Enbridge trespassed on sovereign indigenous land for their pipeline

Line 5 is part of Enbridge’s network carrying petroleum products from Western Canada to refineries in the Midwest, Ontario, and Quebec. Roughly 12 miles of the pipeline run underground through the Bad River Reservation in northern Wisconsin, a 125,000-acre homeland created by an 1854 treaty between the United States and Ojibwe tribes.

Ownership along the pipeline corridor is divided. In 1993, Enbridge obtained a 50-year easement over 13 parcels beneficially owned by the Band. That permission remains in effect until 2043. Separate 20-year easements covered 15 allotted parcels held in federal trust for individual Indigenous owners. Those easements expired on June 2, 2013, and required Enbridge to remove the pipeline and restore the land within six months.

During those 20 years, the Band acquired ownership interests in 12 of the allotted parcels through a federal land-reacquisition program. Those 12 parcels, totaling 2.33 miles along the pipeline route, are the land at issue.

Enbridge applied to renew the expiring rights-of-way in March 2013. The applications contained no documentation of landowner consent. Because the Band had acquired interests in the parcels, federal law required its consent before the Department of the Interior could approve new rights-of-way.

The Bureau of Indian Affairs rejected the applications at two levels of administrative review. The Interior Department had not issued a final decision when the appellate court ruled, but the court said Enbridge offered no reason to think the applications could be approved without the missing consent.

The conflict was built into agreements made in the early 1990s. Enbridge negotiated a 50-year right-of-way over the 13 parcels then owned by the Band, paying $800,000 for the Band’s consent. At the same time, the Bureau of Indian Affairs made clear that the allotted parcels would receive only 20-year easements.

That mismatch meant the permission covering one set of parcels would last until 2043, while permission for the intervening allotted parcels would end in 2013. Line 5 could not use the first set without crossing the second.

The appellate court described the resulting problem as foreseeable. Enbridge was a sophisticated commercial party, knew the corridor had different owners and expiration dates, and knew it would have to negotiate again with whoever owned the allotted parcels in 2013.

Those negotiations occurred. The Band sought environmental and pipeline-safety information, influenced in part by a 2010 spill from another Enbridge pipeline that released more than 1 million gallons of crude oil into a tributary of Michigan’s Kalamazoo River. The parties did not reach an agreement. The Tribal Council formally stated in 2017 and 2019 that it would not consent to renewed rights-of-way.

Enbridge did not remove the pipeline or stop operating it across the parcels.

Enbridge offered two principal reasons why it believed Line 5 could remain.

The 1992 agreement

The company argued that its agreement with the Band required tribal consent not only for the 13 specifically identified tribal parcels, but also for land the Band later acquired in the pipeline corridor. The court rejected that reading.

The agreement and its attached documents identified the 13 tribal parcels. Reading its broader language as a promise covering any future acquisition would impose an unspecified obligation on the Band and restrict its sovereign authority over land without unmistakably clear contractual language, the court concluded.

The judges also rejected Enbridge’s claim that the Band violated an implied duty of good faith. The company received what it purchased: a 50-year easement over the 13 tribal parcels. It did not purchase protection against the known risk that different owners might refuse to renew the shorter easements in 2013.

A pending-license provision

Enbridge also relied on a provision of the Administrative Procedure Act that can keep a license alive while an agency considers a timely and sufficient renewal application. The court said the argument failed because Enbridge’s applications were not sufficient: they still lacked the tribal consent required by federal statute and agency rules.

The provision protects applicants from losing permission because an agency is slow to process a complete filing. It does not eliminate a substantive condition that the applicant has failed to satisfy.

The direct, established consequence falls on the Bad River Band. Oil continues to move through land in which the Band has ownership interests after the Band expressly withheld permission. The court treated that occupation as more than an ordinary dispute over rent. Control of reservation land is part of the Band’s sovereign power to decide who may enter and on what conditions.

The appellate court said this invasion of possession and sovereignty constituted irreparable injury. Money alone could not replace control over land that the United States set apart by treaty as the Band’s permanent homeland.

The opinion does not document a Line 5 spill at Bad River, physical injury to a resident, or a quantified loss to individual tribal members. The proven injury is the continued nonconsensual occupation itself. The environmental consequence remains a risk centered on a river bend known as the meander, where erosion has reduced the land separating the Bad River from the buried pipeline.

Other people are implicated by the remedy. The district court found that an immediate loss of Line 5’s supply would harm consumers and increase volatility in markets for light crude oil, natural gas liquids, propane, and butane in the Upper Midwest and Eastern Canada. Those findings helped persuade the appellate court not to order an abrupt shutdown without an alternative route.

Restitution measures what a defendant gained from wrongful conduct rather than what the plaintiff lost. The appellate court held that this profits-based remedy is available for Enbridge’s intentional trespass. In this context, intentional means the company deliberately remained on the land; it does not require a separate finding of malice.

The district court’s specific calculation did not survive. It used two methods and added the results together.

The appellate court did not set a replacement amount. It instructed the district court to choose an appropriate measure of wrongful gain, explain any discounting, and account for the years that have passed, the continuing trespass, possible interest, and the parties’ conduct concerning the reroute.

That leaves the eventual award open in both directions. The Seventh Circuit identified likely double counting, but it also said the district court may have discounted the delayed-reroute benefit too heavily. The $296 million expert estimate was not converted into an appellate award.

The district court had ordered Enbridge to stop operating over the parcels and arrange reasonable remediation by June 16, 2026. The Seventh Circuit agreed that a permanent injunction is warranted but ruled that the three-year deadline was too aggressive, particularly because the trial judge had doubted that the reroute could be completed within that period.

Two sets of public obligations shaped that result. The 1854 treaty, federal statutes governing tribal land, and the requirement of tribal consent all favor bringing the trespass to an end. Allowing it to continue indefinitely would undermine the Band’s treaty-protected control of its homeland.

Line 5 also falls within a 1977 transit-pipeline treaty between the United States and Canada. That agreement broadly protects the cross-border flow of hydrocarbons from government interference. The United States warned that a shutdown could breach the treaty and damage relations with Canada. Canada likewise objected to the fixed shutdown deadline, while acknowledging that a reroute around the Reservation could satisfy the treaty’s objectives.

The court’s solution was not indefinite permission. It directed the district court to provide a reasonable opportunity for Enbridge to complete the reroute, while allowing a deadline and recommending reporting requirements or monetary sanctions to prevent delay.

When the appeal was decided, Enbridge represented that it had made significant progress toward obtaining state and federal permits, though some proceedings remained ongoing. The appellate court left the schedule and enforcement terms to the district judge, who has a more current view of the reroute.

The Band’s separate public-nuisance claim concerned the meander, where the Bad River curves near Line 5. Erosion accelerated during the 2023 flooding season, reducing the riverbank between the water and the buried pipeline. The Band argued that exposure and rupture could release oil and natural gas liquids into the Bad River and Lake Superior watersheds.

After a trial, the district court found the threatened rupture sufficiently imminent to constitute a public nuisance. It imposed a protocol requiring Enbridge to monitor conditions and prepare to shut down and purge the pipeline when triggers such as high water indicated heightened danger.

Enbridge did not challenge that nuisance finding on its factual merits in the appeal. Instead, it argued that the federal Pipeline Safety Act displaced the federal common-law claim. The Seventh Circuit agreed.

Displacement means Congress has enacted a statute that directly assigns the issue to another decision-maker, leaving no role for judges to create a parallel federal common-law remedy. Here, Congress gave the Pipeline and Hazardous Materials Safety Administration, or PHMSA, authority to inspect pipelines, account for geological and environmental conditions, order corrective action, restrict or suspend operations, and issue emergency orders for imminent hazards.

The Department of Transportation told the court that it had inspected Line 5 near the meander, continued to monitor it, and was prepared to impose stricter requirements if necessary. Because that statutory system speaks directly to the erosion and rupture risk, the court reversed the nuisance judgment and vacated the associated injunction.

That ruling does not establish that the meander is safe. It establishes who has federal authority to decide what safety measures are required. The practical consequence is that PHMSA, rather than the district court acting through federal nuisance law, now carries primary responsibility for managing the risk described in this case.

The opinion leaves little ambiguity about the required end state: Line 5 must be removed from the parcels where Enbridge lacks permission, and the affected sites must receive reasonable remediation. The remaining work concerns execution, not whether the Band must accept the pipeline indefinitely.

A remedy consistent with the court’s instructions would include a reroute schedule tied to concrete permitting and construction milestones, regular progress reports, and consequences if Enbridge exceeds the latitude needed to finish the alternative route. The appellate judges specifically identified reporting requirements and monetary sanctions as possible accountability measures.

The district court must also select and explain a restitution method that captures Enbridge’s wrongful gain without counting the same benefit twice. Separately, PHMSA must continue addressing the meander through the safety powers Congress gave it. The trespass remedy and pipeline-safety oversight now proceed on different legal tracks, even though both concern the same operating pipeline.