Nessel draws broad support from tribal nations, businesses and other states in Line 5 suit

A coalition of tribal nations from across the Midwest and Canada on Monday submitted a brief supporting Michigan Attorney General Dana Nessel’s argument to move her lawsuit to shut down Enbridge’s Line 5 pipelines back to state court. 

The U.S. Sixth Circuit Court of Appeals will weigh arguments as to whether Nessel’s case should be heard in federal or state court, following a motion from Enbridge to have the suit moved to federal court. While Nessel’s initial request to remand the case back to state court was denied, Federal Judge Janet Neff granted Nessel’s appeal of her decision to keep the case in federal court. 

The coalition of 63 tribal nations, led by the Bay Mills Indian Community, are represented by Earthjustice and the Native American Rights Fund, with their brief arguing the pipelines pose an unacceptable risk of spill into the Great Lakes.

‘We’re still here’: Indigenous water protectors call for Enbridge to respect treaty rights

Enbridge’s Line 5 runs for 645 miles from Northwest Wisconsin into Michigan’s Upper Peninsula, under the Straits of Mackinac, through the Lower Peninsula into Sarnia, Canada, and transports about 23 million gallons of crude oil and liquid natural gas daily.

“Near and far, Anishinaabe people have united to protect the Great Lakes,” Whitney Gravelle, president of the Bay Mills Indian Community said in a statement. “We stand behind Attorney General Nessel because we know that shutting down Line 5 is the only way to protect everyone who depends on the land, water, and natural resources within the Great Lakes, including Anishinaabe people exercising our treaty rights.”

Five of the tribal organizations signed on to the brief hold treaty rights in the Straits of Mackinac. 

Bay Mills and other tribal nations have hunted and fished and gathered medicine for thousands of years. In 1836, several Anishinaabe tribes ceded vast acres of land and water to the U.S. Government in return for the guarantee that the Tribal Nations would retain the right to hunt, fish gather and continue living as Anishinaabe in the ceded territory. 

“That 1836 treaty guarantees these Tribes the right to maintain their way of life in the ceded territory — a right that will be irrevocably destroyed if an oil spill from the dual pipelines contaminates the waters and aquatic life of the Straits,” David Gover, managing attorney for the Native American Rights Fund, said in a statement.

All 12 of Michigan’s federally recognized Tribal Nations have passed resolutions calling for the decommissioning of Line 5. 

In addition to her support from the coalition of Tribal Nations, Nessel also received support in briefs filed by For Love of Water (FLOW), an environmental group focused on protecting the Great Lakes, and the Great Lakes Business Network, a group of more than 200 businesses that rely on the Great Lakes. 

Nessel’s appeal also received support from 12 states and the District of Columbia, including Connecticut, Delaware, Hawaii, Illinois, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island and Washington. In their brief the states said the case presents legal issues related to when a defendant can remove a case filed by a state official to enforce state law to federal court.

“I am grateful for the support of this extraordinary coalition of citizens, businesses, and governments,” Nessel said in a statement. “It is encouraging to know that so many share my concern about protecting the Great Lakes.”

Enbridge will have until Oct. 18 to file a response. Nessel then has 21 days to reply. Once briefing has concluded the Court of Appeals will either hold oral arguments or decide the case based on the submitted briefs. 

Enbridge Spokesperson Ryan Duffy previously told the Advance in an email that while the Court of Appeal’s decision to hear arguments on whether the case belongs in state or federal court, they were confident the court would agree the case belongs in federal court.