Case: 3:19-cv-00602-wmc (2026)

Tribal code

Ask Donna

What actually matters in this document.

Text

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 1 of 57

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BAD RIVER BAND OF THE LAKE

SUPERIOR TRIBE OF CHIPPEWA

INDIANS OF THE BAD RIVER

RESERVATION,

Plaintiff,

ENBRIDGE ENERGY COMPANY, INC.,

and ENBRIDGE ENERGY, L.P.,

Defendants.

Case No. 3:19-cv-00602-wmc

Judge William M. Conley

ENBRIDGE ENERGY COMPANY, INC.,

and ENBRIDGE ENERGY, L.P.,

Counter-Plaintiffs,

BAD RIVER BAND OF THE LAKE

SUPERIOR TRIBE OF CHIPPEWA

INDIANS OF THE BAD RIVER

RESERVATION and NAOMI TILLISON,

in her official capacity,

Counter-Defendants.

BAD RIVER BAND OF THE LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS’

MEMORANDUM OF LAW IN OPPOSITION TO ENBRIDGE’S MOTION TO STAY OR

MODIFY INJUNCTION

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 2 of 57

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................4

II.

Enbridge Asks This Court To Act Far in Excess of the Limits It Has Recognized on Its

Own Authority While an Appeal Is Pending........................................................................4

Federal Rule of Civil Procedure 62(d) Governs Enbridge’s Motion for a Stay and

Forecloses Enbridge’s Requested Relief. .................................................................4

This Court Lacks the Authority To Grant a Stay Pending Certiorari. ......................7

Even If This Court Addresses Enbridge’s Motion on the Merits, Enbridge Has Fallen

Far Short of Making the Necessary Showing for a Stay. .....................................................9

Enbridge’s Recycled Arguments Do Not Establish a Likelihood of Success on

the Merits. ..............................................................................................................10

Enbridge Says Nothing To Undermine this Court’s Conclusion that It

Cannot Allow for a Prolonged or Indefinite Trespass on the Band’s

Lands. .........................................................................................................10

The United States Has Said Nothing To Increase Enbridge’s Chances

of Success on Trespass Liability. ...............................................................13

Neither the Transit Treaty nor the Foreign Affairs Doctrine Provides

Any Basis To Stay the Injunction. .............................................................15

Enbridge Will Not Suffer Cognizable Irreparable Injury from the Denial of a

Stay.........................................................................................................................18

Issuance of a Stay Will Cause Substantial Injury to the Band. ..............................20

The Band Will Suffer Significant Harm from a Stay of the Shutdown

Order. .........................................................................................................20

The Band’s Valid, Constitutionally Protected Objections to the Reroute

Do Not Weigh in Favor of a Stay. ..............................................................26

The Public Interest Weighs Against a Stay of the Injunction. ...............................29

Protecting Tribal Sovereignty and Treaty Rights Serves the Public

Interest........................................................................................................29

Case: 3:19-cv-00602-wmc

III.

Document #: 748

Filed: 02/13/26

Page 3 of 57

The Market Will Readily Adjust to the Shutdown. ....................................32

Refineries Can Replace Nearly All Their Line 5 Deliveries

Without Large-Scale Infrastructure Investment and with

Negligible Impact on Gasoline Prices............................................34

Large-Scale Infrastructure Investments Are Likewise Not

Necessary To Replace Line 5-Derived Propane. ...........................40

Enbridge’s Narrative About the Market Has No Basis in

Evidence. ........................................................................................44

The United States’ Relationship with Canada Does Not Weigh in Favor

of Staying the Injunction............................................................................48

Relief Under Federal Rule of Civil Procedure 62.1 Would Only Ensure Delay and Chaos

in this Case. ........................................................................................................................50

CONCLUSION ..............................................................................................................................52

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 4 of 57

INTRODUCTION

Enbridge’s Motion to Stay should be denied on jurisdictional grounds alone. As this

Court held in United States v. Spectrum Brands, Inc., 15-cv-371, 2018 WL 502736 (W.D. Wis.

Jan. 19, 2018) (Conley, J.), a case nowhere cited by Enbridge, a court proceeding on a stay

motion once an appeal has been taken must act with keen awareness of the limitations on its

authority. In particular, the court cannot take any action that would materially interfere with the

appellate process. That is precisely what Enbridge asks this Court to do. The Seventh Circuit is

currently considering the propriety of this Court’s trespass injunction. Enbridge would have this

Court wrest that decision away from the Circuit and suspend the injunction itself, substantially

altering the issues before the Circuit for resolution. Spectrum Brands and a host of additional

case law warn against Enbridge’s suggested disregard for jurisdictional boundaries.

Enbridge’s stay motion is jurisdictionally infirm for a second reason. Enbridge asks this

Court to suspend its injunction through the Supreme Court certiorari process. But a district court

can at most stay a decision through appeal. Once an appeal is resolved, it is for the Court of

Appeals to determine whether to stay its ruling further. And a proper understanding of this

limitation on the district court’s authority highlights the pointlessness of Enbridge’s Motion. The

Seventh Circuit currently has the validity of the shutdown date squarely before it. If it determines

that law or equity requires it to stay or modify the injunction, it can choose to do so, without this

Court having to guess whether the Circuit will opt for such a course of action.

Accordingly, this Court need not reach the merits of Enbridge’s motion. Should it

nevertheless choose to do so, it will find that the motion fails on each of the four criteria for a

stay pending appeal.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 5 of 57

First, the Motion falls far short of establishing the likelihood of success on appeal.

Enbridge simply rehashes its arguments on trespass liability, the Transit Treaty, and the foreign

affairs doctrine. And it ignores entirely this Court’s considered reasoning as to why it cannot

bless a prolonged or indefinite trespass on the Band’s lands. Repetition and avoidance do not

suffice to justify the extraordinary remedy of a stay.

Second, the Motion fails to establish that Enbridge will suffer irreparable harm absent a

stay. Coming into compliance with the law does not qualify as irreparable harm, even if

accompanied by the loss of revenues or goodwill.

Third, Enbridge’s claim that its continuing trespass on the Band’s Reservation is causing

the Band no harm defies both law and reality. This Court has already held that the trespass

interferes substantially with the Band’s rights both as property owner and as sovereign. And

while Enbridge attempts to paint a benign picture of its presence on the Reservation, the

declarations of Band Chairwoman Elizabeth Arbuckle and Mashkiiziibii Natural Resources

Department Director Naomi Tillison tell a very different story. They document that since this

Court’s decision in 2023, the Band has needed to expend substantial time and resources to guard

against a catastrophic pipeline rupture on the Reservation. The installation of log jacks in the Bad

River to slow erosion at the meander, and of a check valve to reduce the amount of oil that will

spill in the event of a pipeline rupture, predictably caused significant damage to Reservation

resources and required the expenditure of thousands of hours of Band time in devising the

projects and working with Enbridge to ensure their proper implementation. If the pipeline is to

remain in operation on the Reservation, further projects will be required, draining additional

resources and causing further damage.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 6 of 57

In addition, as Chairwoman Arbuckle recites, the conflict engendered by Enbridge’s

presence on the Reservation has “led to the slow, painful tearing apart of the fabric of a

community …. The three years of additional trespass that the Court has already allowed for

Enbridge have been three long years for our community.” Decl. of Chairwoman Elizabeth

Arbuckle (“Arbuckle Decl.”) ¶ 27. The time has come for these harms to end.

Fourth, and finally, the public interest militates against suspension of the injunction.

There is a strong public interest in the vindication of tribal treaty and self-governance rights,

especially where those rights have been honored in the breach for years. Enbridge counters, as it

did in 2023, that economic catastrophe will result from the shutdown of the pipeline. The Band

and its experts, Enbridge claims, predicted that significant infrastructure spending would occur in

the face of a shutdown order. That has not occurred, so according to Enbridge the trespass must

continue.

The narrative does not hold up. The Band and its experts have consistently demonstrated

that the vast majority of the crude oil and natural gas liquids conveyed by Line 5 can be replaced,

at very little additional cost and in a matter of months, through the use of existing infrastructure.

Enbridge attempts to obscure this reality by making wildly exaggerated claims about the harms

that will accompany a shutdown on schedule. But those claims do not withstand even the

slightest scrutiny and are frequently defeated by the analysis of Enbridge’s own experts.

And even if Enbridge were right that more significant infrastructure investments are

necessary, it would ironically be making a powerful case for this Court to adhere to the shutdown

deadline. Extension of the date will only mean that the market will not be incentivized to adjust

to a world without trespass, ensuring that the trespass will continue indefinitely. Only if they take

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 7 of 57

a deadline seriously will Enbridge and its refinery customers pursue the avenues readily

available to them to replace Line 5 product.

Accordingly, while this Court cannot and should not reach the four-factor stay test

because of jurisdictional concerns, doing so should still lead to the rejection of Enbridge’s

Motion.

ARGUMENT

Enbridge Asks This Court To Act Far in Excess of the Limits It Has Recognized on

Its Own Authority While an Appeal Is Pending.

Federal Rule of Civil Procedure 62(d) Governs Enbridge’s Motion for a Stay

and Forecloses Enbridge’s Requested Relief.

In support of its Motion for a Stay, Enbridge cites several rules that do not apply, while

never citing Federal Rule of Civil Procedure 62(d), which does. 1 Enbridge’s Motion cites

Rule 62(b) as a basis for relief. Mot. (Dkt. 707) at 1; Enbridge Br. (Dkt. 708) at 5. But that rule

applies only to stays of monetary judgments, not injunctive relief. Nearly thirty years ago, Judge

Easterbrook explained that where “‘an order to do, rather than an order to pay,’” is at issue, “the

rationale as well as the text of Rule 62[(b) 2] is inapplicable.” Ill. Bell Tel. Co. v. WorldCom

Techs., Inc., 157 F.3d 500, 502 (7th Cir. 1998) (quoting Donovan v. Fall River Foundry Co., 696

F.2d 524, 526 (7th Cir. 1982)); see also ABS Glob., Inc. v. Inguran, LLC, 14-cv-503, 17-cv-446,

2022 WL 2390186, at *9 (W.D. Wis. July 1, 2022) (Conley, J.) (stating that Rule 62(b) governs a

“stay [of] a monetary judgment”) (quotation marks omitted).

See also Canada Amicus Br. (Dkt. 736) at 10 (concurring in Enbridge’s statement of legal

standards); cf. U.S. Statement of Interest (Dkt. 738) (citing no procedural basis for stay).

Discussing then-Rule 62(d), now Rule 62(b) following the 2018 reorganization of the Rules.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 8 of 57

Federal Rule of Civil Procedure 62(c)(1), see Enbridge Br. (Dkt. 708) at 5, is also

irrelevant, as it provides only that a “final judgment in an action for an injunction” is not

automatically stayed.

It is instead Rule 62(d) that governs. The rule is titled plainly: “Injunction Pending an

Appeal.” Its provisions govern the power of the district court to “suspend, modify, restore, or

grant an injunction” “[w]hile an appeal is pending from a[] … final judgment that grants … an

injunction[.]” Fed. R. Civ. P. 62(d). And as this Court held in United States v. Spectrum Brands,

Inc., 15-cv-371, 2018 WL 502736 (W.D. Wis. Jan. 19, 2018) (Conley, J.), Rule 62(d) motions

implicate important jurisdictional considerations—considerations which receive no attention in

Enbridge’s briefing, but which foreclose the relief it seeks here.

“[T]here is a general rule that the filing of a notice of appeal divests the district court of

jurisdiction over the matters appealed.” Ced’s Inc. v. U.S. EPA, 745 F.2d 1092, 1095 (7th Cir.

1984). Consequently, in considering a motion for a stay pending appeal in Spectrum Brands, this

Court was “very cognizant of the limitations on its authority,” 2018 WL 502736, at *2, and

recognized that district courts do not have free rein to alter their injunctions once an appeal has

been taken. “[I]t would seem, at minimum, that any injunctive action taken … pursuant to Rule

62[(d) 3] ‘must be designed to aid the appeal and, accordingly, may not materially alter the status

of the case on appeal.’” Id. at *1 (brackets in original) (citation omitted) (quoting Allan Ides, The

Authority of a Federal District Court To Proceed After a Notice of Appeal Has Been Filed, 143

F.R.D. 307, 322 (1992)); see also S & S Sales Corp v. Marvin Lumber & Cedar Co., 457 F. Supp.

2d 903, 906 (E.D. Wis. 2006) (same, and quoted by this Court in Spectrum Brands, 2018 WL

502736, at *1); Nat. Res. Defense Council, Inc. v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir.

Discussing then-Rule 62(c), now Rule 62(d) following the 2018 reorganization of the Rules.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 9 of 57

2001) (same); Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007 (6th Cir. 2003)

(“The distinction … is between actions that merely aid the appellate process and actions that

alter the case on appeal.” (quoting Ides, 143 F.R.D. at 323)).

The paradigmatic case for Rule 62(d) relief, in which a stay of an injunction truly can

“aid the appeal,” is where a stay is needed to allow the Circuit Court the chance to weigh in

before an injunction takes effect. See, e.g., United States v. Osage Wind, LLC, Court No. 4:14-cv00704, 2025 WL 678039, at *8 (N.D. Okla. Mar. 3, 2025) (staying injunction specifically to

ensure that “the appellate court has an opportunity to consider the case” before injunction goes

into effect); Holloway v. City of Virginia Beach, No. 2:18-CV-69, 2021 WL 3037410, at *2 (E.D.

Va. July 19, 2021) (stating that with a 62(d) motion “[t]he moving party effectively asks the court

to delay the implementation of its decision until the court of appeals has had an opportunity

to consider the validity of that ruling”); NextEra Energy Cap. Holdings, Inc. v. Walker, No. 1:19CV-626-LY, 2020 WL 13866485, at *1 (W.D. Tex. Mar. 13, 2020) (substantially same); see also

Nken v. Holder, 556 U.S. 418, 421 (2009) (“A stay… hold[s] a ruling in abeyance to allow an

appellate court the time necessary to review it.”). Here, by contrast, the appeal was briefed and

the Seventh Circuit heard oral argument more than two years ago. The Circuit Court is fully

aware of the upcoming shutdown date; indeed, last month Enbridge filed a letter with the Circuit

reminding it of the date and informing it of each of the purportedly changed circumstances

addressed in its Motion for a Stay. See Enbridge Rule 28(j) Letter, Bad River Band v. Enbridge

Energy Co., Nos. 23-2309, 23-2467 (7th Cir. Jan. 13, 2026). The Circuit is fully capable of

ensuring that the June 16 shutdown date does not take effect if that is what it decides the law or

equity requires.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 10 of 57

Enbridge’s motion would have this Court blow through the limits it has identified on its

own authority once a matter is pending in front of the Circuit. There can be no question that its

requested relief would “materially alter the status of the case on appeal,” Spectrum Brands, 2018

WL 502736, at *1 (citation omitted). Rather than determining the propriety of the June 16

shutdown date, the Circuit would instead be forced to consider the propriety of this Court’s

action suspending that date. Enbridge is in effect using this Court as a means of collaterally

attacking the Seventh Circuit for not having (yet) relieved it of the obligations of a shutdown

order that the Circuit has under active advisement. But this Court has properly recognized that it

does not sit in judgment of the Circuit. Granting a stay in this case would not “aid the appeal,”

id., but do just the opposite—it would interfere with an appellate process that is well underway.

As such, it would far exceed the “limitations on [this Court’s] authority,” id. at *2, and on this

basis alone Enbridge’s motion should be denied.

This Court Lacks the Authority To Grant a Stay Pending Certiorari.

Enbridge’s stay motion is foreclosed for a second, independent reason. Enbridge tells this

Court that it “should stay the part of its injunction requiring Enbridge to cease operation of Line

5 on June 16, 202[6]. The stay should continue through the Seventh Circuit’s issuance of the

Rule 41 mandate and any certiorari review by either party.” Enbridge Br. (Dkt. 708) at 26

(emphasis added). Enbridge cites no rule or precedent empowering the Court to issue a stay

extending beyond a decision of the Circuit, and none exists. The law is instead clear that this

Court cannot do what Enbridge asks.

In moving for a stay through certiorari, Enbridge effectively asks this Court to proclaim

that it will “refrain from any action on the Court of Appeal’s [yet-to-be issued] Mandate [if the

Circuit affirms the injunction] while waiting to see if the Supreme Court grants [a] yet-to-be-

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 11 of 57

filed petition and overturns the Seventh Circuit’s decision,” Snowden v. Henning, Case No. 19cv-01322, 2024 WL 128735, at *2 (S.D. Ill. Jan. 11, 2024). The motion would require the Court

“to determine whether four Justices would vote to grant certiorari, to balance the so-called stay

equities, and to give some consideration as to predicting the final outcome of the case in th[e

Supreme] Court,” Deaver v. United States, 483 U.S. 1301, 1302 (1987) (quotation marks and

citation omitted). Enbridge would thus obligate this Court to weigh the likelihood that its

injunction will be left intact by the Supreme Court if affirmed by the Court of Appeals, and to do

so without knowing the bases of the Circuit’s ruling. A district court plainly “is not in a proper

position to perform these analyses …. It is not an appropriate function for this Court to pass on

the likelihood that the ruling of a higher court will be accepted for review by the Supreme

Court.” Mister v. Ill. Cent. Gulf R.R. Co., 680 F. Supp. 297, 299 (S.D. Ill. 1988) (quoting

Studiengesellschaft Kohle, mbH v. Novamont Corp., 578 F. Supp. 78, 80 (S.D.N.Y. 1983)) (both

cited approvingly by A.F. Moore, 974 F.3d at 841).

And indeed, Enbridge’s stay request is foreclosed not only precedent but by statute:

[i]n any case in which the final judgment or decree of any court is subject to

review by the Supreme Court on writ of certiorari, the execution and enforcement

of such judgment or decree may be stayed for a reasonable time to enable the

party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay

may be granted by a judge of the court rendering the judgment or decree or by a

justice of the Supreme Court[.]

28 U.S.C. § 2101(f). “[B]y permitting only a judge of the court that rendered the reviewable

judgment or a justice to stay a judgment pending certiorari, § 2101(f) precludes a district judge

from doing so.” Snowden, 2024 WL 128735, at *2 (citation omitted); see also A.F. Moore, 974

F.3d at 839 (“Virtually every court to have considered this question has reached the same

conclusion.” (quoting Whitehead v. Frawner, Civ. No. 17-275, 2019 WL 4016334, at *1

(D.N.M. Aug. 26, 2019))).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 12 of 57

Enbridge’s stay motion is accordingly an exercise in procedural futility. At the very most,

this Court could grant a stay of its injunction up until the Seventh Circuit decision, but not

beyond. And it cannot do even that, as such a stay would “materially alter the status of the case

on appeal,” Spectrum Brands, 2018 WL 502736, at *1 (citation omitted), and hence would

exceed the limits this Court has recognized on its own authority. Id.

Enbridge is in effect suggesting that the Seventh Circuit is asleep at the wheel and will

not take action, one way or another, prior to the June 16 shutdown date, such that this Court

should insert itself back into the mix. But “[t]he purpose of the rule [divesting a district court of

jurisdiction once an appeal has been noticed] is to keep the district court and the court of appeals

out of each other’s hair.” Matter of Jones, 768 F.2d 923, 930–31 (7th Cir. 1985) (Posner, J.,

concurring). No basis exists for Enbridge’s suggestion that the Circuit requires this Court’s

supervision and, as this Court has properly recognized, no authority exists for it to so act in any

event.

II.

Even If This Court Addresses Enbridge’s Motion on the Merits, Enbridge Has

Fallen Far Short of Making the Necessary Showing for a Stay.

Under the traditional standard for staying an injunction pending appeal, a court must

consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other parties interested in the proceeding; and (4)

where the public interest lies.” Nken, 556 U.S. at 426 (citation omitted); Ohio v. EPA, 603 U.S.

279, 291 (2024) (same); see also Doe v. Gundersen Lutheran Health Sys., Inc., 23-cv-694, 2024

WL 1270798, at *1 (W.D. Wis. Mar. 26, 2024) (Conley, J.) (same). The moving party bears the

burden of showing that these factors justify a stay. Nken, 556 U.S. at 433–34. Enbridge has not

met its burden under any of these prongs.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 13 of 57

Enbridge’s Recycled Arguments Do Not Establish a Likelihood of Success on

the Merits.

If Enbridge’s merits arguments look familiar, that is because they are. Enbridge rehashes

its arguments on trespass liability, the Transit Treaty, and the foreign affairs doctrine (all of

which it has raised with the Circuit), while failing to call into question this Court’s holding that it

cannot allow for a prolonged or indefinite trespass on the Band’s lands. Despite what Enbridge

“appears to think, this Court’s opinions are not intended as mere first drafts, subject to revision

and reconsideration at a litigant’s pleasure,” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123

F.R.D. 282, 288 (N.D. Ill. 1988). Enbridge presents nothing new that would warrant this Court’s

reconsideration of its prior, sound conclusions.

Enbridge Says Nothing To Undermine this Court’s Conclusion that It

Cannot Allow for a Prolonged or Indefinite Trespass on the Band’s

Lands.

In issuing its trespass injunction, this Court

conclude[d] that the Band is ultimately entitled to permanent injunctive relief on

its trespass claim under a fair reading of the current law applicable to its sovereign

rights. Plus, Enbridge has presented no legal authority supporting its position that

the court could permit it to trespass indefinitely on the Band’s land. Nor has

Enbridge cited any legal authority suggesting that the court could effectively force

a renewal of expired easements despite the Band’s sovereignty, by permitting

Enbridge to pay a fee or profits while continuing to operate its pipeline.

Op. and Order (Dkt. 684) at 50–51.

Enbridge proceeds as if this Court had never arrived at these conclusions—or did not

really mean what it said—such that if the company and its allies can create enough sound and

fury about the potential consequences of a pipeline shutdown the Court will relent, suspend its

injunction, and force an indefinite easement on the Band. But just as Enbridge failed to present

any legal authority establishing such a power to the Court in 2023, it adduces none now.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 14 of 57

“Courts of equity can no more disregard statutory and constitutional requirements and

provisions than can courts of law,” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327–

28 (2015) (quoting INS v. Pangilinan, 486 U.S. 875, 883 (1988)), and hence they cannot “create

a remedy in violation of law,” Pangilinan, 486 U.S. at 883 (citation omitted). This rule of course

applies in tribal cases as in any other. United States v. Choctaw Nation, 179 U.S. 494, 533 (1900)

(“We are not at liberty to dispense with any of the conditions or requirements of the treaty …

upon any notion of equity or general convenience[.]” (quoting The Amiable Isabella, 19 U.S. (6

Wheat.) 1, 72 (1821) (Story, J.))). And the Seventh Circuit adheres firmly to the principle. See,

e.g., FTC v. Credit Bureau Ctr., LLC, 937 F.3d 764, 782 (7th Cir. 2019) (stating that courts of

equity are bound by “statutory … requirements” in fashioning remedies (quoting Armstrong, 575

U.S. at 327)); Michigan v. U.S. Army Corps of Eng’rs, 758 F.3d 892 (7th Cir. 2014) (same);

Matter of Carlson, 126 F.3d 915, 920 (7th Cir. 1997) (stating that a court’s “equitable powers do

not allow it to override the plain command of” a statute).

In granting summary judgment to the Band and then issuing its injunction, this Court

recognized that four unambiguous provisions of federal law govern the trespass issues in this

case and establish the bounds of any permissible remedy. The 1854 Treaty with the Chippewa,

10 Stat. 1109 (Sept. 30, 1854), confirms the Band’s “permanent rights of occupancy and

possession, including the power to exclude and to place conditions on entry, on continued

presence, or on reservation conduct.” Op. and Order (Dkt. 360) at 21–22 (quotation marks

omitted). Moreover, “[u]nder the Nonintercourse Act, a transfer of any rights in tribal land to a

non-Indian … entity requires the consent of both the Secretary of the Interior and the tribe itself.

See 25 U.S.C. § 177; Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960).”

Id. at 22 (emphasis added). “With respect to right-of-way easements across tribal lands in

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 15 of 57

particular, the Secretary of the Interior … cannot authorize a right-of-way easement across land

owned or co-owned by a tribe ‘without the consent of the proper tribal officials.’ 25 U.S.C.

§ 324; see also 25 C.F.R. § 169.4.” Id. And the expired easements required Enbridge to vacate

the parcels “within six months of termination[.]” Id. at 6; Dkt. 170-15 at PDF p. 3.

Taken together, these provisions leave no doubt that the Court correctly rejected

Enbridge’s suggestion that it be allowed to continue its trespass on the Band’s lands unless and

until it completes a reroute around the Reservation. Enbridge long ago lost any right to operate

its pipeline on the trespass parcels. Congress has mandated that it can only regain that right if the

Secretary issues a new easement, which the Secretary (in adherence to Congress’s requirement of

tribal consent) has not done. And Congress has proscribed the conveyance of an interest in the

Band’s lands by any other means “in law or equity.” 25 U.S.C. § 177. This Court accordingly

could not “countenance an indefinite delay or even justify what would amount to a five-year

forced easement with little realistic prospect of a reroute proceeding even then.” Dkt. 684 at 51.

The Band believes that the Court was generous to Enbridge (and exceeded the bounds of

its equitable authority) in allowing the company to trespass on its lands for an additional three

years on top of the decade-long trespass that had already occurred by the time the Court issued

its Order. And yet Enbridge is now back asking for more, citing the same considerations that this

Court has already concluded could not justify an even longer trespass. As discussed below, the

justifications offered by Enbridge in support of its request do not withstand scrutiny. More

fundamentally, Enbridge’s request only underscores the need for firm adherence to the legal

principles properly recognized by this Court as foreclosing what would otherwise be a

never-ending litany of rationalizations by Enbridge and other companies for remaining in

perpetual trespass on Indian land.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 16 of 57

The United States Has Said Nothing To Increase Enbridge’s Chances

of Success on Trespass Liability.

This Court correctly concluded that, as a matter of federal common law, Enbridge has

been in conscious trespass on the Band’s lands since 2013. See Dkt. 360 at 11–23, 31–32. It

rejected as “strained and unpersuasive” Enbridge’s theory that the Band consented to renew

easements that expired in 2013 by virtue of a 1992 agreement between the Band and Enbridge

relating to different parcels of land. Id. at 14. Enbridge now tells this Court that the United

States’ amicus brief in the Seventh Circuit “did not dispute” Enbridge’s theory of Band consent

via the 1992 agreement, Enbridge Br. (Dkt. 708) at 16, seemingly suggesting that the United

States agrees with the theory such that Enbridge has a greater chance of prevailing on appeal. In

so suggesting, Enbridge is testing its obligations to this Court.

In its Seventh Circuit briefing, the United States declared unequivocally that “Enbridge is

in trespass on the Band’s lands, has been for many years, and agreed when it initially acquired

the easements that expired in 2013 to remove all equipment and installations within six months

of the easements’ termination.” Brief of the United States as Amicus Curiae Supporting Partial

Reversal (“U.S. Amicus Br.”) at 37, Bad River Band v. Enbridge Energy Co., Nos. 23-2309, 232467 (7th Cir. Apr. 10, 2024) (filed in this case as Dkt. 738-1). The government further stated,

again in no uncertain terms, that while “Enbridge … owes a duty to the Band and to the United

States to end its trespass and resolve the issues the trespass has created,” id. at 38, instead

“Enbridge is consciously trespassing on tribal land,” id. at 6. Rather than agreeing with

Enbridge’s theory of Band consent via the 1992 agreement, the United States argued that it was

“unnecessary” to even address the theory because the expiration of the easements in 2013 and

Enbridge’s failure to obtain a new federally issued right-of-way renders the theory irrelevant. Id.

at 17–22; see also id. at 22 (“The 1992 agreement cannot provide Enbridge with the legal right to

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 17 of 57

occupy the Band’s lands and thus cannot defeat the Band’s trespass claim.”). The United States

does not retreat from these positions in the Statement of Interest it has now filed with this Court,

which instead focuses on the appropriate remedy for the “trespass in this case,” U.S. Statement

of Interest (Dkt. 738) at 8.

Nor is it correct for Enbridge to claim that “the Band’s unlawful withholding of consent”

is the only thing “preventing the BIA from granting” Enbridge a right-of-way, Enbridge Br.

(Dkt. 708) at 17. The United States strongly disagrees with this assertion, having explained to the

Circuit that BIA review is “not just a rubber stamp,” that Enbridge had never even attempted to

argue how the “alleged consent” in the 1992 agreement could possibly satisfy federal

requirements for Indian rights-of-way, and that Enbridge had previously conceded that it lacked

Band consent for renewal. U.S. Amicus Br. (Dkt. 738) at 21–22. This Court and the United

States agree, moreover, that there is nothing “unlawful” about the Band’s decision not to consent

to a new easement. “[T]he Band’s decision effectively to refuse additional, 30-year easements to

Enbridge … was the exercise of a sovereign power to which Enbridge was always subject[.]”

Dkt. 360 at 23; U.S. Amicus Br. (Dkt. 738) at 34 (“[T]he Band’s land rights, both as a property

owner and a sovereign, include the right to exclude others.”).

Indeed, as internal documents confirm, Enbridge has long understood that the company is

plainly in trespass on the Band’s lands, and further has understood that in light of the company’s

ongoing trespass, “a federal/tribal judge could order the pipeline shut down immediately (and to

be removed within 6 months) if Bad River seeks a court remedy,” Trial Ex. 369, ENB00023908–

09; Dkt. 170-35 at PDF p. 21 (“We are currently operating in trespass as they spelled out in their

lawsuit.”); id. at PDF pp. 10, 14, 18 (describing Enbridge as “currently in trespass”); id. at PDF

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 18 of 57

p. 16 (“Our easements … are expired and the Band has the ability to hold Enbridge in trespass

and likely require removal of the pipeline.”).

In sum, this Court properly found in 2022 that Enbridge is in conscious trespass on the

Band’s lands, and nothing has changed since then to call that conclusion into question.

Neither the Transit Treaty nor the Foreign Affairs Doctrine Provides

Any Basis To Stay the Injunction.

Enbridge, the United States, and Canada argue that the injunction should be stayed

because its enforcement may contravene the Agreement Between the Government of the United

States and the Government of Canada Concerning Transit Pipelines, 28 U.S.T. 7449, 1977 WL

181731 (Jan. 28, 1977) (“Transit Treaty”). They further argue that a shutdown would run afoul of

the foreign affairs doctrine, based on litigation filings from the United States and Canada stating

that a shutdown is inconsistent with the foreign policy objectives embedded in the Transit Treaty.

Enbridge Br. (Dkt. 708) at 17–21; U.S. Statement of Interest (Dkt. 738) at 8–9, 11–12; Canada

Amicus Br. (Dkt. 736) at 2–6, 10–15.

These arguments ignore what this Court has already held: the Transit Treaty does not

abrogate the 1854 Treaty with the Chippewa, which predates the Transit Treaty by well over a

century and guarantees the Band’s right to exclude others from its Reservation. And if the Transit

Treaty does not abrogate the Band’s treaty rights, litigation filings based on the common law

foreign affairs doctrine certainly do not either.

The 1854 Treaty reserved for the Band a “permanent home” from which it “‘shall not be

required to remove,’” Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wis. v.

Evers, 46 F.4th 552, 559–60 (7th Cir. 2022) (quoting 10 Stat. 1109, art. 11 (Sept. 30, 1854)), and

thereby guaranteed the Band’s “power to exclude” others from its lands, Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130, 144 (1982). This treaty power is “a hallmark of Indian sovereignty,”

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 19 of 57

id. at 141, that “Congress alone may diminish,” Lac Courte Oreilles, 46 F.4th at 571; see also id.

at 557, 558 (stating that the authority to “lessen,” “diminish,” “modify or even abrogate” tribal

sovereign rights belongs “only [to] Congress”). Congress “must clearly express its intent to do

so,” which requires “clear evidence that Congress actually considered the conflict between its

intended action … and Indian treaty rights … and chose to resolve that conflict by abrogating the

[Indian] treaty.” Herrera v. Wyoming, 587 U.S. 329, 344–45 (2019) (citations omitted). 4

This Court properly concluded that the Transit Treaty does not remotely meet this

standard. “There is no such abrogation language in the 1977 Transit Treaty, as the Transit Treaty

does not mention Indian treaties or treaty rights at all, let alone the 1854 Treaty[.]” Dkt. 360 at

43. This is fatal to Enbridge’s argument, as courts may not accomplish indirectly through equity

what the law prevents them from accomplishing directly. See Matter of Greenig, 152 F.3d 631,

635 (7th Cir. 1998) (stating that a court “cannot use its equitable power to circumvent the law”

(citation omitted)); see also Choctaw Nation, 179 U.S. at 533 (stating that courts “are not at

liberty to dispense with any of the conditions or requirements of [a] treaty … upon any notion of

equity or general convenience”).

Enbridge offers no change in facts or law that would undermine this Court’s holding. It

can only grasp at straws. Literally as an aside, it states: “Anyways, the Band specifically agreed

that Enbridge may operate Line 5 through 2043 over its tribal lands as provided in the 1992

Agreement.” Enbridge Br. (Dkt. 708) at 21. This Court, of course, long ago dispensed with this

Enbridge’s argument that “nothing in [the Band’s] treaty forecloses application of generally

applicable federal laws regulating interstate and international commerce,” Enbridge Br. (Dkt.

708) at 20, betrays a fundamental misunderstanding of the law. That is not the test for overriding

rights specified in tribal treaties—rather, the Supreme Court, the Seventh Circuit, and this Court

have consistently held that what is required is a “clear” expression of congressional “intent” to

abrogate the rights, Herrera, 587 U.S. at 344 (citations omitted).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 20 of 57

argument based on a thorough analysis of the relevant agreements. Dkt. 360 at 9–18. The

half-hearted recycling of contentions this Court has already rebuffed hardly provides a basis for

the extraordinary remedy of a stay.

Enbridge’s foreign affairs doctrine argument, in turn, is based entirely on the Transit

Treaty and fails for the same reason: given that the Transit Treaty contains no indication of

congressional abrogation, litigation filings from the United States and Canada about foreign

policy goals grounded in that Treaty do not abrogate the Band’s treaty rights either. Only

Congress can accomplish that end.

Nor does the decision in Enbridge Energy, Ltd. Partnership v. Whitmer, Case No.

1:20-cv-1141, 2025 WL 3707609 (W.D. Mich. Dec. 17, 2025)), help Enbridge. The company

claims that the decision “undermined” this Court’s “findings and underlying assumptions” in

granting the injunction. Enbridge Br. (Dkt. 708) at 2–3. But that case did not involve the Band, or

any tribe, as a party and hence had no occasion to consider the issue of tribal treaty abrogation.

Canada itself recognizes that “the Bad River Band’s rights to govern its Reservation … give rise

to issues not present in the Michigan case.” Canada Amicus Br. (Dkt. 736) at 15 n.39. 5

There is nothing new in Enbridge’s merits arguments. Enbridge has raised these same

arguments with the Circuit, which can reverse this Court’s conclusions if, in its view, the law or

equity require. But Enbridge has provided no basis for this Court to second-guess itself and

hence has failed to satisfy the likelihood of success prong of the stay test.

Even if the Transit Treaty does apply, it provides no basis for staying the injunction. Enbridge,

the United States, and Canada recycle their old arguments about the treaty terms without ever

countering the infirmities in those arguments previously identified by the Band. See Band Reply

Br. in Supp. of Mot. for Partial Summ. J. and for Summ. J. on Defs.’ Countercls. (Dkt. 256) at

76–78; Band’s Resp. Br. in Opp’n to Defs.’ Mot. for Partial Summ. J. (Dkt. 282) at 15–16.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 21 of 57

Enbridge Will Not Suffer Cognizable Irreparable Injury from the Denial of a

Stay.

Enbridge argues that it will be irreparably harmed by the denial of a stay because

requiring it to shut down Line 5 will cause it to lose revenue and goodwill. See Enbridge Br.

(Dkt. 708) at 11–13. But Enbridge has consciously trespassed on the Band’s land for thirteen

years, see supra pp.13–15, and the injunction will simply require it, at long last, to stop. A

defendant cannot be said to have suffered a cognizable injury by bringing its actions into

compliance with the law. As then-Judge Gorsuch explained in Ute Indian Tribe of the Uintah and

Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir. 2015), where an injunction would simply

foreclose defendants from doing “something they have no legal entitlement to do in the first

place …. the defendants’ claims to injury should an injunction issue shrink to all but the

vanishing point.” Id. at 1007 (quotation marks omitted); see also, e.g., S.C. Johnson & Son, Inc.

v. Minigrip, LLC, 16-cv-244-jdp, 2017 WL 8727853, at *4 (W.D. Wis. Oct. 16, 2017) (stating

that if a party knowingly “engages in unlawful conduct … [it] does so at its own risk and cannot

… be heard to complain that it will be severely injured by an injunction”) (quotation marks

omitted) (second ellipsis in original); Light v. Zhangyali, No. 15 CV 5918, 2016 WL 4429758, at

*4 (N.D. Ill. Aug. 22, 2016) (“There is no harm to the defendant to being enjoined from violating

the law[.]”).

Indeed, the Seventh Circuit has held that “[i]t is an accepted equitable principle that a

court does not have to balance the equities in a case where the defendant’s conduct has been

willful,” Sierra Club v. Frankling Cnty. Power of Ill., LLC, 546 F.3d 918, 935 (7th Cir. 2008)

(brackets in original) (citation omitted), and while this Court did choose to weigh the equities, it

long ago concluded that “the balance of hardship between the parties weighs heavily in the

Band’s favor since Enbridge’s conduct was willful,” Dkt. 360 at 40. Enbridge advances nothing

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 22 of 57

to alter this conclusion, and its references to customer goodwill show the extent to which it is

grasping at straws. Enbridge’s customers have had almost three years to know and adjust to the

fact that Enbridge is under a court order to bring itself into compliance with the law. To the

extent that Enbridge has engendered “goodwill” with them by trespassing on the Band’s lands,

Enbridge Br. (Dkt. 708) at 11, the loss of those warm feelings is hardly cognizable under the law

and cannot override the Band’s interests, well recognized by this Court, in having its legal rights

vindicated.

Enbridge contends that “[a]t least one court has recognized that shutting down a pipeline

causes irreparable harm to the pipeline operator.” Id. at 12 (citing Williams Pipe Line Co. v. City

of Mounds View, 651 F. Supp. 551, 570 (D. Minn. 1987)). But that case concerned a preliminary

injunction to shut down a lawfully operating pipeline, 651 F. Supp. at 570 (finding the company

“likely to prevail” on the merits), not a motion to stay an injunction against a long-time willful

trespasser with no lawful right to profit from its trespass in the first place.

Enbridge also relies on Osage Wind, Enbridge Br. (Dkt. 708) at 12–13, but that case cuts

strongly against it. In Osage Wind, the stay was necessary to give the appellate court the chance

to hear the case before the injunction took effect. The district court ordered the windfarm to be

removed within just one year, 2024 WL 5158188, at *1 (N.D. Okla. Dec. 18, 2024) (ordering

“ejectment of the wind towers by December 1, 2025”), and the company promptly moved for a

stay pending appeal, see Defendants’ Motion to Stay Judgment Pending Appeal and Brief in

Support (N.D. Okla. Jan. 10, 2025), 2025 WL 1581229 (“Osage Wind Stay Mot.”). The district

court granted the motion specifically because “[i]f the stay is not granted, [the company] would

be required to complete the costly and potentially irreversible process of deconstructing the wind

farm before the appellate court has an opportunity to consider the case.” 2025 WL 678039, at *8

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 23 of 57

(emphasis added). Here, by contrast, the Seventh Circuit has already heard the case and has had

it under advisement for two years. If it believes Enbridge is entitled to relief, it is well-positioned

to issue a stay or to modify the injunction itself, and the judicially efficient and appropriate

course of action is for this Court to leave it to the Circuit to decide whether it wants to do so. See

supra pp. 4–7.

Issuance of a Stay Will Cause Substantial Injury to the Band.

The Band Will Suffer Significant Harm from a Stay of the Shutdown

Order.

Enbridge claims the Band will incur no harm if the shutdown date is suspended. See

Enbridge Br. (Dkt. 708) at 13, 26. But this Court has already held, consistent with well-settled

law, that Enbridge’s ongoing interference with the Band’s property rights is causing the Band

irreparable harm:

[A]n injunction is necessary to prevent irreparable harm, and … remedies

available at law, such as monetary damages, would be inadequate compensation.

Indeed, “[a]s a general rule, interference with the enjoyment or possession of land

is considered ‘irreparable’ since land is viewed as a unique commodity for which

monetary compensation is an inadequate substitute.” Pelfresne v. Vill. of Williams

Bay, 865 F.2d 877, 883 (7th Cir. 1989).

Dkt. 360 at 40 (second brackets in original). The Court has further recognized that the harm is all

the greater here given the interference with the Band’s ability to exercise sovereign control over

its lands:

[T]he harm of a continuing trespass would dispossess the Band of its sovereign

right to control its own land. See Merrion, 455 U.S. at 141 (“power to exclude

non-Indians from Indian lands” is “a hallmark of Indian sovereignty”). For the

same reason, interference with the Band’s sovereignty cannot be adequately

remedied with monetary damages.

Id.

Rather than acknowledging the harm being visited on the Band by its ongoing trespass—

and this Court’s recognition of the same—Enbridge argues that no harm exists because the

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 24 of 57

nuisance at the meander has temporarily abated. Enbridge Br. (Dkt. 708) at 13–15. But the

nuisance Enbridge has created is distinct from the trespass it has perpetrated, and the three-year

deadline was intended to remedy the latter. Compare Dkt. 684 at 50 (describing shutdown

deadline as “Injunctive relief for trespass”), with id. at 34 (describing modifications to

emergency purge and shutdown protocol as “injunctive relief … to abate th[e] nuisance”). The

mitigation of risks at the meander no more renders Enbridge’s trespass harmless than would be

the case were a trespasser on Enbridge property to cease setting off dangerous pyrotechnics at

night. If anything, the nuisance-mitigation efforts cited by Enbridge evidence the extraordinary

lengths the Band has needed to go to protect its members—and the public—from the

consequences of Enbridge’s ongoing trespass.

The check valve. A check valve has been installed to reduce the volume of petroleum

product that would be released on the Reservation in the event of a pipeline rupture. Enbridge Br.

(Dkt. 708) at 15, 26. As Enbridge concedes, the valve was installed at the request of the Band.

Enbridge Br. (Dkt. 708) at 15; see also Decl. of Tom Schwartz (Dkt. 723) ¶¶ 18–19 (“The Band

considered the check valve project to be necessary for the Tribe’s welfare and to protect the

Reservation.”).

What Enbridge does not note are the Band’s strenuous efforts to make the check valve a

reality in the face of Enbridge’s concerted resistance. At trial, Enbridge raised the absence of a

valve on the Reservation as evidencing the purported insincerity of the Band’s concerns for

environmental integrity. Trial Test. of Naomi Tillison (Dkt. 600) at 119:22–121:18. But once trial

was over, Enbridge refused the Band’s request to install a check valve prior to the 2023 flood

season. Decl. of Naomi Tillison (“Tillison Decl.”) ¶ 6. Enbridge submitted an application to

install the valve only months later, after repeated requests from the Band. Id. ¶¶ 7–8. And even

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 25 of 57

after the Band granted the necessary permits, Enbridge failed to install the project for over a year.

Id. ¶¶ 12–18. Only with the support of retained engineering and pipeline operations consultants

facilitating the design, sourcing, installation, and location of the check valve was the project

finally installed in September 2024. Id. ¶¶ 18–19. The success of the project (as a result of which

the maximum amount of crude oil and NGLs that can now be released from Line 5 into the Bad

River and Lake Superior has been cut by roughly two-thirds, id. ¶ 24) is a testament to the

thousands of hours of time invested by the Band’s Mashkiiziibii Natural Resources Department

(MNRD), id. ¶¶ 19–20, and the thousands more by its engineering consultants, Decl. of

Christopher Olson and Noah Greenberg on Behalf of Wright Water Engineers, Inc. (“WWE

Decl.”) ¶ 6–9.

The valve project has had significant impacts in addition to the drain on governmental

resources. The project “impaired the ability of tribal members to hunt and gather on a significant

swath of their Reservation homeland,” Arbuckle Decl. ¶ 19; see also Tillison Decl. ¶ 23, and

caused serious environmental impairments to wetlands and streams that are still being remedied,

WWE Decl. ¶ 9; Tillison Decl. ¶¶ 21–23 & Figs. 1–7 (photos), while others will never be cured,

Tillison Decl. ¶ 21. Enbridge of course acknowledges none of this. But these were real harms

visited on the Band, occasioned by the need to reduce the risk of environmental catastrophe

while Enbridge remains in trespass. Arbuckle Decl. ¶¶ 11–14; Tillison Decl. ¶ 24; see also WWE

Decl. ¶¶ 7–9. Further operation of the pipeline on the Reservation will undoubtedly entail further

projects, and the time for the Band to bear those burdens has long since come to an end.

The log jacks. Even with the check valve in place, a rupture at the meander can release up

to 325,500 gallons of oil. Tillison Decl. ¶ 24. With the pipeline less than eleven feet from the Bad

River, and with a court-decreed shutdown protocol that, in the Band’s opinion, still leaves too

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 26 of 57

much to chance, WWE Decl. ¶ 5; Arbuckle Decl. ¶ 11, the Band has to live with that risk every

single day. As the Court knows, there was considerable discussion at trial and at the subsequent

emergency hearing about projects that might slow the erosion at the meander, and the Court

made very clear its view that the Band should allow such a project to go forward regardless of

localized environmental impacts.

After extensive research and analysis, the Band’s expert consultants, Wright Water

Engineers (WWE), developed the concept of installing log jacks in the river as a means of

slowing erosion while avoiding the substantial environmental harm threatened by Enbridge’s

previously proposed projects. WWE Decl. ¶¶ 13–21; Arbuckle Decl. ¶¶ 11–12. Band leadership

presented the log jack concept to Enbridge and urged it to cooperate with WWE and MNRD “to

ensure the project’s effectiveness, to evaluate and minimize water quality impacts, and to

facilitate review under the relevant environmental laws.” Arbuckle Decl., Ex. 1 (July 5, 2024

Letter from Chairman Blanchard to Enbridge at 3).

Given the continued operation of the pipeline, the Band had little choice but to suffer

significant burdens and environmental harms to make the project happen. Arbuckle Decl. ¶ 14

(“Approving this project was a painful decision. While the log jacks offer important protection

against Enbridge’s pipeline, they also amount to an accommodation of a company that has

knowingly been trespassing on our land for more than a decade.”); see also WWE Decl. ¶ 14.

Roughly forty acres of mature forest in the Bad River watershed were clear cut to supply the

timber for the existing log jacks. Tillison Decl. ¶ 29. An additional eight acres of forest and other

habitat were chopped to the ground to make way for project staging and helicopter landing areas,

access routes, and workspaces, id. ¶ 32 & Figs. 10–11, and a new road was cut across Band fee

land for the sole purpose of facilitating the project, id. ¶ 37. The project predictably resulted in

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 27 of 57

the pollution of numerous Reservation watercourses, the introduction of invasive species, loss of

habitat, and other significant environmental harms. Id. ¶ 44.

The entire project lasted eighteen months, with twenty weeks of on-reservation work and

over three weeks of work in the Bad River itself. Id. ¶¶ 42–43. A major reservation road along

the flight path had to be closed for a full week while a heavy-lift helicopter lifted, transported,

and unloaded the multi-ton log jacks over the course of nearly 500 flights from the staging area

to the meander nearly a mile away. Id. ¶ 41. Existing Reservation roads were severely damaged

by the trucks transporting more than 1,000 loads of log jacks and heavy equipment for the

project. Id. ¶ 36. And there now sits in the Bad River a human-made assemblage of nearly 2,000

logs and over two hundred boulders bound together with countless chains and bolts, extending

more than 300 feet along the banks and obstructing the natural migration of the river. Arbuckle

Decl. ¶¶ 12–16 (describing in detail the burdens imposed by the project, including the

significance to the Band of obstructing the natural course of the river); Tillison Decl. ¶ 41

(details of project); WWE Decl. ¶¶ 42–46 & Figs. 1–2 (photos of project); id. ¶¶ 41–53 & Figs.

3–5 (describing and depicting altered migration of Bad River).

As with the check valve project, the Band and WWE each spent thousands of hours

developing and refining the log jack project in conjunction with Enbridge, Tillison Decl. ¶ 46;

WWE Decl. ¶¶ 15–20, 24–25, all of which is time taken away from other natural resource

priorities of the Band, Tillison Decl. ¶ 47.

The log jack installation went in last March, WWE Decl. ¶ 34, and appears to be working

as designed, id.; Decl. of Andrew (“Andy”) Duncan ¶ 14. But it has yet to be tested by heavier

flows, WWE Decl. ¶¶ 34–40, and consistent with the project’s anticipated removal following a

June 2026 shutdown, it is designed to withstand only a ten-year flow event, id. ¶¶ 34, 38, 40.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 28 of 57

Flows exceeding that level will have less than a twenty-percent chance of occurring before June

16, 2026, but a considerably higher chance with each additional year, id. ¶ 30. If the pipeline

were to remain in operation, more log jacks will need to be added, see, e.g., Decl. of Scott Storlid

¶¶ 17–18; WWE Decl. ¶ 61, meaning substantial additional impacts on Reservation resources

and on the Band, Tillison Decl. ¶ 45. This was decidedly not the Band’s expectation when it

agreed to the project. Arbuckle Decl. ¶ 12 (“We were promised by Enbridge that the log jacks

would never be a permanent or even a long term fixture on our land.”). The Band understood

there to be a commitment to remove the log jacks by September of this year. Arbuckle Decl. ¶ 14

(“The permits require—in explicit conditions that Enbridge agreed to—that the log jacks would

be removed by the end of September 2026.”); see also WWE Decl. ¶ 28 (stating that during

design and engineering, “the possibility that the log jacks would remain in place beyond 2026

was never proposed by Enbridge”). Enbridge’s papers make clear that it is instead treating that

commitment with the same lack of seriousness that it did the original easement expiration date.

And there is more. To ensure the physical integrity of the project, it was necessary to

extend the log jacks and their anchoring onto the Band-owned parcel immediately upstream of

the meander. WWE Decl. ¶ 27. The Band then granted Enbridge the necessary property rights via

a new easement and right of way, the terms of which are tied to the June 2026 shutdown and

September 2026 log jack removal date. Arbuckle Decl. ¶¶ 14–18. If the injunction is stayed, that

will mean not only the continuation of a forced easement across the trespass parcels, but also a

forced easement at the Band’s meander parcel, all in service of keeping the pipeline in operation.

And there is even more. During the design of the project, the engineers for both Enbridge

and the Band anticipated that the hard bank surface introduced by the log jacks could deflect

river forces towards the opposite bank. WWE Decl. ¶ 33. Given enough time, this could cause

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 29 of 57

changes to the river that would direct the force of the river towards the pipeline at a nearby steep

location that Enbridge calls Slope 6, which has long been of concern because of the possibility

that a landslide could lead to pipeline rupture. Id. ¶¶ 54–56. Almost immediately upon

installation of the log jacks, Enbridge and the Band began to document erosion developing at that

location on the opposite bank. Id. ¶¶ 47–48. The parties have spent considerable efforts

surveying and mapping that erosion, id., which is progressing more rapidly than anticipated, id.

¶¶ 32–33. A stay would mean that the log jacks will continue to ricochet the river’s forces

towards the opposite bank, with unknown risks for the pipeline at Slope 6 and elsewhere. Id.

¶¶ 51–56. The longer the log jacks remain in place, the greater those risks become. Id. ¶¶ 53–56.

While Enbridge claims that the Band is suffering no harm from its continued presence on

the Reservation, the declarations from Chairwoman Arbuckle and MNRD Director Tillison tell a

very different story. Perpetuating Enbridge’s trespass will prolong and exacerbate very real

burdens, risks, and harms that the Band has endured for years. Taking its cues from this Court,

the Band has gone to extraordinary lengths to protect the Bad River and Lake Superior from the

pipeline during its continued operation—all while continuing to suffer ongoing dispossession

and interference with its sovereignty from the ongoing trespass. No warrant exists for imposing

the new round of additional burdens on the Band and its members that will be occasioned by any

further delay in putting an end to Enbridge’s trespass.

The Band’s Valid, Constitutionally Protected Objections to the

Reroute Do Not Weigh in Favor of a Stay.

Enbridge suggests that “[h]ad it not been for the Band’s objections in the permitting

process, Enbridge would have likely completed the project by June 16, 2026.” Enbridge Br. (Dkt.

708) at 15. The Band’s opposition (the story goes) is inequitable because the Band has

simultaneously “caused significant delays in Enbridge’s Relocation Project” while “insist[ing]

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 30 of 57

that it wants Line 5 off the Reservation,” id. Ultimately, in Enbridge’s eyes, it is the Band that is

responsible for the company’s noncompliance with the Court’s injunction, as Band-caused delays

“have prevented Enbridge from complying with the June 2026 shutdown date.” Id. at 22.

There are several glaring problems with this narrative. First, this Court has been clear that

the Band is doing nothing wrong in exercising its protected First Amendment rights to oppose a

reroute that poses significant threats to Reservation resources. At trial, the Court reproved

Enbridge’s attorneys for suggesting that such opposition should factor into its analysis:

I’ve made so clear that is not relevant to my considerations, and we’re not going

to go further down the road. The Band has a right to oppose whatever they oppose

under the First Amendment, and I’m not going to factor that into my decision

making.… I’ve said it a number of times during this trial.

Trial Tr. (Closing Arguments) (Dkt. 611) at 26:1–7.

Second, and relatedly, the Court anticipated the Band’s continued opposition efforts.

When it enjoined Enbridge to leave the Reservation within three years, it was fully aware of the

Band’s steadfast opposition to a reroute within the watershed and the possibility that such

opposition could delay or even frustrate entirely Enbridge’s reroute plan. In its final order, the

Court recapped the extent of the resistance by the Band and others to the reroute:

[T]he Band, affected landowners along the reroute, various governmental bodies,

and numerous environmental groups oppose it. The Band and others point out that

the rerouted pipeline would remain within the Bad River watershed, damage

numerous wetlands and cross several bodies of water protected by the Clean

Water Act. Thus, in response to Enbridge’s permit applications, the Band, several

other tribes, the Great Lakes Indian Fish & Wildlife Commission, National Park

Service and the Environmental Protection Agency have raised formal concerns

with the reroute’s impact on wetlands and waterbodies, aquatic resources, water

quality, tribal resources and climate change.

Dkt. 684 at 22 (citation omitted). In issuing its injunction, moreover, the Court recognized the

possibility that opposition could delay or defeat the reroute, explaining its “hope[]” that three

years would give enough time “even for Enbridge to complete a proposed reroute of Line 5,

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 31 of 57

which Enbridge represents would likely take 5 years,” while mindful of the reality that

“[f]rankly, absent extraordinary efforts by Enbridge and intervention by federal officials, even

this appears to be optimistic given the organized opposition to it, including by the Band.” Id. at

51. This statement echoed the Court’s earlier findings:

[N]one of the environmental permitting is in place to begin construction, which

will likely take a few years to obtain from state and federal officials under a bestcase scenario and could be denied entirely under a worst case given

environmental and political opposition, including, as is its right, by the Bad River

Band itself.

Op. and Order (Dkt. 612) at 8 n.5.

Finally, as the Court also anticipated, the Band has been joined in its opposition to the

reroute by other groups, including the Sierra Club, 350 Wisconsin, and the League of Women

Voters of Wisconsin (all represented by Midwest Environmental Advocates) and Clean

Wisconsin. Those groups participated vigorously in the proceedings before the Wisconsin

Department of Natural Resources (WDNR) in an effort to convince it not to issue permits for the

reroute, and then brought sixteen objections to WDNR’s approvals of the project in a petition for

an administrative hearing that WDNR granted. 6 In the multi-week hearings that took place this

past fall, those groups presented substantial evidence in opposition to the reroute, including

putting on multiple expert and lay witnesses. The groups would oppose the reroute even if the

Band had not, and the timetable (and uncertainty) of the reroute (including the certain prospect of

further litigation in state court) would be no different. And they have grounded their opposition

in legitimate concerns about the reroute, just as has the Band.

See Petition for Contested Case Hearing (WDNR Dec. 12, 2024),

https://midwestadvocates.org/wp-content/uploads/2024-12-12-Line-5-Petition-CCH-Final.pdf.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 32 of 57

In sum, the Band’s opposition to the reroute has been neither wrongful nor unexpected,

nor has it altered the timetable for resolution of the challenges to the reroute. While Enbridge

routinely seeks to sully the Band in its effort to tip the equitable scales, this particular instance of

finger-pointing deserves no more heed than any of the others.

The Public Interest Weighs Against a Stay of the Injunction.

Enbridge argues strenuously that the public interest weighs in favor of a stay. In doing so,

it ignores entirely the public interest in vindicating the Band’s treaty rights and right of selfgovernment. It relies instead on a severe underestimation of the ability of the markets to respond

to a shutdown of Line 5, and a gross mischaracterization of the position taken by the Band’s

experts in that regard. Those experts testified that the vast majority of Line 5 deliveries can be

replicated through the use of existing infrastructure, which remains true today as it was then.

Protecting Tribal Sovereignty and Treaty Rights Serves the Public

Interest.

As Enbridge nowhere acknowledges, there exists a strong public interest in protecting the

Band’s treaty rights, sovereignty, and power of self-government against their ongoing violation

by Enbridge. See, e.g., Stifel v. Lac Du Flambeau Band of Lake Superior Chippewa Indians,

13-cv-372, 2014 WL 12489707, at *25 (W.D. Wis. May 16, 2014) (Conley, J.) (“Certainly, the

public interest favors encouraging tribal sovereignty and self-government[.]”); United States v.

Michigan, 534 F. Supp. 668, 669 (W.D. Mich. 1982) (granting injunction and referring to “the

protection of … treaty rights to the fullest extent possible” as an “overwhelming public

interest”); Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1516 (W.D. Wash. 1988)

(“[T]he enforcement of rights that are reserved by treaty to the Tribes is an important public

interest, and it is vital that the courts honor those rights.”).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 33 of 57

This is never truer than where Congress has expressly considered the balance of

considerations and weighed in clearly on the side of tribal sovereignty. See United States v.

Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001) (requiring deference to “the

judgment of Congress, deliberately expressed in legislation” (citation omitted)); Michigan v. U.S.

Army Corps of Eng’rs, 758 F.3d at 901 (“When Congress passes a statute, it weighs the

competing public interests that would be served.”). The Non-Intercourse Act expressly forbids

the conveyances of Indian land absent tribal consent. See 25 U.S.C. § 177. While Congress has

since modified federal law to allow lands owned by individual Indians to be condemned for

public benefit, 25 U.S.C. § 357, it has kept tribal lands (including allotted lands in which a tribe

has regained an interest) “beyond the reach of condemnation,” regardless of economic benefit,

Pub. Serv. Co. of N.M. v. Barboan, 857 F.3d 1101, 1104, 1111–1112 (10th Cir. 2017). This

reflects Congress’s judgment that concerns about economic efficiency and output must yield to a

tribe’s sovereign land rights—a judgment that is due substantial, if not dispositive, weight. 7

By contrast, the public interest self-evidently is not “enhanced by permitting defendants

to continue to violate federal law[.]” Boles v. Earl, 601 F. Supp. 737, 748 (W.D. Wis. 1985). To

the contrary, it is promoted “by preventing conduct Congress declared illegal[.]” CSC Holdings,

Inc. v. Greenleaf Elecs., Inc., No. 99 C 7249, 2000 WL 715601, at *7 (N.D. Ill. June 2, 2000);

see also, e.g., Denbra IP Holdings, LLC v. Thornton, 521 F. Supp. 3d 677, 690 (E.D. Tex. 2021)

(“The public interest is always served by requiring compliance with Congressional statutes[.]”

Enbridge cites one case for the notion that “district courts retain equitable authority to decline

to issue an injunction.” Enbridge Br. (Dkt. 708) at 21 (citing United States v. Pend Oreille Cnty.

Pub. Util. Dist. No. 1, 135 F.3d 602, 614 (9th Cir. 1998)). But that case arose under the Federal

Power Act, which expressly allows FERC to authorize the use of tribal lands for hydroelectric

power projects without tribal consent. See Escondido Mut. Water Co. v. La Jolla Band of

Mission Indians, 466 U.S. 765, 787 & n.30 (1984).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 34 of 57

(citation omitted)); MetroPCS v. Devor, 215 F. Supp. 3d 626, 640 (N.D. Ill. 2016) (“[T]he public

interest is advanced by enforcing faithful compliance with the laws of the United States and ….

upholding property interests[.]”). Almost three years ago, this Court firmly declared that

Enbridge could not be allowed to violate federal law by staying in trespass on the Band’s lands

for another half decade. Enbridge appears to view that holding as a discretionary whim, rather

than a reflection of the strong public interest in putting an end to illegal occupancy of tribal

lands.

But the Court was hardly an outlier in holding that the law needs to be followed. Indeed,

vindication of the public interest in ensuring compliance with tribal property rights typically

leads to an immediate injunction against further trespass by conveyors of energy. For example,

when Tesoro continued operating a crude-oil pipeline through the Fort Berthold Indian

Reservation after its easements on allotted parcels expired, the United States ordered it to stop,

and the company complied. See Defendants’ Answer and Counterclaim at 27, Tesoro High

Plains Pipeline Co. v. United States, No. 1:21-cv-90, (D.N.D. Nov. 8, 2023) (suing for removal

of now-idle pipeline and stating that the company complied with a 2020 shutdown order).

Elsewhere, after a federal court found that BNSF Railway consciously trespassed for almost a

decade by sending more oil (by rail) across the Swinomish Reservation than permitted by

BNSF’s easement, the company ceased the trespass before the court even addressed injunctive

relief. See Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., Cause No. C15-0543RSL, 2022 WL

3597439, at *6 (W.D. Wash. Aug. 23, 2022). BNSF was then required to disgorge $395 million

for its past trespass, because the one mile of trespass across the reservation had been essential to

nearly all the profit generated by BNSF’s 1,500-mile rail route delivering crude oil from field to

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 35 of 57

refinery. See Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 2024 WL 3027911 (W.D. Wash.

June 17, 2024).

The Market Will Readily Adjust to the Shutdown.

Enbridge argues that economic considerations justify a stay of the shutdown, insisting

that new information reveals that the market has not sufficiently prepared for one. Enbridge Br.

(Dkt. 708) at 4, 6–10. As Enbridge tells it, the Band and its experts wrongly predicted that the

market would make massive investments in new rail infrastructure by now, and the Court

premised its shutdown deadline on such a prediction. See Enbridge Br. (Dkt. 708) at 1 (“Despite

the Band’s predictions, no one has invested the hundreds of millions … to build transportation

alternatives to replace Line 5’s products in the markets.”); id. at 4 (“[T]he testimony of the

Band’s experts that the market would adjust to a Court ordered Line 5 closure has been proven

wrong.”); id. at 6 (“Contrary to the Band’s representations to this Court that new modes of

transportation would be created within two years, no new modes of transport for Line 5’s

essential energy products have emerged that would make up for a Line 5 shutdown.”); id. at 22

(arguing that purported evidence that “market players have not adjusted to a possible closure of

Line 5” undermines a “key premise of the Court’s injunction”). 8

This is a complete strawman of an argument. The Band’s actual position has always been

that there already exists infrastructure to offset nearly all the crude oil delivered by Line 5 to

refineries, see infra pp. 34–40, 9 and that minimal if any investment in rail infrastructure will be

See also Decl. of William Rennicke and David Hunt (“Rennicke Decl.”) (Dkt. 729) (reviewing

satellite images showing that major rail infrastructure has not been built in certain locations

where one of the Band’s expert witnesses opined it could be built).

See also, e.g., Trial Tr. (Closing Arguments) (Dkt. 605) at 16:16–22 (“Mr. Earnest and our

experts are all in basic agreement that even though Line 5 transports approximately 440,000

barrels of crude oil a day, that the net shortfall that one would end up with in fairly short order

after a shutdown, with proper notice to the market, would be far more in the vein of 70- to

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 36 of 57

needed to offset the propane and butane produced from Line 5 NGLs, see infra p. 40–44. 10 To be

sure, one of the Band’s experts, Graham Brisben, did identify numerous possible locations to

build new crude-by-rail infrastructure. 11 But, as discussed below, he identified these locations as

options (only one of which would even conceivably have to be built) if the refineries wished to

offset every last drop of Line 5 crude oil—a step that the Band has always maintained, and the

evidence shows, is unnecessary for protecting the refineries’ business operations and consumers.

See infra pp. 34–40. And despite Enbridge’s best wishes, the Court surely did not premise its

three-year deadline on an expectation that the market would build a large new crude-by-rail

facility. 12

80,000 barrels a day, that there are some simple market adjustments that lead to that number.”);

Rebuttal Report of Sarah Emerson (“Emerson Rebuttal Report”) (Dkt. 435) at PDF pp. 17–24

(discussing options to replace crude oil using existing infrastructure); Rebuttal Report of Graham

Brisben (“Brisben Report”) (Dkt. 440) at PDF p. 65 (summarizing existing crude-oil delivery

infrastructure discussed in report).

See also, e.g., Test. of Graham Brisben (“Brisben Test.”) (Dkt. 611) at 86:20–87:14 (explaining

that replacing all propane produced by the Superior and Rapid River fractionators would only

require increasing rail volumes by eight rail cars per day and that there already exists “railreceipt capability at most of the major storage caverns” in Sarnia); id. at 88:17–21 (“THE

COURT: So of the natural gas that’s needed of roughly 80,000 barrels, your testimony is how

much of that could almost immediately be obtained and sent by rail? THE WITNESS: I think all

of it could be immediately obtained and sent by rail.”); Brisben Report (Dkt. 440) at PDF p. 67

(summarizing existing delivery infrastructure for propane, butane, and mixed NGLs discussed in

report); Trial Tr. (Closing Arguments) (Dkt. 605) at 28:18–29:3 (“[Enbridge’s expert]

Mr. Earnest testified that for the building of permanent infrastructure—and this is if we are

talking about the building of a single unit train facility [to replace NGL deliveries], and I think

the testimony is that wouldn’t necessarily—that wouldn’t be necessary. There are other ways to

do it—but if one’s talking about [new] permanent infrastructure, he put a three-year time line on

that. That’s the outside time line for propane infrastructure because using some of these other

solutions would take less time. They’re already in place, unloading facilities like the caverns we

heard about yesterday.” (emphasis added)).

E.g., Brisben Report (Dkt. 440) at PDF pp. 38–40 (identifying possible crude-by-rail locations

in Sarnia).

Trial Tr. (Closing Arguments) (Dkt. 605) at 18:18–19:6 (“THE COURT: There is a question as

to when there would be sufficient motivation to build out those facilities and whether it would be

before or after a stop deadline, particularly given all the uncertainties as to whether or not that is

ultimately going to be required. Even if this court says it is, there’s still the question of appeals.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 37 of 57

As for Enbridge’s purportedly new evidence, it blatantly overstates the impacts of a

Line 5 shutdown to an extraordinary degree. See infra pp. 44–48. Now as much as ever, the

actual evidence shows that the market will—by deploying existing infrastructure—readily offset

nearly all the product delivered by Line 5, with virtually no impact on consumers.

Refineries Can Replace Nearly All Their Line 5 Deliveries

Without Large-Scale Infrastructure Investment and with

Negligible Impact on Gasoline Prices.

Ten refineries receive between 400,000 and 450,000 barrels per day (bpd) of crude oil

from Line 5 (which amounts to about a third of their total feedstock). 13 The trial evidence

established that existing alternative modes of transportation can promptly offset all but about

80,000 bpd of that oil based on three adjustments, none of which requires significant investment

or more than a few months to deploy. First, as Mr. Earnest testified, Line 78 presently operates at

about 100,000 bpd below capacity, and if Line 5 were to shut down, the excess capacity would

be utilized almost immediately to convey oil to the same refineries already receiving oil from

one or both pipelines. 14 Second, the two Quebec refineries, which receive about 200,000 bpd of

There are the questions of other legal bodies stepping in and changing the deadline. Even under

the rosiest of scenarios, and I appreciate your acknowledging that I can’t assume the rosiest of

scenarios, there’s going to be a disruption whenever that deadline occurs, whether—and maybe

this cuts both ways for you—whether I impose i[t] immediately or I impose it three years from

now. I don’t have the same confidence of an easy transition.”).

Expert Report of Sarah Emerson (“Emerson Report”) (Dkt. 265-1) at PDF pp. 15, 17.

Trial Test. of Neil Earnest (“Earnest Test.”) (Dkt. 610) at 99:11–20. This Court previously

expressed concern that a “bottleneck” will prevent Line 78 from being filled. Dkt. 684 at 24, 26.

But Enbridge’s own policy ensures that this would not happen. Enbridge has a binding,

government-approved “apportionment” policy, see Trial Ex. 294 at 9–10, that governs when the

upstream pipelines that feed both Line 78 and other Enbridge pipelines (which transport oil south

to the Gulf) are full. The policy determines how much oil each downstream pipeline receives.

And according to Mr. Earnest (including in his most recent declaration), filling Line 78 will take

priority under the policy if Line 5 is shut down, such that Line 78 will operate at capacity. See

Earnest Test. (Dkt. 610) at 96:6–21, 99:11–20; Decl. of Neil Earnest (“Earnest Decl.”) (Dkt. 728)

Ex. 2 (Dkt. 728-2) at PDF p. 6 (apportionment analysis showing full use of Line 78 (570,000

bpd)). To be sure, one Enbridge lay witness suggested at trial that a bottleneck could prevent

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 38 of 57

crude oil from Enbridge, 15 can go back to doing exactly what they did prior to 2016 and what

one of them still does in significant part—which is to obtain their deliveries from alternative

sources, primarily waterborne tankers on the St. Lawrence Seaway. 16 Indeed, the refineries

themselves have touted their ability to promptly re-employ these delivery systems if Line 5 shuts

down. 17 Third, several of the refineries served by Line 5 also have rail terminals that can be

reactivated quickly and are capable of unloading modest amounts of crude oil. 18 Once the

refineries make full use of existing infrastructure, then, even under Mr. Earnest’s calculations,

the shortfall from a Line 5 shutdown would be less than 80,000 bpd—just seven percent of the

ten refineries’ total feedstock. 19 As this Court observed during closing argument, “I do think that

Line 78 from being filled, but then he expressly deferred to Mr. Earnest on the issue. See Trial

Test. of Marlon Samuel (Dkt. 610) at 85:21–25 (“Q. Do you have any reason to doubt Mr.

Earnest’s calculations as to the amount of oil available to Line 78 and downstream pipelines in

the event of a Line 5 shutdown? A. No, I trust Mr. Earnest. He’s our expert.”).

Emerson Report (Dkt. 265-1) at PDF pp. 20, 38; Earnest Decl. (Dkt. 728) Ex. 2 (Dkt. 728-2) at

PDF p. 5.

Emerson Report (Dkt. 265-1) at PDF p. 38. It is important to debunk two strawmen that

Enbridge and its allies consistently set forth in this regard. This option will not involve oil

tankers on the Great Lakes, period. And it will not require a reversal of Line 9. In its 2023

opinion, the Court thought that the second of these points might be the case, Dkt. 684 at 23–24,

but it is not. A reversal of Line 9 would only be necessary to transport waterborne oil to the

Ontario refineries, which is simply one of many options that would be possible for offsetting the

small amount of oil deliveries that could not be promptly offset using existing infrastructure.

Emerson Report (Dkt. 265-1) at PDF pp. 38–39 (quoting Valero spokeswoman saying

regarding Line 5 contingency plans that “[w]e have access to a deepwater port, allowing us to be

supplied by ships,” and quoting a Suncor spokeswoman saying that they likewise “have

contingency plans in place.”).

See Emerson Rebuttal Report (Dkt. 435) at PDF pp. 19–20 & fig. 2 (identifying 159,500 bpd

in unused offloading capacity in rail terminals at refineries served by Line 5); Expert Report of

Neil Earnest (“Earnest Report”) (Dkt. 495) at pp. 54, 113–14 (identifying crude-by-rail

unloading facilities at certain refineries); Earnest Test. (Dkt. 610) at 99:21–100:3 (same); Decl.

of Graham Brisben (filed contemporaneously with this memorandum of law) (“Brisben Decl.”),

Ex. 1, Likely Market Responses to a Shutdown of Line 5 (“PLG Report”) at 52–54 (same).

See Earnest Test. (Dkt. 610) at 103:3–8 (agreeing that “[i]f the Quebec refineries were, in fact,

to go back to waterborne sources of crude oil, then the shortfall in the Line 5 delivery area would

be reduced to 79,000 barrels a day”); Emerson Report (Dkt. 265-1) at PDF p. 17 (the ten

refineries have a combined throughput of more than 1.1 million bpd). To be sure, Mr. Earnest has

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 39 of 57

[the Band] did an effective job of laying out why, at least with respect to crude oil, there are

alternatives to get the product to an appropriate refinery.” 20

New information since the trial only further confirms that the refineries can offset nearly

all the Line 5 crude-oil deliveries without significant infrastructure investments or lead time.

Since the trial, PLG Consulting—an energy-industry consulting firm led by Graham Brisben,

who testified for the Band at trial—has conducted the most thorough analysis to date of the likely

market response to a Line 5 shutdown. It has concluded that existing infrastructure would offset

all but just 53,000 bpd of Line 5 crude oil—or less than five percent of the ten refineries’ total

disputed that the market would make full use of existing infrastructure; his most recent

declaration predicts that refineries would experience a reduction in crude runs of 155,700 bpd,

not 79,000, if Line 5 shut down. See Earnest Decl. (Dkt. 728) Ex. 2 (Dkt. 728-2) at PDF p. 6. Mr.

Earnest’s view is that although it is commercially viable for the Quebec refineries to revert to

non-Enbridge sources of oil, see Earnest Test. (Dkt. 610) at 101:18–24, they would instead

continue to take a significant amount of Enbridge oil under Enbridge’s apportionment policy,

leaving less of the remaining Enbridge oil for other refineries with fewer available alternatives,

see Earnest Report (Dkt. 495) at PDF pp. 63–66. But that opinion is incorrect for multiple

reasons, with perhaps the most important being that even if Enbridge’s apportionment policy did

prevent the market from efficiently allocating Enbridge crude oil to Ontario instead of Quebec,

the Canadian government would have the authority to fix the situation. See Trial Ex. 294 at 9

(Enbridge’s government-approved apportionment policy, granting Canada Energy Regulator

power to override the policy by allocating supply to “priority destinations.”).

Trial Tr. (Closing Arguments) (Dkt. 605) at 19:20–22; see also id. at 40:17–18 (“[T]here is

reason to think that the markets could adjust with respect to crude oil”). To be sure, the Court

also wrote that the Band’s account of market adjustments is “rosy” and even “wildly optimistic,”

Dkt. 684 at 23–24, but, respectfully, the Court’s stated concerns were off-base. Contrary to Dkt.

684 at 23–25, Line 78 will be filled to capacity regardless of how full the feeder lines are, see

supra n.14; the shift to waterborne deliveries by Quebec refineries does not require a re-reversal

of Line 9, see supra n.16; and there would be no need for new crude-by-rail or truck

infrastructure in Superior (Mr. Brisben addressed the feasibility of this in his rebuttal report

because Enbridge’s expert had brought it up in presenting what Mr. Brisben described as a “straw

man,” not because Mr. Brisben claimed it would or should occur, see Brisben Report (Dkt. 440)

at PDF p. 9).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 40 of 57

feedstock. 21 The bar graph on the left shows the means by which the market would offset the loss

of Line 5 crude oil using infrastructure that can be fully activated within three months:

Figure 1: PLG Report at 13

PLG’s subsequent study is fully consistent with Mr. Brisben’s trial testimony and with the

representations the Band has made to this Court.

With respect to consumer impacts, it remains clear that any reduction in crude-oil

deliveries to these refineries will have only the most negligible impact on the price of refined

products such as gasoline. Enbridge’s lead expert, Neil Earnest, testified that, given the vast

network of refined gasoline pipelines serving the Line 5 delivery area, even an immediate Line 5

shutdown will, at most, cause a half-cent-per-gallon increase in gasoline prices in Michigan and

PLG Report at 45–57, 73; Emerson Report (Dkt. 265-1) at PDF p. 17 (the ten refineries have a

combined throughput of more than 1.1 million bpd).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 41 of 57

Wisconsin and a nickel increase in Ontario 22—changes that would be undetectable in the noise of

daily price fluctuations. Mr. Earnest has never strayed from this opinion, and history bears it out.

When Enbridge’s Line 6B (now known as Line 78)—which served the same refineries as Line

5—ruptured and shut down for several months in 2010, there was no noticeable impact on

prices. 23 As Mr. Earnest testified, “There was not, you know, sizable price impacts for refined

product in the Detroit/Toledo area. And that’s consistent with my analysis here regarding a Line

5 shutdown.” 24

Unable to put a dent in any of this evidence about refinery or consumer impacts,

Enbridge presses its strawman, repeatedly insisting that the Band and its experts predicted the

market would manage to adjust only by constructing new large crude-by-rail infrastructure by

now. See Enbridge Br. (Dkt. 708) at 4, 6. 25 But the locations identified in Mr. Brisben’s rebuttal

report were presented simply as options for the refineries to replace every drop of oil, which, for

all the reasons just discussed, the Band certainly never claimed is necessary for a smooth

transition in which the refineries can replace nearly all their oil and consumers are essentially

unaffected. Nor did the Band guarantee that the refineries would respond to a shutdown date by

See Earnest Report (Dkt. 495) at PDF pp. 72–74, 79. If anything, the impact in Ontario will be

less than five cents per gallon now, given investments in new transportation infrastructure for

refined products. See Earnest Decl. (Dkt. 728) ¶ 11 (discussing opening of new refined products

terminal in Ontario in 2024).

Earnest Test. (Dkt. 610) at 116:3–15; see also PLG Report at 33.

Earnest Test. (Dkt. 610) at 116:9–12. Line 5 itself has been shut down with no impact on

consumer prices. In 2020, when a near-rupture caused the pipeline to shut down entirely for

nineteen days, and then to run at half capacity for seventy-eight days, the price of gasoline in

Michigan and Toronto actually declined during that period—both in absolute terms and relative

to the national average. See Laina G. Stebbins, Study: Partial Line 5 Shutdown Has Not

Impacted Gas Prices, Despite Enbridge Warnings, Mich. Advance (Aug. 10, 2020),

https://michiganadvance.com/2020/08/10/study-partial-line-5-shutdown-has-not-impacted-gasprices-despite-enbridge-warnings/.

See also Rennicke Decl. (Dkt. 729) ¶¶ 17–26.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 42 of 57

constructing such a facility; indeed, the Band argued that the incentive for them to do so would

be strongest if the Court ordered an earlier shutdown. 26 And while the refineries likely would

construct such infrastructure in the event of a Line 5 shutdown even of relatively short

duration, 27 the modest impact of a Line 5 shutdown on refinery feedstock given existing options

for replacing Line 5 crude oil makes it unsurprising that they have not done so pending a Seventh

Circuit decision.

Moreover, Enbridge has deliberately chosen not to fully inoculate its customers against

the effects of a Line 5 shutdown. In addition to the 100,000 bpd of unused capacity that is

already available on Line 78, Enbridge could have further increased Line 78’s capacity by

110,000 bpd simply by adding pumping capacity (without laying new pipe) 28—which would

have allowed the refineries to replace all Line 5 oil in the event of a Line 5 shutdown. Enbridge

does not deny this in its most recent submission to this Court. Instead, Trent Tetzlaff, an

Enbridge Vice President, states that “Enbridge has no current plans at this time to expand Line

78,” 29 and Enbridge has not even commenced the process of seeking a permit from the Michigan

Public Service Commission for the expansion. Mr. Tetzlaff acknowledges that Enbridge is

expanding the pipelines downstream of Superior, Wisconsin—which feed Line 78 and the

Enbridge pipelines that transport oil south to the Gulf—by more than 150,000 bpd, but then he

declares that this expanded capacity “will not provide service to the same market as Line 5” (i.e.,

Trial Tr. (Closing Arguments) (Dkt. 605) at 22:9–10 (“[T]he incentive for the market to act [to

build a crude-by-rail unloading facility] will be all the greater if that shutdown timing is closer in

time.”).

See PLG Report at 57–67; Brisben Test. (Dkt. 603) at 70:23–71:12 (explaining that crude-byrail terminals can pay for themselves within two to three years).

Brisben Report (Dkt. 440) at PDF pp. 61–62; PLG Report at 74–75; Trial Ex. 421 (Defs.’ Objs.

and Resps. to Pls.’ Fourth Set of Interrogs.) at 5 (describing actions needed to expand Line 78).

Declaration of Trent Tetzlaff (“Tetzlaff Decl.”) (Dkt. 724) ¶ 11.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 43 of 57

will not be used to fill existing or expanded capacity on Line 78). 30 But that is by choice, and it

illustrates what is at issue here. Enbridge cares not one whit about the public interest. It cares

about maximizing its profitability. And that is fine—it is a corporation, after all. But Enbridge

cannot then cloak itself in the mantle of the public interest to justify extending its thirteen-year

trespass on the Band’s lands for any longer, and it actions belie its arguments for doing so. Faced

with a Court-imposed shutdown date for Line 5, Enbridge has chosen to increase its deliveries to

the Gulf instead of expanding Line 78’s capacity and ensuring that its existing customers can

obtain the same amount of oil upon a Line 5 shutdown. Now, it seeks to benefit from that choice

by arguing that even a modest reduction in refinery feedstock—including one it could have

averted entirely by adding pumping capacity to Line 78—is sufficient reason not to shut down

Line 5. Equity cannot reward such conduct. See Glus v. Brooklyn E. Dist. Terminal, 359 U.S.

231, 232–233 (1959) (explaining that “the maxim that no man may take advantage of his own

wrong” is “[d]eeply rooted in our jurisprudence” and “has been applied in many diverse classes

of cases by both law and equity courts”).

Large-Scale Infrastructure Investments Are Likewise Not

Necessary To Replace Line 5-Derived Propane.

Enbridge is also wrong to say that the Band’s experts opined that large-scale

infrastructure investment would be needed to allow the propane market to smoothly transition

away from Line 5. As the Band maintained at trial and remains true today, the markets served by

Line 5 already obtain propane from rail delivery and other pipelines, 31 and the market can

Id. ¶¶ 9, 12.

See, e.g., Brisben Report (Dkt. 440) at PDF pp. 26–27 (describing rail-served propane storage

facilities in the Sarnia, Ontario area); id. at PDF pp. 50–51 (describing Ambassador Pipeline in

Michigan); id. at PDF pp. 57–59 (describing recent investment in propane-by-rail facility in

Kincheloe, Michigan, and Duluth, Minnesota (outside of Superior, Wisconsin), as well as rail31

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 44 of 57

respond to a Line 5 shutdown by transporting more propane by those alternatives with minimal

new investment. 32 As the State of Michigan’s elected policymakers—who have a great deal to

lose should their analysis prove wrong—concluded after conducting multiple thorough studies,

the “markets will ably adjust to a court-ordered shutdown of Line 5[.]” Brief of Amici Curiae

State of Michigan and Attorney General Dana Nessel in Support of Bad River Band at 6–9, Bad

River Band v. Enbridge Energy Co., Nos. 23-2309, 23-2467 (7th Cir. Oct. 18, 2023).

In the areas currently served by the Superior and Rapid River fractionators (northern

Wisconsin and Michigan’s Upper Peninsula), both the market and the State of Michigan have

already invested in expanding alternatives to Line 5, including propane-by-rail infrastructure. 33

Enbridge and its declarants seek to minimize the impact of those investments. Mr. Earnest

argues, without further explanation, that Michigan’s $8 million in public expenditures will “only

modestly enhance Michigan propane supply security.” 34 But, as Mr. Earnest acknowledged at

trial, a single $5 million rail terminal can offload more than the entire supply of propane

consumed in the Upper Peninsula. 35 And even if recent investments in rail are not sufficient to

fully offset the propane produced at the Rapid River and Superior fractionators (which together

served propane storage facilities in the Sarnia, Ontario area); Earnest Report (Dkt. 495) at PDF p.

34 (map showing propane-by-rail terminals in Wisconsin and Michigan).

See generally PLG Report at 78–103; see also Brisben Test. (Dkt. 611) at 86:20–87:14, 88:17–

21 (explaining that replacing all propane produced by the Superior and Rapid River fractionators

would only require increasing rail volumes by eight rail cars per day and that in Sarnia there

already exists “rail-receipt capability at most of the major storage caverns,” such that all of the

propane and butane currently derived from Line 5 NGLs could be replaced by increased rail

deliveries and utilization of the Ambassador Pipeline).

See PLG Report at 82–83; Earnest Decl. (Dkt. 728) ¶¶ 6–9.

Earnest Decl. (Dkt. 728) ¶ 7.

See Earnest Test. (Dkt. 610) at 122:23–123:1 (acknowledging that a $5 million rail facility can

enable receipt of enough propane to supply 35,000 homes); Trial Ex. 265 (Dep’t of Env’t, Great

Lakes, & Energy, Upper Peninsula Energy Task Force Committee Recommendations: Part I –

Propane Supply (2020)) at PDF p. 6 (stating that 23,000 households in the Upper Peninsula use

propane).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 45 of 57

employ sixteen individuals 36), Mr. Earnest further acknowledged at trial that it would take less

than six months to set up portable transloaders to offload additional propane by rail car. 37 Only

four to six mobile transloaders (which even if purchased outright rather than leased cost less than

$1 million each 38) would likely be needed to enable delivery of a volume equal to the entire

amount produced by the two fractionators, 39 thus avoiding any need for long-distance trucking of

propane to northern Wisconsin and the Upper Peninsula.

The area served by the third fractionator in Sarnia (primarily Ontario and Michigan’s

Lower Peninsula) will likewise adjust without significant disruption. Enbridge’s declarants

concede that the Sarnia fractionator will continue to produce propane (albeit less than with

deliveries of NGLs from Line 5), 40 and rail deliveries of purity propane can be used to fill the

gap. 41 The greater Sarnia area has over twenty-three million barrels of storage capacity for

propane, and all of it is already connected to rail delivery infrastructure (as rail is the most

common means by which propane is transported between Canada and the United States). 42 To be

Expert Report of Corbett Grainger (Dkt. 493) at PDF pp. 14–15 & n.24.

Earnest Test. (Dkt. 610) at 110:8–12.

Trial Test. of William Rennicke (Dkt. 604) at 95:11–24.

See Trial Test. of Jill Steiner (Dkt. 603) at 95:6–19 (testifying that it takes approximately four

hours for a portable transloader to unload a rail car); id. at 99:10–14 (testifying that the Rapid

River area would need to receive three to four rail cars per day to make up for propane lost from

the Rapid River fractionator); id. at 98:3–7 (testifying that there would need to be 2,100 bpd of

propane delivered to the Rapid River area and 3,700 bpd delivered to the Superior area to make

up for the loss of fractionator output).

Decl. of Bonnie Yu (Dkt. 711) ¶ 6 (“[A] shutdown will reduce the natural gas liquids supply

moved by pipeline into the Sarnia fractionation facility[.]”).

See generally PLG Report at 90–99; see also Brisben Test. (Dkt. 611) at 86:14–87:14, 88:17–

21 (explaining that that there already exists “rail-receipt capability at most of the major storage

caverns” in Sarnia, such that all of the propane and butane currently derived from Line 5 NGLs

could immediately be replaced by rail deliveries). Ethane, which is delivered directly by pipeline

to Sarnia, can also substitute for propane in various industrial and petrochemical uses. See Expert

Rebuttal Report of Jill Steiner (“Steiner Report”) (Dkt. 439) at PDF p. 49.

See Brisben Report (Dkt. 440) at PDF pp. 21–22, 26, 51–52, 58; see also PLG Report at 89–

91; Earnest Test. (Dkt. 610) at 107:22–108:1.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 46 of 57

sure, Enbridge’s expert witness William Rennicke insists that the market will not make use of

this existing propane-by-rail infrastructure because the reroute could happen and railcar lessors

are unwilling to lease the requisite number of rail cars for any less than three-year terms. 43 But

the market is not nearly so sclerotic. As PLG Consulting explains in its recent analysis, propaneby-rail activity in the area currently served by the Sarnia fractionator would “not involve

unknown shippers having to cold-call for railcars.” 44 Rather, there are thousands of unused

pressurized railcars on the market, and numerous existing market participants possess fleets of

many thousands of railcars that can be deployed to the Sarnia area within a few months. 45 No

indication exists that with the certainty of an approaching deadline, the market will not spring

into action. Indeed, the owner of the Sarnia (and Rapid River and Superior) fractionator attests in

its investor reports that it “sells propane in various North American markets, often where the

only option for delivery is via railcar or truck.” 46

The switch from pipeline deliveries to rail deliveries will have a minimal impact on

propane consumers. This is confirmed by experiences in Wisconsin and Michigan. Wisconsin

relies far more heavily on rail for its propane deliveries than Michigan, and Michigan relies more

heavily on Line 5—yet Wisconsin has consistently had lower propane prices for more than a

decade. 47 Hence, Enbridge’s experts never opined that switching from pipeline deliveries to rail

deliveries would cause an increase in the consumer price of propane, but instead argued that such

Rennicke Decl. (Dkt. 729) ¶¶ 4(a), 32–33.

PLG Report at 99.

Id. at 98–99; see also Brisben Report (Dkt. 440) at PDF p. 37.

Keyera, 2025 Second Quarter Report 26 (Aug. 7, 2025),

https://www.keyera.com/assets/Attachments/Q2-2025-Report-Final.pdf.

See Steiner Report (Dkt. 439) at PDF p. 42 (comparing prices in Wisconsin and Michigan);

Earnest Report (Dkt. 495) at PDF p. 34 (showing propane-by-rail terminals in Wisconsin and

Michigan).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 47 of 57

a transition would not occur and that it would therefore be necessary to rely on costly longdistance trucking to deliver propane. 48 Yet even Mr. Earnest’s prediction—more than an eightcent increase per gallon of propane from using long-distance trucking in each of the affected

markets 49—would pale in comparison to the impact of other factors affecting consumer propane

prices. 50 The price of a gallon of propane has ranged from $1.56 to $2.75 in Michigan and from

$1.15 to $2.62 in Wisconsin during the past decade due to a multitude of market factors, and in

both states the price per gallon was about thirty-three cents lower this past November than at the

time of trial in November 2022. 51

Enbridge’s Narrative About the Market Has No Basis in

Evidence.

Enbridge and its allies warn of dramatic economic impacts if Line 5 shuts down, but their

narrative has no tether to reality. Over and over, they rely on evidence-free assertions and

exaggerate the impacts of a Line 5 shutdown by orders of magnitude. But the wildness of their

claims cannot obscure the lack of factual basis. Here are just a few examples:

1. Impact in Toledo. Citing declarations from union leaders and refinery executives,

Enbridge states that “Toledo Refining Company, owned by PBF Energy, will likely cease

operations if Line 5 is shut down more than a few weeks,” and that such a shutdown will cause

“the loss of $5.4 billion in annual economic output.” Enbridge Br. (Dkt. 708) at 7–8 (quotation

Earnest Report (Dkt. 495) at PDF pp. 43–44, 46–47, 104–06.

Id. at 44.

PLG Report at 102–03.

U.S. Energy Info. Admin., Weekly Michigan Propane Residential Price (last accessed Feb. 12,

2026),

https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=W_EPLLPA_PRS_SMI_DPG&

f=W; U.S. Energy Info. Admin., Weekly Wisconsin Propane Residential Price (last accessed Feb.

12, 2026),

https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=W_EPLLPA_PRS_SWI_DPG&

f=W.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 48 of 57

marks omitted). 52 But the cited declarations provide no evidence to support these assertions, and

they are refuted by the analysis of Enbridge’s own expert. Mr. Earnest predicts just a 4.5%

(17,100 bpd) decline in oil delivered to the two Toledo refineries even under his assumption that

the market will not make full use of existing infrastructure, and he has admitted there would be

no reduction for these refineries if existing infrastructure is fully utilized. 53 This bears

underscoring: while Enbridge and its declarants make apocalyptic representations to the Court

about refinery shutdowns in Toledo, Enbridge’s own expert is far more measured, and his

testimony hardly provides cause for perpetuating Enbridge’s trespass on tribal lands.

2. Impact on refined product prices. Several of Enbridge’s declarants insist without

evidence that a Line 5 shutdown would cause dramatic increases in the price of refined

petroleum products, such as one who says “[t]here will be significant upward pressure on refined

product prices for the region including Michigan.” 54 But again, Enbridge’s own expert, who has

actually analyzed the issue, predicts an increase of half a cent per gallon in the price of refined

products in Michigan. See supra pp. 37–38.

3. Impact on airports. Enbridge also asserts—based on an amicus brief and evidence-free

declarations—that Line 5 is “critical for suppling jet fuel to certain airports” and that it supplies

“between 90% to 100%” of the jet fuels used at Toronto’s main airport, suggesting there will be a

Citing Decl. of Justin Donley (Dkt. 716) ¶¶ 7–8, 9–10 and Decl. of Matthew Lucey (“Lucey

Decl.”) (Dkt. 717) ¶¶ 7–9, 12–13; see also Lucey Decl. (Dkt. 717) ¶ 8 (lamenting purported

sixty-percent decline in Enbridge deliveries to Toledo refineries); Decl. of Brandon Bishop (Dkt.

712) ¶ 10 (estimating that 687 individuals work at the Toledo refineries who could be affected by

a Line 5 shutdown); Decl. of Geoff Murray (Dkt. 714) ¶ 4 (“[I]f Line 5 is shut down for any

length of time, the consequences to [the Cenovus Toledo Refinery] and affected refiners in the

region would be significant.”).

Earnest Decl. (Dkt. 728) Ex. 2 (Dkt. 728-2) at PDF p. 6 (projecting 4.5% decline in crude runs

to Toledo refineries); Earnest Test. (Dkt. 610) at 105:16–21 (admitting that full use of existing

infrastructure in the Line 5 area would result in “no shortfall in the Detroit/Toledo region”).

Decl. of Paula O’Shaughnessy (Dkt. 720) ¶ 5(b).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 49 of 57

jet-fuel shortage or price spike in the region if Line 5 shuts down. Enbridge Br. (Dkt. 708) at 9;

see also Canada Amicus Br. (Dkt. 736) at 17. Yet again, this alarmism is refuted by Enbridge’s

own expert. Mr. Earnest’s prediction of the impact on refined product prices—a half-cent per

gallon in Michigan and Wisconsin and a nickel in Canada—pertains not just to gasoline but also

specifically to “jet fuel.” 55 That is a negligible price increase, not a threat to the region’s airports,

and certainly no warrant for further extending an illegal, thirteen-year trespass.

4. Dr. Grainger’s Declaration. Dr. Corbett Grainger reiterates his predictions of thousands

of lost jobs and billions in “economic impact” from a Line 5 shutdown. 56 Even setting aside the

problems with the assumptions underlying his model, it measures an utterly unrealistic scenario

with no connection to reality. Instead of estimating the effect that a Line 5 shutdown would

actually have on GDP and employment, Dr. Grainger’s model estimates the gross impact on

regional business revenue that would occur—and the ripple effect on jobs that would result—if

fractionators and refineries were to shut down and large volumes of refined products were to

disappear from the market without there being replacement refined products, jobs, or economic

activity. 57 Such modeling might be useful in North Korea, but not in the dynamic energy market

of North America. There is no other way to put it—this is junk analysis of a situation that no

reasonable observer thinks will come to pass.

The most baffling part of Enbridge’s submission may be Dr. Grainger’s opinion that

recent funding cuts to SNAP, the Affordable Care Act, and other government programs will

render any increase in fuel prices more stressful for low-income households, which are

Earnest Report (Dkt. 495) at PDF p. 79.

Decl. of Dr. Corbett Grainger (“Grainger Decl.”) (Dkt. 713) ¶ 4.

Trial Test. of Corbett Grainger (Dkt. 604) at 108:14–110:8, 111:3–23, 116:1–120:10.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 50 of 57

disproportionately “rural” and “indigenous.” 58 While cuts to anti-poverty programs have indeed

affected Band members and others throughout the country, they surely do not provide an

equitable basis to force the Band to endure a longer trespass on its sovereign land.

5. The Consumer Energy Alliance Report. Enbridge and Canada also cite a report 59 from

Consumer Energy Alliance to support claims of major job loss, price spikes, and energy

insecurity. Canada Amicus Br. (Dkt. 736) at 7 n.19, 9 n.27, 20 n.50; Enbridge Br. (Dkt. 708) at 8

(citing Canada’s Seventh Circuit brief for statistic from same report). But that industry-financed

report, which was published in 2022 before trial, is filled with false assumptions and conjecture

that would never pass muster in a courtroom and hence has never been subjected to the

adversarial process. As just one example: the report asserts, without any discernible

methodology, that a Line 5 shutdown would cause consumer gasoline prices in the Midwest to

rise between 9.47% and 11.66% (approximately thirty cents a gallon) and thus cost consumers

$23.7 billion over a five-year period. 60 That is, it predicts a price increase sixty times as big as the

prediction by the Enbridge expert who actually took the stand, see supra pp. 37–38.

6. The Army Corps’ Draft Decision Document. Canada even argues that a United States

Army Corps of Engineers draft decision document from May 2024—which contains three pages

about alternatives to Line 5—amounts to “changed circumstances” justifying a stay. Canada

Amicus Br. (Dkt. 736) at 17–18. But the Army Corps’ discussion of Line 5 alternatives in that

document contains no new information of any kind, and it states that its analysis is based on

Grainger Decl. (Dkt. 713) ¶¶ 4(b), 17–24.

Consumer Energy All., Enbridge Line 5: Shutdown Impacts on Transportation Fuel

3–4 (2022), https://consumerenergyalliance.org/cms/wp-content/uploads/2022/02/CEA-Line-5Shutdown-Impacts-on-Transportation-Fuel.pdf.

Id. at 3–4.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 51 of 57

“information provided by the applicant [Enbridge].” 61 The Army Corps’ analysis engages with

irrelevant hypotheticals such as how many trucks would be needed if all of Line 5’s oil and

NGLs were to be shipped by truck from western Canada to the refineries. 62 Canada’s assertion

that this box-checking exercise in an environmental review relying solely on information

provided by Enbridge amounts to “changed circumstances”—after a trial involving evidentiary

standards, expert testimony, and cross-examination—shows the extent to which Canada is

grasping at straws to justify a continuation of Enbridge’s trespass.

In sum, the market is already capable of handling a Line 5 shutdown without significant

economic disruption and without substantial investments in new infrastructure, and Enbridge’s

many declarants fail to show otherwise. To be clear, the Band does not claim that shutting down

Line 5 will have absolutely no economic effects. As with any other transition in our dynamic

economy, there will likely be both positive and negative impacts. But Enbridge has failed to

establish, based on actual facts, that any detrimental impacts will be more than modest. And such

impacts cannot, as a matter of law or equity, justify forcing the Band to endure the negation of its

sovereign rights any longer than the thirteen years of willful and dangerous trespass that it has

already experienced.

The United States’ Relationship with Canada Does Not Weigh in

Favor of Staying the Injunction.

Enbridge also argues that a Line 5 shutdown will adversely affect diplomatic relations

between the United States and Canada and potentially expose the United States to monetary

U.S. Army Corps of Eng’rs, Draft Decision Document 34–36 (May 20, 2024),

https://www.mvp.usace.army.mil/Portals/57/docs/regulatory/Enbridge/EnbridgeLine5/DCDD/L5

R%20Draft%20CDD%2020240520_508_final.pdf.

Answer: “a total of 3,000 loaded tanker trucks and an additional 3,000 empty tanker trucks

would be required[.]” Id. at 36.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 52 of 57

damages in international arbitration. Enbridge Br. (Dkt. 708) at 10; see also Canada Amicus Br.

(Dkt. 736) at 1–6, 10–15; U.S. Statement of Interest (Dkt. 738) at 3, 11–12.

Again, the Court already considered these factors and gave them substantial weight when

deciding to give Enbridge three more years on the Reservation. See, e.g., Dkt. 360 at 41–42

(considering “significant public policy implications on the trade relationship between the United

States and Canada,” and that a shutdown of the pipeline could be “subject to international

arbitration” under the Transit Treaty); Dkt. 684 at 39 (citing “international relations between the

United States and Canada” as a factor weighing against an injunction). There is no credible

reason why those considerations should be given more weight now than the Court gave them

three years ago.

If anything, the recent shift in federal policy reflects a judgment by the current

Administration that the United States’ relationship with Canada matters very little to the public

interest. While the United States cites its “broader diplomatic and trade relationship with

Canada” as a factor weighing in favor of a stay, U.S. Statement of Interest (Dkt. 738) at 11, it is

impossible to square such rhetoric with the events of the past year, which have seen a dramatic

fraying in that relationship. On the economic front, American tariffs have obliterated trade

between the two countries, with economic impacts that dwarf anything that could result from a

Line 5 shutdown even according to the most pessimistic predictions. See, e.g., Danielle Kaeding,

Trump’s Trade War Took a Toll on Shipments in the Twin Ports Last Year, Wisconsin Public

Radio (Jan. 30, 2026) (explaining that the amount of cargo moved through the Port of DuluthSuperior is “the lowest tonnage shipped through the port since 1938, according to season end

figures released Friday by the Duluth Seaway Port Authority. Canadian trade dropped 41 percent

across all cargoes, and overseas trade fell 30 percent to its lowest level since the St. Lawrence

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 53 of 57

Seaway opened in 1959. The amount of grain moving through the port also dropped to roughly

560,000 tons, the lowest level seen since 1890”). 63 And events in recent weeks indicate that the

United States is only threatening further damage to the trade relationship. See, e.g., Mike

Crawley, Trump Threatens To Block Opening of New Bridge Between Windsor and Detroit, CBC

News (Feb. 9, 2026); 64 Michelle L. Price & Rob Gillies, Trump Threatens Canada with a 100%

Tarriff Over Its China Trade Deal and Escalates Feud with Carney, AP News (Jan. 24, 2026). 65

Of course, none of this should matter to begin with. This Court already gave substantial

weight to relations with Canada when it set the June 16, 2026 shutdown deadline, and it would

be folly to try to re-balance foreign policy considerations based on the submission of amicus

briefs or the most recent diplomatic dustup. Such balancing can never obviate the Band’s

concrete rights as guaranteed by treaty and federal statute, see supra pp. 10–12, 15–17, 29–32,

and certainly it can no more justify extending Enbridge’s trespass now than it could several years

ago.

III.

Relief Under Federal Rule of Civil Procedure 62.1 Would Only Ensure Delay and

Chaos in this Case.

Enbridge moves in the alternative for relief under Federal Rule of Civil Procedure 62.1,

pursuant to which it would have this Court indicate to the Circuit that it wishes to modify its

injunction. For all the reasons discussed above, there exists no legal or factual warrant for

modifying the injunction. And granting Enbridge’s request would wreak judicial havoc. What

Enbridge nowhere acknowledges is that the practice of the Seventh Circuit when confronted with

https://www.wpr.org/news/trumps-trade-war-took-a-toll-on-shipments-in-the-twin-ports-lastyear.

https://www.cbc.ca/news/canada/trump-gordie-howe-bridge-9.7081924.

https://apnews.com/article/trump-canada-carney-china-tariffs5079e910df071b45d2b16949efb8f11a.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 54 of 57

a Rule 62.1 indicative ruling is to dismiss the appeal and send the entire case back to the district

court for resolution, requiring a new appeal by any party dissatisfied with the district court’s

ultimate judgment. See, e.g., Koerner v. Experian Info. Sols., Inc., No. 24-1549, 2025 WL

2817554, at *1 (7th Cir. July 24, 2025). 66

If this Court were to grant Enbridge’s motion for an indicative ruling, the matter would

hence be remanded without guidance from the Seventh Circuit on the issues at play. Enbridge

would undoubtedly benefit from the resulting delay, but if the goal is to get to a definitive

judicial resolution of this matter, Enbridge’s suggestion would accomplish exactly the opposite.

This Court has delivered a clear judgment and a thorough opinion setting forth its reasoning for

the three-year deadline. The arguments for and against that deadline are now fully briefed and

argued before the Circuit, whose decision will “more finally resolve [this] issue as opposed to

proceeding with a district court decision subject to appeal,” Adams v. Kijakazi, Civil No. 7:1988, 2022 WL 987337, at *3 (E.D. Ky. Mar. 31, 2022) (brackets in original) (quoting Ret. Bd. of

Policemen’s Annuity and Benefit Fund v. Bank of N.Y. Mellon, 297 F.R.D. 218, 221 (S.D.N.Y.

2013) (“[T]here is little indication the drafters of that rule intended it to be used … to ask a

district court to issue an indicative ruling reconsidering the same question being reviewed by the

court of appeals.”)).

The dismissals are issued as a matter of course through formulaic orders that do not address

the merits. See, e.g., Rogers v. Mitchell, No. 24-2307, 2024 WL 5357531, at *1 (7th Cir. Aug. 29,

2024); Holsten v. O’Malley, No. 24-1205, 2024 WL 3694693, at *1 (7th Cir. May 3, 2024);

Steuernagel v. O’Malley, No. 23-2801, 2024 WL 1108647, at *1 (7th Cir. Mar. 1, 2024); Smith v.

Stevens, No. 23-3236, 2024 WL 2264398, at *1 (7th Cir. Feb. 2, 2024); Wilson v. Kijakazi, No.

21-2800, 2021 WL 7909363, at *1 (7th Cir. Dec. 3, 2021) (St. Eve, J.).

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 55 of 57

CONCLUSION

For the foregoing reasons, the Band respectfully requests that the Court deny Enbridge’s

Motions For Stay and, Alternatively, Fed. R. Civ. P. 62.1 Ruling To Modify Injunction.

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Dated: February 13, 2026

Respectfully submitted,

Erick Arnold

BAD RIVER BAND OF THE LAKE SUPERIOR

TRIBE OF CHIPPEWA INDIANS OF THE BAD

RIVER RESERVATION

72682 Maple Street

Odanah, Wisconsin 54861

attorney@badriver-nsn.gov

(715) 682-7107

/s/ Riyaz A. Kanji

Riyaz A. Kanji

Lucy W. Braun

Christopher Miller

Joshua C. Handelsman

KANJI & KATZEN, P.L.L.C.

P.O. Box 3971

Ann Arbor, MI 48106

rkanji@kanjikatzen.com

(734) 769-5400

Bruce Wallace

HOOPER HATHAWAY PRICE BEUCHE

& WALLACE

126 S. Main Street

Ann Arbor, MI 48104

bwallace@hooperhathaway.com

(734) 662-4426

David P. Hollander

STAFFORD ROSENBAUM, LLP

222 West Washington Avenue, Suite 900

Madison, WI 53701

dhollander@staffordlaw.com

(608) 256-0226

Counsel for the Bad River Band of the Lake Superior

Tribe of Chippewa Indians and Naomi Tillison, Director

of the Mashkiiziibii Natural Resources Department of

the Bad River Band, in her official capacity

Page 56 of 57

Case: 3:19-cv-00602-wmc

Document #: 748

Filed: 02/13/26

Page 57 of 57

CERTIFICATE OF SERVICE

I certify that on February 13, 2026, this document was served on all parties or their

counsel of record through the CM/ECF system if they are registered users or, if they are not, by

placing a true and correct copy in the United States mail, postage prepaid, to their address of

record.

/s/ Riyaz A. Kanji

Riyaz A. Kanji

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.