For the Anishinaabe people of the Bay Mills Indian Community, the Straits of Mackinac are Michilimackinac, the Place of the Great Turtle. Where Lake Huron meets Lake Michigan, the community says, is a sacred space, and commercial and subsistence fishing and hunting there still keep most of the tribal nation’s citizens economically afloat.
That is the ground under a long dispute over Enbridge’s Line 5 oil pipeline and the tunnel the company wants to build around it. The account below follows the Native American Rights Fund (NARF), which represents Bay Mills with Earthjustice, so these are the tribe’s side of the case.
Permits and a revoked easement
NARF says Enbridge is pursuing tunnel project permits despite a 2020 state order to stop operating, and without a valid lease for the submerged lands. It says Line 5 has leaked at least 33 times, discharging more than 1.1 million gallons of oil. Michigan granted permission for the original pipeline in the 1950s, according to NARF, without consulting the tribes or seeking public input.
The legal fight began in earnest on May 11, 2020. NARF and Earthjustice filed a petition for Bay Mills to intervene before the Michigan Public Service Commission (MPSC), which is weighing the tunnel. Enbridge had argued that its 1953 easement let the project skip any added review, including review of environmental impacts.
On June 25, 2020, a judge granted Michigan Attorney General Nessel a temporary restraining order. It required Enbridge to stop operating the roughly 4-mile section of Line 5 that crosses the bottom of the Straits. The ruling came a week after Governor Whitmer learned of significant damage to the pipeline. The judge wrote that the risk of harm was “so substantial and irreparable” that the danger “far exceeds the risk of financial loss” to Enbridge.
In August 2020, a Michigan administrative law judge let Bay Mills take part as a party in the MPSC case. Then, on November 13, 2020, Whitmer and Department of Natural Resources Director Dan Eichinger told Enbridge that the state would revoke and terminate the 1953 easement.
Tribal President Bryan Newland said Bay Mills was “thrilled and thankful” for the decision. NARF says Enbridge has refused to comply with the order and keeps running the line.
The commission’s response
On December 9, 2020, the MPSC ruled that the easement revocation was a “fundamental change” for its decision on a tunnel permit. It asked an administrative law judge to consider how this affects the scope of the proceeding.
In February 2021, a judge issued a narrower ruling on evidence. On February 23, 2021, the judge excluded evidence on whether the public needs Line 5 extended with a new tunnel, on the environmental risks of the whole pipeline, and on climate impacts. Whitney Gravelle, who by then was Bay Mills’ president, said she was “deeply disheartened” by the exclusion.
Gravelle had earlier put the tribe’s stake this way, as in-house counsel: “By failing to consider the dangers Line 5 poses to treaty-fishing rights, cultures, and traditions of the Anishinaabe, we risk killing the heart of Turtle Island, the heart of North America.”
