WHITE EARTH BAND OF OJIBWE (2022)

WHITE EARTH BAND OF OJIBWE

COURT OF APPEALS

Minnesota Department of Natural Resources, et al.,

Appellants,

MOTION FOR RECONSIDERATION

v.

Case No. AP21-0516

Manoomin, et al.,

Respondents.

INTRODUCTION

Respondents Manoomin, the White Earth Band of Ojibwe, members of the White Earth

Reservation Business Committee, tribal members, and non-Indians respectfully request the Court

reconsider its March 10, 2022 Order dismissing Respondents’ Complaint in the above-referenced

case.

The case concerns the Minnesota Department of Natural Resources’ (DNR) activities and

conductinvolving the granting of a dewatering permit to Enbridge for the construction and

operation of the Line 3 pipeline. Appellants argue that this Court lacks subject matter jurisdiction

over Respondents’ claims, and also enjoy absolute immunity from suit. In its Order, the Court

dismissed Respondents’ Complaint, holding that a plaintiff must “show that [a] nonmember

defendant engaged in activities on the reservation to invoke subject matter jurisdiction in tribal

court under the second Montana exception.” Order Dismissing Respondents’ Complaint at 17.

Because Respondents could not cite a single case in which a court has enforced this interpretation

of the Montana framework for exercising tribal jurisdiction over a nonmember party, the court

“believes that federal law requires dismissal of this case.” Id.

The Court’s Order warrants reconsideration for several reasons. First, the Court erred by

ignoring Tribal law conferring subject matter jurisdiction over a particular case of this type. In

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Tribal Court, the Band’s Judicial Code is binding, and it is improper for the Court to predict how

a federal court might resolve jurisdictional questions. Second, the Court failed to appropriately

consider the on-Reservation impacts to Manoomin caused by DNR’s activities and conduct. The

Court’s Order focused only on off-reservation impacts, rather than analyzing all alleged harm set

forth in Respondents’ Complaint. Third, there is new evidence relating to recently uncovered

thermal imaging showing negative impacts caused by DNR’s dewatering activities and aquifer

breaches that is highly relevant to this case, and should be considered by the Tribal Trial Court in

developing a full and complete factual record. If the Court denies this Motion for Reconsideration,

Respondents request leave to amend.

ARGUMENT

I.

The Court Improperly Declined to Apply Binding Tribal Law to Determine the Scope

of Tribal Jurisdiction Over DNR

The Court’s starting point for determining whether it has subject matter jurisdiction to hear

Respondents’ claims was “the jurisdiction granted by the Tribe.” Order Dismissing Respondents

Complaint at 5. Rather than faithfully applying Tribal law, the Court turned to predicting how a

federal court applying federal law might decide the jurisdictional question presented in this case.

The Court’s analysis, however, missed the mark.

The Court’s starting point should also have been the ending point of the Court’s

jurisdictional analysis.1 The White Earth Judicial Code states that “[t]he jurisdiction of the Tribal

Court shall extend to … [a]ll actions arising under the Codes, Laws, and Ordinances of the White

Earth Band of Chippewa, and to all persons alleged to have violated provisions of those

“Subject matter jurisdiction can be raised at any time.” Alternate Fuels, Inc. v. Cabanas, 538

F.3d 969, 975 (8th Cir. 2008).

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Ordinances, provided that the action or violation occurs within the boundaries of the White Earth

Reservation[.]” Judicial Code Ch. 2 § 1(b).

The use of “shall” in the Judicial Code imposes an obligation on the Tribal Court to exercise

jurisdiction over cases falling within the specific jurisdictional grant conferred by the Band. See

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (recognizing that

“shall” is “mandatory” and “normally creates an obligation impervious to judicial discretion”);

Association of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) (“The word

‘shall’ generally indicates a command that admits of no discretion on the part of the person

instructed to carry out the directive”); Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (“The word

‘shall’ is ordinarily ‘the language of command.’”) (citations omitted). In other words, the Judicial

Code does not authorize the Court to exercise discretion in deciding whether or not a particular

case falls within the Code’s grant of jurisdiction. But that is precisely what the Court did here.

See Order Dismissing Respondents’ Complaint at 7 (“[W]hile White Earth grants jurisdiction in

its Tribal Court for a case like this one, we must also determine whether federal law authorizes

subject matter jurisdiction in this case.”).

Furthermore, the use of “all” to modify the terms “actions” and “persons” in the Judicial

Code signals that the Band intended the Code to have a broad reading. The word “all” “conveys

breadth,” Peter v. Nantkwest, Inc., 140 S. Ct. 365, 372 (2019), “indicat[ing] no limitation,” Norfolk

& Western Railway Co. v. American Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991). So when

the Judicial Code states that Tribal jurisdiction “shall” extend to “all persons” who violate the

Band’s laws, provided the “action or violation occurs within the boundaries of the White Earth

Reservation,” the Court’s analysis must not focus on the nonmember’s physical location. Rather,

the focus of the Court’s analysis must be on the location of the alleged violation of Tribal law. In

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this case, this question is whether the Rights of Manoomin—a Tribal law relevant to this case—

were violated within the boundaries of the White Earth Reservation. Respondents’ Complaint

includes allegations that the Rights of Manoomin were violated within the boundaries of the White

Earth Reservation.

The Code specifically contemplates violations of Tribal law occurring on-Reservation

regardless of the person’s physical location are subject to Tribal jurisdiction. As explained by the

Tribal Court below, the Judicial Code only “require[s] Plaintiffs to show that the alleged actions

or inactions taken by the Defendants ‘occurs within the boundaries of the White Earth reservation’,

but this may include actions taken off the reservation that impact on-reservation rights.” Order

Clarifying Aug. 18, 2021 Order Denying Motion to Dismiss at 8. Nowhere does the Judicial Code

limit Tribal Court jurisdiction to conduct taken solely within the White Reservation. In this case,

as discussed further below, the Tribal Court below correctly stated that “the complaint alleges that

[Defendants’] actions or inactions have resulted in harm to the Plaintiffs’ rights on the

reservation[.]” Order Clarifying Aug. 18, 2021 Order Denying Motion to Dismiss at 8.

It is a court’s “job to apply faithfully the law Congress has written.” Henson v. Santander

Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017). It is “never” the court’s “job to rewrite a

constitutionally valid statutory text under the banner of speculation about what Congress might

have done had it faced a question that, on everyone’s account, it never faced.” Id.; see also

Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (“[I]t is not the proper role of the courts to rewrite

the laws passed by Congress and signed by the President.”). It is also true that the “cardinal canon”

of interpretation, which comes “before all others” is that “[w]hen the words of a statute are

unambiguous … judicial inquiry is complete.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–

54 (1992).

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Moreover, the Supreme Court has also determined “tribal courts are best qualified to

interpret and apply tribal law.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1986). Federal

courts “defer to the tribal courts’ interpretation” of tribal law. City of Timber Lake v. Cheyenne

River Sioux Tribe, 10 F.3d 554, 559 (8th Cir. 1993) (deferring to tribal court’s decision that a tribal

constitution gave the tribal court personal jurisdiction over non-Indians), cert. denied, 512 U.S.

1236 (1994).

“It is only when the tribal court applies federal law that the tribal court’s

determinations are accorded no deference and are reviewed by the district court de novo.” Duncan

Energy v. Three Affiliated Tribes, 27 F.3d 1294, 1300 (8th Cir. 1994). With these legal principles

in mind, it uncertain why this Court would go ahead and issue a speculative decision interpreting

federal law when it is aware of a pending Eighth Circuit appeal reviewing the same jurisdictional

question.

Instead of speculating about how a federal court applying federal law might decide the

jurisdictional question, the Court should have applied the Band’s own Judicial Code. It is not the

job of this Court to make predictions on how foreign courts might rule on questions before those

courts,2 or second guess the jurisdictional grant set forth in the Band’s Judicial Code. The Court

In analyzing federal law, the Court’s Order also incorrectly determined that the Band lacks

inherent sovereign authority to exercise civil jurisdiction over nonmember activities and conduct

that originate off-reservation but have on-reservation impacts. The Court mistakenly “believe[s]”

that Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001), “may be understood as a case in which

Congress authorized the EPA to grant authority to Tribes to regulate water quality when local

pollution sources threatened tribal waters.” Order Dismissing Respondents’ Complaint at 13.

Rather, while Wisconsin concerned a tribe’s authority to enforce water quality standards against

non-Indians pursuant to their treatment as state status under the Clean Water Act (CWA), the

dispositive issue in the case was whether the tribe possessed the inherent sovereign authority to

enforce water quality standards against non-Indians in the first place. The Seventh Circuit in

Wisconsin explained that a tribe’s “inherent authority over activities having a serious effect on the

health of the tribe[] … is not defeated even if it exerts some regulatory force on off-reservation

activities[.]” Wisconsin, 266 F.3d at 749 (emphasis added). Thus, Wisconsin’s discussion on a

tribe’s inherent authority (whether in reference to the Montana framework or not) to regulate such

non-Indian activities and conduct are relevant in the non-CWA context.

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should reconsider its dismissal of Respondents’ Complaint based on the jurisdictional grant in the

Band’s Judicial Code.3 Alternatively, the Court should remand the case to the Tribal Trial Court

for further fact-finding to resolve the jurisdictional question presented in this case. Remanding

the case to the Tribal Trial Court will help “clarify[] the factual and legal issues that are under

dispute and relevant for any jurisdictional evaluation.” DISH Network Serv. L.L.C. v. Laducer,

725 F.3d 877, 882 (8th Cir. 2013) (citing Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,

471 U.S. 845, 856–57 (1985)).

II.

The Court’s Order Failed to Adequately Consider On-Reservation Impacts to

Manoomin

In the Order, the Court considered only the allegations of harm to Manoomin located off-

reservation, and failed to consider whether Respondents’ claims involving on-reservation impacts

to the Manoomin where Appellants’ conduct originates off-reservation. Specifically, the Court

stated that the Band claims it “retain[s] rights beyond the reservation … and that the grant of a

water permit by DNR officials … impairs or threatens the growth of Manoomin on those lands

….” that Respondents’ lawsuit “seeks to enforce treaty rights to protect Manoomin and other

resources on 1855 Treaty ceded land.” Order Dismissing Respondents’ Complaint at 1, 6. But

nowhere in the Order did the Court consider the on-reservation impacts to Manoomin.

As explained by the Tribal Trial Court below, “the complaint alleges that [Defendants’]

actions or inactions have resulted in harm to the Plaintiffs’ rights on the reservation[.]” Order

Clarifying Aug. 18, 2021 Order Denying Motion to Dismiss at 8. Respondents’ Complaint seeks

a declaration that DNR has “intentionally and knowingly violated the Rights of Manoomin by

“A motion for reconsideration ‘serve[s] the limited function of correcting manifest errors of law

or fact ….’” Bradley Timberland Resources v. Bradley Lumber Co., 712 F.3d 401, 407 (8th Cir.

2013) (citation omitted).

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unilaterally granting 5 billion gallons of water, without official notice to tribes, without Chippewa

consent, on and off White Earth Reservation ….” Compl. at 14, ¶ i. Respondents also seek

injunctive relief to prevent DNR from “further, continued waste of fresh water resources, both

surface and groundwater, on reservation and across the ceded territories (necessary for the

Manoomin to live and flourish; and so tribal members may enjoy their rights to harvest

manoomin[.]” Compl. at 14, ¶ j. The maps below illustrate the geography of the White Earth

Reservation and its boundaries:

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As the maps demonstrate, Lower Rice Lake—the Band’s crown jewel and the largest,

continuously producing wild rice bed in the world—is located entirely within the boundaries of

the White Earth Reservation. Respondents’ Complaint attaches a Waters Report prepared by

Renee Keezer, Pesticide Coordinator at the White Earth Department of Natural Resources,4

explaining that the dewatering permit granted by DNR has resulted in impacts “observable in the

rice lakes and other waters and wetlands in the region. The water levels in Lower Rice Lake on

“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

purposes.” Fed. R. Civ. P. 10(c). “In addressing a motion to dismiss, ‘[t]he court may consider

the pleading themselves, materials embraced by the pleadings, exhibits attached to the pleadings,

and matters of public record.’” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011) (quoting

Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010)); Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as

well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,

in particular, documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.”).

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the White Earth Reservation are so low that it will be difficult if not impossible to harvest wild

rice ….” Compl. Ex. A. The Complaint thus alleges impacts to the Band’s resources located onreservation. These impacts to Manoomin located on Lower Rice Lake within the boundaries of

the White Earth Reservation were not sufficiently considered by the Court in its Order. This case

presents complex factual and legal questions about the interconnectedness of water systems and

the nature and extent of Tribal jurisdiction. The precise location and extent of both DNR’s

activities and the impacts of those activities involves a fact-intensive inquiry that is best suited for

the Tribal Trial Court to resolve in the first instance.5

III.

New Evidence Relating to DNR’s Activities Warrants Reconsideration

Following the Court’s March 10, 2022 Order, new factual evidence has come to light

regarding DNR’s dewatering activities relevant to this case. This new evidence includes a report

by Jeffrey Broberg, a Minnesota licensed professional geologist, regarding Line 3 construction

impacts that have potential for significant environmental effects on water dependent ecosystem,

particularly wild rice. Exhibit A. The new evidence also includes a March 21, 2022 press release

by DNR, disclosing two new aquifer breaches that occurred during the construction of Enbridge’s

Line 3 Replacement Project. Exhibit B.

Mr. Broberg’s report is based on the initial environmental review for the Line 3 pipeline,

the Enbridge permit application submittals, data from the Clearbrook aquifer breach restoration

order of DNR, and newly acquired high-definition thermal imaging designed to identify hydrologic

disturbances causing upwelling groundwater, which was commissioned by the Band. The report

5

See Crow Creek Sioux Tribe v. Bureau of Indian Affairs, 463 F. Supp. 2d 964, 967 (D.S.D. 2006)

(“[C]ourts have also recognized that the jurisdictional issue and substantive issues can be so

intertwined that a full trial on the merits may be necessary to resolve the issue.”).

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states that new thermal imaging shows as many six sites with upwelling groundwater that have not

been disclosed by DNR, and final thermal imaging reports will be available in summer 2022.

In its press release, DNR acknowledged that it has “conducted additional investigative

work, including an aerial inspection, to assess whether there were any other unidentified aquifer

breach sites. Thus far, the DNR has not confirmed any additional aquifer breach sites. To ensure

thoroughness, [DNR] will finalize [its] assessment of the potential for any additional aquifer

breaches following the spring thaw.” DNR Press Release at 1. The two newly disclosed aquifer

breaches include: (1) a breach on or around August 2, 2021, near LaSalle Creek in Hubbard

County, which released about 9.8 million gallons of groundwater; and (2) a breach on or around

September 10, 2021, near the Fond du Lac Band of Lake Superior Chippewa reservation in St.

Louis County where groundwater began welling up as crews removed sheet piling after finishing

construction on the pipeline. DNR stated that Enbridge has substantially slowed—but not

completely stopped—the breach near the Fond du Lac Reservation, which has resulted in the

release of nearly 220 million gallons of groundwater. DNR Press Release at 1. DNR explained

that the breach has “the potential to impact Dead Fish Lake on the Fond du Lac Reservation, a

valuable wild rice water for the band.” Id.

The new factual evidence regarding Mr. Broberg’s report and the newly disclosed aquifer

breaches is highly relevant to this case. The evidence shows DNR’s dewatering activities and

conduct that are subject of this case, which has caused substantial harm to natural resources,

including within reservation boundaries. The full extent of DNR’s activities and conduct are

unknown at this time. But what is known at this time is that DNR’s activities and conduct at issue

in this case have led to devasting impacts to Manoomin within the boundaries of the White Earth

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Reservation. The Court should not permit DNR to refuse to disclose all relevant facts at issue in

this case.

IV.

In the Alternative, the Court Should Grant Leave for Respondents to Amend Their

Complaint

In the alternative, if the Court denies Respondents’ Motion for Reconsideration,

Respondents seek leave to amend their Complaint. The Court’s Order did not indicate whether

leave was given to Respondents to amend their Complaint. Generally, leave to amend is freely

given. See Fed. R. Civ. P. 15(a)(2) (stating that “[t]he court should freely give leave [to amend]

when justice so requires”); McIndoo v. Burnett, 494 F.2d 1311, 1313 (8th Cir. 1974) (“Pleadings

are merely to facilitate a proper decision on the merits.”); Tatung Co., Ltd. v. Shu Tze Hsu, 43 F.

Supp. 3d 1036, 1058 (C.D. Cal. 2014) (“Leave to amend lies within the sound discretion of the

trial court, which ‘must be guided by the underlying purpose of Rule 15 to facilitate decisions on

the merits, rather than on the pleadings or technicalities.”). In the event the reconsideration is

denied, the Court should grant Respondents leave to amend.

CONCLUSION

The Court should grant Respondents’ Motion for Reconsideration. Alternatively, if the

Court denies the Motion, the Court should grant leave for Respondents to leave their Complaint.

Dated: March 25, 2022

Respectfully submitted,

/s/ Joseph Plumer

Joseph Plumer

PLUMER LAW OFFICE

9532 N. Grace Lake Rd. SE

Bemidji, MN 56601

Telephone: (218) 556-3824

Email: jplumer@paulbunyan.net

/s/ Frank Bibeau

Frank Bibeau

55124 County Road 118

Deer River, MN 56636

Telephone: (218) 760-1258

Email: frankbibeau@gmail.com

Attorneys for Respondents

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EXHIBIT A

Jeffrey S. Broberg, MnLPG 30019

Blueline Environmental Advisors, PLLC

11596 Persons Dr. St. Charles, MN 55972

brobergmnwoo@gmail.com, 507-273-4961

March 25, 2022

SENT VIA EMAIL ONLY

Frankbibeau@gmail.com

White Earth Tribe

Frank Bibeau, Tribal Attorney

White Earth Band of Ojibwe

White Earth, Minnesota

RE:

Line 3 Thermal Imaging Data Initial Analysis

Dear Mr. Bibeau:

The Enbridge Line 3 pipeline crossed northern Minnesota trenching across the

western end of the range of wild rice and across Ojibwa ceded territory where the

wild rice is recognized as both an important food and as a cultural and spiritual

icon given protection under Tribal authorities.

I am a Minnesota Licensed Professional Geologist with 45 years of experience

with the rocks and waters of Minnesota. I am familiar with the terrain, geologic

history, geomorphology, and hydrology of the Line 3 route across northern

Minnesota.

Since the Enbridge breach of the artesian aquifer near the Clearbrook Station I

have been evaluating a range of construction impacts from Line 3 using drone

images from the Indigenous Environmental Network (Figures 1-3), reports from

the Minnesota Department of Natural Resources (MNDNR) and Enbridge Permit

application documents. I have concentrated on the impacts that affect groundwater

and surface water/groundwater interaction.

Line 3 crosses the headwaters of three major Minnesota Watersheds: The Red

River of the North, the Mississippi River and the St. Louis/Great Lakes (Figure 4).

All of Line 3 crosses Ojibwa territory including reservations and ceded territory

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that are subject to the White Earth Reservation Business Committee Resolution

001-21-056 (Exhibit 1)1.

I was asked to evaluate the Line 3 construction impacts that have a potential for

significant environmental effects on water dependent ecosystems, particularly wild

rice. For my review I reviewed the initial environmental review, the Enbridge

permit application submittals, drone photos taken during construction, data from

the Clearbrook aquifer breach restoration order from the Minnesota Department of

Natural Resources and newly acquired high-definition thermal imaging designed to

identify hydrologic disturbances causing upwelling groundwater that was

commissioned by the White Earth Tribe.

The question was whether compiled evidence from the permit application protect

the usufructuary property rights discussed on the White Earth Resolution (Exhiit

A) and whether the history of hydrological impacts that occurred during

construction interfere with the tribal rights?

My goal was to identify risks to Manoomin that were not adequately addressed in

State and Federal Permits and where Tribal Consultation might have helped avoid

and/or mitigate risks.

Because Line 3 crosses Tribal lands and ceded territories across the headwaters of

three major watersheds it would have been reasonable and prudent for the Tribes,

the State of Minnesota, and Federal permitting agencies to identify both the

expected construction impacts for inclusion in project need, route selection and/or

permit conditions. It would also be prudent and necessary to document all the

hydrological impacts that occurred during construction.

Trenching Impacts to Groundwater and Groundwater/Surface Water

Interactions:

The permit applications address trench construction and dewatering and treats

these impacts as temporary impacts, but evidence from older pipelines, drone

photos during the project, and observations from the post-construction HighDefinition Thermal Imaging along the length of Line 3 show that permanent

hydrological impacts are occurring where the line crosses wetlands, bogs and

drainageways.

1

White Earth Reservation Business Committee, June 20, 2021, Resolution 001-21-056, Consent for USAW

Enbridge Line 3R Water Quality Permitting, 9 p

2

The thermal evidence of groundwater disturbance I have reviewed show that the

pipe trench commonly fills wetlands and blocks shallow groundwater flow across

wetlands and drainageways. From data I have reviewed to date I see as many as

six more sites where artesian flow now comes to the surface after the pipeline was

constructed. We are in the process of planning field verification of these new areas

using drones and on-site observations. Adding this new data to the evidence of the

shallow artesian aquifer breach near LaSalle Lake I believe that we now see

significant hydrological disturbance that was not anticipated, nor were these

impacts considered by Enbridge or the permitting agencies. The question remains

whether the project proposer and State/Federal regulators consulted with the

Tribes?

Water Use by Enbridge:

In 2018-2020 Enbridge sought water appropriations permits for 510 million

gallons of water for the entire project. In 2021, a drought year that devastated

northern Minnesota (Figures 5-6), Enbridge requested permits to use 4.5 billion

gallons of water, fifty time more than their 2020 permit allowed2.

According to the attached report the Enbridge Water Appropriations Permit was

granted by MNDNR without a 30-day public Comment Period and with no official

consultation with the Tribes or the 1855 Treaty Authority3. The Permit allowed

water withdrawal from the headwaters of an important wild rice production area

without consideration of the impacts during a drought, or the permeant impacts

from the filled pipe trench.

Originally Enbridge claimed the 510 million gallons significant water uses across

the length of the project. But the May 2021 amended permit proved that Enbridge

engineers were in error; they had grossly underestimating their original water use

permits in 2018 and could not have understood or evaluated the true impacts of

water appropriations on water dependent ecosystems. I found no evidence of a

review of ecological impacts in the amended permit.

It is not known whether the erroneous permit applications were due to Enbridge

failing to investigate the existing hydrology conditions of the pipe trench along the

route, did not understand the hydrodynamics and hydroperiods of the pipe trench in

2

MNDNR, June 4, 2021, Enbridge Water Appropriations Permit #20183420, MNDNR

Keezer, R, July 16, 2021, Waters Report What Happens When the Water Goes Down? Report to White Earth Band

of Ojibwe

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the headwaters, or whether Enbridge intentionally underestimated the water use to

ease public concerns over the water use permits.

From the available record4 neither Enbridge, nor the MNDNR considered impacts

to wild rice and did not consult with the White Earth Tribe about the water use or

impact on Manoomin5.

Even during the drought Enbridge claimed they needed dramatically more water

because they had grossly underestimated the water needs for dust control,

Horizontal Directional Drilling (HDD), pipe buoyancy control, trench dewatering

of the shallow groundwater and uncontrolled flow from the breach of at least three

artesian aquifers. As a professional geologist this raises significant concerns about

the standards of care Enbridge and the State/Federal regulators used in assessing

impacts to wild rice along the route.

Wild Rice Concerns:

Many researchers have identified the importance of wild rice (Zizania palustris L.)6

“Northern wild rice (Zizania palustris L.), once abundant across the lakes of

the Upper Midwest, has largely disappeared from the southern portions of

its range during the last century [1,2]. Recognized as the state grain of

Minnesota, conservation of this culturally, ecologically, and economically

significant species is critical [3]. Indigenous peoples of the northern Great

Lakes region have a strong cultural connection to wild rice and have

harvested it for over two thousand years [4]. The annual harvest is still a

sacred tradition to this day, which is critical for indigenous economic and

food security [3]. Additionally, wild rice is fundamental to the habitat and

diets of native waterfowl, fish [5], and 17 species of wildlife that are listed

by the Minnesota Department of Natural Resources (MN DNR) as “species

of greatest conservation need”

Other researchers have cited the declining population of wild rice during the last

century and have identified factors driving the decline 7. O’Shea et. al. summarized

4

Water use inquires made by State Senator John Marty in January were denied because the water uses and aquifer

ruptures were “under investigation” and protected by the Minnesota Data Practice Act by the MNDNR and

Minnesota Pollution Control Agency.

5

Keezer, 2021

6

O’Shea, K., et.al, Sept 2020, Improved Remote Sensing Methods to Detecting Northern Wild Rice (Zizania

palustris L.), Remote Sensing, v12, 3023.

7

Pillsbury, R.W., McGuire, M.A., 2009, Factors Affecting the Distribution of Wild Rice and the Associated

Macrophyte Community, Wetlands, v 29, p 724-734

4

the widespread decline and concluded that “Zizania (and other aquatic plants) may

be very sensitive to small changes within their watershed that are typical of

moderate development.”

For decades resource managers have advised that wild rice management strategies

should include consideration of land disturbances and land-use patterns, yet

Enbridge and the MNDNR did not document that they have taken concerns for

wild rice into consideration.

Enbridge and the State of Minnesota appear to have ignored the need to consult

with the Tribes, have ignored the rights of Manoomin, and neglected the need to

maintain stable water levels for wild rice to thrive. The Enbridge water use was

much greater than was planned and both Enbridge and the State of Minnesota

claimed pipeline rights to higher water appropriations even during the drought.

New Work Confirming Line 3 Construction Impacts to Water Resource.

New data released by the MNDNR show that Enbridge Line 3 ruptured artesian

aquifers in three locations causing uncontrolled flow of groundwater to the

surface8, proof of water resource impacts affecting hundreds of millions of gallons

of groundwater. New thermal imaging shows as many as six other sites with

upwelling groundwater that are not being addressed.

The initial thermal data interpretations have shown there to be four types of

groundwater/surface water impacts from the pipeline:

 Aquifer ruptures like those confirmed by MNDNR at Clearbrook, La Salle

and PM1102 near the Fond du Lac Reservation.

 Frac outs and the inadvertent release of drilling mud at Horizontal

Directional Drilling River crossings.

 Sheet Pile impacts have been implicated in two of the three aquifer ruptures

 Trenching impacts when the trench depth went below the static water level

like documented by MNDNR at La Salle.

In each of these categories the data is revealing common groundwater disturbances

where upwelling groundwater along the pipe trench or the pipe borings kept the

ground from freezing in late November. This groundwater disturbance also

8

MNDNR, March 21, 2022, Update of Line 3 Aquifer Breach Investigating and Enforcement, 3 pages

5

including disturbance of groundwater flow patterns. The final thermal imaging

reports will be available later in the summer of 2022.

Conclusion:

While the importance of stable hydrology for wild rice is traditional tribal

ecological knowledge and is well documented in the academic literature the risks

of hydrologic disturbance from pipe trenching and HDD have been ignored for

Line 3 in construction or water appropriation permit decisions.

I have advised legal counsel for the Tribes to inquire about both the upstream and

downstream after-the-fact effects of pipe trenching, the hydrological impacts of

trench dewatering, pipe trench hydrological disturbances and the disturbance from

ruptured artesian aquifers

The record shows that Enbridge grossly underestimated the Line 3 water use in

their original 2018 permit applications. This gross underestimation gave regulators

a false sense of modest water use. The new 4.9-billion-gallon water use more

accurately predicted water use but the amended permit never considered Tribal

concerns or the potential impacts to wild rice. Between Enbridge and the State and

Federal Regulators there was no one speaking to the concerns of sustaining health

stands of wild rice along Line 3.

Sincerely:

Jeffrey S. Broberg, LPG

Renee Keezer

Minnesota Licensed Professional

Geologist #30019

Environmental Specialist

6

Figures:

1 IEN Drone Photo 1

2 IEN Drone Photo 2

3 IEN Drone Photo 4

4 Line 3, Watersheds, Tribal Lands

and Wild Rice Lakes

5 MNDNR 2021 Drought Graphs

6 MNDNR May 2021 Drought Map

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Figure 1. Mississippi River Crossing Fracouts during construction July

2021.Image by Indigenous Environmental Network

ssing #1

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Figure 2. Fracouts, November, 2021, four months after river crossing was

complete. Drone Image by Indigenous Environmental Network.

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Figure 3. March 2022 Drone Image of Mississippi River Crossing 1 Fracout with

drilling muds still leaking to surface wetlands 9 months after river crossing was

complete.

10

Figure 4 Showing Line 3 crossing Minnesota’s three major watersheds, wild rice lakes, and tribal lands

11

Figure 5: Minnesota Monthly Precipitation Departures. Statewide data shows “Rapid Drought Development in

May 2021” at the time Enbridge was granted a 50-fold increase in water use.

12

Figure 6. Minnesota Drought Monitor June 1, 2021. The White Earth Reservation and surrounding Counties in the

Headwaters of the Wild Rice River were classified as “Abnormally Dry” as they had been for months.

13

Figure 5, Minnesota Drought Monitor August 24, 2021. White Earth Reservation and upgradient Counties were in

“Exceptional Drought”

Many Enbridge Construction Activities Use High Volumes of Water

14

EXHIBIT 1

Page 1 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

WHITE EARTH RESERVATION BUSINESS COMMITTEE

WHITE EARTH BAND OF CHIPPEWA INDIANS

Resolution No.

WH EREAS,

o0/ -a/^ 0

the White Earth Reservation Business Committee is the duly elected governing

body of the White Earth Reservation pursuant to Article Vl, Section 1, of the

revised constitution of the Minnesota Chippewa Tribe, as amended, and organized

under Section 16, of the Act ofJune 18, 1934 (48 Stat. 984), and

WHEREAS,

the White Earth Reservation Business Committee is the duly authorized governing

body of the White Earth Band, and

WHEREAS,

the White Earth Reservation was established by Treaty in 1.857 as a final relocation

reservation for lhe Chippewas of the Mississippi following prior relocation

attempts via the 1863 and 1864 Treaties with the Chippewa, moving us from our

1855 Chippewa reservations "known as Gull Lake, Mille Lac, Sandy Lake, Rabbit

Lake, Pokagomin Lake, and Rice Lake" to Leech Lake reservation initially, then

soon after to White Earth Reservation, and

WHEREAS,

the White Earth Band of O.jibwe (WEBO) has approximately half of the 40,000 total

tribal members enrolled in the Minnesota Chippewa Tribe(MCT), which are

alltreaty beneficiaries ofthe many Chippewa Treaties with the United States and

who retain the usual rights of use and occupancyacross the 1855 ceded territory

and former 1855 reservations; including usufructuary property rights to hunt, fish,

trap, gather wild rice as part of earning a modest living, and

WHEREAS,

the White Earth Reservation Business Committee is the duly elected governing body

authorized by the Reylied Constitution ond Bylows of the Minnesoto Chippewo

Tribe, Minnesoto as the constituent band of the Minnesota Chippewa Tribe

organized under Section 16 ofthe Act of Ju ne 18, 1934 (48 Stat. 984)and therefore

has the responsibility and authority to provide for the safety, health and welfare

of its tribal members, and

WHEREAS,

the White Earth Band of Ojibwe is primarily comprised of Chippewos of the

Mississippi from Gull Lake, Rabbit Lake, Miile Lacs, Rice Lake and Sandy Lake,

Pokegama but also includes Pillager, Winnibigoshish and Lake Superior band

members and other relocated who are beneficiaries to many of the Chippewa

treaties with the united states of America, and

WH EREAS,

the Northwest Ordinance of July 13, 1787, Article lll provides that the utmost

good foith sholl dlwoys be observed towords the lndidns; their landsond property

sholl never be token from them without their consent, and the United State

Constitution was ratified 1788 providing in Article Vl that treaties are the

Page 2 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water quality Permitting

supreme law of the land, and Article l, Section 8 of the Constitution states that

"Congress shall have the power to regulate Commerce with the lndian tribes"

and Bill of Rights ratified in 1791 Fifth Amendment provides for property rights

being protected by due process and from unjust taking, and shortly thereafter in

the 1795 Treaty of Greenville "the United States relinquish[ed] their claims to all

other lndian lands northward of the river Ohio, eastward of the Mississippi, and

westward and southward of the Great Lakes ond the waters unitinq them . .. ."

(See Article lV), and

WHEREAS,

the 1825 and 1826 Chippewa Treaties with the United States further recognized

Chippewa national sovereignty, regulation of hunting and jurisdiction with regard

to future land cessions and the exercise of usufructuary property rights over those

territories in states now known as Michigan, Wisconsin, Minnesota and North

Dakota, and

WHEREAS,

various federal courts have recognized the historical importance ofthese activities

in Chippewa life and the emphasis of the Chippewa chiefs on usufructuary rights

during their negotiations with the United States indicate that the lndlans believed

they were reserving unrestricted rights to hunt, fish, and gather throughout a

largeterritory.[...]

The history suggests that the Chippewa lndians' exercise of their

usufructuary rights included selling what they hunted, fished, or

gathered in order to make a modest living.

See United States v. Brown citing Mille Lacs Band of Chippewa lnd ians v.

Minnesota, and Lac Courte Oreilles Band of Lake Su perior Chippewa lndians v

Wisconsin. see also United States v Gotchnik), and

WH EREAS,

the Chippewas' federal treaty protected usufructuary property rights to hunt,

fish and gather wild rice in order to earn a modest living are in fact the same

on and off reservation, yet the U.S. Army Corps of Engineers appears to apply

different criteria to permit applications for activities within reservation's

exterior boundaries than would be applied to permit application for activities

outside a reservation' exterior boundaries as demonstrated by Regional General

Permit-003-MN in the State of Minnesota Except for within the exterior

boundaries of lndian Reservations, and

WHEREAS,

the U.S. Army Corps of Engineers (USACE) recognized and responded to Chippewa

treaty bands and the Great Lakes lndian Fish and Wildlife Commission in their

7997 lssue Poper ond District Recommendation, the Agency's Trust

Responsibilities Toword lndion Tribes in the Regulatory Permitting Process tor

Crandon Mine in Question

Page 3 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

13. Should the Corps apply different criteria to permit applications

for activities within reservation's exterior boundaries than would be

applied to permit application for activities outside a reservation'

exterior boundaries?

[Answer] No. The criterio applied should be the some. However, it is very

llkely that an activity that is sited within the reservation's exterior

boundaries would have a greater impact on Tribal resources than would an

activity that is sited off reservation. Moreover, the applicant would still have

to comply with all applicable local regulations, thus the Tribe may be able to

impose its requirements on the applicant. Such requirements would be

independent of and in addition to any Corps' permit requirement or

condition. Further if the Tribe has jurisdiction over the activity and exercises

its jurisdiction to prohibit the activity the permit application to the Corps

should be denied without prejudice.

(See MCT Tribal Executive Committee (TEC) Resolution 32-U, Exhibit A,lssue

Poper ond District Recommendotion, the Agency's TrustResponsibilities Toword

lndion Tribes in the Regulotory Permitting Process issued September 29,7997

byJ. M. Wonsik, Colonel, Corps of Engineers, District Engineer, St. Paul Office to

James Schlender, Executive Administrator, Great Lakes lndian Fish Wildlife

Commission, resultingfrom a permit application by Crandon Mining Company,

the St. Paul District had been asked by several Native American tribes to address

the nature and extent of the Corps trust respon sibilities toward lndian tribes in

the Corps regulatory permitting process), and

WHEREAS,

that the 1997 USACE lssue Paper is now over two decades (20+ years) old and

that the Tribal Executive Committee of the Minnesota Chippewa Tribe requested

that "the U.S. Army Corps of Engineers: (1.) consult with the Minnesota Chippewa

Tribe and its constituent bands to update the guidelines (Exhibit A) [the 1997

USACE lssue Paped; (2) make a firm unequivocal commitment that it willfollow

those guidelines and fulfill its trust obligations to lndian tribes; and (3) enter

Into agreements with the MCT or constituent band to establish protocols for

tribal input and consultation on proposed actions impacting tribal cultural and

natural resources" by TEC Res. No. 32-17 duly adopted on Nov. 30, 2015, and

WHEREAS,

the reservation of sovereign rights is an important part of our ongoing struggle to

preserve a culture that is best understood in terms of our relationship with the

natural environment and that there is no economic framework that can properly

define the value of manoomin to the Ojibwe people because manoomin is central

to Ojibwe cultural identity, spiritualtraditions, and physical well-being and serves

as an important indicator species to the ecology of Minnesota's lakes and rivers

and provides criticalfood and habitat to both endemic and migratory species, and

Page 4 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R water Quality Permitting

WHEREAS,

the Tribal members continue to harvest and rely upon manoomin for religious

purposes including naming ceremonies, funerals, Midewiwin ceremonies and

various seasonal feasts and these activities are critical components in

perpetuating Anishinaabe lifeways and cultural practices, whereby the OjibweAnishinaabe spiritual beliefs mandate the use of certain plants,animals, and fish

in ceremonies attendant to hunting, fishing, and gathering activities and these

ceremonies ensure the perpetuation of the resources andthe physical, mental,

and spiritual well-being of the person for bimaodiziwin "living a good life, and

WHEREAS,

White Earth Band of O,ibwe and the 1855 Treaty Authority have adopted Rights of

Monoomin ordinances to protect wild rice on and off reservation and given

notice of consent required to Minnesota Governor Walz. (See Exhibits B-E; White

Earth Chairman Tibbetts, Jan. 25, 2019 letter to Governor Walz Re: 401 water

quality consent with the attachments; White Earth Band of Ojibwe Resolutions

(00!.-19-009 and 001-19-010) and 1855 Treaty Authority Resolution 2018-05).

We can see the Corps' understands that

As part of the [Corps'] authorized mission of conserving and managing

natural resources, the Headwaters attempt to maintain stable

operating levels for the purpose of wild rice[, . . . which] grows in

shallow to moderate water depths (1-3 feet) and is affected by water

flow, turbidity, water quality and water level fluctuations. Wild rice is

sensitive to varying water levels andproduction in individual stands

from year-to-year is su b.iective,depending on local water conditions.

Wild rice has special cultural and environmental significance to the

Native Americans. From an environmental perspective, it is an

important habitat componentand is often viewed as an ecological

indicator species due to its sensitivity to growing conditions.

(See USACE-Mississippi River Headwaters Reservoirs Master Plan,Main

Report October 2015, at p 36).

According to the 2015 Main Report, 2.8.1 Climate Change and

Wildlife lmpacts the Master Plan emphasizes the need to have

adequate resource protection to maintain species diversity, habitat

quality, and outdoor recreational opportunities. Environmental

challenges beyond our control could significantly impact natural

resources. Climate change may alter the landscape of the

Headwaters in multiple ways, the most visible being changes in river

flows and/or lake levels. More erratic high flows and droughts can

influence rates of siltation, rim erosion, lake access for recreational

boating, and flood protection. Wildlife can move or migrate as

conditions change, but plants have difficulty surviving significant

Page 5 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

climatic change. Some species can be generalists across a wide range

of growing conditions, but more conservative species with very

specific growth niches will likely be impacted. The exact impacts are

difficult to predict, but climate is singularly the most influencing

determinant of landscapes.

See Main Report at p 48. The Main Report also speaks to Tribal Trust

responsibility and that

As part of the Corps' tribal trust responsibility, the Corps considers

the relationship between local Native American tribes and the

Federal Government on various operational elements of the

Headwaters' projects. Portions of the Headwaters' project sites are

located within the boundaries of Native American Reservations. The

lakes and streams of the Mississippi Headwaters' area, as well as the

plants and animals associated with them, hold spiritual, economic,

and subsistence value to the various bands and tribes in the area.

Natural resources are a fundamental aspect of their cultural identity.

The greatest density of culturally important archeological sltes in the

Headwaters' area is typically found along the shorelines of lakes,

rivers, and streams. These sites are located both above and below

the current water levels. The primary tribal goal, withregard to

cultural resources, is to ensure that the heritage of NativeAmericans

is preserved as an integral part of community life, providing

orientatlon to its people, their language, music, stories, and

traditions. The preservation of these cultural sites is considered a

vital legacy to be maintained for future generations.

(See Main Report at p 59).

WHEREAS,

the Chippewa ceded territories in Minnesota, including the 1855, are the actual

headwaters of 3 of the 4 major North American continental divides; north from

the Red River basin to Hudson Bay, East to the St. Louis and other rivers sourcing

Lake Superior and the other Great Lakes, and south including all of the upper

Mississippi River watershed to the Gulf of Mexico, and

WHEREAS,

the circuitous nature of the upper Mississippi River in particular begins adjacent to

the White Earth Reservation (established by the 1857 Treaty) and then flows

through the 1855 ceded territory reservations of Cass Lake, Winnibigoshish,

Pokegama, Sandy Lake, Gull Lake and Rabbit Lake, and then forms the border

between the Chippewa territories ceded in 1847 and 1837, with interconnected

tributaries, upstream and downstream in all aquatic ecosystems which are the

primary sources for important wild rice environments, wild life and fisheries, and

Page 6 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

WHEREAS,

tot lhe Chippewos of the Mississippi, abundant, clean water is inextricably linked

to the self-sufficiency, economic development and security of present and future

generations of northern Minnesota's tribal communities' health and welfare and

consequently the upper Mississippi watershed (in light blue on the map), from the

Headwaters of the Mississippi Riveradjacent to White Earth Reservation through

the various 1855 reservations and ceded territories through Brainerd to St. Cloud,

must be recognized as one, long, continuous, first in time, chain of reservations,

seamlessly linked together as a common priority quality water property rights'

under the Winte/s Doctrine lncluding all the upper Mississippi watershed

tributaries, lakes, aquifers, wetlands and natural resources, reserved for the

Chippewas of the Mississippi to enjoy and protect, and

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the White Earth Reservation has intervened in the Enbridge Application process

for certificate of need and routing permits in the Minnesota Public Utilities

Commission (PUC) for both Sandpiper (fracked Bakken crude) and Line 3

Replacement (Canadian extracted tar sands crude) pipeline projects to protect the

freshwater resources habitat that support wild rice and prevent related climate

Page 7 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

change impacts to air and water quality resources and our primary, natural food

resources that rely upon avoiding further degradation to the overall upper

Mississippi River from the Headwaters at Lake ltasca by White Earth to below

Brainerd, and

WH EREAS,

the Tribal Executive Committee of the Minnesota Chippewa Tribe directed on

March 15, 2017 that a tribal cumulative impacts assessment be initiated

immediately by TEC Res. No.72-L7 (See Exhibit F); the Anishinabe Cumulative

lmpacts Assessment (ACIA) was developed and Notice ofpublic comment period

issued, with a follow-up PUBLIC NOTICE Extension of Comment Period for

Minnesota Chippewa Tribe's Cumulative lmpact Assessment for Line 3 to

February 2, 2018, (e-filed on the MN PUCe-docket Nov. 30, 201-7 for Enbridge's

certificate of need application at 14- 916 and Enbridge's route permit application

at 15-137) for all parties on thePUC Line 3 e-dockets, and

WH EREAS,

the White Earth Reservation was an active partner in the development the

Anishinabe Cumulative lmpacts Assessment (ACIA) and did post the final,

completed ACIA as a report on MN PUC e-docket for Enbridge's certificate of need

application at 14-915 and Enbridge's route permit application at 15-137 on

February 23, 2018, and

WHEREAS,

the State of Minnesota has been actively engaging in large infrastructure projects

that pose permanent, environmental damages to Chippewa tribal resources on

and off reservations, which threaten the long-term health,safety and welfare of

the Chippewa with federally protected usufructuary property rights to hunt, fish

and gather wild rice in perpetulty throughout tribal aquatic resources in violation

of a series of Chippewa Treaties with the United States of America and in

violation of Public Law 280, section (b) excluding state jurisdiction over woter

rights in lndian Country; and which are ultimately violations of our federally

protected civil rights under 42 U.S.C. 91981 et seq, and

WHEREAS,

on April 13, 2018 the 1855 Treaty Authority adopted the Anishinabe Cumulative

lmpacts Assessment (1855 TA Res.2018-03, See Exhibit G) asthe environmental

risk analysis tool for the Line 3 pipeline projects across the 1855 ceded territory

and finds that climate change and otherconsequential and collateral impacts are

too great and therefore adopted a No Build Option b protect off reservation

natura I resources, and

WHEREAS,

on Feb. 21, 2019, the 1855 Treaty Authority provided Comments on USACE

Permit Application No.: 2014-01071-TlH, for Enbridge Line 3 Replacement,

regarding environmental impacts to Chippewa Treaty Protected Resources and

Cultural Properties to the U.S. Army Corps of Engineers that reveal the scope of

the Corps' Line 3 Clean Water Act Jurisdiction primarily over 3 water crossings

Page 8 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

across navigable waters is insufficient to protect 211 water bodies which impact

Chippewa territorlal water quality and property rights of the upper Mississippi

River watershed (See Exhibit H), and

WHEREAS,

the bulk of the waters of the United States, the other party to the Chippewa

treaties, have predominantly become public waters of Minnesota under Section

401 review of the Clean Water Act by the Minnesota Pollution Control Agency,

and which Minnesota public waters are where most of the wild rice grows and

consequently the White Earth Band of Ojibwe cannot ignore that Climote chonge

offects lokes, wolleye in complex waysl and that years lalet an Ojibwe leoder soys

Mille Locs wolleye hove not recovered yet2; that any increase in tar sands

extraction will only speed up climate change and compound environmental and

aquatic problems in Minnesota; and when walleye fishing people can't fish Mille

Lacs, they usually shift further north to Big Sandy, Pokegama, Big Winnie, Cass

Lake and Leech Lake, which are all original 1855 reservations, and

WHEREAS,

the White Earth Eand of Ojibwe has adopted the Minnesota Chippewa Tribe's

Anishinabe Cumulative lmpacts Assessment as the White Earth Band's

environmental risk and evaluatlon tool for the meaningfulassessment of the short

and long term impact of the abandonment of the existing Line 3 pipeline, as well

as the impacts from tar sands extraction, greenhouse gases, climate change and

additional, future pipeline abandonment from the decreased demand for crude

oil, now

NOW THEREFORE BE lT RESOLVED, that the White Earth Band of O.,ibwe FINDS that the

Mlnnesota Chippewa Tribe's Anishinabe Cumulative lmpacts Assessment is superior to the EIS

that has been approved by the Minnesota PUC in examining the cumulative impacts from the

proposed Line 3 project upon surface waters, groundwater, fish, wildlife, waterfowl, wild rice,

plants, as well as the broader environmental consequences resulting from the proposed Line

3 project, which necessarily requiresprohibiting the Line 3 Pipeline Replacement, new route

corridor for the replacement pipeline across the 1855 ceded territory in violation of White

Earth Band of Ojibwe and 1855 Treaty Authority established codes, laws and customs required

consent as co-owners.

7 See Climote chonge offects lokes, wolleye in

complex woy5, by Elizabeth Dunbar on Minnesota PublicRadio,

sept.9, 2015 at httos://www.mornews.orslstorv/2 015/09/09/walleve'climate'chanse

2

See Ojibwe leoder soys Mille Locs wolleye hove not recovered yet by Tony Kennedy Star TribuneOCTOBER

t, 2077 at htto / I www.startribu ne. com/oiibwe-l eader-savs-mille-lacs-walleve-have-not\ et/ 448842053

/

recovered-

Page 9 of 9

WERBC Resolution

Chippewa Consent for USACE Enbridge Line 3R Water Quality Permitting

NOW THEREFORE BE lT FURTHER RESOLVED, that the White Earth Band of Ojibwe in exercise

of original, retained jurisdiction from the Northwest Ordinance, 1795 Treaty of Greenville, the

1825 and 1826 Chippewa Treaties with the United States and sovereignty of the thousands of

treaty beneficiaries and the jurisdiction of the federally recognized reservation with tribal

regulatory authorities for the reserved, priority, water quality property rights and Rights of

Monoomin now requires that the United StatesArmy Corps of Engineers fulfill its legal

obligation under federal laws to honor and respect the White Earth Band's and Chippewos of

the Mississippirights to parity recognition of usufructuary property rights in the 1855 treaty

ceded territory, same as the 1837 and 1854, and more importantly include all of the "off

reservation" interconnected waters quality property rights as describe and provided for in the

Winter's Doctrine for the upper Mississippi River in Minnesota, for the same environmental

protectiontreatment and as "on reservation" for the Line 3 Clean Water Act permitting under

4O4/4O8 with appropriate consultation and required consent of the Chippewos of the

Mississippi.

NOWTHEREFORE BE lT FINALLY RESOLVED, that White Earth Band of Ojibwe requireswritten

confirmation by the Corps' that separate, free and prior, informed consent (as required by the

United Nations Declaration on the Rights of lndigenous Peoples (UNDRIP)) is required by and

from the Chippewos ol the Mississippr as co-owner, for this Line 3 pipeline project, as original

owners of the undivided, one-half interest in the ceded territoriesnatural resources and waters

that link them, within the State of Minnesota regarding eminent domain over public waters

and lands.

,4, 0

ol,

We do here[y c ertify that the foregoing resolution was adopted by a vote o

heing

p resent at a special meeting of the White Earth Reservation

against, O si lent, a qu 61r rm

Minnesota

Business Commi ttee held on...Jultc

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ao

M ichae

. Fairba n ks, Chairman

onard Alan Roy, Secre

easu re r

EXHIBIT B

March 21, 2022

Contact: Gail Nosek at Gail.Nosek@state.mn.us

Minnesota Department of Natural Resources Update on Line 3 Aquifer Breach

Investigation and Enforcement

The Minnesota DNR has completed its investigation of three aquifer breaches that occurred during the

construction of Enbridge’s Line 3 Replacement Project. This update outlines the results of the

investigation and the status of restoration work at each site, building upon the information provided by

DNR in the fall of 2021. The DNR continues to work on a comprehensive enforcement resolution, with

the goal of addressing restoration, mitigation, and additional penalties associated the three breach

locations. The DNR will not be providing further detail regarding the comprehensive enforcement

resolution at this time, but will release a statement upon completion of any final action.

Background

On September 16, 2021, the DNR announced that it had ordered Enbridge to pay $3.32 million for

violations associated with the breach of the confining layer of an artesian aquifer, during the

construction of the Line 3 replacement project near Enbridge’s Clearbrook Terminal.

On October 15, 2021, the DNR announced that Enbridge had agreed to additional penalties for lost

groundwater at the Clearbrook site and that DNR was pursuing a comprehensive enforcement

resolution with Enbridge to address the Clearbrook site and any other uncontrolled groundwater flows.

The DNR stated that it was also investigating two additional sites of uncontrolled flow due to breaches

of the confining layers of artesian aquifers. Due to the ongoing nature of the investigation, the DNR was

not able to share the locations of the additional sites at that time.

Over the course of the last several months, the DNR has also conducted additional investigative work,

including an aerial inspection, to assess whether there were any other unidentified aquifer breach sites.

Thus far, the DNR has not confirmed any additional aquifer breach sites. To ensure thoroughness, we

will finalize our assessment of the potential for any additional aquifer breaches following the spring

thaw.

Clearbrook Terminal Aquifer Breach Site, Clearwater County

On January 18, 2022, Enbridge informed the DNR that it had successfully stopped the flow of

groundwater at the Clearbrook site. The DNR has determined that from October 16, 2021, through

January 18, 2022, there was the additional discharge of approximately 32,600,000 gallons of

groundwater. The discharged water was first directed to a treatment structure to remove sediment and

then returned to the environment. The DNR has inspected the Clearbrook site repair and has

determined that the corrective actions have successfully stopped the uncontrolled flow at this time.

DNR is implementing ongoing monitoring of the aquifer breach repair to verify long-term effectiveness.

LaSalle Creek Aquifer Breach Site, Hubbard County

On August 5, 2021, the DNR learned that an aquifer breach had occurred during the construction of Line

3 near LaSalle Creek. The investigation indicates that the breach occurred on or about August 2, 2021,

during pipeline construction through the river valley's eastern slope, where sheet piling was installed

prior to trench excavation. Sheet piling was used during the construction to minimize the trench width

and maintain trench stability. Enbridge stopped construction work at the LaSalle Creek site and the DNR

outlined the immediate actions that Enbridge needed to take to address the uncontrolled groundwater

flow.

On August 18, 2021, the DNR approved a remedial groundwater investigation plan to gather

hydrological information needed for the development of a corrective action plan to stop the flow.

Following completion of this study, on September 29, 2021, the DNR approved the Corrective Action

Plan to stop the uncontrolled flow of groundwater at the site.

On December 20, 2021, Enbridge notified the DNR that it had successfully stopped the groundwater

discharge at the site. A report from the company further indicated that the total volume of groundwater

discharged at this site was 9,800,000 gallons. Initial monitoring of the site by Independent

Environmental Monitors has confirmed that the discharge at the site has been stopped. The DNR will

conduct additional onsite monitoring to verify conditions after the spring thaw and continue to monitor

the aquifer breach repair for long-term effectiveness.

Mile Post 1102.5 Aquifer Breach Site, St. Louis County

On September 15, 2021, the DNR learned of an aquifer breach resulting in the uncontrolled flow of

groundwater near Mile Post 1102.5 of the Line 3 pipeline construction. This site is located on county

land in southern St. Louis County and is just west of the Fond du Lac Band of Lake Superior Chippewa

Reservation. The DNR has partnered with the Fond du Lac Band, St. Louis County, Minnesota Pollution

Control Agency (MPCA) and Minnesota Department of Health (MDH) in investigating the site and

reviewing corrective action plans to stop the uncontrolled flow.

The investigation indicates that the aquifer breach was identified on or about September 10, 2021,

when groundwater began upwelling during the removal of sheet piling following completion of pipeline

construction in the area. The DNR outlined the immediate actions that Enbridge needed to take to

address the uncontrolled groundwater flow at the Mile Post 1102.5 site and approved an initial

groundwater investigation plan on September 29, 2021.

The Mile Post 1102.5 site is located in a wet forest complex that gently drops in elevation eastward

toward the Fond du Lac Reservation lands. The aquifer breach at this location resulted in high pressure

flow of groundwater, with the potential to impact Dead Fish Lake on the Fond du Lac Reservation, a

valuable wild rice water for the band. To date, it is estimated that 219,600,000 gallons of groundwater

have been released by this aquifer breach. The hydrogeology at this site is particularly complex,

resulting in a challenging groundwater investigation and corrective action planning process.

Between October 2021 and February 2022, the DNR, Fond du Lac Band, St. Louis County, MPCA, and

MDH provided regulatory oversight of the groundwater investigation and development of the Corrective

Action plan for the site. State, tribal and county governments approved the plan by February 16, 2022.

Enbridge has informed the DNR that initial corrective action at the Mile Post 1102.5 site has

substantially reduced the flow of groundwater, from approximately 330 gallons per minute (gpm) to 6

gpm. Additional work is ongoing and the DNR and its partners continue to monitor progress.

The DNR appreciates the close working relationship with the Fond du Lac Band, St. Louis County, MPCA,

and MDH to investigate this site and agree upon the Corrective Action Plan.

For Additional Information

Please visit to view groundwater investigation plans and corrective action plans associated with the

three sites.

####