other ENRD attorneys represent the defendant in the National Wildlife Federation v. Administrator of the Pipeline and Hazardous Materials Safety Administration litigation 9 (E.D. Mich. Case No. 2:16-cv-11727); and by virtue of May-July correspondence with undersigned counsel and the Rule 24 pleadings filed July 15, 2016 (Exhibit 10) in that litigation, ENRD counsel are aware of 1836 Treaty Tribes' legally-protected interest in subject-matter of any Line 5 litigation. 9 See appearances filed as Docs.10, 12, and 24 in Eastern District of Michigan Case No. 2:16cv-11727. 6 Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.264 Page 7 of 9 -- The complaint and proposed consent decree filed July 20, 2016 in the United States v. Enbridge (Line 6) litigation are signed by an Assistant Attorney General (ENRD) and two additional ENRD attorneys. -- Both the United States Attorney for the Western District of Michigan and the Assistant United States Attorney who signed the complaint and proposed consent decree filed July 20, 2016 in the United States v. Enbridge (Line 6) litigation also currently represent the 1836 Treaty Tribes in the United States v. Michigan litigation (W.D. Mich. Case No. 2:73-cv-00026). 2. EPA There have had numerous interactions with EPA staff in the 1836 Treaty Tribes' efforts seeking enforcement of the National Environmental Policy Act ("NEPA") to Enbridge's Line 5 construction activities within the Straits of Mackinac. See, e.g., Exhibit 4A (EPA's December 1, 2014 letter); Exhibit 4B (memo to EPA prompting December 1, 2014 letter); and Exhibit 4C (December 16, 2014 email to Army Corps of Engineers). C. DOJ & EPA policy (Office of Tribal Justice July 7, 2016 consultation letter) The validity of the 1836 Treaty Tribes' objection is confirmed by Exhibit 11, the July 7, 2016 letter from the Office of Tribal Justice inviting Tribal Leaders to participate in consultation with DOJ and EPA regarding a proposed settlement of another litigation. If generic "tribal consultation" is appropriate in the VW settlement, then specific consultation certainly is required for the 1836 Treaty Tribes whose treaty-reserved rights are impacted by aspects of the proposed litigation settlement addressing Line 5 issues. 7 Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.265 Page 8 of 9 III. Demand for Tribal Consultation Because the 1836 Treaty Tribes have a legally-protected interest in the subject-matter of any litigation involving portions of the Line 5 pipeline extending through the 1836 Treaty cession, and because the proposed consent decree addresses Line 5 matters, the 1836 Treaty Tribes demand that DOJ and EPA engage in tribal consultation before implementing the current version of the consent decree. IV. Request for Extension of Deadline for Comments Due process requires the deadline for comments to be extended for a reasonable time beyond completion of the tribal consultation process as is authorized by paragraph 207 (PageID.190) and 28 C.F.R. § 50.7. V. Preliminary Concerns Upon information and belief, other comments are being submitted regarding the proposed consent decree raising concerns about the Line 5 provisions. Among those concerns is Enbridge's contention that any construction activities on Line 5 contemplated in the proposed consent decree are not subject to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., by virtue of the nationwide permit ("NWP") authorized by the Army Corps of Engineers. This contention is not valid; see, e.g., the complaint 10 filed July 27, 2016 in the District of Columbia District Court in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, Case No. 1:16-cv-01534; see also Exhibit 4C. Again, had there been prior consultation with the 1836 Treaty Tribes by the Department of Justice and Environmental Protection Agency, this concern could have been thoroughly discussed with representatives of 10 http://earthjustice.org/sites/default/files/files/3154%201%20Complaint.pdf 8 Case 1:16-cv-00914-GJQ-ESC ECF No. 7 filed 08/23/16 PageID.266 Page 9 of 9 these agencies acting as the Tribes' trustee. Moreover, the Department of Justice currently acts as counsel for the 1836 Treaty Tribes in the United States v. Michigan litigation; yet the same DOJ counsel have acted contrary to the 1836 Treaty Tribes' interests in negotiating and filing the Enbridge Line 6 complaint and proposed consent decree on July 20, 2016 without any tribal consultation. Presumably this was an oversight that still can be corrected – if implementation of the proposed consent decree is extended for a reasonable time beyond completion of the tribal consultation process as is authorized by paragraph 207 (PageID.190) and 28 C.F.R. § 50.7. Respectfully submitted: Grand Traverse Band of Ottawa and Chippewa Indians Dated: August 23, 2016 /s/ William Rastetter William Rastetter Tribal Attorney 420 E. Front Street Traverse City, MI 49686 231-946-0044 (telephone) 231-946-4807 (fax) bill@envlaw.com 9