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Tribal leaders say state’s consultations on Line 5 are lacking COURTESY PHOTO

Tribal leaders say state’s consultations on Line 5 are lacking

BY Friday, December 10, 2021 05:12pm

A little more than a year after Gov. Gretchen Whitmer ordered Enbridge to shut down the Line 5 pipeline in the Straits of Mackinac, the state retreated on its key lawsuit seeking to close the twin pipelines.

While the move late last month was meant to shift the legal focus to Attorney General Dana Nessel’s separate effort in state court, Indigenous tribal leaders who are united in their Line 5 opposition have expressed cautious optimism to Whitmer’s move — with an emphasis on cautiousness. 

“While I can understand the legal nuances that are in play while you’re reaching such a decision, it was concerning,” Whitney Gravelle, president of Bay Mills Indian Community in the Upper Peninsula, said of Whitmer’s decision. “The only calculus I can see here is that a stronger battle remains in state court.”

Moreover, Gravelle and at least one other tribal leader say the Whitmer administration’s consultations with tribes over Line 5 have been insufficient given a 2019 executive directive that Whitmer issued promising stronger state-tribal relations.

“On this issue, I think it’s fallen short,” said Aaron Payment, chairperson of the Sault Ste. Marie Tribe of Chippewa Indians. “Gov. Whitmer is the first to give specifics (about mandating consultation with tribes), but I would say sometimes the devil gets lost in the details. As it relates to Line 5 or the wolf hunt, in a lot of these issues we get relegated to basically another constituency. I think it’s her intent, but I would like to see more direct attention from the governor. You would expect these consultation sessions would happen at a higher level rather than administrative staff that are often four or five rungs below.”

Gravelle expressed similar criticism.

“I think there’s a fundamental misunderstanding between what tribal consultation means to tribes and what tribal consultation means to the state and federal governments,” said Gravelle, a graduate of Michigan State University’s College of Law who formerly served as Bay Mills’ tribal attorney. “It’s this constant battle that we’re not just a box to check when you’re taking action and making decisions that affect our lands or our resources.”

Moving parts, tunnel uncertainty

Whitmer’s lawsuit withdrawal is one of several moving parts to the Line 5 dispute that involves state and federal lawsuits, state regulatory permitting and diplomatic relations between the U.S. and Canada. For example, Tribes are party to a contested case at the Michigan Public Service Commission involving moving Line 5 as it exists now.

Enbridge said in a Nov. 30 statement that it will continue to pursue its case in federal court to keep Line 5 open “to affirm federal jurisdiction over Line 5.”

Meanwhile, tribes have petitioned the Biden administration to intervene on behalf of their treaty rights that date back to 1836. In a Nov. 4 letter, all 12 federally recognized tribes in Michigan called on the Biden administration to support Whitmer’s previous legal action, “seriously consider” revoking a presidential permit allowing Line 5 to operate, and “provide for our participation in any negotiations with Canada regarding the pipeline.”

Gravelle said tribal leaders had not heard a response as of late last week.

Another point of concern among tribes is Whitmer’s position on building a tunnel in the Straits that could keep Line 5 operating for decades. Whereas Nessel has been unequivocal about permanently decommissioning Line 5, the Whitmer administration has in effect supported Enbridge’s tunnel plan that was negotiated under former Gov. Rick Snyder.

In an emailed response last week, Press Secretary Bobby Leddy said Whitmer’s decision to “voluntarily dismiss her case against Enbridge does not impact the proposed tunnel. The state has approved the necessary permits for the tunnel and is awaiting (a) decision from other agencies and departments at the state and federal level before the project can move forward.”

However, tribes that are party to the 1836 treaty say the tunnel is a direct threat to their rights and, more specifically, a threat to the local ecology and fishing resources.

In a statement following Whitmer’s decision late last month, Payment called for a “clear statement that a tunnel is not tenable.”

“We believe (Whitmer is) genuinely trying to shut down Line 5, but we’re not naive,” Payment said in an interview. “We know labor has put a lot of pressure on her to build this tunnel.”

While remaining hopeful of a positive relationship with the Whitmer administration, tribal leaders say that will require more direct communication and committing to promises.

“Back to being cautiously optimistic: We hear these promises made of clean, renewable energy,” Gravelle said. “We hear promises for a healthy environment that we can maintain a relationship with. Yet we haven’t seen the actions that would support such a move.”

Payment added that he hopes Whitmer’s move represents a “retrench” rather than a “retreat.”

“If this is a retrench rather than a retreat, we’d like to be more intimately involved in the legal strategy,” he said.

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