# WHITE EARTH BAND OF OJIBWE (2021)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Aminn_chippewa_white_earth%3A2509253c11da2386

## Record

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

## Text

Case No. ___
WHITE EARTH BAND OF OJIBWE
IN TRIBAL COURT OF APPEALS

MINNESOTA DEPARTMENT OF NATURAL RESOURCES, et al.,
Defendants-Appellants,
vs.
MANOOMIN, et al.,
Plaintiffs-Respondents.

RESPONDENTS’ MOTION FOR INJUNCTION
AND EXHIBITS A-L

TO: Oliver J. Larson and Colin P. O’Donovan, Assistant Attorney Generals,
445 Minnesota Street, Suite 1400, St. Paul, Minnesota 55101-2131, and
White Earth Tribal Appellate Court Administration.
Pursuant to the White Earth Appellate Court Rules of Procedure 17 (D)(2)
and (3), Respondents herein move this Appellate Review Panel to provide for an
injunction as originally requested August 23, 2021, at Tribal Court below, to
provide an order appropriate to preserve the existing state of affairs because the
DNR will not stop the unlawful uses of surface and ground and unlawful discharge
of waters by Enbridge’s Line 3 project.1 The actual issue at stake in this case is the
DNR intentionally circumventing notice to tribal leaders and unilaterally issuing

See Exhibit A, Enbridge violated water protection rules again while MNDNR stands by – by
Jeffrey S. Broberg, LPG, MA, Minnesota Licensed Professional Geologist dated September 22,
2021. Mr. Broberg will be available as an Expert Witness in this instant Manoomin v DNR case.
1

Line 3 an after-the-fact 5 billion gallons dewatering permit up 10 fold from the
original Line 3 water permit of about 500 Million gallons of water, so as to avoid
public notice, scrutiny and evidentiary hearing . . . during an extreme drought!
The DNR obviously knew making the public and tribes aware of the 5 (five)
billion water appropriation request by Enbridge after December 2020, was going to
be challenged.2 Consequently, the DNR officials intentionally took steps to avoid
a contested case proceeding for the excessive dewatering demand (as compared to
the original 0.5B/gallons Line 3 DNR alleged water need). The DNR waited until
May 14, 2021, then to only email contact only, some tribal natural resource people,
but not Chippewa elected leaders directly, much less with an actual Notice or
Opportunity to be heard, or right to participate in an evidentiary hearing and DNR
decision.3 An evidentiary hearing would have alerted the public and tribes to the
aquifer breach months ago. An evidentiary hearing would have alerted the public
and tribes to the DNR not verifying compliance by Enbridge Line 3 and
completely missing the aquifer breach months ago and still releasing 100,000
gallons a day. The June 4, 2021 DNR permit for 5 billion gallons of water and the
2

Enbridge was issued permit no. 2018-3420 on December 8, 2020 for a total of 510.5 million
gallons water permit.
3
See Exhibit B, ENBRIDGE LINE 3 REPLACEMENT PROJECT Water Appropriation Permit
Amendment No. 2018 – 3420 (Construction Dewatering), FINDINGS OF FACT,
CONCLUSIONS AND ORDER, Water Appropriation Permit No. 2018-3420 Enbridge Line 3
Replacement Project June 4th, 2021. See also report at DNR website
https://files.dnr.state.mn.us/features/line3/decisions/04june2021-update-trench-wateringdecisions.pdf
DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 2

September 16, 2021, DNR $3.3 million fine for Enbridge Line 3, report and
remedial plan are both smoking gun memorandums outlining who knew what and
when as explained in more detail in Exhibit A, by Broberg.
Background
Last Thursday (9/16), the DNR issued a News Release DNR Orders
Enbridge Energy to Pay $3.32 Million for Failure to Follow Environmental Laws
while constructing Line 3 saying
[‘]DNR is committed to its role as a regulator on this project and is
taking seriously our responsibility to protect and manage natural
resources within existing state law[‘] said DNR Commissioner Sarah
Strommen. [‘]Enbridge’s actions are clear violations of state law and
also of public trust. This never should have happened, and we are
holding the company fully accountable.’4
As part of the Information Release the DNR has also referred this matter to the
Clearwater County Attorney for criminal prosecution. The DNR has determined
that Enbridge Energy violated Minnesota Statute 103G.141, subdivision 1, which
makes it a crime to appropriate “waters of the state without previously obtaining a
permit from the commissioner.”5

4

See Exhibit C, https://www.dnr.state.mn.us/line3/index.html Minnesota Department of Natural
Resources Orders Enbridge Energy to Pay $3.32 Million for Failure to Follow Environmental
Laws, 9-16-21.
5
See Exhibit D, https://files.dnr.state.mn.us/features/line3/restoration-order-enbridge-energy-916-21.pdf DNR Restoration Order Enbridge Energy 09/16/21 and
Exhibit E https://files.dnr.state.mn.us/features/line3/administrative-penalty-order-enbridgeenergy-9-16-21.pdf online DNR attachments to Exhibit A.
DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 3

Here, Enbridge’s civil violations and alleged criminal conduct does not
result in a stop work order for many months. See Exhibit A, Ex. 1: Chronology of
Violation and Regulatory Failure Derived from MNDNR Violation History and
Barr Flow Remediation Plan starting page 10. Instead,
to ensure that violations haven’t occurred elsewhere, the DNR is
requiring Enbridge to fund a re-inspection of any and all areas along
the entire route where construction depths deviated from plans (as
they did at the Clearbrook Terminal site).
Enbridge, their Line 3 contractors and Independent Environmental Monitors
(IEM) all collectively, circumvented and intentionally violated important
environmental laws meant to protect Minnesota starting in January 2021. DNR
says no one from Enbridge’s construction workers or IEMs made any reports for
months, to the DNR.
DNR failed to do its job, and DNR’s failures resulted in zero Enbridge
compliance with any construction plans or contact protocols right at the beginning
of construction. When Enbridge encountered two (2) known-to-be-existing oil
pipelines in unexpected circumstances, and unique artesian aquifer, Enbridge
guessed poorly, decided in secret, to keep the breach secret. To this day the
artesian aquifer is still, continuing to release over 100,000 gallons of aquifer water
per day into Enbridge Line 3 pipeline construction trench and likely into adjacent
wetlands like before.

DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 4

Consequently, exigent circumstances exist and the need to stop any and all
water use and discharges by Enbridge for Line 3 must happen immediately.
Respondents herein (Plaintiffs in Tribal Court below) respectfully request this
Appellate Court to issue a preliminary injunction to establish status quo and
prevent on-going wanton waste of precious natural resources, and the nibi (the
waters) we all who actually live here . . . rely upon. Manoomin et al need
cessation (an injunction) to stop unconscionable water use and unlawful discharge
with really independent review before any other DNR permitted activities are
allowed for Line 3. This injunction would then stop frac-outs if Line 3 drilling and
construction was stopped. But frac-outs have not stopped and a new frac-out has
been reported6. The DNR has new protection plans established without the public
and tribes participation . . . again . . . that enables and allows Enbridge to proceed
after violating permits and causing irreparable harms to the aquifer.7

6

See Exhibit F, Line 3 Presentation - Facts and Footage of Frac-Outs & Violations FINAL by
Ron Turney of IEN. See also https://www.ienearth.org/new-frac-out-reported-from-themississippi-river-headwaters-from-line-3-construction/ New Frac-Out Reported from the
Mississippi River Headwaters From Line 3 Construction, by Ron Turney, Indigenous
Environmental Network, September 24, 2021. Video from Sept. 17, 2021. Mr. Turney will be
available as a Witness.
7
See ABC Nightly News Environmental activists call on White House to halt pipeline
construction Sept. 23, 2021, https://www.youtube.com/watch?v=USQFA_NcYsg (including
Sam Strong from Red Lake Band Tribal Council interviewed in 6 minute story which includes
the $3.3M DNR orders.)
DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 5

Water Protectors
By coincidence, Water Protectors named in the full caption of this case had
established a Camp at a Mississippi River Line 3 crossing north of Palisade. In the
early winter 2020, Winona LaDuke8 and Tania Aubid had established an
Anishinabe spiritual lodge near the shore of the Mississippi River, on public forest
lands along the route where the pipeline horizontal drilling under the Mississippi
River was expected to occur.9
In December 2020, Enbridge and Aitkin pipeline funded state law
enforcement and the DNR Conservation Officers discovered that spiritual lodge
could not be destroyed or removed without violating the American Indian
Religious Freedoms Act. The spiritual lodge was protected and Anishinabe people
had a right to travel, use and occupy that lodge, including their invited guests …
other water protectors. This spiritual lodge told Enbridge that DNR and
legislatively criminalizing civil rights cannot stop tribal water protectors from
exercising their religious freedoms on public lands where Line 3 was being

8

See Newsweek https://www.newsweek.com/tribal-nations-take-oil-giant-battle-against-line-3pipeline-1631772
9
See Exhibit G, Declaration of Winona LaDuke in Support of Plaintiff’s Motion for an
Injunction Pending Appeal (Exhibit J) in Red Lake, White Earth et al v U.S. Army Corps of
Eng’rs, Case No. 20-cv-03817, in DC federal circuit. Id. See also Exhibit H, Declaration of
Jaime Arsenault in Support of Plaintiff’s Motion for an Injunction Pending Appeal (Exhibit G),
Arsenault is the Tribal Historic Preservation Officer (“THPO”) for the White Earth Band of
Ojibwe (“White Earth Band” or “Band”).
DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 6

constructed. Unfortunately, Enbridge’s private security10 and local law
enforcement continue to harass and coordinate surveillance for information stops,
searches, arrests, strip searches and engaged in other civil rights violations against
water protectors. The only state laws being enforced since the January Line 3
breach of the artesian aquifer and irreparable damage, were against water
protectors, by Enbridge paid security, DNR and other state law enforcement. DNR
is either unwilling or incapable of stopping Enbridge environmental destruction11 .
. . at any price.
Standards for Preliminary Injunction
The test used by the courts for evaluating a motion for a Temporary
Restraining Order (TRO) and Preliminary Injunction (PI) is generally the same.
Although the test for obtaining a TRO or PI may vary slightly across jurisdictions,
generally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor
test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or
she is likely to suffer irreparable harm without preliminary relief; (3) the balance of

10

See Amazon's Former Security Chief Is Now Guarding the Line 3 Oil Pipeline, Opponents of
oil transport company Enbridge say that the company is using military-style counter-insurgency
tactics against protesters by Tom McKay, Sept. 22, 2021, https://gizmodo.com/amazons-formersecurity-chief-is-now-guarding-the-line-1847724615
11
See Newsweek To Protect Their 'Sacred Water,' Tribal Nations Take On an Oil Giant by Julia
Rock, THE DAILY POSTER on 9/23/21 https://www.newsweek.com/tribal-nations-take-oilgiant-battle-against-line-3-pipeline-1631772
DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 7

equities between the parties support an injunction; and (4) the injunction is in the
public interest.
These factors were recently discussed in an identical request for injunction
filed August 23, 2021, with the Tribal Court below. The recent disclosure 9-16-21
by DNR and $3.3M fines and restoration plans, combine with the 5 billion gallons
dewatering permit 6-4-21, are shown together with the Chronology in Exhibit A by
Broberg. This Chronology reveals choices Enbridge and so-called Independent
Environmental Monitors chose oil capitalism over tribal interests and the public
interest. Manoomin and the people are suffering, on-going irreparable harms by the
conspiracy to cover-up, ignore and sellout water and all the creatures which depend
on water. Water is Life.
DNR has filed in Federal District Court of Minnesota against the White
Earth Tribal Court exercising jurisdiction over this instant case, seeking injunction
to prevent the exercise of tribal sovereignty and protection of nature, our relative.
The DNR no longer has an urgent desire to resolve tribal jurisdiction or these water
rights issues, rights of manoomin and rights of treaty beneficiaries to be considered
in tribal court.

DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 8

Instead the DNR compounds delay by filing again for appeal of the
Honorable Judge Wright’s orders12 and injunction against White Earth Band of
Ojibwe and Chief Judge DeGroat in the 8th Circuit Court of Appeals. Last week,
DNR was denied preliminary injunction request by the Eighth (8th) Circuit,
pending DNR’s appeal at the Eighth Circuit.13
The balance of the equities are more weighted in favor of the injunction
every day the DNR stalls against the on-going aquifer breach, frac-outs and climate
change concerns for the manoomin (wild rice) and nibi (water). Only an injunction
against DNR’s any and all surface water and aquifers permits and unlawful
discharges and dewatering of construction permits for trenches and related areas.
The DNR waited until September 13, 2021 to file its notice of appeal for
White Earth Tribal Court of Appeals and 8th Circuit Court of Appeals. The DNR’s
legal tactics appears more focused on federal court appeal expediency and delay in

See Exhibit I, Order Denying Plaintiffs’ Motion for Preliminary Injunction and Dismissing
Complaint without Prejudice by Honorable Judge Wright Case No. (0:21-cv-01869-WMW)
dated 9-3-21. See also Exhibit J Order Denying Plaintiffs’ Letter Request for Permission to File
a Motion to Reconsider by Honorable Judge Wright dated 9-10-21.
13
See Exhibit K, Order by the Eighth Circuit dated 9-21-21, Case No: 21-3050 in Minnesota
Department of Natural Resources, et al. v. The White Earth Band of Ojibwe and Hon. David A.
DeGroat, in his official capacity as judge of the White Earth Band of Ojibwe Tribal Court,
Appeal from U.S. District Court for the District of Minnesota (0:21-cv-01869-WMW). (DNR’s
request for Preliminary Injunction denied).
12

DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 9

White Earth Tribal Court. Time is of the essences, Enbridge has nearly completed
construction according to its weekly Status Report14 dated 9-23-21.

Conclusion
Based on the files, records and other evidence, along with the reasons set
forth above and in the original Request for Preliminary Injunction in Tribal Court
dated August 23, 2021, Respondents herein request the White Earth Appellate
Tribal Court grant an immediate emergency injunction against the DNR from
issuing or permitting any further water or dewatering allocations to the Enbridge
Line 3 pipeline construction project15 until truly independent and reliable
investigators verify all of the environmental damages along the pipeline
construction corridor and any other relief deemed fair, just and equitable.

Dated: September 24, 2021

14

____/s/ Frank Bibeau______
Frank Bibeau, Tribal Attorney
Joe Plumer, Tribal Attorney
For the Manoomin, et al

See Exhibit L, Enbridge Status letter and Exhibits letter to Mr. Will Seuffert, Minnesota
Public Utilities Commission, Re: In the Matter of the Enbridge Energy, Limited Partnership for a
Route Permit Line 3 Replacement Project in Minnesota from the North Dakota Border to the
Wisconsin Border MPUC Docket No. PL9/PPL-15-13
15
See Exhibit M, DNR map of Line 3 Existing and Proposed Corridor 2020
DNR v Manoomin Appeal
Respondents’ Motion for Injunction
Sept. 24, 2021, Page 10

Exhibits for
Motion for Preliminary Injunction
9-24-21

Exhibit A

Jeffrey S. Broberg, LPG, MA
Minnesota Licensed Professional Geologist
11596 Person Drive, St. Charles, MN 55972
Elbabroberg1@gmail.com c 507-273-4961
September 22, 2021
Frank Bibeau
Honor the Earth
PO Box 63, 607 Main Ave.
Calloway, MN, 56521

FOR IMMEDIATE RELEASE
RE: Enbridge violated water protection rules again while MNDNR stands by.
Dear Mr. Bibeau:
Environmental and water resource protections fail without sincere
prevention efforts, without clear plans that follow the rules, without the early
detection of problems, or transparent acts.
Can you imagine a massive pipeline project designed to move millions of
barrels of tar sands crude where the pipeline fails to follow approved construction
plans? Or can you imagine a project subject to detailed State and Federal
Environmental Permits that violates the terms of the permits then fails to disclose
its intentional violations until all the work is done? Or can you imagine a State
regulator who trusts the Contractor enough not to review inspection records for
five months and misses severe and possibly irreversible environmental damage?
These scenarios are now the latest chapter of the story of Enbridge Line 3 and
MNDNR oversight.
Last January, Enbridge, its contractors, consultants, and “independent”
inspectors minimized severe problems and took advantage of Minnesota’s lack of
timely regulatory oversight. The Minnesota Department of Natural Resources did
not learn of the severe aquifer issues for many months and did not take action to
stop the problems for eight months.
1

Following the recent disclosures of unreported “frac outs” releasing drilling
mud to the Clearwater and Mississippi Headwaters and the June surprise of Line
3’s 50-fold increase in water use in an extreme drought, we find Minnesota’s
groundwater is being impaired by Line 3 while we watch. Once again, the
environment has suffered, and we and Minnesota’s water-dependent ecosystems
must settle for our regulators granting forgiveness to Enbridge because they failed
to protect our water resources.
Enbridge contractors ruptured a sensitive and timeless artesian aquifer on
land in mid-winter. Clearbrook’s artesian aquifers form springs in the Lost River
headwaters of Assiniboine ceded territory (1889 Chippewa Treaty). The springs
never freeze, and pure, cold, clear water flows the medicine of life to the surface
year-round.
Last January, the ruptured aquifer welled up with water along in the deep
trench of the petroleum pipeline, and the aquifer started to lose its natural flow in
the springs, and the is losing the flow into the rare calcareous fens. The
uncontrolled groundwater flow and the pipeline springs have continued unabated
for eight months.
The loss of pure groundwater has now totaled 24.2 million gallons, 106,000
gallons a day, enough to sustain multiple springs and many acres of groundwaterdependent wetlands and extreme drought. On September 16, the Minnesota
Department of Natural Resources (MNDNR) finally issued a Restoration Order to
fix the rupture within 30 days and restore the drought-stricken fen, hoping to
restore all the nearby springs to keep the clean water out of the pipeline trench.
Upwelling hydraulic forces and geologic factors make restoring a ruptured
aquifer complex uncertain, and Enbridge or the MNDNR seem never to address the
cultural value attached to the water from the ancient natural artesian springs.
After a multi-year history of regulatory permit failures from the MNDNR
and MPCA, the stage was set for another disaster when Enbridge willfully ignored
design documents, regulatory warnings and ignored permit conditions at the
Clearbrook pipeline crossings. The next six months left a legacy of inspectors
failing to report alarming water and quicksand hazards, leaving regulators unaware
of another Line 3 water disaster. The litany of regulatory failures and unabated
environmental problems draws us to conclude that the Line 3 pipeline should have
never been permitted. Line 3 construction has already proven to be a clear and
present danger to the future of our water resources.
2

Enbridge, the Independent Environmental Monitors, and the MNDNR have
proven not to be trustworthy stewards of our water. Considering the litany of
failures and lack of transparency, the only reasonable outcome is to stop all activity
except inspections and corrective actions. Because of the history of regulatory
default, all Line 3 construction and pipeline activation activity should be seized
under the control of the Court.
The Nature and Hazards of Confined Artesian Aquifers at Clearbrook
Terminal
In the headwaters of Silver Creek/Lost River/Clearwater River Watersheds,
deeply buried bedrock are draped by alternating layers of impervious glacial till
and highly permeable beds of glacial sands and gravel that give rise to artesian
springs. The Line 3 route at Clearbrook is on the northern margins of Minnesota’s
Groundwater Province 4, with ground moraines of glacial till and where buried
sands and gravels from artesian aquifers and sustain fens, springs, wetland seeps,
lakes, and streams.
A review of the water well records from the Minnesota Well Index and
geotechnical borings along Line 3 shows the Line 3 route has a 35-to-50-foot layer
of impervious, clay-rich glacial till at the surface over a thick layer of sand and
gravel. The sands and gravels are highly productive artesian aquifers. To control
the upwelling pressure, thirty- and fifty-foot-deep wells in the immediate area are
drilled with heavy drilling mud. Deep excavations or wells drilled without heavy
mud are often lost during construction when the water pressure pushes to the
surface and quickly turns the wellbore into quicksand as the water moves upward
to the surface. Entire Townships around Clearbrook demonstrates upwelling
hydraulic pressure where the surrounding lands are known for artesian wells,
springs, groundwater-supported wetlands, and calcareous fens.
Deep excavations that rupture the seal formed by the 30-foot thick glacial till
rapidly become a construction hazard. Artisan water appears to boil to the surface
and liquify the surrounding soils into mud and quicksand. The breach of powerful
artesian forces threatens to swallow heavy equipment and become an immediate
and uncontrollable hazard. A new unnatural “boiling sand” spring formed in the
pipeline trench.
On January 21, the Enbridge contractors excavated within ten feet of the top
of the Clearbrook Artesian Aquifer. The over pressured aquifer ruptured near the
existing pipelines, and uncontrollable water rushed to the surface. The Contractor
3

lost all ability to contain the water, and project managers faced a significant
problem.
To install the pipeline, Enbridge contractors needed an 18-foot-deep bore
pit. The Contractor installed a 28-foot-deep steel sheet pile wall to control the
artesian flow, a 110-foot wall on either side of the pipeline route, and a steel plate
on the east end where the boring would tunnel under the existing hot pipes. With
five dewatering wells, they could lower the water level in the walled-off trench and
install the Line 3 connection to the Clearbrook terminal. But once they stopped
dewatering, the soils between the sheet piles again turned to quicksand, and a large
boiling sand spring appeared. Once they pulled the sheet pile, a new aquifer
rupture occurred 60 feet west of the original rupture—the difficulty of stopping the
uncontrolled flow magnified.
Water appropriation and water quality discharge standards were violated,
and the prospect of quickly restoring the sealed cap over the artesian aquifer
diminished by the day. In my 35 years of Minnesota groundwater management
experience, the uncontrolled artesian flow has repeatedly proven to be among the
most challenging construction hazards to solve.
Irregular Design, Permitting, Construction, Inspection, and Reporting
During the Line 3 water appropriations permitting, the MNDNR raised
concerns about groundwater-supported wetlands and artesian aquifers, especially
the risk on rare calcareous fens located just east of the Clearbrook terminal. In
November 2020, the MNDNR reviewed the local construction plans and issued a
“No Effect Concurrence” to Enbridge for the Clearbrook area fens. Enbridge gave
assurances that the groundwater flows sustaining the fens would be protected
because the approved design called for an 8- to 10-foot-deep bore pit, 20 to 28 feet
above the top of the pressured aquifer.
In less than 50 days, Enbridge Project Managers and contractors faced the
prospect that the designed bore pit at the Clearbrook Terminal was not deep
enough to allow boring beneath two existing pipelines. Line 3 had to make a “hot
crossing” beneath two high-pressure pipelines, and they needed a 16 to 18-foot
bore pit in a 50-foot-long trench box. Reality-based field decisions overrode the
approved design plans and permits. The 18-foot-deep trench immediately ruptured
the artesian aquifer as it approached the east end of the trench near the hot
crossings.
4

Rather than reporting the aquifer breach, the massive water appropriations,
and the muddy water discharge to the surrounding stream and wetlands,
Independent Environmental Monitors (IEM’s) overlooked the design changes and
permit violations. The Monitors did not report any changed conditions other than
“difficult dewatering.”
Enbridge’s failure to report the aquifer breach violated their water
appropriation permits, water discharge permits, and wetland permits.
The approved Environmental Monitor Control Plan (EMCP) required the
IEM’s to notify the State Agencies of “Modified Construction Activities” and
Modification to Permit Requirements.” The failure to report and revise permits
violated the letter and intent of the EMPC and violated multiple environmental
permits. (Section 6.0, pg. 15 of EMPC. Section 6.1, pg. 15-16 of EMPC)
Attached as Exhibit 1, a timeline for the ruptured aquifer, the 28 reported
frac-outs, and the amended water appropriations is a chronological compilation of
unauthorized Enbridge activities and MNDNR inactivity. The chronology
demonstrates obfuscation by both the company and their “Independent” monitors
keeping information from State Agencies while allowing continuing uncontrolled
water appropriation and shows just how slow the MNDNR was to respond.
The history of the aquifer rupture, frac-outs, and excessive water
appropriations in the drought reveals an intentional and blatant disregard for the
permits and protecting Minnesota waters.
Permitting and Regulatory Failures:
Enbridge and MNDNR Disconnection Puts and Aquifers at Risk
The core principles of environmental and water resource protection are
prevention guided by accurate plans, design and permit compliance, and early
detection and reporting of problems. All three principals failed at the Clearbrook
terminal, Line 3 aquifer rupture, frac-outs, and water appropriation amendments.
The MNDNR was faced with a massive undertaking and failed.
MNDNR permit conditions for water use, MPCA permits for water
discharge, and Corps of Engineer permits for wetlands were designed based on
accurate design and operation standards submitted in advance by the applicant.
These factors are meaningless if permit conditions are not understood, ignored, or
intentionally violated by the Permit holder. Permits and regulatory tools and are
5

just as useless if regulators fail to make the permits and rules understandable to
both permit holders and inspectors. If contractors look away from permit
conditions, the regulators are in the dark. If the regulations are either unaware or
waived permits, there can be no enforcement and no deterrence against future
violations. The actions of both Enbridge, their “Independent Monitors,” and the
MNDNR produce mistrust that can only be resolved with an effective and
independent third-party review. The independent monitors need proper knowledge
and rules to assess the environmental damage and restoration needs. The
Clearbrook artesian aquifer breach demonstrates that we should distrust all the
actors because every level of permit and regulatory failure has occurred.
The hydrologic conditions at Clearbrook Terminal were well understood
after decades of local groundwater investigations and Line 3 geotechnical borings.
MNDNR, MPCA, and Enbridge say they know the risks to groundwater-dependent
wetlands and calcareous fens, but that knowledge has never translated to adequate
protections.
Line 3 developers requested routine and moderate dewatering permits that
never addressed the likely uncontrolled flow with deep excavations or the need for
larger volumes of water with frequent frac-outs. The result is hundreds of
thousand gallons a day disgorging from Clerbrook’s shallow artesian aquifer or
pumped into the ground when doing the pipeline borings.
While MNDNR understood the aquifer and fen risks, they granted a “no
impact concurrence” for the fen because only shallow excavations were
envisioned. It is unclear whether the MNDNR reviewed the artesian character of
the Clearbrook artesian aquifer with Enbridge and the Independent Environmental
Monitors failing to advise contractors on preventing an uncontrolled aquifer
disaster.
At the same time, Enbridge Project Managers and contractors should have
known the necessity of deeper excavation to cross existing pipelines. They should
have known and anticipated the artesian pressure from the Clearbrook aquifer. The
deep bore pit plans were not in the Enbridge design review documents. While
permit writers and hydrologists relied on the design documents, prevention failed
again when contractors changed plans without considering the known artesian
risks.
Prevention requires high situational awareness and accurate reporting;
contractors, inspectors, and regulators need to be constantly apprised of onsite
6

conditions, especially in high-risk settings, and they must report related problems.
The approved Environmental Monitoring Plan requires Inspectors to routinely
upload Inspection records to a password-protected portal that regulators can
review. Failures occur whenever inspection reports are not timely, when they are
not accurate, when the inspection reports obfuscate the facts, and when regulators
fail to do a timely review. The same problems occurred when the aquifer ruptured,
frac-outs, and 50-fold expansion in water appropriations during a drought. The
institutional measures to prevent and minimize environmental impact failed with
the aquifer rupture.
Digging deep pits in artesian settings and near groundwater-dependent
ecosystems was the first compliance failure that went unreported. Poor project
design calling for bore pits to cross actively flowing pipelines set up the
disappointment that could have been prevented. Appropriate well-designed
modifications that protect the environment. Many consultants, contractors, and the
MNDNR have experience controlling subsurface flow. Onsite drillers controlled
the flow with heavy drilling mud designed to contain the pressure, and excavators
either dewater the risky area in advance, surcharge the flow or create a grouted seal
over the top of artesian aquifers. Appropriate modifications can only be approved
if the Permitted party discloses the changes required in the permit; here, permit
compliance failed.
When the water came welling up and created quicksand in the pipeline
trench, the Contractor abandoned the deep bore pit effort in fear of losing their
equipment. The failure to report the problem was a severe violation where the
blame is shared by Enbridge, the Contractor, the Independent Environmental
Monitors, and the MNDNR regulators. The Contractor trying to avoid stop-work
orders or design delays first made a hasty decision and then felt compelled to hide
the problem from regulators for months. The environmental monitors failed their
regulatory responsibility to identify and report the aquifer breach forcing a ninemonth delay in restoring the aquifer.
As a geologist with pipeline construction experience, I can envision the
Contractor hoping the artesian pressure would rapidly decline as it often does in
minor confined aquifers with limited volume. But hope is not a regulatory
compliance strategy, proven when dealing with a large regional aquifer with over
25 feet of head pressure.

7

Other serious violations occurred at Coldbrook, which are regulated by the
MPCA and the Corp of Engineers. Discharge of silt and mud into streams and
wetlands violates Construction Site Stormwater Permits and wetland protections.
Failure to timely notify the pollution is a violation itself; continuing the work
compounds the violations.
In addition serious violations have assaulted our aquifers with the frac-outs
and 5 billion gallons of water appropriations during a drought.
Conclusion: Failed Promises Destroy Trust
Eight months of large volume flows from a ruptured regional aquifer are
now exceeding 100,000 gallons per day, depleting the aquifer, reducing the
hydraulic head threatening groundwater-dependent ecosystems. Frac-outs have a
yet undefined risk to aquifers and surface water resources, and massive water
withdrawals during extreme drought may impact both aquifers and surface waters.
The attached chronology was compiled from Permit history, the MNDNR timeline
in the Clearbrook Restoration Order, the Clearbrook Remedial Action Plan, the
frac-outs, and amended Water Appropriation Permits. As an experienced
environmental risk manager, I see the public documents as sanitized versions of a
severe violation and a complete failure to protect our water resources.
Enbridge, their contractors and consultants, the Independent Environmental
Monitors, and the MNDNR regulators failed to meet their obligations and created
an ongoing risk. Even with the failures, there are only minor consequences related
to the actual costs of fixing the problem; there are no penalties for over five months
of evasion and no deterrence that makes it risky to violate the law.
The only fix to the abuses is for a Court or a Regulator to put a hard stop to
all activities except independent inspection, remote sensing for upwelling water
from aquifer ruptures and frac-outs, and disclosing all irregular design changes.
Our water resources are at risk; no other actions should be allowed. Once the total
damages have been restored, heavy fines and penalties must be levied for every
unreported infraction.

Sincerely:
Jeffrey S. Broberg, LPG, MA, Minnesota Licensed Professional Geologist #13009
8

CC: Steve Morse and Sara Wolff, Minnesota Environmental Partnership

References:
MNDNR Restoration and Replacement Order
Barr Engineering Remedial Action Plan
Enbridge Environmental Monitoring Plan
Minnesota Well Index well logs
Enbridge Dewatering Permit 2018-****

9

Exhibit 1:
Chronology of Violation and Regulatory Failure
Derived from MNDNR Violation History and Barr Flow
Remediation Plan

10

Dec. 2019: Approval of Environmental Monitor Control Plan. Enbridge Energy
Limited partnership – Line 3 Replacement Project.
December 28, 2020: MNDNR issued Water Appropriations Permit 2018-3420 to
Enbridge for 510,000,000 Gallons.
November 12, 2020, MNDNR issued Enbridge “No Effect Concurrence” for
excavation 8-10 feet deep that would have an impact on the hydrology of fen
January 21, 2021: Enbridge abandons plans for shallow excavation due to
existing pipelines and dug to 18 feet and ruptured artesian aquifer creating
uncontrolled flow.
January 26, 2021: IEM noted “unmanageable dewatering conditions” and the
need for SWPPP to direct new flow across the roadway
February 2, 2021: Borehole excavation or entry pit encountered “excessive GW
infiltration.”
February 8, 2021: 110-foot sheet pile wall installed within wetland dewatered
with five wells, installed 50-foot long trench box in bore pit for “hot crossing” of
existing pipelines.
Trench water discharged to dewatering bags and dewatering structures
Enbridge installed Line 3 “hot crossing” of two pipelines in dewatered sheet
pile and trench box area
Uncontrolled flow area expands with the removal of the sheet pile wall
February 20, 2021. IEM notes “turbid water discharge for five well points.”
Discussed with the lead inspector, environmental monitor, and ERM
technical director
March 13, 2021. IEM documented sediment flow to wetlands and discussed with
EI Team
March 15, 2021. IEM and Lead Env Inspector conducted site review and
documented 2” of clay
March 16, 2021, Enbridge “issued an unacceptable report for improper dewatering
structure” No cleanup and continued pumping

11

“Following months,” according to MNDNR, Enbridge cleaned sediment
from wetland but did not resolve uncontrolled flow
Failure to identify the problem as uncontrolled flow or aquifer rupture
No notifications of Level 2 modifications or need for amended permits
June 4, 2021: MNDNR issues Amended Water Appropriations Permit #2018-3420
for 4,982,768,568 gallons, 9.8 times larger than the original permit request.
June 15, 2021, MNDNR staff discussed the potential for uncontrolled flow
June 16, 2021, MNDNR email to Enbridge requesting information on uncontrolled
flow and restoration plan
On June 17, 2021, MNDNR noticed Enbridge not recommencing work at
Clearbrook hot crossing until the uncontrolled flow plan was approved. (Note that
the line segments were already completed by the time DNR sent notice.)
June 2021: Five unreported Frac-outs
July 7, 2021, Merjent disclosed 3.8 million gallons of uncontrolled flow since
January and disclosed 45 ftX12 ft X18’ excavation and sheet pile installation
response to 6-16 DNR request described as “findings of fact #13.”
July 8, 2021, Lead IEM and MNDNRr reviewed and summarized inspection
reports to date and discovered the initial January 26 report and disclosure of
completion of pipeline boring but no backfill due to uncontrolled flow.
July 8, 2021, Enbridge submitted Groundwater Investigation Plan to MNDNR for
comment and review
Enbridge reported a second surface emergence of uncontrolled flow from
outside the former sheet pile area 60 feet northwest of the original
uncontrolled flow.
Enbridge reported uncontrolled overland flow at ground level elevation
1339. Surface flow is 28 feet above the artesian aquifer.
Uncontrolled flow created the risk of bank sloughing, road overtopping, and
water quality concerns from the release of turbid water
Enbridge reported uncontrolled flow reached a nearby stream
Uncontrolled flow extends from Milepost 909.1 to 910
12

July 12, 2021, Enbridge submitted the revised GW Investigation Plan
On July 14, 2021, DNR informed Enbridge to deny the request to continue
work in the area until the uncontrolled flow plan was approved.
July 27-Aug 4, 2021 Drilling 6 borings in area of uncontrolled flow. two borings
penetrated the artesian aquifer
July 2021: 19 unreported frac-outs
August 1-4: Two unreported Frac-outs
Aug 5-Aug 21, 2021: water level monitoring
August 9: MNDNR reveals 28 unreported frac-outs from June 1 to August 4.
August 15, 2021, Draft Remedial Action Plan for ruptured aquifer submitted to
MNDNR
Aug 17-18, 2021Enbridge/Barr Final Remedial Action Plan report on an
uncontrolled flow mitigation plan
RAP shows fens are supported by upwelling artesian water
Uncontrolled flow is upgradient of fens
RAP proposes installing high-volume wells in the artesian aquifer to stop the
flow at the surface and reduce upward pressure in the aquifer allowing grout
injection into the ground to stop the flow
September 6, 2021. uncontrolled flow reported to be 24,200,000 gallons from
January 21 to September 5, 227 days, (Avg flow of 106,608 gallons/day from an
area measuring 1400 to 1650 square feet)
September 16, 2021, MNDNR Restoration and Replacement Order
By October 16, 2021, complete all work to stop the uncontrolled flow
Notify MNDNR Commissioner within 24 hours of completion
By October 16, 2021, Enbridge, to report a revised estimate of water loss
from March 19 to September 16, must continue groundwater monitoring
following cessation of flow.
By October 16, 2021, submit Draft Calcareous Fen Management Plan for
MNDNR review and approval
13

By October 16, 2021. Submit $250,000 in mitigation funds to MNDN for
independent monitoring of calcareous fens
By October 16, 2021, Submit $300,000 in mitigation funds to MNDNR for
initial mitigation of direct loss of groundwater resources
By October 16, 2021. End of the appeal period.
By November 1, 2021, Submit $2,750,000 on “one or more single order
instruction escrows for the benefit of MNDNR to use at its sole discretion to
provide funds to perform restoration actions” for fens and compensatory
mitigation with conditions for withdrawal
The order provides for the addition of escrow funds if necessary
By December 1, 2021. Enbridge must demonstrate that it has visually
reinspection all locations across the entirety of Line 3 where Enbridge
deviated from planned or permitted construction trench depths. Must
identify additional unidentified breaches of artesian aquifers.
Monitor for uncontrolled flow for 12 months after cessation of uncontrolled
flow

14

Exhibit B

Permit Number
MNDNR PERMITTING AND REPORTING SYSTEM

2018-3420

Amended

Water Appropriation Permit
Expiration Date: 06/04/2022
Pursuant to Minnesota Statutes, Chapter 103G, and on the basis of statements and information contained in the permit
application, letters, maps, and plans submitted by the applicant and other supporting data, all of which are made part
hereof by reference, PERMISSION IS HEREBY GRANTED to the applicant to perform actions as authorized below. This
permit supersedes the original permit and all previous amendments.

Project Name:
L3R GW Segments and Pump
Stations

Purpose of Permit:

County:
Clearwater,
Hubbard,
Cass,
Aitkin,
Kittson,
St. Louis,
Marshall,
Red Lake,
Polk

Watershed:

Resource:

Clearwater River; Mississippi
River - Headwaters; Crow Wing
River; Pine River; Mississippi
River - Grand Rapids; Red River
of the North - Tamarac River;
St. Louis River; Snake River

Groundwater

Authorized Action:

Construction Dewatering

Withdrawal of up to 4982.7 million gallons of water per year for
construction dewatering.
Authorized actions at each construction dewatering spread are
listed below.
All volume amounts and appropriation pumping rates must be
followed.
A total of 4,982,768,568 gallons is authorized by this permit.
The permittee shall not exceed the total gallons authorized.
The spread installations are an estimate of the amount of
construction dewatering needed at each installation.
• Installation #1: Pipeline trench from Minnesota/North Dakota
border to Donaldson pump station, Kittson County (12.6 miles)
– estimate of 31,448 gallons
• Installation #2: Donaldson pump station, Kittson County (0.10
miles) – estimate of 829,726 gallons
• Installation #3: Pipeline trench from Donaldson pump station
to Viking pump station, Kittson & Marshall Counties (33.6
miles) – estimate of 1,466,134 gallons
• Installation #4: Viking pump station, Marshall County (0.10
miles) – estimate of 870,179 gallons
• Installation #5: Pipeline trench from Viking pump station to
Plummer pump station, Marshall, Pennington & Red Lake
Counties (28.8 miles) – estimate of 3,667,555 gallons
• Installation #6: Plummer pump station, Red Lake County
(0.10 miles) – estimate of 1,065,538 gallons
• Installation #7: Pipeline trench from Plummer pump station to
end of Construction Spread 1, Red Lake and Polk Counties,
(19.1 miles) – estimate of 5,475,038 gallons
• Installation #8: Pipeline trench from end of Construction
Spread 1 to Clearbrook Terminal, Polk & Clearwater Counties,
(13.1 miles) – estimate of 9,063,781 gallons
• Installation #9: Clearbrook pump station, Clearwater County
(0.10 miles) – estimate of 24,856,814 gallons
• Installation #10: Pipeline trench from Clearbrook pump station
to Hubbard County line, Clearwater County (36.4 miles) –
estimate of 784,197,013 gallons
• Installation #11: Pipeline trench from Hubbard County line to
Two Inlets pump station, Hubbard County (13.3 miles) –
estimate of 34,416,969 gallons
• Installation #12: Two Inlets pump station, Hubbard County
(0.10 miles) – estimate of 896,473 gallons
• Installation #13: Pipeline trench from Two Inlets pump station

to end of Construction Spread 2, Hubbard County (9.0 miles) –
estimate of 42,203,185 gallons
• Installation #14:Pipeline trench from end of Construction
Spread 2 to Backus pump station, Hubbard, Cass & Wadena
Counties (41.5 miles) – estimate of 2,837,033,847 gallons
• Installation #15: Backus pump station, Cass County (0.10
miles) – estimate of 44,965,514 gallons
• Installation #16: Pipeline trench from Backus pump station to
end of Construction Spread 3, Cass & Crow Wing Counties
(31.3 miles) – estimate of 244,752,992 gallons
• Installation #17: Pipeline trench from end of Construction
Spread 3 to Swatara pump station, Cass & Aitkin Counties (6.9
miles) – estimate of 3,570,484 gallons
• Installation #18: Swatara pump station, Aitkin County (0.10
miles) – estimate of 4,077,316 gallons
• Installation #19: Pipeline trench from Swatara pump station to
end of Construction Spread 4, Aitkin & St. Louis Counties (37.5
miles) – estimate of 128,663,927 gallons
• Installation #20: Pipeline trench from end of Construction
Spread 4 to North Gowan pump station, St. Louis County (9.6
miles) – estimate of 230,024,353 gallons
• Installation #21: North Gowan pump station, St. Louis County
(0.10 miles) – estimate of 1,685,052 gallons
• Installation #22: Pipeline trench from North Gowan pump
station to Minnesota/Wisconsin border, St. Louis & Carlton
Counties (34.1 miles) – estimate of 577,093,383 gallons
• Hill City pipeline maintenance station (PLM), Aitikin County -estimate of 1,861,846 gallons
All appropriations from the above listed construction dewatering
installations (spreads) will follow all relevant plans per the
original final Application dated November 8, 2020 and the
Environmental Protection Plan (EPP) received November 08,
2020. All changes in requested water volumes included in the
permit amendment application dated May 12, 2021 and the
updated Stormwater Pollution Prevention Plan (SWPPP) dated
May 2021 required by the MPCA Construction Stormwater
General Permit must be followed for this permit to be valid.
All installation volumes are estimates per the spreads and the
total volume authorized is 4,982,768,568, the permittee is not
allowed to go over the total volume authorized by this permit.

Permittee:

Authorized Agent:

ENBRIDGE ENERGY, LIMITED PARTNERSHIP
CONTACT: HAHN, BOBBY, (218) 522-4751
26 E SUPERIOR ST.
SUITE 125
DULUTH, MN 55802
(218) 464-5621

To Appropriate From:

MERJENT, INC.
CONTACT: LENZ, KRISTIN, (763) 913-4740
1 MAIN STREET SE
SUITE 300
MINNEAPOLIS, MN 55414
(612) 746-3660

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 319032m east, 5284954m north
NESE of Section 29, T149N, R37W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 335917m east, 5238205m north
SENE of Section 24, T144N, R36W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 337053m east, 5217752m north
NWNW of Section 29, T142N, R35W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 336583m east, 5203482m north
SESE of Section 6, T140N, R35W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 382773m east, 5181950m north
NESE of Section 12, T138N, R31W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 428061m east, 5189817m north
NWNW of Section 14, T139N, R26W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 438108m east, 5192494m north
SWNW of Section 2, T139N, R25W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 197299m east, 5402845m north
Section 4, T160N, R50E

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 497094m east, 5192819m north
NWSW of Section 20, T51N, R21W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 511379m east, 5189971m north
SENE of Section 34, T51N, R20W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 511384m east, 5189786m north
SENE of Section 34, T51N, R20W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 454059m east, 5204182m north
SESW of Section 14, T52N, R26W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 210009m east, 5387076m north
NWNW of Section 25, T159N, R49W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 244838m east, 5345488m north
SESE of Section 28, T155N, R45W

Sump : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 300417m east, 5294895m north
SWSW of Section 28, T150N, R39W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 337143m east, 5217783m north
NENW of Section 29, T142N, R35W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 382905m east, 5181869m north
SWSW of Section 7, T138N, R30W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 447690m east, 5190730m north
NWNE of Section 31, T51N, R26W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 210118m east, 5386991m north
NWNW of Section 25, T159N, R49W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking

UTM zone 15N, 244450m east, 5345588m north
SWSE of Section 28, T155N, R45W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 274106m east, 5310131m north
NENW of Section 15, T151N, R42W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 274133m east, 5310053m north
NENW of Section 15, T151N, R42W

Groundwater : by means of a portable pump at a rate not to exceed 800 gpm
Point(s) of Taking
UTM zone 15N, 319120m east, 5284952m north
NESE of Section 29, T149N, R37W

Issued Date:

06/04/2021
Authorized Issuer:
Title:
Randall Doneen

Effective Date:

Conservation Assistance
& Regulations Section
Manager

06/04/2021
Email Address:

Expiration Date:

randall.doneen@state.mn.us

06/04/2022
Phone Number:
651-259-5156

This permit is granted subject to the following CONDITIONS:
LIMITATIONS: (a) Any violation of the terms and provisions of this permit and any appropriation of the waters of the state
in excess of that authorized hereon shall constitute a violation of Minnesota Statutes, Chapter 103G. (b) This permit shall
not be construed as establishing any priority of appropriation of waters of the state. (c) This permit is permissive only. No
liability shall be imposed upon or incurred by the State of Minnesota or any of its employees, on account of the granting
hereof or on account of any damage to any person or property resulting from any act or omission of the Permittee relating
to any matter hereunder. This permit shall not be construed as estopping or limiting any legal claims or right of action of
any person other than the state against the Permittee, for any damage or injury resulting from any such act or omission,
or as estopping or limiting any legal claim or right of action of the state against the Permittee, for violation of or failure to
comply with the provisions of the permit or applicable provisions of law. (d) In all cases where the doing by the Permittee
of anything authorized by this permit shall involve the taking, using, or damaging of any property, rights or interests of any
other person or persons, or of any publicly owned lands or improvements thereon or interests therein, the Permittee,
before proceeding therewith, shall obtain the written consent of all persons, agencies, or authorities concerned, and shall
acquire all property, rights, and interests necessary therefore. (e) This permit shall not release the Permittee from any
other permit requirements or liability or obligation imposed by Minnesota Statutes, Federal Law, or local ordinances
relating thereto and shall remain in force subject to all conditions and limitations now or hereafter imposed by law. (f)
Unless explicitly specified, this permit does not authorize any alterations of the beds or banks of any public (protected)
waters or wetlands. A separate permit must be obtained from the Department of Natural Resources prior to any such
alteration.
FLOW METER: The Permittee shall equip each installation for appropriating or using water with a flow meter, unless
another method of measuring the quantity of water appropriated to within ten (10) percent of actual amount withdrawn is
approved by the Department.
WATER USE REPORTING: Monthly records of the amount of water appropriated or used shall be recorded for each
installation. Such readings and the total amount of water appropriated or used shall be reported annually to the Director of
DNR Ecological and Water Resources, on or before February 15 of the following year, via the MNDNR Permitting and
Reporting System (MPARS) at www.mndnr.gov/mpars/signin. Any processing fee required by law or rule shall be
submitted with the records whether or not any water was appropriated during the year. Failure to report shall be sufficient
cause for terminating the permit 30 days following written notice.

Page 7 - Permit Number 2018-3420

CONDITIONS continued on next page...

CONDITIONS (Continued from previous page)
MODIFICATION: The Permittee must notify the Commissioner in writing of any proposed changes to the existing permit.
This permit shall not be modified without first obtaining the written permission from the Commissioner.
TRANSFER OR ASSIGNMENT: Any transfer or assignment of rights, or sale of property involved hereunder shall be
reported within 90 days thereafter to the Director of DNR Ecological and Water Resources. Such notice shall be made by
the transferee (i.e., new owner) and shall state the intention to continue the appropriation as stated in the permit. This
permit shall not be transferred or assigned except with the written consent of the Commissioner.
COMMISSIONER'S AUTHORITY: (a) The Commissioner may inspect any installation utilized for the appropriation or use
of water. The Permittee shall grant access to the site at all reasonable times and shall supply such information
concerning such installation as the Commissioner may require. (b) The Commissioner may, as he/she deems necessary,
require the Permittee to install gages and/or observation wells to monitor the impact of the Permittee's appropriation on
the water resource and require the Permittee to pay necessary costs of installation and maintenance. (c) The
Commissioner may restrict, suspend, amend, or cancel this permit in accordance with applicable laws and rules for any
cause for the protection of public interests, or for violation of the provisions of this permit.
PUBLIC RECORD: All data, facts, plans, maps, applications, annual water use reports, and any additional information
submitted as part of this permit, and this permit itself are part of the public record and are available for public inspection at
the offices of DNR Ecological and Water Resources. The information contained therein may be used by the Division as it
deems necessary. The submission of false data, statements, reports, or any such additional information, at any time shall
be deemed as just grounds for revocation of this permit.
MONITORING REQUIREMENTS: Minnesota Statutes 103G.282 authorizes the Department of Natural Resources to
require permittees to install and maintain monitoring equipment to evaluate water resource impacts from permitted
appropriations. You may be required to modify or install automated measuring devices and keep records for each
installation. The frequency of measurements and other requirements will be based on quantity of water appropriated,
source of water, potential connections to other water resources, nature of concern, and other relevant factors.
DROUGHT PLANNING: In accordance with M.S. 103G.293, all permits must be consistent with the drought response
plan detailed in the Statewide Drought Plan at
http://files.dnr.state.mn.us/natural_resources/climate/drought/drought_plan_matrix.pdf.
LAND NOT OWNED BY PERMITTEE : This permit authorizes appropriation of water from land that is not owned by the
permittee. The volume authorized is valid only as long as an agreement is in effect for lands included under this permit that
are not owned by the permittee.
WELL SEALING: The permittee shall notify the Minnesota Department of Health prior to sealing, removing, covering,
plugging or filling the well(s) from which the authorized appropriation was made. The well(s) must be sealed by a licensed
well driller and in accordance with the procedures required under Minnesota Statutes 103I and Minnesota Rules 4725 as
administered by the Minnesota Department of Health.
WATER USE CONFLICT: If notified by the DNR that a water use conflict is suspected and probable from your
appropriation, based on confirmation of a formal well interference complaint or a preliminary hydrologic assessment, all
appropriation authorized by this permit must cease immediately until the interference is resolved. The permittee may be
required to obtain additional data to support the technical analysis, such as domestic well information within a radius of
one and one-half miles of the production well. The permittee and impacted party may engage in a negotiated settlement
process and there may be modifications made to this permit in support of conflict resolution.
SUSPENSION: The Department may require the suspension of appropriation during periods of low water in order to
maintain minimum water levels within the basin/watercourse/watershed.
CONTINGENCY: If directed by DNR Ecological and Water Resources to cease pumping, the permittee agrees to
withstand the results of no appropriation as stated in the contingency statement submitted with the application.
INTAKE: All pump intakes must be screened to prevent fish from being drawn into the system.
INVASIVE SPECIES - EQUIPMENT DECONTAMINATION: All equipment intended for use at a project site must be free
of prohibited invasive species and aquatic plants prior to being transported into or within the state and placed into state
waters. All equipment used in designated infested waters, shall be inspected by the Permittee or their authorized agent
and adequately decontaminated prior to being transported from the worksite. The DNR is available to train inspectors
and/or assist in these inspections. For more information refer to the "Best Practices for Preventing the Spread of Aquatic
Page 8 - Permit Number 2018-3420

CONDITIONS continued on next page...

CONDITIONS (Continued from previous page)
Invasive Species" at http://files.dnr.state.mn.us/publications/ewr/invasives/ais/best_practices_for_prevention_ais.pdf.
Contact your regional Invasive Species Specialist for assistance at www.mndnr.gov/invasives/contacts.html. A list of
designated infested waters is available at www.mndnr.gov/invasives/ais/infested.html. A list of prohibited invasive species
is available at www.mndnr.gov/invasives/laws.html#prohibited.
INFESTED WATERS - WATER TREATMENT REQUIREMENTS: Surface water appropriation from waters listed as
containing invasive species (see http://www.mndnr.gov/invasives/ais/infested.html) are required to contact 651-259-5100 or
1-888-MINN-DNR to obtain information from the DNR Division of Ecological and Water Resources on specific invasive
species water treatment requirements.
WATER CONSERVATION: All practical and feasible water conservation methods and practices must be employed to
promote sound water management and use the least amount of water necessary, such as reuse and recycling water,
water-saving devices, and water storage.
DISCHARGE AUTHORIZATION: This permit is valid only in conjunction with all required discharge authorizations from
local, state, or federal government units.
CONSTRUCTION DEWATERING DISCHARGES: No discharges are allowed at known state-listed threatened and
endangered species location. All discharges should be completed per the specifics in the Environmental Protection Plan
(EPP) dated November 2020, received on November 08, 2020. Dewatering activities will be conducted as described in the
Construction Stormwater general permit and the revised May 2021 SWPPP, approved by MPCA and as described in the
June 3, 2021 letter “Supplemental Information for an Individual Water Appropriation Permit Amendment for Construction
Dewatering Reference No. 2018-3420”. There shall be continuous on-site monitoring of dewatering activities by qualified
staff to ensure that discharges prevent aquatic habitat degradation.
TIMING DEVICES AND FLOW METERS: All pumps in the construction trench must be instrumented with timing devices
or flow meters. All pumps used at the pump station facilities and well point systems must be instrumented with flow
meters. Timing devices are not allowed at the pump station facilities and well point systems as authorized under this
permit.
APPROPRIATION AND DISCHARGE RATES: All appropriation and discharge pump rates in construction dewatering
trenches and the pump station facilities must be between 400 gallons per minute (gpm) and 800 gpm. Pump rates must
not exceed 800 gpm. Appropriation and discharge pump rates for the well point systems must be set to a maximum of
1,500 gpm.
CHESTER 24 FEN PIEZOMETER AND MONITORING: The permittee shall monitor the existing well nest installed by
Enbridge near the RSV8 valve site on June 21, 2020. The well and piezometer should be instrumented at least a day
before dewatering for Line 3 construction starts with a datalogger programmed to take water levels every minute. A vented
logger is preferred but an absolute logger paired with a barologger on site, taking measurements at the same frequency, is
acceptable. The exact time of the start and end of dewatering in the area should be noted. Water levels should be
collected in this well nest until they recover to pre-pumping levels or after construction is completed and the area is
restored; whichever is longer. The piezometer construction information (well depth, screen length, casing length, top of
casing elevation, and well boring record), water level data, pump on/off times, pumping rates and volumes, along with the
length of pumping (time) should be submitted to DNR following completion of the project. Once water levels recover, and
with DNR prior approval, the piezometer and well could then be properly abandoned. If further information or coordination is
needed on installing and monitoring this piezometer, please contact Michele Walker, DNR Hydrologist,
michele.walker@state.mn.us, 218-308-2464.

Page 9 - Permit Number 2018-3420

CONDITIONS continued on next page...

cc: Tom Groshens, EWR District Manager
Simonson, Barry, Contact; Enbridge Energy, Limited Partnership
Ronayne, Angela, Contact; Merjent, Inc.
Lipps, Hannah, Contact; Merjent, Inc.
Hansen, Shannon, Contact; Merjent, Inc.
Fisher, Linda, Contact; Merjent, Inc.
Mike Findorff, MPCA
Mike Kelly, DNR Fisheries, Park Rapids Area
Edie Evarts, DNR Fisheries, Bemidji Area
Thomas Hutchins, Conservation Officers, Crookston
Jeremy Woinarowicz, Conservation Officers, Thief River Falls #1
Jacob Willis, Conservation Officers, Brookston
Ryan Brown, Conservation Officers, Karlstad
Taylor Hochstein, Conservation Officers, Hill City
Calie Kunst, Conservation Officers, Remer
Chelsey Best, Conservation Officers, Pequot Lakes
Nick Baum, Conservation Officers, Park Rapids
Hannah Mishler, Conservation Officers, Bemidji #2
Tim Gray, Conservation Officers, Bagley
Kevin Molloy, MPCA
Steve Hofstad, BWSR Wetland Specialists, Polk
Steve Hofstad, BWSR Wetland Specialists, Red Lake
Matt Johnson, BWSR Wetland Specialists, Marshall
Erin Loeffler, BWSR Wetland Specialists, St. Louis
David Demmer, BWSR Wetland Specialists, St. Louis
Matt Johnson, BWSR Wetland Specialists, Kittson
David Demmer, BWSR Wetland Specialists, Aitkin
Matt Johnson, BWSR Wetland Specialists, Cass
Matt Johnson, BWSR Wetland Specialists, Hubbard
Matt Johnson, BWSR Wetland Specialists, Clearwater
Andrew Herberg, DNR Regional Nongame Specialists, Region 2
Gaea Crozier, DNR Regional Nongame Specialists, Region 2
Amy Westmark, DNR Regional Nongame Specialists, Region 1
Margi Coyle, DNR Regional Environmental Assessment Ecologist, Region 2
Jaime Thibodeaux, DNR Regional Environmental Assessment Ecologist, Region 1
Emily Hutchins, DNR Wildlife, Crookston
Doug Franke, DNR Wildlife, Thief River Falls
Chris Balzer, DNR Wildlife, Cloquet
Jason Wollin, DNR Wildlife, Karlstad
Russ Reisz, DNR Wildlife, Aitkin
Christine Reisz, DNR Wildlife, Brainerd
Erik Thorson, DNR Wildlife, Park Rapids
Nathan Olson, DNR Fisheries, Detroit Lakes Area
Deserae Hendrickson, DNR Fisheries, Duluth Area
Phil Talmage, DNR Fisheries, Baudette Area
Rick Bruesewitz, DNR Fisheries, Aitkin Area
Marc Bacigalupi, DNR Fisheries, Brainerd Area
Jake Snyder, County, Polk
Kurt Casavan, County, Red Lake
Josh Johnston, County, Marshall
Mark Lindhorst, County, St. Louis
Barb O'Hara, County, Kittson
Becky Sovde, County, Aitkin
Andrew Carlstrom , County, Aitkin
John Ringle, County, Cass
Scott Navratil, County, Cass
Kelly Condiff, County, Cass
Jenny Blue, County, Cass
Page 10 - Permit Number 2018-3420

Levy Bergstrom, County, Cass
Eric Buitenwerf, County, Hubbard
Daniel Hecht, County, Clearwater
Kyle Schlomann, Watershed District, Middle Snake Tamarac WD
Danny Omdahl, Watershed District, Middle Snake Tamarac WD
Morteza Maher, Watershed District, Middle Snake Tamarac WD
Dan Money, Watershed District, Two Rivers WD
Myron Jesme, Watershed District, Red Lake WD
Corps of Engineers, Corps of Engineers, Polk
Corps of Engineers, Corps of Engineers, Red Lake
Corps of Engineers, Corps of Engineers, Marshall
Corps of Engineers, Corps of Engineers, St. Louis (South)
Corps of Engineers, Corps of Engineers, Kittson
Corps of Engineers, Corps of Engineers, Aitkin
Corps of Engineers, Corps of Engineers, Cass
Corps of Engineers, Corps of Engineers, Hubbard
Corps of Engineers, Corps of Engineers, Clearwater
Rachel Klein, SWCD, East Polk SWCD
Tanya Hanson, SWCD, Red Lake SWCD
Danny Thorstad, SWCD, Marshall SWCD
R.C. Boheim, SWCD, St. Louis SWCD - South
Justin Muller, SWCD, Kittson SWCD
Steven Hughes, SWCD, Aitkin SWCD
John Ringle, SWCD, Cass SWCD
Jessica Manifold, SWCD, Cass SWCD
Kelly Condiff, SWCD, Cass SWCD
Crystal Mathisrud, SWCD, Hubbard SWCD
Chester Powell, SWCD, Clearwater SWCD
Lori Buell, SWCD, Clearwater SWCD

Page 11 - Permit Number 2018-3420

Exhibit C

We only use cookies that are necessary for this site to function, and to provide you with the best experience. Learn
more in our Cookie Statement. By continuing to use this site, you consent to the use of cookies.

DNR Orders Enbridge Energy to Pay $3.32 Million for Failure to
Follow Environmental Laws
Having trouble viewing this email? View it as a Web page.

Minnesota Department of Natural Resources Orders
Enbridge Energy to Pay $3.32 Million for Failure to
Follow Environmental Laws
The Minnesota Department of Natural Resources (DNR) has ordered
Enbridge Energy to pay $3.32 million for failure to follow environmental
laws. Enbridge breached the confining layer of an artesian aquifer, resulting
in an unauthorized groundwater appropriation during the construction of the
Line 3 replacement project near Enbridge’s Clearbrook Terminal.
DNR’s civil enforcement orders require Enbridge to pay mitigation and
penalty funds of $3.32 million. This includes a restoration order requiring
$300,000 in initial mitigation funds to pay for the loss of groundwater
resources, $250,000 for DNR monitoring of calcareous fen wetlands near
the area of the aquifer breach and a $20,000 administrative penalty order
(the maximum allowed under state law). The DNR has also ordered
Enbridge to place $2,750,000 in escrow for restoration and mitigation of any
damage to the calcareous fen wetlands. DNR will determine what
restoration and mitigation is required.
DNR’s restoration order also requires Enbridge to implement a restoration
plan to stop the unauthorized groundwater flow within 30 days. The order

requires the company to conduct additional groundwater and site monitoring
and report the results, as well as to develop a Calcareous Fen Management
Plan. Additionally, to ensure that violations haven’t occurred elsewhere, the
DNR is requiring Enbridge to fund a re-inspection of any and all areas along
the entire route where construction depths deviated from plans (as they did
at the Clearbrook Terminal site).
Separately, the DNR has also referred this matter to the Clearwater County
Attorney for criminal prosecution. The DNR has determined that Enbridge
Energy violated Minnesota Statute 103G.141, subdivision 1, which makes it
a crime to appropriate “waters of the state without previously obtaining a
permit from the commissioner.”
The criminal referral and civil enforcement orders resulted from an
investigation of Line 3 construction activities near Enbridge’s Clearbrook
Terminal. Should the company violate the DNR’s restoration order, it would
be subject to additional misdemeanor charges under state law.
“DNR is committed to its role as a regulator on this project and is taking
seriously our responsibility to protect and manage natural resources within
existing state law,” said DNR Commissioner Sarah Strommen. “Enbridge’s
actions are clear violations of state law and also of public trust. This never
should have happened, and we are holding the company fully accountable.”
Background
Enbridge began work at the Clearbrook Terminal site in early 2021 but did
not follow the construction plans it had provided to DNR. The DNR relied
upon these plans in determining that proposed work at the Clearbrook
Terminal could proceed without effecting nearby calcareous fen wetlands. A
calcareous fen is a unique type of wetland, with stringent statutory
protections, that relies upon upwelling of mineral rich groundwater to thrive.
The company’s plans called for the use of traditional trench construction
methods at a depth of 8-10 feet. The company instead constructed the
trench at a depth of approximately 18 feet with sheet piling installed to a
depth of 28 feet. This deviation led to a breach of the confining layer of an
artesian aquifer, resulting in an uncontrolled flow of groundwater into the
trench. Enbridge failed to notify DNR of the groundwater situation at the
Clearbrook Terminal.
Independent Environmental Monitors (IEMs), working on behalf of DNR and
Minnesota Pollution Control Agency (MPCA), first observed unusual
amounts of water in the trench at the construction site in late January 2021.
This and subsequent inspections over the next several months focused on
managing the water in the trench. Under the Public Utilities Commission’s
(PUC) route permit, the IEMs’ role is to monitor compliance with the terms
and conditions of the PUC, DNR, and MPCA permits. They do not monitor

construction plans. Therefore, these inspections did not identify that
Enbridge’s construction activities had deviated from the company’s plans,
breaching the aquifer’s confining layer.
On June 15, 2021, during discussions with the IEMs, the DNR identified that
there was a potential breach of the aquifer’s confining layer at the
Clearbrook Terminal construction site. The DNR immediately commenced
an investigation and informed Enbridge that it must suspend construction at
the location until DNR had approved a plan to stop the flow of groundwater.
Resolving an uncontrolled flow from an artesian aquifer is technically
complex and requires good data and a comprehensive plan. The DNR
required Enbridge to investigate the groundwater conditions at the site and
submit a plan to correct the unauthorized flow conditions. On July 8,
Enbridge submitted a Groundwater Investigation Plan that the DNR
approved in revised form on July 12. On August 15, using the results of the
groundwater investigation, Enbridge submitted a Remedial Action Plan
outlining actions needed to stop the groundwater flow conditions. The DNR
approved this plan on August 18.
Through September 5, 2021, this violation has resulted in an estimated
release of approximately 24.2 million gallons of groundwater from the
aquifer. This water has been pumped from the trench, treated to remove
sediment and released to a nearby wetland.
Restoration Order Enbridge Energy 09/16/21 (PDF)
Administrative Penalty Order Enbridge Energy 09/16/21 (PDF)

Minnesota Department of Natural Resources | mndnr.gov
Email us: info.dnr@state.mn.us | Call 651-296-6157 or 888-646-6367

SUBSCRIBER SERVICES:
Manage Preferences | Unsubscribe | Help | Sign-up for other Minnesota DNR notifications

Subscribe to updates from Minnesota Department of Natural Resources
Email Address
Subscribe

Share Bulletin

Powered by

Privacy Policy | Cookie Statement | Help

e.g. name@example.com

Exhibit D

Exhibit E

September 16, 2021
VIA EMAIL TO LEO.GOLDEN@ENBRIDGE.COM ON SEPT. 16, 2021
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED ON SEPT. 17, 2021
Leo Golden
Vice President, Major Projects
Enbridge Energy, LLP
26 East Superior Street
Suite 125
Duluth, Minnesota 55802
RE:

Administrative Penalty Order
Line 3 Replacement Project

Dear Mr. Golden:
The Department of Natural Resources (“DNR”) is issuing the enclosed Administrative Penalty Order
(APO) to Enbridge Energy, Limited Partnership for violations of Minnesota’s natural resource laws.
Please read the APO carefully. You must take action within 30 days after you receive this letter. You
must take corrective action and document your corrective action to the DNR, or you must pay the
invoiced amount, however, failure to take the required corrective action may result in the issuance of
additional penalties. If DNR determines your corrective action is not sufficient, you must pay the
invoiced amount within 20 days of receipt of the non-sufficiency notice from the DNR.
You have a right to formally dispute this action within 30 days after receiving the APO. Instructions are in
the RIGHT TO REVIEW section of the APO.
If you have questions or need assistance, contact me by phone at (651) 259-5119 or by email at
ann.pierce@state.mn.us .
Sincerely,

Ann Pierce
Deputy Division Director
Ecological and Water Resources
Enclosure: Administrative Penalty Order
cc:

Sherry Enzler, General Counsel
Jill Nguyen, Senior Staff Attorney

STATE OF MINNESOTA
DEPARTMENT OF NATURAL RESOURCES
ADMINISTRATIVE PENALTY ORDER
Enbridge Energy, Limited Partnership
26 East Superior Street
Suite 125
Duluth, Minnesota 55802

APO-001
Line 3 Replacement Project

This Administrative Penalty Order (APO) is issued by the Department of Natural Resources (DNR)
Commissioner pursuant to Minn. Stat. § 103G.299 for the violations listed below. This APO requires
Enbridge Energy, Limited Partnership (Enbridge) or (Regulated Party) to take action to correct the
violations.
************
VIOLATIONS
1. 103G.271 APPROPRIATION AND USE OF WATERS.
Subdivision 1. Permit required. (a) Except as provided in paragraph (b), the state, a person,
partnership, or association, private or public corporation, county, municipality, or other political
subdivision of the state may not appropriate or use waters of the state without a water-use
permit from the commissioner.
Subd. 4. Minimum-use exemption and local approval of low-use permits.
(a) Except for local permits under section 103B.211, subdivision 4, a water-use permit is not
required for the appropriation and use of less than 10,000 gallons per day and totaling no more
than 1,000,000 gallons per year, except as required by the commissioner under
section 103G.287, subdivision 4, paragraph (b).
103G.287 GROUNDWATER APPROPRIATIONS.
Subd. 5. Sustainability standard. The commissioner may issue water-use permits for
appropriation from groundwater only if the commissioner determines that the groundwater use
is sustainable to supply the needs of future generations and the proposed use will not harm
ecosystems, degrade water, or reduce water levels beyond the reach of public water supply and
private domestic wells constructed according to Minnesota Rules, chapter 4725.
Beginning on about January 21, 2021, and continuing through the date of this APO, Enbridge has
violated Minn. Stat. § 103G.271 and Minn. Stat. § 103G.287 Subd. 5 by the ongoing
appropriation or use of 10,000 or more gallons per day or more than one million gallons per
year of waters of the state without a water appropriation permit. By breaching the confining
layer of an artesian aquifer, Enbridge caused an uncontrolled release of groundwater
(uncontrolled flow) during the construction of the Line 3 Pipeline Replacement Project
(“Project”) at or near the Clearbrook Terminal, in Clearwater County Minnesota. This
uncontrolled flow is not authorized by any of Enbridge’s water appropriation permits for the
Project and Enbridge failed to notify the DNR that the breach of the aquifer had occurred. The
estimated volume of the uncontrolled flow is 24.2 million gallons through September 5, 2021.
1

The unpermitted appropriation of groundwater is a waste of Minnesota’s water resources and
threatens to harm or degrade the Leon 33 calcareous fen (Steenerson and Deep Lake Fens) and
two public waters, Deep Lake (ID15009000) and Steenerson Lake (ID15008900).
2. 103G.223 CALCAREOUS FENS.
(a) Calcareous fens, as identified by the commissioner by written order published in the State
Register, may not be filled, drained, or otherwise degraded, wholly or partially, by any activity,
unless the commissioner, under an approved management plan, decides some alteration is
necessary or as provided in paragraph (b). Identifications made by the commissioner are not
subject to the rulemaking provisions of chapter 14 and section 14.386 does not apply.
(b) The commissioner may allow water appropriations that result in temporary reductions in
groundwater resources on a seasonal basis under an approved calcareous fen management
plan.
Beginning on about January 21, 2021, and continuing through the date of this APO, Enbridge has
violated Minn. Stat. § 103G.223 by causing reductions in groundwater resources available to the
Leon 33 calcareous fen (Steenerson and Deep Lake Fens) (calcareous fens) without an approved
calcareous fen management plan. In 2020, Enbridge informed DNR, in its request for a no effect
concurrence, that its construction activities were unlikely to negatively impact the nearby
calcareous fens because Enbridge intended to excavate about an eight foot deep trench.
Instead, when Enbridge constructed the pipeline at or near the Clearbrook Terminal, Enbridge
excavated an eighteen foot deep trench and installed sheet piling to a depth of 28 feet. Because
Enbridge deviated from its plans, Enbridge breached an artesian aquifer, causing uncontrolled
flow of groundwater. The uncontrolled flow affects the same aquifer that upwells into the Leon
33 calcareous fen (Steenerson and Deep Lake Fens) and is located approximately 4,800 feet
northwest of the calcareous fens. Enbridge failed to submit a calcareous fen management plan
for DNR approval prior conducting an activity that may drain, or otherwise degrade, wholly or
partially, a calcareous fen.
*************
CORRECTIVE ACTION REQUIRED
Pursuant to Minn. Stat. § 103G.299, Subd. 4, the Regulated Party is required to correct all the violations
listed in this APO. The Regulated Party must document to the Commissioner, within 30 days after receipt
of this APO and in writing that the Regulated Party has taken the corrective actions listed below, unless
the Regulated Party seeks review of this APO as described below (Right to Review).
1. Complete all restoration work according to the DNR approved Remedial Action Plan dated August 18, 2021 to
stop the uncontrolled flow. If this plan does not succeed in stopping the uncontrolled flow, additional measures
will be required to address conditions at the site.
2. Enbridge must contact the DNR Director of Ecological and Water Resources within 24 hours of successfully
completing the work to stop the uncontrolled flow.

2

3. Enbridge shall;
a.

Provide the DNR with a revised estimate of water loss from March 19, 2021, to the date of this
APO. This estimate must be within +/- 10 percent of actual loss.

b. Submit to the DNR documentation of the ongoing measurement of discharge rates required under
the Remedial Action Plan. These measurements must include the current flow rate and any changes
in flow rates. These measurements must continue until the uncontrolled flow is stopped.
Documentation of the method of measurement must also be submitted to DNR. These
measurements must be within +/- 10 percent of actual flow rates.
c. Submit for DNR's approval a plan to continue to monitor groundwater for a 12-month period
following cessation of the uncontrolled flow. The plan shall include all pertinent methodological
information and a schedule for reporting results to the DNR. The duration of required groundwater
monitoring may be extended at the DNR's sole discretion.
Submit for DNR's approval a plan to conduct visual monitoring for break-through groundwater
discharges for a 12-month period following cessation of the uncontrolled flow. The plan shall
include all pertinent methodological information and a schedule for reporting results to the DNR.
The duration of required visual monitoring may be extended at the DNR's sole discretion.
4. Enbridge must submit a draft Calcareous Fen Management Plan (CFMP) for DNR review and approval. This plan
must include a description of ongoing monitoring of water levels and the plant communities that will occur to
determine if the loss of water has impacted the nearby Leon 33 calcareous fen (Steenerson and Deep Lake
Fens). The plan must provide site access for the DNR and/or its contractors to conduct and observe onsite fen
monitoring activities. The plan must also provide access for Tribal monitors to observe fen monitoring activities
if they choose to participate. The results of monitoring after implementation of the Remedial Action Plan and
Calcareous Fen Management Plan may result in additional requirements, restoration and/or mitigation as
directed by the DNR.

If the Enbridge has any questions about the corrective actions required, please contact the DNR staff
person identified below for assistance.
*************
PENALTY: $ 20,000.00
The Regulated Party is hereby assessed a penalty of $20,000.00 for the violations cited above. In
determining the amount of the penalty, the Commissioner considered whether Regulated Party gained
economic benefit as a result of the violation, whether there is a history of past violations, the number of
violations, and the gravity of the violations, including the potential harm caused by the violation, the
deviation from compliance, the potential damage to the public interest, the potential damage to natural
resources of the state and other factors as justice may require. The DNR determined that these
violations represent a severe potential for harm because the ongoing and unpermitted appropriation
has caused a reduction in groundwater resources available to calcareous fen, which are rare natural
resource, as well as other nearby public waters and because Enbridge failed to report the incident and
take timely action to stop the uncontrolled flow.
3

*************
Pursuant to Minn. Stat. § 103G.299, Subd. 5, if the Regulated Party performs and documents all the
corrective action requirements listed above to the satisfaction of the Commissioner, within 30 days after
the receipt of the APO the penalty shall be:
FORGIVABLE: $20,000.00
If the Regulated Party fails to perform and document all of the corrective action requirements listed
above to the satisfaction of the Commissioner, within 30 days after receipt of the APO, the $20,000
penalty plus shall be immediately due and payable in accordance with the requirements of Minn. Stat. §
103G.299, Subd. 5. Interest, at the rate established in section 549.09, begins to accrue on penalties on
the 31st day after the order with the penalty was received. Payment shall be made by check payable to
the Minnesota Department of Natural Resources within 31 days after receipt of the APO unless the
Regulated Party seeks review of this APO. The check should be mailed to the attention of Randall
Doneen, Supervisor Conservation Assistance and Regulation, Minnesota Department of Natural
Resources, 500 LaFayette Road, St. Paul, MN 55155. Mailed payments will be deemed to have been
remitted on the 31st day after receipt of the APO if they are postmarked on the 31st day after receipt of
the APO.
*************
RIGHT TO REVIEW
Pursuant to Minn. Stat. § 103G.299, subds. 6 and 7, the Regulated Party has a right to seek review of this
APO. The following description is intended only to aid the Regulated Party’s understanding of the review
process and does not constitute legal advice. The Commissioner strongly advises the Regulated Party to
review the law itself carefully before proceeding. A decision by Enbridge to contest this APO will not be
deemed to have stayed or relieved Enbridge of any other obligations or corrective actions issued by the
DNR pursuant to Minn. Stat. §§ 103G.2372, 103G.251, and 103G.141.
The Regulated Party has a right to have an expedited hearing before an administrative law judge to
contest this APO or the Commissioner’s determination that the Regulated Party’s corrective action was
unsatisfactory.
EXPEDITED HEARING (Administrative Law Judge Hearing) - To obtain an expedited hearing, the following
steps must be taken in a timely manner:
•

•
•

the Regulated Party must request review within 30 days after receipt of this APO or within 20 days
after receipt of the Commissioner’s determination that the Regulated Party’s corrective action is
unsatisfactory. The Regulated Party must ensure that any review request is received by the DNR
before 4:30 p.m. on the last day of the 30-day period if the Regulated Party is contesting the
issuance of the APO and before 4:30 on the last day of the 20-day period if the Regulated Party is
contesting a determination that the corrective action was unsatisfactory. The 30-day period begins
the first calendar day after the Regulated Party receives the APO. The 20 day period begins the first
calendar day after the Regulated Party receives the corrective action determination. If the appeal
period ends on a weekend or holiday, the appeal period is extended to 4:30 p.m. on the next day
the DNR is open for business;
the request must be in writing;
the request may be sent by U.S. mail;
4

•
•
•

the request must identify the APO or the corrective action determination that the Regulated Party
wants to contest and must specifically state the reasons why the Regulated Party wants the APO to
be reviewed, including any facts upon which the Regulated Party relies;
the Regulated Party must send or deliver the request to the DNR at the following address: General
Counsel, Minnesota Department of Natural Resources, 500 Lafayette Road North, St. Paul,
Minnesota 55155.; and
to ensure expeditious processing of the request, please send or deliver copies of the request to:
Randall Doneen, Supervisor Conservation Assistance and Regulation, Minnesota Department of
Natural Resources, 500 Lafayette Road, St. Paul, Minnesota, 55155 and to Oliver Larson, Manager,
Natural Resources Division, Attorney General’s Office, Bremer Tower, 445 Minnesota Street, Suite
900, St. Paul, Minnesota, 55101-2127.

The DNR will schedule an expedited hearing at the Office of Administrative Hearings if the above steps
are completed in the time frames indicated.
In the case of an expedited hearing, if the Regulated Party’s request is found to be frivolous or filed
solely for the purpose of delay, the Regulated Party may be required to pay the cost of the
administrative hearing in addition to the administrative penalty.
This APO becomes a final order after 30 days unless the Regulated Party requests a hearing as provided
above. If the Regulated Party fails to comply with the APO when it is a final order, the DNR may collect
the penalty in any manner provided by law for the collection of a debt.
STATE OF MINNESOTA
DEPARTMENT OF NATURAL RESOURCES
September 16, 2021
Date signed

Ann Pierce
Deputy Division Director
Ecological and Water Resources

Address questions and submittals requested above to:
Randall Doneen Minnesota Department of Natural Resources
500 Lafayette Road
St. Paul, MN 55155
651-259-5156
randall.doneen@state.mn.us

5

Exhibit F

Exhibit G

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 2 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RED LAKE BAND OF CHIPPEWA INDIANS,
WHITE EARTH BAND OF OJIBWE, HONOR
THE EARTH, and SIERRA CLUB,
Plaintiffs,
Case No. 1:20-cv-3817

v.
UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendant.

DECLARATION OF WINONA LADUKE IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION
I, Winona LaDuke, declare and state as follows:
1.

My name is Winona LaDuke. I am 61 years old, a mother of six and grandmother

of nine. I am a widow, and I am the primary source of support for much of my extended
family.
2.

I am an enrolled member of the Minnesota Chippewa Tribe. The White Earth

Band of Ojibwe (“White Earth”) is one of six Chippewa bands comprising the Minnesota
Chippewa Tribe, and I have spent most of my life on the White Earth Reservation.

1

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 3 of 9

3.

In l993, I helped to found Honor the Earth in response to the pressing need for

national work on environmental issues facing Native people. Today, I serve as Honor the
Earth’s Executive Director.
4.

Honor the Earth is an Indigenous-led organization that centers its work around

advocating for and providing financial support to Native communities. Honor the Earth
works with Indigenous peoples in the United States and around the world, including
Indigenous communities harmed by the so-called pipeline “replacement” project at issue
in this case (“Line 3 Project”). In Honor the Earth’s more than 25 years of operation,
Honor the Earth has re-granted more than two million dollars to over 200 Native
American communities.
5.

Honor the Earth has participated in other water quality litigation as an amicus due

to tribal concerns about excessive row crop farms, fertilizer and pesticide use, and the
changing of the characteristics of the natural landscape from forests to crop production,
which also draws much underground water for nourishment.
6.

With our White Earth community, I also created the White Earth Land Recovery

Project 31 years ago because it is extremely difficult for people without land to be able to
carry on our agricultural and harvesting traditions. Over the past three decades, we have
been able to secure l400 acres of land held as a land trust within the reservation.
Additionally, culturally significant land is held outside of the reservation boundaries in
the l855 treaty territory.

2

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 4 of 9

7.

I am a traditional harvester of wild rice, medicinal plants, maple syrup, fish and

other animals, and I live from this land. Indakiingimin. This is the land to which I
belong.
8.

I have been a member of the Midewin society, our healing and religious society,

for most of my life. I am responsible for preserving cultural traditions including our
language. Our mino-bimaatisiiwin, the good life. I continue to practice and live within
the instructions of my ancestors and carry on those traditions for future generations.
9.

I attended Harvard University and have a degree in economics. I was a vice-

presidential candidate in 1996 and 2000 with the Green Party, serving as the running
mate for Ralph Nader.
10.

I have studied many disciplines in an effort to help improve economic

circumstances for the Chippewas or Anishinaabe people, and I have been an active
ceremonial and cultural member of my community. I am also a member of the 1855
Treaty Authority and a part of the group that helped create the Rights of Manoomin tribal
code for the 1855 Ceded territory.
11.

The Anishinaabe universe is made up of layers above and layers below, and it

consists of land and waters. Our world is half water and half land, and as such our
dodaem, or clan systems and teachings, comprise those of water, land, and air. The
waters or Midewaaboo of our territory—including the waters of lakes, rivers, and
underground springs—are full of manitoowag, or spirits, with whom we reaffirm our
relationship through ceremony throughout the year.

3

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 5 of 9

12.

In 2014, when I became aware of a prior pipeline project—known as the

Sandpiper pipeline—proposed by Enbridge Energy, Limited Partnership (“Enbridge”),
the company at issue in this case, Honor the Earth immediately engaged as a party at the
Minnesota Public Utilities Commission (“PUC”). Part of the Sandpiper pipeline’s route is
identical to the original Line 3 route.
13.

I am deeply concerned and afraid that Enbridge is preparing to ram the Line 3

Project through before the Chippewas have fully exercised our rights of appeals and legal
challenges to an obviously flawed environmental review process. In fact, I see that
happening already. Although Enbridge should have a cultural resource monitor ahead of
any pipeline work, we have already observed that no such person has been present on the
banks of the Mississippi River.
14.

On behalf of Honor the Earth, I worked very hard with residents of the White

Earth Reservation and members of the Minnesota Chippewa Tribe to develop the
Anishinaabe Cumulative Impact Assessment (“ACIA”) for the Line 3 Project and
pipeline route. This was intended to provide the lens of the Anishinaabe people and to
begin to articulate the complexity of the interconnected Anishinaabe Akiing world for the
state and federal regulatory process. The ACIA was filed with the PUC in 2018. Red
Lake, White Earth, and the 1855 Treaty Authority adopted resolutions choosing the No
Build alternative from the ACIA and filed and gave notice to the PUC.
15.

The Chippewas of the Mississippi have forever depended on the natural fresh

waters of the upper Mississippi River itself and all the interconnected water systems for
our sustenance and economic livelihood. Within and in close proximity to these waters, I
4

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 6 of 9

and my fellow tribal members hunt large and small game, migratory waterfowl, and fish
of many species and kinds; we gather wild rice and other edible plants, harvest medicinal
plants, and make maple syrup for food and for sale. This land is the medicine chest of the
Anishinaabe and represents some of the most biodiverse parts of Minnesota and the Great
Lakes region.
16.

The Line 3 Project’s path crosses hundreds of streams, rivers, wetlands, and

aquifers in this area. Construction and operation of the Line 3 Project, as permitted by
the U.S. Army Corps of Engineers (“the Corps”), will imminently and permanently
damage the freshwater resources that are essential to sustain my and my fellow tribal
members’ treaty reserve foods of wild rice, fish, and maple syrup. Wild rice is the most
important part of the Chippewa traditions, and it is central to our cultural practices and
spirituality.
17.

If the Line 3 Project is not immediately stopped, and the Corps’ permit remains in

place, Honor the Earth likely will divert significant financial resources to Native
American communities that will be harmed to help them protect their legal,
environmental, and cultural interests in the hundreds of acres of waterbodies and
wetlands that will be damaged or destroyed by the pipeline’s construction and operation.
As a result, Honor the Earth will be unable to invest in other Indigenous communities that
are also in critical need of help and resources.
18.

I am aware that pipeline construction workers at Standing Rock bulldozed land to

construct a pipeline before a legally valid environmental review process had been
completed. I am afraid that history will repeat itself here. In fact, the problem already
5

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 7 of 9

has begun. Enbridge’s initial moves in constructing sections of the Line 3 Project are
creating a swath of destruction moving towards our rivers including the Shell, Crow
Wing, Willow, and Mississippi.
19.

I am afraid for my children and grandchildren, and I particularly fear that the gifts

from the Creator are being put into extreme danger and risk by this pipeline. The pipeline
will have tremendously negative environmental impacts on our incredibly abundant
freshwater resources and more. Water and oil do not coexist, and this territory is the land
of life and spirits.
20.

I am particularly anxious and fearful about the Line 3 Project because I know that

the existing pipeline caused the largest inland oil spill in U.S. history in Grand Rapids,
Minnesota, in 1991. Enbridge also set fire to an oil spill near the Mississippi river in
Cohasset to try to control it, with devastating effects, in Minnesota in 2002. And the
Enbridge pipeline at Clearbrook had a fire and explosion during repair work that killed
individuals in 2007. In addition, I am distinctly aware of the Kalamazoo oil spill that
occurred in 2010, when an Enbridge-operated pipeline burst. And I know that in 2018,
TC Energy’s Keystone pipeline was responsible for a 383,000 gallon leak of tar sands oil
in North Dakota, just as experts predicted.
21.

I think everybody who is aware of this damning history and Enbridge’s terrible

record should choose to stand with the water, the land, and our environment to support
the ecosystems on which we rely. Every part of our Anishinabe natural world in northern
Minnesota is being put at risk by new pipelines.

6

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 8 of 9

22.

I know the Corps did not do an environmental impact statement under the

National Environmental Protection Act to rigorously assess the damage this pipeline
construction project will cause. I am very concerned that the Corps, which approved the
permits at stake in this case, has no adequate mechanism for holding Enbridge
accountable and, thus, has created a dangerous situation for our Anishinaabe
communities.
23.

More than that, the approval has resulted in the influx of thousands of temporary

workers, mostly from out of state, into our high risk Anishinaabe communities during a
pandemic. I am stressed by the fact that the Corps apparently thinks that Enbridge
workers are more important than tribal impacts and protecting the people of Red Lake
and White Earth from COVID-19, protecting our treaty rights, preserving our clean
water, and reducing climate change impacts to Minnesota.
24.

I am so concerned that I set up my spiritual lodge to pray near the proposed

projects route. Instead of noting my lodge, the Enbridge survey crew placed a stake in
the middle of the lodge, without demarcation for protection. I was charged with
trespassing at my own lodge.
25.

It is very apparent to me that our resources are not being safeguarded by

government decision-makers. Worse, it looks like the Corps is not concerned about
protecting our tribal rights. The Corps has now granted a permit to Enbridge that will
allow it to damage and destroy waterbodies and wetlands that provide essential food and
spiritual resources to me and my fellow tribal members. I support this challenge to the

7

Case 1:20-cv-03817-CKK Document 2-12 Filed 12/24/20 Page 9 of 9

Corps’ permit, and I believe that Enbridge needs to be immediately stopped from harming
the waters that are so essential for our survival.
26.

Miigwech.

I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true
and correct. Executed this 24th day of December 2020, in Ponsford, Minnesota.

__________________________________________
Winona LaDuke

8

Exhibit H

Case 1:20-cv-03817 Document 2-9 Filed 12/24/20 Page 2 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RED LAKE BAND OF CHIPPEWA INDIANS,
WHITE EARTH BAND OF OJIBWE, HONOR
THE EARTH, and SIERRA CLUB,
Plaintiffs,
Case No. 1:20-cv-3817

v.
UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendant.

DECLARATION OF JAIME ARSENAULT
IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, Jaime Arsenault, declare and state as follows:
1.

I am the Tribal Historic Preservation Officer (“THPO”) for the White Earth Band

of Ojibwe (“White Earth Band” or “Band”). In this role, I am the official Tribal representative
for historic and cultural resource preservation. I am also the official Tribal representative under
multiple federal laws, including the National Historic Preservation Act, American Indian
Religious Freedom Act, Archaeological Resource Protection Act, and National Environmental
Policy Act (“NEPA”). Among other things, I maintain review authority over federal
undertakings under NEPA both on and off Tribal land.
2.

For over two decades, I have worked with indigenous communities across the

country on issues involving grave protection and repatriation, food sovereignty, community
health, and protection of community knowledge. In addition to my position with the White Earth
Band, I currently sit on several committees and advisory boards including the Smithsonian
1

Case 1:20-cv-03817 Document 2-9 Filed 12/24/20 Page 3 of 6

National Museum of Natural History’s Repatriation Review Committee. Through this public
service, I continue to assist with the respectful return of Ancestors/human remains and other
cultural resources, while always striving to protect Indigenous cultural knowledge.
3.

Northern Minnesota is very much my home. Like many others, this is the place

where I rice, fish, gather medicines, and attend ceremonies.
4.

White Earth Band members depend on the natural resources of the White Earth

Reservation and surrounding areas. They participate in a variety of culturally significant
subsistence activities, including harvesting wild rice and maple syrup, fishing, and gathering
edible and medicinal plants. Harvesting wild rice is particularly significant. Wild rice is central
to the migration story of the Ojibwe people. This food remains an essential feature of
ceremonies practiced throughout Minnesota, and it is considered a sacred food. In addition, wild
rice is important to the White Earth Band’s food security, economic stability, quality of life, and
overall health.
5.

I am aware that the U.S. Army Corps of Engineers (“Corps”) has issued permits

allowing Enbridge Energy, Limited Partnership (“Enbridge”) to construct a pipeline that will
transport crude oil from the tar sands region in Alberta, Canada through northern Minnesota to
Wisconsin. This pipeline will pass within three miles of the White Earth Reservation’s
boundaries, and it will cross or otherwise affect lands and waters that Band members use and
rely upon for hunting, gathering, fishing, and harvesting wild rice, along with other cultural
purposes. Many of these lands and waters are within the White Earth Band’s historical territory,
and the Band’s ability to use these lands and waters is protected under various treaties. The
White Earth Band opposes this pipeline, and Band members are concerned that the Corps failed
to comply with federal law in issuing the necessary permits.

2

Case 1:20-cv-03817 Document 2-9 Filed 12/24/20 Page 4 of 6

6.

I am very concerned that an oil leak or spill from the pipeline will permanently

interfere with the White Earth Band’s ability to engage in culturally significant subsistence
activities on and off the White Earth Reservation. I know that pipeline leaks occur, and
Enbridge’s pipelines have leaked and spilled in the past with lasting impacts. Wild rice is a very
sensitive plant, and slight changes in water quality or sulfate levels could have disastrous effects.
Given Enbridge’s track record, I am worried that leaks or spills from the pipeline will damage
the White Earth Band’s ability to harvest this sacred food and access clean water.
7.

In addition, I understand that the Corps has authorized Enbridge to destroy 10

acres of wetlands and permanently alter 230 additional acres. This imminent destruction and
permanent alteration will damage habitat and interfere with the White Earth Band’s culturally
important subsistence activities.
8.

Construction and operation of the pipeline has already threatened one important

cultural site, and I fear that it will threaten others. On December 5, 2020, an Enbridge
construction crew discovered a ceremonial lodge in Palisade, Minnesota, on the banks of the
Mississippi River. Enbridge failed to notify me about the discovery; instead, I found out about it
through social media. Enbridge also failed to send a cultural resource monitor to the site to
ensure that it was protected. Leaving a cultural site unprotected risks damage to the site.
9.

I visited the site and determined that this lodge is a ceremonial lodge and modeled

after other lodges found throughout Minnesota. While these lodges are reconstructed every few
years per cultural protocol, the practice of reconstructing lodges is historic. Ceremonial and
healing activities take place within such structures, and unmarked burials are often located
nearby.

3

Case 1:20-cv-03817 Document 2-9 Filed 12/24/20 Page 5 of 6

10.

During my visit, I saw that the Enbridge crew had placed a stake right in the

center of the lodge. This is disrespectful, and it suggests that the crew planned to destroy the
lodge without adequate consultation or review.
11.

It is my assessment that the lodge is a culturally significant area where traditional

cultural practices are still occurring. Thus, I have recommended that Enbridge leave the lodge
intact, stop clearing trees near it, and conduct an archaeological review of the area using nondestructive review methods. But, despite my assessment and recommendation, it is my
understanding that construction near the lodge is ongoing.
12.

Destruction of this cultural site is damaging and disrespectful to the White Earth

Band and other Native communities here in Minnesota. Any potential destruction of nearby
burial areas would cause further irreparable harm.
13.

The lodge is located in an area known as Sandy Lake, which is one of the most

significant cultural crossroads of the Chippewa people, including White Earth Band members.
Sandy Lake is rich in cultural and historical sites that require protection. If construction
continues in this area, additional sites will likely be destroyed.
14.

If this Court were to enjoin pipeline construction, White Earth Band members

could continue to engage in culturally significant subsistence activities without interference. In
addition, I would feel more confident that culturally important sites will not be destroyed in
reliance on a legally infirm permit.

4

Case 1:20-cv-03817 Document 2-9 Filed 12/24/20 Page 6 of 6

I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true
and correct. Executed this 24th day of December 2020.

__________________________________________
Jaime Arsenault

5

Exhibit I

CASE 0:21-cv-01869-WMW-LIB Doc. 20 Filed 09/03/21 Page 1 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Minnesota
Department
Resources et al.,

of

Natural

Case No. 21-cv-1869 (WMW/LIB)

Plaintiffs,
ORDER DENYING PLAINTIFFS’
v.
MOTION FOR PRELIMINARY
INJUNCTION AND DISMISSING
The White Earth Band of Ojibwe and COMPLAINT WITHOUT PREJUDICE
Hon. David A. DeGroat, in his official
capacity as judge of the White Earth Band
of Ojibwe Tribal Court,
Defendants.
This matter is before the Court on Plaintiffs’ motion to preliminarily enjoin
Defendants from proceeding in the matter Manoomin v. Minnesota Department of Natural
Resources, Case No. GC21-0428 (White Earth Band of Ojibwe Tribal Ct.). (Dkt. 5.) For
the reasons addressed below, the Court denies Plaintiffs’ motion for a preliminary
injunction and dismisses Plaintiffs’ complaint without prejudice for lack of subject-matter
jurisdiction.
BACKGROUND
Plaintiffs are the Minnesota Department of Natural Resources (DNR) and its
officials. Defendants are the White Earth Band of Ojibwe (Band) and Hon. David A.
DeGroat, Chief Judge of the White Earth Band of Ojibwe Tribal Court (Tribal Court).

CASE 0:21-cv-01869-WMW-LIB Doc. 20 Filed 09/03/21 Page 2 of 6

On August 5, 2021, the Band and several other parties1 (collectively Band Parties)
filed suit against the DNR and its officials in the Tribal Court. In the Tribal Court matter,
the Band Parties allege that, by granting water-use permits to a company in conjunction
with that company’s operation of an oil pipeline in northern Minnesota, the DNR violated
the Band Parties’ rights. In particular, the Band Parties allege that the DNR’s conduct
violates the First, Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution, the American Indian Religious Freedom Act (AIRFA) and treaties between
the United States of America and the Chippewa and other tribes, among other claims. In
their lawsuit in the Tribal Court, the Band Parties seek declaratory and injunctive relief.
The DNR moved to dismiss the Band Parties’ tribal lawsuit, arguing that the Tribal
Court lacks subject-matter jurisdiction due to the non-member status of the DNR and its
officers, the DNR’s sovereign immunity and the fact that the contested actions did not take
place on reservation land. Chief Judge DeGroat of the Tribal Court denied the DNR’s
motion to dismiss, holding that the DNR’s arguments regarding sovereign immunity and
subject-matter jurisdiction “must give way” to the Band’s “vital” interests.
On August 19, 2021, Plaintiffs commenced this action, seeking declaratory and
injunctive relief against the Band and Chief Judge DeGroat. Plaintiffs argue that the Tribal
Court lacks subject-matter jurisdiction over the dispute currently pending in the Tribal
Court. Plaintiffs also contend that sovereign immunity protects them from the Band Parties’

1

The plaintiffs in the tribal court proceeding are Manoomin (wild rice), the Band,
members of the Band’s tribal council, and other individuals including members of the
Band, members of other tribes and individuals who are not members of any tribe.

2

CASE 0:21-cv-01869-WMW-LIB Doc. 20 Filed 09/03/21 Page 3 of 6

lawsuit. Plaintiffs request that this Court preliminarily enjoin the Band and Chief Judge
DeGroat from proceeding with the matter currently pending in the Tribal Court.
ANALYSIS
Preliminary injunctive relief is an extraordinary remedy that is never awarded as of
right. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The purpose of a
preliminary injunction is to maintain the status quo. Devose v. Herrington, 42 F.3d 470,
471 (8th Cir. 1994). The burden rests with the moving party to establish that injunctive
relief should be granted. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). When
determining whether preliminary injunctive relief is warranted, the district court considers
four factors: (1) the movant’s likelihood of success on the merits, (2) the threat of
irreparable harm to the movant, (3) the state of balance between the harm to the movant
and the injury that granting an injunction will inflict on other parties to the litigation, and
(4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981).
The first and most important Dataphase factor is the movant’s likelihood of success
on the merits. Craig v. Simon, 980 F.3d 614, 617 (8th Cir. 2020) (stating that “[t]he
likelihood of success on the merits is the most important of the Dataphase factors”)
(internal quotation marks and brackets omitted). A party seeking a preliminary injunction
need not demonstrate actual success on the merits, but that party must demonstrate a
likelihood of success. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12
(1987). When a court concludes that a plaintiff has “failed to establish a substantial
likelihood of success on the merits, [the court] will not address the other prerequisites of

3

CASE 0:21-cv-01869-WMW-LIB Doc. 20 Filed 09/03/21 Page 4 of 6

preliminary injunctive relief.” Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir.
1994).
“Tribal sovereign immunity is a jurisdictional threshold matter.” Fort Yates Pub.
Sch. Dist. No. 4 v. Murphy ex rel. C.M.B., 786 F.3d 662, 670 (8th Cir. 2015) (internal
quotation marks omitted). “As a matter of federal law, an Indian tribe is subject to suit
only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa
Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). “A tribe’s sovereign
immunity may extend to tribal agencies, including the Tribal Court.” Fort Yates, 786 F.3d
at 670–71 (internal quotation marks and brackets omitted); accord Hagen v. SissetoWahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (observing that it is
“undisputed that a tribe’s sovereign immunity may extend to tribal agencies”). “The
Supreme Court has made clear . . . that a tribe’s sovereign immunity bars suits against the
tribe for injunctive and declaratory relief.” Fort Yates, 786 F.3d at 671 (citing Mich. v. Bay
Mills Indian Cmty., 572 U.S. 782 (2014) and Santa Clara Pueblo v. Martinez, 436 U.S. 49
(1978)).
Plaintiffs commenced this action against the Band and Chief Judge DeGroat in his
official capacity.2 These parties, a tribe and a tribal court, however, are both protected

2

Although Plaintiffs have not sued the Tribal Court, they have sued Chief Judge
DeGroat in his official capacity. Counsel for Plaintiffs asserted at the September 1, 2021
hearing that they sued Chief Judge DeGroat exclusively in his official capacity because the
Chief Judge of the Tribal Court is the appropriate defendant for the purposes of an officialcapacity suit. As such, Plaintiffs effectively seek declaratory and injunctive relief against
the Band and the Tribal Court.

4

CASE 0:21-cv-01869-WMW-LIB Doc. 20 Filed 09/03/21 Page 5 of 6

from suit by tribal sovereign immunity.3 Id. at 670–71. And Plaintiffs do not allege that
Defendants have waived their sovereign immunity or that Congress has authorized this
lawsuit. Because both Defendants are immune from suit and Plaintiffs have not identified
an applicable waiver or abrogation of tribal sovereign immunity, this Court lacks the
authority to enjoin Defendants.

Plaintiffs, therefore, have failed to demonstrate a

likelihood of success on the merits, and the Court need not analyze the remaining
Dataphase factors.
In summary, Plaintiffs are not entitled to injunctive relief because this Court lacks
the authority to enjoin the Defendants in this case. Moreover, in light of Defendants’ tribal
sovereign immunity, the Court also concludes that it lacks subject-matter jurisdiction over
this case and must dismiss the complaint without prejudice.4 See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED that:
1.

Plaintiffs’ motion for a preliminary injunction, (Dkt. 5), is DENIED.

“Of course, the Tribe’s sovereign immunity does not necessarily protect Tribal
officials from suit,” id. at 671 n.8, nor does it protect other individuals. But Plaintiffs have
not sued any person in his or her individual capacity.
3

4

Because this Court lacks jurisdiction over Defendants based on their sovereign
immunity, the Court declines to address whether the Tribal Court has jurisdiction over
Plaintiffs pursuant to Montana v. United States, 450 U.S. 544 (1981), as such an opinion
would be an improper advisory opinion, see U.S. Const. art. III, § 2.

5

CASE 0:21-cv-01869-WMW-LIB Doc. 20 Filed 09/03/21 Page 6 of 6

2.

Plaintiffs’ complaint, (Dkt. 1), is DISMISSED WITHOUT PREJUDICE

for lack of subject-matter jurisdiction.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: September 3, 2021

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

6

Exhibit J

CASE 0:21-cv-01869-WMW-LIB Doc. 25 Filed 09/10/21 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Minnesota Department of Natural
Resources et al.,

Case No. 21-cv-1869 (WMW/LIB)

Plaintiffs,
v.
The White Earth Band of Ojibwe and
Hon. David A. DeGroat, in his official
capacity as judge of the White Earth Band
of Ojibwe Tribal Court,

ORDER DENYING PLAINTIFFS’
LETTER REQUEST FOR
PERMISSION TO FILE A MOTION
TO RECONSIDER

Defendants.
Before the Court is Plaintiffs’ September 5, 2021 letter requesting permission to file
a motion to reconsider this Court’s September 3, 2021 Order denying Plaintiffs’ motion for
a preliminary injunction and dismissing the complaint for lack of subject-matter
jurisdiction. (Dkt. 21.)
Pursuant to Local Rule 7.1(j), a party may receive permission to file a motion for
reconsideration only by showing “compelling circumstances.” LR 7.1(j). “Motions for
reconsideration serve a limited function: to correct manifest errors of law or fact or to
present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407,
414 (8th Cir. 1988) (internal quotation marks omitted). Absent a manifest error of law or
fact, a motion for reconsideration cannot be employed to repeat arguments previously made,
introduce evidence or arguments that could have been made, or tender new legal theories
for the first time. See id.

CASE 0:21-cv-01869-WMW-LIB Doc. 25 Filed 09/10/21 Page 2 of 3

Plaintiffs argue that the Court erroneously concluded that Defendant Hon. David A.
DeGroat, Chief Judge of the White Earth Band of Ojibwe Tribal Court (Tribal Court), is
protected from suit by sovereign immunity. Plaintiffs argue that Chief Judge DeGroat may
be sued under Ex Parte Young. The Ex Parte Young doctrine “rests on the premise—less
delicately called a fiction—that when a federal court commands a state official to do
nothing more than refrain from violating federal law, he is not the State for sovereignimmunity purposes. The doctrine is limited to that precise situation.” Va. Off. for Prot. &
Advoc. v. Stewart, 563 U.S. 247, 255 (2011) (internal citations and quotation marks
omitted). The doctrine “does not apply when the state is the real, substantial party in
interest, as when the judgment sought would expend itself on the public treasury or domain,
or interfere with public administration.” Id. When determining whether the sovereign is
the real party in interest, “courts may not simply rely on the characterization of the parties
in the complaint, but rather must determine in the first instance whether the remedy sought
is truly against the sovereign.” Lewis v. Clarke, 137 S. Ct. 1285, 1290 (2017). “[T]he
general criterion for determining when a suit

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aminn_chippewa_white_earth%3A2509253c11da2386. Public record. Not legal advice.