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As Opponents Continue Line 3 Fight, Wild Rice and Tribal Sovereignty Take Center Stage | Columbus Ohio Dump Trucks


A Rights of Nature case is being used for the first time in tribal court, against Line 3 pipeline construction. 

Photo credit: Scot Martin

In what was then known as the largest inland oil spill in U.S. history, the 1991 rupture of the 34-in.-dia Line 3 pipeline, which carries crude oil 1,097 miles from Edmonton, Alberta to Superior, Wis., sent 1.68 million gallons into the Prairie River about two miles north of Grand Rapids, Minn.

The “integrity risks” of the 53-year-old pipeline, now owned by Calgary-based Enbridge, along with the related reduced capacity of oil flow, are among the reasons the Charlotte NC dump trucks company cited when it sought approval for its Line 3 replacement project, now almost complete.

See more of ENR's "Engineering Justice" Series here.

The line adheres to the original route until it reaches Clearbrook, Minn., then cuts a different path until it reaches Chub Lake, Minn. Construction for that route change is at the center of a resistance movement involving Indigenous and environmental groups that has led to mass protests, hundreds of arrests, an array of legal battles to stop completion and commissioning of the pipeline, and even the intervention of the United Nations Committee on the Elimination of Racial Discrimination, which sent an Aug. 25 letter requesting that the U.S. respond to allegations of treaty violations and discrimination related to Line 3.

“Reportedly, this project would exacerbate the already disproportionate impact of climate change on indigenous peoples in Minnesota, putting at risk their watersheds and their wild rice ecosystem,” states the letter.

“The Line 3 site I think illustrates how communities can stand up and speak up about the issues that are happening,” including with the request for intervention by the UN, says Catherine Collentine, associate director of the Sierra Club’s Beyond Dirty Fuels Campaign. “But there's no point in any permitting process that we shouldn't be talking about environmental justice issues.

Environmental justice concerns have been the subject of both and internal and external conflicts around permitting.

When the Minnesota Pollution Control Agency in November 2020 issued a 401 certification, the state component of the federal 404 permit, 12 of 17 members of an advisory group created to advise the department on environmental justice issues and the department’s environmental justice framework resigned because they didn’t agree with the decision.

The optics of the group might have looked good, but “they don't actually take your advice in any sense of the word—it’s just a lie,” said Lea Foushee, environmental justice director of the North American Water Office, who was one of the resignees. 

Court decisions on both the 401 certification and a certificate of need have affirmed those permits, but representatives have filed on behalf of the wild rice crop, or Manoomin, and is now a plaintiff, along with the White Earth Band of Ojibwe and tribal members. In the complaint filed in tribal court Aug. 4 against the Minnesota Dept. of Natural Resources (DNR), tribal attorneys Frank Bibeau and Joe Plumer, are seeking declaratory relief on the inherent rights of wild rice as well as the “collective and individual right of sovereignty, self-determination, and self-government” for Chippewa tribal members, which includes the White Earth band.

“A spill of tar sands in those waterways would be deeply problematic and would put at threat those treaty rights, and possibly destroy those bodies of water” where the rice is harvested, says Collentine.

Not just a food, “wild rice is part of our creation stories, and our migration stories from the east coast to where we are here in the Great Lakes in northern Minnesota,” says Bibeau.

Plaintiffs are also asking that Line 3’s water permits be rescinded, drawing attention specifically to a water permit issued in November 2020 originally allowing Enbridge to withdraw up to 510 million gallons of water for dewatering during trench construction. An amended permit issued in June 2021 allows Enbridge to withdraw almost 5 billion gallons, 10 times the original amount, which Enbridge said was necessary because there was more groundwater than previously thought.

Pipeline opponents are concerned that the dewatering process itself could affect the quality of environmental conditions in which the rice grows.

The complaint says DNR did so “abruptly, unilaterally and without formal notice to tribal leaders (quasi-secretly), and without Chippewa consent,” going on to say it is “failing to protect freshwater resources for Manoomin … with callous disregard for the Rights of Nature, Rights of Manoomin and Rights of the Chippewas reserved by a series of 44 Treaties with the United States.”

A spokesperson for Enbridge says the “permit conditions protect the environment during construction, and specifically wild rice” adding the project employed a “first-of-its kind Tribal Cultural Resource Survey led by the Fond du Lac Band of Lake Superior Chippewa who managed review” of the Minnesota route, with “sixty tribally significant cultural locations were identified and recommended for further avoidance, mitigation treatments or Tribal monitoring.” Originally opposed to the project, under a 2018 agreement Fond du Lac band allowed Enbridge to build the replacement through their territory, where the line returns to its original route. The alternative the band faced at the time was a rerouted pipeline through treaty territory.

On Aug. 19 DNR filed for a preliminary injunction against the lawsuit. U.S. district court Judge Wilhelmina M. Wright denied the request, writing the district court itself lacked jurisdiction in the matter. Minnesota DNR is appealing the dismissal to the 8th U.S. Circuit Court of Appeals. DNR says it “must address these jurisdictional issues before anything further in this litigation can be resolved.”

The territory the new pipe runs through is covered by a series of treaties between the Chippewa and the U.S. government, giving the tribes the right to hunt, fish and gather in lands ceded by the tribe under the treaties, according to plaintiffs.

“They have essentially taken away our ability to exercise our rights to harvest wild rice and they’ve taken away water to essentially facilitate our worst climate change threat,” says Bibeau.

“This is probably one of the shortest, fastest [harvesting] seasons I've seen in probably 30 years,” he adds. The amended permit was issued just as the state began to enter a drought that would quickly grow in severity, and is still ongoing in northern Minnesota. 

Minnesota DNR says “any localized impacts to natural resources due to the temporary lowering of the water table are short‐term and minimal,” and that between 95% to 97.5% of the original volume of pumped water returns to the water table. “This summer’s dry conditions have reduced the amount of dewatering that was required,” it added, with Enbridge reporting that 814.4 million gallons were used by August’s end.

The rights of Manoomin fall under a relatively young legal doctrine called rights of nature, which seeks to recognize and protect the legal rights of the natural world. The case is the first of its kind to be filed in tribal court, and just the second such case filed this year in the United States. “There isn’t a whole bunch of case law against us because it’s all new,” says Bibeau.

The White Earth band established the rights of Manoomin in 2018. In recent years, Indigenous tribes, cities and even countries have established rights for everything from bodies of water to the animal kingdom.

Whatever happens in tribal court will likely not be the last step. “When it comes to the injunction that I'm seeking, I’ll still probably have to go to federal court to have that enforced against the state of Minnesota,” says Bibeau.