# Bay Mills Indian Community

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A0c92274dcb93d407

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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Modification is not withdrawn, the Bay Mills Indian Community respectfully requests a fairness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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Abay_mills%3A0c92274dcb93d407. Public record. Not legal advice.