Federal Court Dismisses Sault Tribe Member’s Treaty-Based Effort (from prison) to Save Structures Encroaching on State Land

Here are the materials in Macleod v. Moritz (E.D. Mich.):

4 First Amended Complaint

19 State Motion to Dismiss

23 Bellfy Motion to Intervene

25 State Opposition to Bellfy Motion

26 MacLeod Motion for Summary

27 MacLeod Opposition to MTD

30 State Reply

32 MacLeod Objection

39 State Supp Brief

41 MacLeod Supp Brief

42 DCT Order on Procedural Motions

43 Magistrate R&R

46 MacLeod Objections

48 State Response

53 Bellfy Notice of Appearance

54 MacLeod-Bellfy Motion

55 DCT Order

Enbridge pipeline litigation, and its (potential) impact on tribal treaty rights in the Great Lakes

In 2010, Enbridge Energy Partners’ Line 6 Oil Pipeline burst near the Kalamazoo River in southern Michigan, spilling 1.1 million gallons of crude oil into the Kalamazoo River system. At the time, it was the worst inland oil spill in the history of the United States. Later that same year, another Enbridge pipeline burst in Illinois, spilling crude oil into a tributary of the Des Plaines River.

On July 20th of this year, the U.S. Department of Justice and the Environmental Protection Agency filed a lawsuit against Enbridge the U.S. District Court for the Western District of Michigan relating to those spills under various federal statutes – along with a proposed Consent Decree. A Consent Decree is a negotiated court order; and, once entered by the Court, has the force of law.

That Consent Decree addresses a number of issues, and requires Enbridge to take steps to improve the safety of its pipelines – a worthy objective. But, the Consent Decree also addresses Enbridge’s Line 5 Pipeline in northern Michigan in a manner that potentially impacts tribal treaty rights.

The Line 5 Pipeline carries oil through Michigan’s Upper and Lower Peninsulas. To do so, it crosses the bottom of the Straits of Mackinac, which is a narrow stretch of water between Michigan’s two peninsulas, and it links Lake Michigan to Lake Huron. In normal winters, the Straits of Mackinac are completely covered in ice for three months.

This pipeline has been in operation since 1953, and has become increasingly controversial due to its age, Enbridge’s safety record, and the fact that Enbridge has not complied with its requirements to maintain structural supports for the pipeline on the bottom of the Straits. The State of Michigan has been reviewing the pipeline for the past several years, as a number of citizens and groups have called for it to be shut down. A number of Indian tribes have expressed concern about the pipeline, and its potential impact on the Great Lakes and the tribal fishery. NCAI has adopted a resolution in opposition to the Line 5 Pipeline.

A rupture of Line 5 at any time could result an a catastrophic oil spill in the Straits of Mackinac that would impact both Lake Michigan, Lake Huron, and other connected waters. A rupture in the winter would be even more devastating, because containment and cleanup efforts would be made harder by the ice covering the Straits. A spill would also have an unknown impact on the fishery in Lake Michigan and Lake Huron.

Five of the twelve federally-recognized Indian tribes in Michigan are parties to the 1836 Treaty of Washington, which reserved off-reservation hunting and fishing rights throughout the ceded territory, which comprises approximately 40 percent of present-day Michigan – including in Lake Michigan and Lake Huron. The Straits of Mackinac are located in the center of that ceded territory.

In 1973, the United States Department of Justice filed a lawsuit against the State of Michigan on behalf of the Bay Mills Indian Community to enforce the 1836 Treaty. In 1979, Judge Fox of the United States District Court for Western District of Michigan issued the “Fox Decision,” which upheld the continued existence of tribal fishing rights in the Great Lakes under the Treaty of 1836.

In 1985, the Department of Justice, the 1836 Treaty Tribes, and the State of Michigan negotiated a consent decree to govern how tribes would exercise those rights. The parties negotiated a new consent decree in 2000, which expires in 2020. The parties – the United States Department of Justice, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, the Sault Ste. Marie Tribe of Chippewa Indians, and the State of Michigan – are set to begin negotiations soon on a new consent decree in United States v. Michigan to replace the decree that expires in 2020.

Enbridge’s Line 5 Pipeline was/is certain to be a topic of discussion during those negotiations. There are many members of the five treaty tribes who are commercial fishermen, and depend upon the Great Lakes fishery for their livelihood. Many of those tribes have tourism-based economies that depend on the Great Lakes. The cultural importance of the Great Lakes to the Tribes does not require explanation. Leaders of the Tribes have been vocal about their concerns with the Line 5 Pipeline, and its potential to harm tribal cultural and economic resources.

The Department of Justice serves as the law firm for the 1836 Treaty Tribes during the consent decree negotiations (after all, the case is captioned United States v. Michigan).  The same lawyers within the United States Attorney’s Office in the Western Michigan District who participated in the United States v. Enbridge negotiations are also representing the 1836 Treaty Tribes in negotiations under United States v. Michigan.

Those tribes were caught off-guard by the Department of Justice’s proposed consent decree with Enbridge Energy Partners, and its provisions related to the Line 5 Pipeline crossing.  The Department of Justice and the EPA did not consult with the 1836 Treaty Tribes about how their negotiations would affect their treaty fishing rights.

The oil spill that gave rise to the Department of Justice’s lawsuit against Enbridge occurred near Marshall, Michigan – 275 miles south of the Straits of Mackinac. There was no indication to the 1836 Treaty Tribes that the Department of Justice’s and the EPA’s negotiations with Enbridge would address the Line 5 Pipeline.  In fact, the proposed consent decree in United States v. Enbridge does not mention the words, “tribe,” “tribes,” or “treaty.”

Last month, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in that case objecting to the proposed Consent Decree and demanding that the federal agencies consult with the 1836 Treaty Tribes on the provisions related to the Line 5 Pipeline. That pleading is here: tribe-objects

Without further action or amendment, the proposed Consent Decree in United States v. Enbridge could take effect. In practical terms, that could limit the ability of the Department of Justice to seek additional protections on behalf of its tribal clients in upcoming consent decree negotiations in United States v. Michigan.

The Department of Justice has published notice that it will accept public comments on the proposed consent decree in United States v. Enbridge until October 21, 2016. The Federal Register Notice is here.

That notice was published on the very same day that the Department of Justice published a separate statement announcing a temporary halt to the construction of the Dakota Access Pipeline.

Pro Se Effort to Stop Michigan DNR Land Transfer to Mining Company Dismissed

There are numerous pleadings here but here are the most relevant — the case is captioned Bellfy v. Creagh (W.D. Mich.):

12 DCT Order on 2d TRO Request

18 Michigan Motion to Dismiss

22 Response

27 Reply

35 GTB Brief

52 DCT Order

Prior post on this case here.

Pro Se Effort Challenging Michigan DNR Land Sale to Mining Company Fails

Here are the materials in Bellfy v. Creagh (W.D. Mich.):

1 Complaint

1-1 CORA Resolution

2 Motion for TRO

4 DCT Order Denying TRO

An excerpt:

This matter is before the Court on Plaintiffs’ ex parte Motion for Temporary Restraining Order (docket # 2), filed today. Plaintiffs seek to “enjoin Defendant, or other State of Michigan officers, employees, agencies, subdivisions, successors, or assigns” from approving a proposed sale of State land in the Upper Peninsula. (docket # 2.) Plaintiffs contend that the sale would impair their rights under the 1836 Treaty of Washington and in a 2007 Consent Decree reaffirming those rights. The Consent Decree is the subject of another case in this District, United States of America v. State of Michigan, et al., No. 2:73-CV-26 (W.D. Mich. November 2, 2007) (consent decree, docket # 1799), currently assigned to Chief Judge Paul Maloney. The Consent Decree not only addresses substantive rights of the parties, but also describes detailed alternative dispute resolution procedures. (docket # 1799, pp. 62-67.) The nature of the claim Plaintiffs are attempting to assert pro se appear to touch on both procedural and substantive provisions of the Consent Decree.

Tribes and the Michigan Wolf Hunt

The Michigan Natural Resources Commission has approved a wolf hunting season here in Michigan, just one day after Governor Snyder signed legislation authorizing the Commission to determine whether to allow such hunting.

In recent years, Anishnaabe tribes (Ojibwe, Potawatomi, and Odawa) in MichiganWisconsin, and Minnesota have opposed state-sanctioned wolf-hunting.  Wolves are important in the religious teachings of Anishnaabe people, and it is often said that the Ma’iingun (wolf) and the Anishnaabe are brothers whose fates are linked.

Senator Casperson of Escanaba,  the primary sponsor of the legislation, dismissed tribal religious concerns during the process, stating:

“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”

Aside from the Senator’s ironic statement, some Michigan tribes have also based their objections on the legal relationship between the tribes, the state, and the United States.  The 1836 Treaty of Washington reserved the hunting, fishing, and gathering rights of what are now five of Michigan’s Ojibwe and Odawa tribes throughout much of the State of Michigan.  In 2007, those five tribes and the State entered into a court-approved agreement to clarify tribal rights on lands ceded under that treaty.

Section 22 of the 2007 Agreement addresses tribal “activities designed to restore, reclaim, or enhance fish, wildlife or other natural resources within the inland portion of the 1836 Ceded Territory through stocking, rearing, habitat improvement, or other methods.”

Section 23 of the 2007 Agreement addresses consultation between the tribes and the State.  In particular, Section 23.4 provides:

“23.4 The State and the Tribes shall notify each other at least annually of proposed regulatory changes (including changes in management units or methodologies for determining the allowable harvest of any species) before they take effect (except where, due to an emergency or other matter beyond the control of the Parties it is not possible to provide advance notice) and seek to resolve any concerns arising from such changes before implementing them. Upon request, the State and the Tribes shall share information regarding the rationale for such changes and their anticipated effects (e.g., changes in species abundance, distribution, or age or sex ratios). Upon request, the State and the Tribes shall provide similar information for any existing regulation, management unit or allowable-harvest methodology. The information provided shall be sufficiently detailed to enable the other Parties to fully understand the regulation, management unit or allowable-harvest methodology at issue and any underlying data associated with it, and to enable them to make constructive suggestions for improvements to such regulation, management unit or harvestable surplus methodology.”

I am citing these provisions to highlight one basis of tribal opposition to the State’s proposed authorized wolf hunt.  I am not privy to information regarding the level of consultation between the tribes and the State, and whether the State has satisfied its obligations under the 2007 Agreement.  That issue may well be decided in the near future.

I can say that merely including tribes in a general public comment process does not fulfill tribal consultation requirements at either the state or the federal level.  That is not the legally appropriate forum in which to address tribal treaty rights.  If that is the extent to what occurred with the wolf hunt, I’m not sure that all of the tribes that were parties to the 2007 Agreement would believe that the State has fulfilled its obligations.

Lastly, the rights reserved in the 1836 Treaty necessarily include the right to protect habitats and ecosystems that would support hunting, fishing, and gathering.

It is well-documented that wolves are considered a “keystone” species in their natural habitat (which includes most of northern Michigan).  This means that their existence and well-being affects the health and well-being of many other species of plants and animals in their ecosystem.

To the extent that Michigan’s state-sanctioned wolf-hunt impacts tribal rights to hunt, fish, and gather other species, then those tribes may have a valid basis for challenging the size and scope of the hunt.

*Any views expressed in this post are solely those of the author, and not representative of any tribes or other organizations.