The White Earth Band of Ojibwe urged a tribal appeals court to prevent the Minnesota Department of Natural Resources from issuing additional Enbridge Pipeline water permits before independent investigators can assess the ongoing damage created after pipeline crews ruptured an aquifer and repeatedly allowed drilling chemicals to leach into surrounding waters.
In a motion filed Friday in the White Earth Band Court of Appeals, counsel for the tribe said an injunction was necessary in view of the state’s failure to monitor the Line 3 Pipeline project or halt the unlawful activities that led to the breach, which is causing the loss of over 100,000 gallons of groundwater a day and turning surrounding soils into mud and quicksand. According to the tribe, DNR documents indicate that the agency knew about the January aquifer breach prior to granting the 5 billion gallon water permit and intentionally waived the right to a contested case proceeding in order to keep the incident quiet.
The tribe filed its request in response to the DNR’s interlocutory appeal in an ongoing lawsuit against the agency in tribal court. The White Earth Band first sued the state in tribal court on August 5, claiming that the DNR violated constitutional and treaty rights by granting water use permits for the $2.9 billion Enbridge pipeline expansion through Minnesota. After losing a bid to dismiss the case on the basis of sovereign immunity, the DNR filed an interlocutory appeal in tribal court and sought a federal court injunction to reverse the decision and halt the lawsuit. U.S. District Judge Wilhelmina M. Wright dismissed the case for lack of jurisdiction in a decision that was later upheld by the Eighth Circuit.
On Friday, the tribe said the DNR’s lax oversight allowed Enbridge contractors to rupture an underground aquifer near the Clearbrook Terminal pipeline intersection in January 2020, causing severe and possibly irreversible environmental damage to surrounding wetlands. Then the agency unilaterally approved Enbridge’s 5 billion gallon water permit application in June without an evidentiary hearing and with only two weeks’ notice to a handful of tribe members, preventing the White Earth Band from participating in any public process, according to the motion.
DNR records show that it approved the Line 3 water permit on June 4, over five months after the breach. On September 16, the agency issued a $3.32 million penalty and restoration order for the breach, which occurred when Line 3 workers abandoned shallow excavation plans, digging 18-foot trenches and using support structures during excavation that reached depths of 28 feet.
The resulting “uncontrolled flow of groundwater” into the trenches is ongoing and puts nearby rare wetlands in jeopardy, the agency said in a press release.
By the time the DNR issued its restoration order, the damage had been ongoing for eight months. “I think they’re trying to make it look like they’re in control of things,” Frank Bibeau, White Earth Band member and counsel for the tribe, told Law360. “I don’t think they are, because this stuff is active,” he said. According to the motion Friday, the breach has so far caused a loss of 24 million gallons of groundwater at a rate of 106,000 gallons a day.
“If there ever was a time for people to come and stop Line 3, we need people power now, while the environmental damage is as obvious as it is,” Bibeau said.
The tribe told the court Friday that an evidentiary hearing “would have alerted the public and tribes to the aquifer breach months ago” and also would have alerted the public to the DNR’s lack of oversight.
In addition to the breach, Enbrige failed to report multiple ‘frac-outs,’ in which drilling chemicals were released into the Clearwater and Mississippi headwaters, the tribe said.
“The core principles of environmental and water resource protection are prevention guided by accurate plans, design and permit compliance, and early detection and reporting of problems,” the tribe said. “All three principals failed at the Clearbrook terminal, Line 3 aquifer rupture, frac-outs, and water appropriation amendments. The MNDNR was faced with a massive undertaking and failed.”
Enbridge was initially granted a 500 million gallon water use permit in December 2020, after assuring the DNR that its boring machines would not go deeper than twenty feet above the pressured aquifer.
“The litany of regulatory failures and unabated environmental problems draws us to conclude that the Line 3 pipeline should have never been permitted. Line 3 construction has already proven to be a clear and present danger to the future of our water resources.”
Representatives for the Minnesota Department of Natural Resources did not immediately reply to requests for comment Monday.
Minnesota is represented by Colin Patrick O’Donovan and Oliver J. Larson of the state Attorney General’s Office.
The tribes are represented by Frank W. Bibeau of the White Earth Band and Joseph Plumer of Plumer Law Office.
The case is Minnesota Department of Natural Resources v. Manoomin et al., in White Earth Band Tribal Court of Appeals.
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