Bay Mills Indian Community

Bay Mills Indian Community

12140 West Lakeshore Drive

Brimley, Michigan 49715

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

WRITTEN COMMENTS OF THE BAY MILLS INDIAN COMMUNITY

Presented by President Bryan T. Newland

April 24, 2019

Over the past few years, the Bay Mills Indian Community, a sovereign tribal nation with a

government to government relationship with the United States (hereinafter “Bay Mills” or “the

Tribe”) has implored federal and state officials to take action to protect the Straits of Mackinac

and treaty-reserved fishery resources. Today, the Tribe again respectfully urges the Army Corps

of Engineers to do the following:

1. Prepare an Environmental Impact Statement (EIS) prior to deciding whether to grant

Enbridge Energy, LLP’s (“Enbridge”) requested permits to effectively rebuild its Line 5

Pipeline beneath the Straits of Mackinac.

Delay consideration of Enbridge’s permit application until it has an approved and

effective Oil Spill Response Plan for Line 5 from the Pipeline and Hazardous Materials

Safety Administration (PHMSA). See National Wildlife Federation vy. Secretary of

Department of Transportation, (NWF 2) Case No. 17-10031 (E.D. Mich.) F.3d,

2019 WL 1426310, March 29, 2019. Alternatively, the Corps should deny Enbridge’s

amended application on the basis that it does not possess an approved Oil Spill Response

Plan for Line 5, considering that construction and maintenance activities increase the

potential for a pipeline rupture and oil spill.

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The Tribe’s grave concerns are not hypothetical. Enbridge is notorious for causing

environmental catastrophe. Only a few years ago, Enbridge released more than 800,000 gallons

of oil into the Kalamazoo River System. It constitutes the largest on-shore oil spill in United

States history. On October 9, 2018, an Enbridge Pipeline exploded near the Lheidli T’enneh

First Nation in British Columbia, forcing the evacuation of people from their homes on their

tribal lands. In 2017, Enbridge admitted that its own maintenance and repair activities — like

those contemplated in its application to the Corps — damaged the Line 5 Pipeline beneath the

waters of the Straits of Mackinac.

Bad actors like Enbridge warrant more scrutiny, not less.

It must be acknowledged that Enbridge’s Line 5 is no ordinary pipeline and it threatens an

extraordinary environment. This point was made by Judge Goldsmith in NWF 2:

Straits of Mackinac are a six-mile long section of water that joins lake Michigan

and Lake Huron in a single hydraulic system...Although one has never occurred,

an oil spill in the Straits of Mackinac poses a significant threat to Lake Michigan

and Lake Huron...More than 700 miles of shoreline in Lakes Michigan and

Huron are potentially vulnerable to an oil spill in the Straits.

Judge Goldsmith ultimately concluded that another agency’s summary approval of Enbridge’s

response plans violated NEPA, was arbitrary and capricious, and remanded the matter back to

the agency. The Corps should heed this decision and prepare an EIS prior to deciding whether to

issue the requested permits to Enbridge.

Enbridge’s most recent application is its latest attempt to redesign and rebuild the Line 5 Pipeline

beneath the Straits of Mackinac through repeated, smaller maintenance projects. The Corps must

not reward Enbridge’s past misdeeds by allowing the company to proceed with a course of action

designed to minimize the pipeline’s ‘significant” threat to Lakes Michigan and Huron.

Attempting to artificially limit the Corps review by submitting repeated, piecemeal requests for

permits is a classic example of segmentation under NEPA. Huntington v. March, 850 F.2d 1134

(2d Cir. 1988); Thomas v. Peterson, 753 F.2d 745 on Cir. 1985). Instead, the Corps must review

all of Enbridge’s connected actions to rebuild this stretch of Line 5 through the Straits by

performing an EIS.

As described in more detail below, Enbridge’s requests put Bay Mills’ treaty rights at risk.

Enbridge’s most recent request is its latest attempt to avoid meaningful NEPA review.

Enbridge’s pipeline rebuild poses risks to Lakes Michigan and Huron which are serious, real, and

consequential. They_must be evaluated through an EIS.

Bay Mills’ Reserved Rights in the 1836 Treaty of Washington

Just as Canada and the United States maintain treaties regarding the Great Lakes, Bay Mills

maintains a treaty with the United States regarding the Straits of Mackinac. Under the 1836

Treaty of Washington (7 Stat. 491), Bay Mills ceded territory to the United States that was used

for the creation of the State of Michigan. In exchange for providing millions of acres of tribal

land to the federal government, the Tribes reserved the right to hunt, fish and gather throughout

the territory—including the Great Lakes and the Straits of Mackinac. It is pursuant to these

reserved treaty rights that Bay Mills and other Tribes co-manage the fishery and wildlife

resources with the State of Michigan and the United States.

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

fishing with agillnet in violation of Michigan law. Subsequently, in 1976 the Michigan Supreme

Court agreed with Bay Mills and its members that the Tribes retained the right to fish in the

Great Lakes waters ceded in the 1836 Treaty. In 1973, the United States brought suit against the

State of Michigan on behalf of the Tribes to enforce that treaty right, and the District Court for

the Western District of Michigan confirmed the continued existence of the Tribes’ treaty rights in

a famous 1979 decision, known as the “Fox Decision” and reported as United States v. Michigan,

Case No. 2:73-cv-26. Accordingly, the 1836 Treaty of Washington confirms Bay Mills’ and

other signatory Tribes’ protected legal interest in the fishery resources in Lakes Superior,

Michigan and Huron—including the waters of the Straits of Mackinac.

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For the past 35 years, Bay Mills and the other Tribal parties to the 1836 Treaty have worked with

the State to manage the Great Lakes fishery. We have done so in a spirit of good stewardship

and governmental cooperation, which is embodied in Consent Decrees entered in United States

v. Michigan in 1985 and 2000. With this stewardship in mind, Bay Mills, the Chippewa Ottawa

Resource Authority (an inter-tribal entity established to regulate Great Lakes fishing by members

of the 1836 Treaty signatory Tribes), and the other signatory Tribes have expressed grave

concern about the continued operation of the Line 5 Pipeline beneath the Straits of Mackinac.

An EIS Is Both Appropriate and Required

This is not the first time that Enbridge has attempted to pull a fast one on federal agencies, the

Tribes and the public. Late last year, Enbridge attempted to use the State of Michigan to rewrite

State law to exempt Enbridge from important legal obligations. After a careful and thorough

analysis of that legislation, the Michigan Attorney General concluded that it was

unconstitutional.

Also last year, Enbridge attempted to avoid compliance with federal laws and treaties through its

interpretation of a consent decree with the Department of Justice. The Consent Decree was filed

as a result of the largest oil spill in United States history from Enbridge’s Line 6 Pipeline in

Michigan. United States v. Enbridge Energy, LLC, et al, Case No. 1:16-cv-914 (W.D. Mich.)

Stunningly, it appears that Enbridge attempted to use the Consent Decree—imposed because of

its violation of federal law—to insulate its rebuild of Line 5 in the Straits from federal law,

including NEPA. After significant comments from Tribes and the public, it was made clear that

the Consent Decree did not end Enbridge’s or any federal agency’s obligation to comply with

federal law, including the permits it seeks from the Corps, NEPA, and the Tribes’ treaty-reserved

fishing rights. For example, correspondence from Environmental Protection Agency’s Region 5

Director, dated July 30, 2018, and addressed to President Bryan Newland (copy attached), makes

it clear that the Consent Decree doesn’t relieve Enbridge of its obligation to comply with federal

regulations and procedures:

Your letter expresses a concern that any proposed modification to the Consent

Decree will “circumvent” permitting processes related to additional screw anchors

in the Straits. The original, court approved Consent Decree does not authorize

screw anchor construction activities. Similarly, any court approved modification

to the Consent Decree would not be expected to authorize construction activities.

The screw anchor installation itself is subject to all applicable permitting

processes, and does not circumvent or replace any applicable permitting

processes. This includes the Army Corps of Engineers and State of Michigan

permitting processes which you reference in your letter. [emphasis added]

Now, since the pathway through the Michigan Legislature has been eliminated, and the Consent

Decree’s terms are not interpreted as exempting Enbridge’s activities from otherwise applicable

federal law, Enbridge is turning back to the Corps to see if they can be hoodwinked. It is clear to

the Tribe, and to others who care deeply about the Great Lakes and the Straits of Mackinac, that

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Enbridge is attempting to completely rebuild the Line 5 Pipeline in the Straits without

meaningful review. It is doing this by submitting applications in a piecemeal approach that

attempts to limit review to each segment contained in its proposal, rather than a review of the

entirety of their rebuild. Enbridge’s approach makes a mockery of the Corps’ permitting

responsibilities, its duty to comply with NEPA, and its trust and treaty responsibilities to the

Tribes.

Bay Mills reiterates its commitment to work with the Corps and all interested parties to find

ways to address its concerns. (Attached for review and reference is the Tribe’s original list of

concerns regarding this issue as they were expressed in response to the proposed entrance of the

Consent Decree in Enbridge Energy). In addition to supplying comments such as those

referenced, Bay Mills has reached out to Michigan’s Governor, the Michigan Department of

Environmental Quality, the U.S. Coast Guard, the Environmental Protection Agency, the Army

Corps of Engineers, and PHMSA, as well as Enbridge directly, to understand and evaluate the

risks that may be present by the continued operation of Line 5 in the extremely vulnerable area

of the Straits of Mackinac.

To date, no entity has provided a substantive response to the Tribe’s concerns.

To be clear, Bay Mills’ primary concern—which should be shared by anyone cognizant of the

risks involved with the aging Line 5 Pipeline—is that verifiable data and oversight of Enbridge’s

activities related to the Pipeline’s operation and maintenance has not been forthcoming from

Enbridge. As a result, the safety of continued operation of Line 5 cannot be effectively

evaluated. An EIS will ensure that the Corps has the necessary data and input to meaningfully

evaluate the potential impacts potentially resulting from Enbridge’s rebuild in the Straits.

Enbridge itself has admitted that its own maintenance efforts on the existing Line 5 Pipeline

resulted in additional structural damage to the pipeline in the Straits, when it added four (4)

additional anchor braces to the pipeline to be in compliance with the State-issued bottomland

easement.

Notably, this means that Enbridge was out of compliance with the terms of the easement for

years before even attempting to install the omitted anchor braces. Officials from the United

States Department of Justice and Environmental Protection Agency confirmed that Enbridge has

been out of compliance with the terms of its easement during an August 7, 2018 meeting in

Traverse City, Michigan with representatives from several tribes (including Bay Mills).

Making this situation even more alarming, Enbridge failed to disclose the damage, keeping

Federal agencies, State agencies, Bay Mills, other 1836 Treaty signatory Tribes and the people of

Michigan effectively in the dark as to the increased risk of harm to the pipeline’s integrity in the

Straits area.

This blatant obfuscation of damaging information by Enbridge establishes yet another basis for

the Corps to conduct an EIS before deciding whether to issue permits necessary to install even

more anchor braces to a structurally fragile pipeline in the Straits. Clearly, Enbridge is not a

reliable source of necessary information.

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In May 2018, Bay Mills hosted representatives from Enbridge to discuss its willingness to share

information with the Tribe that would enable the Tribe (and public) to review the data regarding

pipeline usage, repair and maintenance records, emergency response plans, incident reports, and

similar technical information. In response, Enbridge engaged in a master class of delay and

obfuscation — going so far as to invite tribal leadership on a fishing trip with executives from

Enbridge. (Despite the invitation, Bay Mills officials do not consider a fishing trip with

Enbridge executives as a viable alternative to the provision by Enbridge of accurate, verifiable

data and information about the operations of a major oil pipeline in the 1836 cession area.)

Bay Mills proposed an information sharing agreement with Enbridge, but efforts to finalize it are

so far unavailing, as Enbridge insists on restricting what information could be shared and in what

format. Bay Mills finds this patronizing position unhelpful, especially when the health of Lakes

Michigan and Huron is at issue and the holder of the necessary information has demonstrated on

many occasions that it does not know, or will not disclose, the exact risk its pipeline business

presents to the surrounding environment.

For the reasons stated above, Bay Mills urges the Corps to either deny Enbridge’s application on

the grounds that the company doesn’t have a PHMSA-approved Oil Spill Response Plan, or to

defer any action on the application until Enbridge obtains approval of a Response Plan. This

precondition to authorizing installation of additional screw anchors to the Line 5 pipeline in the

Straits is essential, considering that “maintenance activities are the most likely cause of a spill

from a pipeline.

Bay Mills also requests that the Corps consider anew Enbridge’s application for a permit to

install anchor braces, and to expressly consider the concerns Bay Mills expressed in its 2017

initial comments on Enbridge’s first permit application for installation of four anchor braces.

We reiterate those concerns here, because neither Enbridge nor the Corps has provided

meaningful information in response.

1. Examination of Cumulative Impact of Line 5 Construction Efforts in the Straits. The

Corps is obligated to examine the cumulative impact of Enbridge’s proposed activities on

the Tribes’ cultural and treaty rights. Enbridge’s request to additional support anchors is

not unique. Numerous permits have been approved since the early 2000’s, allowing

Enbridge to install more than 100 screw anchors on the bottom of the Straits. With this

history, it is apparent that the continued segmentation of construction activities, thus

ensuring permanent placement and operation of this 65-year old pipeline (already

exceeding its designed lifespan of 50 years), allows Enbridge to circumvent the NEPA

process and avoid the preparation of an Environmental Impact Statement (EIS). Bay

Mills appreciates the Corps’ request that Enbridge provide more information on expected

future anchor support installation activities, and requests that any responses received be

carefully reviewed in light of the attempted project segmentation Enbridge has utilized in

this matter in the past.

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2. Public Hearings. The Corps must conduct multiple public hearings on Enbridge’s

amended permit application, and require Enbridge to be present at all such hearings to

respond to questions posed, and to provide additional substantive information upon the

request of the Tribes and the public.

3. Examination of Cumulative Impact on Tribes. During a tribal consultation session on

June 28, 2018, representatives of the Corps expressed agreement with the Tribe that the

Federal Trust Responsibility to Indian Tribes obligated the Corps to examine the impact

of Enbridge’s proposed work (including the risks posed by such work) on Bay Mills

Indian Community’s treaty reserved fishing rights. At this time, Bay Mills and the other

Tribes lack the information needed to assist the Corps in this effort, because EPA, DOJ,

the State of Michigan, and Enbridge have not been forthcoming with that information.

Bay Mills therefore requests that the Corps examine the cumulative impact of Enbridge’s

proposed screw anchor installation on the Tribe’s reserved treaty fishing rights, as well as

the Tribe’s legally protected cultural interests in the area surrounding the Straits of

Mackinac. This cumulative impact analysis should include, but not be limited to, the

following:

A. Independent review of the structural integrity of the Line 5 Pipeline after the

installation of all the screw anchors contemplated in Enbridge’s various applications.

B. Risk of an anchor strike to the Line 5 pipeline in the Straits due to the

installation of the screw anchors.

C. Level of risk of a spill from the pipeline in the Straits stemming from its

continued, indefinite operation after screw anchor installation is completed.

D. Potential economic value of damages to Bay Mills and other Treaty Tribes,

due to the risk of an oil spill from the Line 5 pipeline in the Straits.

E. Risk level be measured against decommission of the Straits segment of the

Line 5 Pipeline, rather than using a “no action” alternative.

4. Environmental Impact Statement. The Corps must prepare a full Environmental

Impact Statement (EIS) encompassing the totality of activities proposed by Enbridge,

which includes an assessment of whether screw anchor supports will affect the structural

integrity of the pipeline in the Straits.

5. Assessment of Risks Due to Maintenance and Imposition of Conditions for Permit.

As the inherent risks to the Line 5 Pipeline due to Enbridge’s maintenance activities are

not sufficiently addressed in its amended permit application or in Enbridge’s previous,

similar permit applications for anchor support installation, the Corps must not only

consider well documented instances’ of damage occurring to the Straits pipeline segment

during anchor installation, but also Enbridge’s poor safety record. Certainly, the

information Enbridge included in its amended permit application is grossly inadequate to

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meet the Corps’ obligation to assure adequate protection to the natural and human

environments exists in the proposed activities Enbridge seeks to undertake.

The Corps should deny Enbridge’s application pending a complete assessment of the

risks posed by Enbridge’s proposed activities in the form of an EIS. In the event that the

Corps does issue a permit for screw anchor installation, Bay Mills requests that the Corps

impose conditions on the permit that require the Line 5 pipeline in the Straits be shut

down, vacated, and depressurized during any maintenance activities. Imposition of

conditions for permit issuance is within the Corps’ authority under the Clean Water Act.

6. Burden of Proof. The Corps should not place the onus on Bay Mills and the public

to demonstrate that Enbridge’s response capabilities to a spill, anchor strike, or pipeline

structural failure are inadequate. Enbridge should bear the burden of demonstrating that

it has the capability to adequately respond to any spill activities during and after

construction and installation of the anchor screws, and that its emergency procedures for

anchor strikes or structural failure are in place and effective,

7. Full Extent of Environmental Impact Cannot Be Determined from the Scope of Work.

Enbridge’s current permit application does not clearly describe the exact nature and type

of work to carry out installation of the anchor supports, such as: number of inspection

sites, number of sites requiring excavation of bottomland, amount of sediment distributed

from water jetting tools, etc. It is therefore difficult if not impossible for the Corps to

identify and address the exact environmental risks involved in Enbridge’s project. It is

obvious that the actual footprint of the project is greater than described in Enbridge’s

application, as it does not take into account the movement of construction equipment and

materials, nor the disposal of bottomland sediment. The footprint of the disturbance to

the bottomland could easily be substantial, especially since known spawning grounds for

Lake Whitefish are in the immediate vicinity of the work Enbridge proposes. As has

been stated many times, Lake Whitefish is the most important fish in the Tribal treaty

commercial fishery; movement of sediment in the Straits could severely hinder successful

spawning of this species for a number of years.

8. Risk of Recontamination. Enbridge’s proposed activities will disturb and resuspend

contaminated sediments that were buried and entrained over the last 100 years. The

Tribe’s commercial fishery has already suffered extensive economic damage in past

decades due to the presence of contaminants such as mercury and PCBs in the fatty tissue

of fish. One of the ways contaminant levels are reduced is the burial of contaminated

sediments by clean sediments that fall to the bottom. In order to best evaluate the risk of

releasing contaminated sediments during anchor brace installation, the Corps should

require sediment core samples extending at least 36 inches below the lake bottom surface

to be taken and tested, and the results reported to the Corps.

We must note here that Bay Mills has been requesting that the Corps provide a

substantive response to our concerns on this point since at least 2017. In fact, we posed

this question directly to the Corps in a letter to the District Commander on December 19,

2017, and have yet to receive a response.

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9. Decommissioning as Alternative. It is imperative that the Corps consider as a

reasonable and viable alternative to authorization of Enbridge’s proposed activities the

decommission of the Straits segment of Line 5,

Bay Mills thanks the Corps for the opportunity to provide input on this significant issue. The

Tribe respectfully requests that Enbridge’s application be denied for lack of a PHMSA-approved

Oil Spill Response Plan. If the Corps does not deny the application, it should hold the

application is abeyance until such time as Enbridge obtained an approved Oil Spill Response

Plan. If and when Enbridge has an approved Plan, then the Corps should conduct and EIS to

evaluate Enbridge’s application, which includes Enbridge’s past activities and its foreseeable

future activities concerning Line 5.

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