Bay Mills Indian Community

Bay Mills Indian Community

12140 West Lakeshore Drive

Brimley, Michigan 49715

(906) 248-3241 Fax-(906) 248-3283

VIA EMAIL September 13, 2018

Mr. Jeffrey H. Wood

Acting Assistant Attorney General

United States Department of Justice

Environment and Natural Resources Division

P.O. Box 7611

Washington, D.C. 20044-7611

Re: BAY MILLS INDIAN COMMUNITY’S OBJECTIONS TO PROPOSED THIRD MODIFICATION

OF CONSENT DECREE IN UNITED STATES V. ENBRIDGE ENERGY, LIMITED

PARTNERSHIP, ET AL., D.J. REF. No. 90-5-1-1-10099.

Dear Acting Assistant Attorney General Wood:

The Bay Mills Indian Community (Bay Mills), a federally recognized tribe, submits its

objections to the proposed Third Modification of the Consent Decree in United States v. Enbridee Energy,

Limited Partnership, et al., DJ. Ref. No. 90-5-1-1-10099 (Proposed Third Modification). The Notice of

the Proposed Third Modification and a request to submit comments was published in the Federal

Register on August 14, 2018. 83 Fed. Reg. 40339. For the reasons set forth below, we respectfully

request that DOJ and EPA withdraw the Proposed Third Modification. If the Proposed Third

Modification is not withdrawn, the Bay Mills Indian Community respectfully requests a fairness

hearing with the Court. Local Number 93, Int'l Ass’n Firefighters, AFL-CIO CLL.C., v. City of Cleveland,

478 U.S. 501, 529 (1986) (affirming right to present evidence and have objections heard at hearing on

whether to approve consent decree); Tennessee Ass'n of Health Maintenance Organizations v. Grier, 262 F.3d

559 (6" Cir. 2001); United States v. Akron, 794 F.Supp.2d 782 (N.D. Ohio 2011) (declining to enter US

proposed consent decree concerning CWA violations after conducting a fairness hearing).

INTRODUCTION

Bay Mills is one of the signatories to the 1836 Treaty of Washington, which ceded territory to

the United States for the creation of the State of Michigan. In exchange for the agreement to cede

the territory to the United States, the Tribes reserved the right to hunt and fish throughout that

territory — including in the Great Lakes (and the Straits of Mackinac).

In 1971, Michigan conservation officers cited Bay Mills tribal member Albert “Abe” LeBlanc

for violating state fishing regulations. That citation resulted in the Michigan Supreme Court ruling

that Bay Mills, along with several other tribes, retained the right to fish in the Great Lakes pursuant

to the 1836 Treaty of Washington. In 1973, your predecessor stood with Bay Mills by filing a lawsuit

against the State of Michigan on behalf of the Tribes to enforce that treaty right; and, the United States

District Court for the Western District of Michigan upheld the Tribes’ treaty rights in a famous 1979

decision now known as the “Fox Decision.” Accordingly, there is no doubt that Bay Mills, along with

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several other tribes, has a protected legal interest in the fishery resource in the upper Great Lakes —

including in the waters of the Straits of Mackinac under the 1836 Treaty of Washington.

As the original stewards of this area, we have always maintained grave concerns regarding the

placement and operation of Line 5 in the Straits of Mackinac. The Line 5 Pipeline poses serious risks

to the exercise of our reserved treaty fishing rights, our ability to preserve cultural resources near Lake

Michigan and Lake Huron, out cultural and religious interest in the Great Lakes, our economy, and

the health and welfare of our tribal members.

As our trustees, the Department of Justice (DOJ) and the Environmental Protection Agency

(EPA) have a responsibility to ensure the continued protection of the treaty fishery. In this particular

matter, our trustee has a duty to ensure that the Proposed Third Modification cannot be used by

Enbridge to claim it is above the law. As written, the Proposed Third Modification at the very least

creates tremendous confusion by ordering Enbridge to install anchor screws within 18 days after the

close of this comment period. We respectfully submit that the Proposed Third Modification must be

withdrawn and changed to make crystal clear that Enbridge must comply with all federal laws and

regulations (including obtaining federal and state permits that it has applied for) prior to taking any

action that could impact our treaty reserved waters. Withdrawal of the Third Proposed Modification

to revise it and provide clarity on this point is required by law, serves the public interest, and

demonstrates that this comment period is something more than an exercise of going through the

motions. Indeed, without withdrawal and modification, the Proposed Third Modification is not fair,

adequate and reasonable. We further submit that before any further modification is made to the

existing consent decree, EPA and DOJ must share facts and analysis with Bay Mills and the public to

support any further modification.

I note at the outset the complete lack of any meaningful consultation by DOJ and the

Environmental Protection Agency (EPA) on the Proposed Third Modification. Earlier this year, EPA

and DO} indicated to the five tribes that retain treaty reserved fishing rights within parts of Lakes

Superior, Michigan, and Huron of a potential modification to the Consent Decree. On at least two

occasions, meetings with EPA and DOJ were rescheduled because the agencies were not yet prepared

to share a draft of the proposed modification. When we finally met with DOJ and EPA on August 7,

2018 and received a copy of the Proposed Third Modification, we were shocked to learn that it would

be filed with the Court within hours of our meeting, and that no changes would be considered or

made prior to filing. This clearly is not meaningful tribal consultation. Had our trustees been willing

to engage in something other than a “check-the-box” exercise, it’s possible that reasonable changes

could have been incorporated into the Proposed Third Modification and our Tribe would not have

had to expend limited resources preparing these comments or preparing for potential intervention in

the litigation.

A. The Proposed Third Modification Conflicts With and Violates Federal Law.

The Bay Mills Indian Community objects to the Proposed Third Modification as conflicting

with or violating federal law. It is well-settled that a court abuses its discretion in approving a consent

decree that conflicts with statutory and regulatory requirements. Local Number 93, Int’l Ass'n Firefighters,

AFL-CIO CLC, v. City of Cleveland, 478 U.S. 501, 526 (1986)(court may not approve consent decree

that “conflicts with or violates” statutes and regulations); Conservation Northwest v. Sherman, 715 F.3d

1181 (" Cir. 2013) (consent decree cannot circumvent compliance with NEPA and other statutory

requirements). Here, the Proposed Third Modification requires Enbridge to install at least 70 screw

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anchors by October 1, 2018 (18 days after the close of this comment period). Bay Mills is concerned

that the modification will be used by Enbridge in an attempt to bypass the statutory and regulatory

permit process. Federal and state law clearly require Enbridge to obtain permits from the Army Corps

of Engineers (Corps) and the Michigan Department of Environmental Quality (MDEQ) prior to

installation of the screw anchors. Prior to issuing any permit to Enbridge under section 10 of the

Ravers and Harbors Act of 1899 or section 404 of the Clean Water Act, the Corps must comply with

the National Environmental Policy Act (NEPA). The Proposed Third Modification must be

withdrawn because a consent decree cannot change these statutory and regulatory requirements or

require federal or state agencies to approve Enbridge’s permit applications.

Our concern that Enbridge will attempt to use the Proposed Third Modification as a

justification to ignore permitting requirements or to force issuance of permits notwithstanding noncompliance with substantive and procedural statutory requirements is real. We recently learned from

MDEQ that Enbridge is already using the consent decree as justification for issuance of permits. In

our August 7, 2018 meeting, DOJ and EPA pejoratively dismissed our concern by stating that nothing

in the Proposed Third Modification requires the Corps or MDEQ to issue the necessary permits to

Enbridge; and, that if the agencies decided not to issue the required permits that the Consent Decree

is clear that this would be a force majeure event.

We respectfully maintain that the Proposed Third Modification is less than clear on this point.

Indeed, DOJ and EPA’s reasoning that the non-issuance of necessary permits by the October 1, 2018

deadline would be a fore majeure event is flawed in that it is completely foreseeable that the Corps and

MDEQ may not issue the necessary permits before a date less than three weeks from the close of this

comment period. DOJ and EPA should withdraw the Proposed Third Modification, engage in

meaningful consultation with Bay Mills to develop language that clearly states that the Consent Decree

does not insulate Enbridge from complying with federal permitting requirements or the Proposed

Third Modification should be rejected by the Court.

B. The Proposed Third Modification Must be Withdrawn Because DOJ and EPA

have Failed to Provide Any Facts to Demonstrate to the Public that the Proposed

Modification is Fair, Adequate, and Reasonable.

DOJ and EPA have submitted this Proposed Third Modification as a fait accompli. Other than

the filing before the Court, neither agency has provided any independent facts to demonstrate that

such modification is safe, necessary or warranted. United States v. Lexington-Fayette Urban County

Government, 591 F.3d 484 (6" Cir. 2009) (consent decree may be approved only if it is “fair, adequate,

and reasonable, as well as consistent with the public interest”). No evidence has been provided to

Bay Mills, the public or to the Court to demonstrate that this Proposed Third Modification is fair.

There are no facts in the record of this proceeding that demonstrates the number of anchor screws

are adequate or inadequate. Neither DOJ nor EPA have shared any analysis prepared by their agenicies

that provides facts to support a finding that the Proposed Third Modification is fair.

Neither DOJ nor EPA have provided any facts or analysis to Bay Mills, the public or the Court

to demonstrate that the Proposed Third Modification is adequate or reasonable. The Sixth Circuit

has stated that “[o]ne of the most important considerations when evaluating whether a proposed

consent decree is reasonable is ‘the decree’s likely effectiveness as a vehicle for cleansing’ the

environment.” Id. at 489. No facts have been provided as part of this public comment period to

support a conclusion that installation of at least 70 anchor screws as required by the Proposed Third

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Modification will serve as a vehicle for cleansing the environment or that such installation is

reasonable.

During our August 7, 2018 consultation, DOJ and EPA suggested that Bay Mills was opposing

a modification intended to make the pipeline safer. We want to remain absolutely clear: It is and

always has been Bay Mills Indian Community’s view that Enbridge’s continued operation of the Line

5 pipeline through the heart of the Great Lakes—the Straits of Mackinac—is a direct and unnecessary

threat to our treaty-protected rights to hunt, fish, and gather.

Neither DOJ nor EPA provided any facts or evidence to show that this Modification will

make the pipeline safer. Indeed, we have not been provided any analysis or facts prepared by DO]

and EPA to show that installation of the at least 70 anchor screws set forth in the Proposed

Modification can be done safely and with no detrimental impact to the environment.

The activities proposed in the Modification may actually put the pipeline at a greater risk of

anchor hooking and ultimate rupture by elevating the line off the lake floor. Furthermore, we are not

aware of any facts or analysis showing the effectiveness of Enbridge’s screw anchor design. It is well

documented, however, that the process of installing these screw anchors has damaged the pipeline’s

protective coating. The Proposed Third Modification must be withdrawn by DOJ and EPA or

rejected by the Court because there are no facts in the record to support this Proposed Third

Modification. Indeed, DOJ and EPA have not shared any facts during the public comment period to

support this Proposed Third Modification.

If the intent of the Proposed Third Modification is to make the pipeline safer, then the

Modification should require the highest safeguards during installation, including shutting down the

pipeline during construction activities. Certainly, the parties may agree to shut down the pipeline to

ensure safe installation of the seventy anchor screws. The Proposed Third Modification should also

include conditions on operation of the pipeline prospectively to ensure that leaks and blowouts do

not occur. As expressed above, any such actions should be done in full compliance with federal and

state law permitting requirements. The consent decree should not be used as a mechanism to by-pass

federal permitting requirements.

Further, EPA and DOJ have not provided any facts to demonstrate that the Third Proposed

Modification is in the public interest. “[T]he district court must consider whether the decree is

‘consistent with the public objectives sought to be attained by Congress.” United States v. Lexington-

Fayette Urban County Government, 591 F.3d 484, 490 (6th Cir. 2010). Here, there are no facts or analysis

developed by EPA or DOJ to support a finding that the installation of at least 70 anchor screws within

18 days of the close of the comment period furthers the public objectives of Congress. Congress

enacted laws such as the Rivers and Harbors Act, the Clean Water Act, and the National

Environmental Policy Act to ensure thoughtful processes and decision-making on actions that have

the potential to impact the natural environment, including our treaty reserved resources.

A consent decree that attempts to do an end-run around these laws and processes is not in the

public interest. If DOJ and EPA believe that additional anchor screws are necessary to protect the

environment, they should share their facts and analysis with Bay Mills and the public before proposing

a modification to the consent decree. After sharing such information with the public, if such facts

and analysis demonstrate that at least 70 additional anchor screws are reasonable and in the public

interest, then a proposed modification should provide Enbridge a reasonable period of time to install

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such anchor screws if and after they receive the necessary permits from federal and state agencies.

The Proposed Third Modification should not be a mechanism to influence the independent permit

review of the before mentioned agencies. This permit review process should adhere to the full

requirements of the National Environmental Policy Act, especially given the concerns that Enbridge

is attempting to segment its projects to avoid NEPA review.

C. The Proposed Third Modification Should Be Withdrawn As it Undermines the

Regulatory Processes of Other Agencies.

The Proposed Third Modification should be withdrawn because it directly and indirectly

interferes with the regulatory responsibilities of other agencies. While we fully support EPA and DOJs

efforts to seek justice for Enbridge’s egregious oil spills, this Proposed Third Modification twists the

consent decree process into a tool for corporate gain. Our understanding is that it was Enbridge that

requested this modification so that it could extend the life of a pipeline it has minimally maintained

over the course of its operation. By attempting to rebuild the pipeline through a consent decree, the

Proposed Third Modification not only attempts to circumvent existing laws, but it does so without

the input and expertise of federal agencies such as the Army Corps of Engineers and the Pipeline and

Hazardous Materials Safety Administration.

If a complete rebuild of the pipeline is necessary to protect the environment, Enbridge should

be required, like every other company, to follow the existing laws and regulations to do so. If the

existing pipeline is unsafe, Enbridge should be required to take the pipeline out of service until it is

safe to operate. But DOJ, EPA and the court should not allow Enbridge to have it both ways under

the guise of a consent decree — full operation while it continues to rebuild pursuant to a consent

decree. The Line 5 Pipeline is either safe enough to operate, and Enbridge must follow the law and

rules before installation of a complete rebuild; or, it is unsafe to operate and Enbridge must shut down

the pipeline until it receives the necessary permits and approvals to rebuild. A rebuild by consent

decree undermines regulatory agencies’ statutory responsibilities.

CONCLUSION

The Bay Mills Indian Community respectfully requests that DOJ and EPA withdraw the

Proposed Third Modification. It was filed with the court within hours of our Tribe’s initial

consultation with EPA and DOJ. The utter lack of meaningful engagement underscores that this

modification is being done for and at the behest of Enbridge — not for the public, the environment or

for the best interests of our treaty tribes. The consent decree process is being distorted -- used by

Enbridge in an attempt to circumvent existing federal and state laws. The Proposed Third

Modification orders the installation of at least 70 anchor screws without any facts showing that this

can be done safely or that it will make the pipeline safer. It further violates federal law by requiring

installation by October 1, 2018 regardless of the issuance of federal and state permits. DOJ and EPA

have provided no facts or analysis to support a finding that this Proposed Third Modification is fair,

adequate, reasonable and in the public interest.

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If DOJ and EPA decline to withdraw the Proposed Third Modification, we respectfully

request consultation with DOJ and EPA prior to seeking final approval by the court. I cannot

emphasize enough the importance of this issue to our Tribe. Since time immemorial, we have cared

for this fishery and it is inextricably part of our Tribe’s ceremonies, culture, and the health and welfare

of our people. Our ancestors had the foresight to reserve our rights to hunt and fish through treaty

with the United States. We will use every lawful avenue to protect our rights.

Respectfully,

Bryan Newland, President

Bay Mills Indian Community

Ge: Andrew Wheeler, Acting Administrator for EPA

Cathy Stepp, EPA Region V Administrator

Tara Sweeney, Assistant Secretary of the Interior — Indian Affairs

S. Craig Alexander, U.S. Department of Justice — Indian Resources Section

Ryan Cobb, Chief of the Civil Division for the U.S. Attorney for the Western District

of Michigan

Heidi Grether, Director of the Michigan Department of Environmental Quality

Keith Creagh, Director of the Michigan Department of Natural Resources

United States Senator Debbie Stabenow

United States Senator Gary Peters

United States Representative Jack Bergman

United States Senator John Hoeven, Chairman of the Committee on Indian Affairs

United States Senator Tom Udall, Vice-Chairman of the Committee on Indian A ffairs

Jane TenEyck, Executive Director of the Chippewa Ottawa Resource Authority

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