On Wednesday, the U.S. government filed a brief in the ongoing legal case between the Bad River Band of Lake Superior Chippewa and Canadian pipeline company Enbridge.

In its brief to the Seventh Circuit Court of Appeals, the federal government argued that the U.S. District Court for the Western District of Wisconsin correctly held Enbridge in trespass for continuing to operate on 12 parcels of land owned partially or wholly by the Bad River Band after Enbridge’s rights-of-way on those parcels expired in 2013.

However the U.S. also recommended that the case be remanded to the district court to reweigh the equities and public interest considered when granting relief for the trespass.

“In determining the proper injunctive relief in this unique case, the court should fully consider the Band’s treaty and sovereign rights in its lands — rights that the United States is obligated to respect,” the brief reads.

“The court should also fully consider the possible consequences of an order requiring the shutdown of the pipeline, including its effect on the United States’ obligations under the Transit Pipeline Treaty and the United States’ diplomatic and commercial relationship with Canada.”

Enbridge’s Line 5 pipeline stretches from northwest Wisconsin through Michigan, where it runs along the bottom of the Straits of Mackinac, and into Sarnia, Ontario. The pipeline transports up to 540,000 barrels of crude oil and natural gas liquids per day.

When the Western District Court of Wisconsin ruled that the pipeline company had been trespassing on the band’s sovereign territory, it ordered the company to shut down its pipeline by 2026 and to pay the tribe more than $5 million in damages.

While the Bad River Band filed for an injunction requesting the pipeline to be shut down immediately, citing concerns that the pipeline would be exposed and ruptured due to erosion, that request was denied.

The Bad River Band and Enbridge are both appealing the ruling. The band is asking for a greater share of Enbridge’s profits and for the pipeline to be shut down within six months, while Enbridge argued that a 1992 contract between Enbridge and the band allows the company to continue operating Line 5 on the Bad River Reservation through 2043.

The Canadian Government has also weighed in on the case, arguing that a shutdown of the pipeline would violate the 1977 Transit Pipelines Treaty, which limits the authority of the U.S. and Canada to impede the flow of oil and natural gas between nations.

In its brief the U.S. government argued the 1992 agreement cannot give Enbridge the right to occupy the band’s territory, and noted its interest in complying with its treaty obligations made to all sovereigns, including foreign nations and Tribal Nations.

It also argued that the district court had failed to properly calculate the amount of money to be paid to the band.

“The district court properly sought to require a suitable disgorgement of net profits from Enbridge associated with its trespass but erred in its calculation of that remedy. In particular, the court erroneously applied various ‘discount’ factors to Enbridge’s avoided costs, resulting in an amount that is only 0.25% of those costs,” the brief reads.

“The court’s total award of $5 million in restitution — compared with over a billion dollars in profits associated with Line 5 in the relevant time period — fails to meet restitution’s goals of addressing unjust enrichment and deterring similar conduct,” it reads.

After oral arguments in the appeal, which were held in February, Judge Frank Easterbrook, one of the three judges on the panel reviewing the case, noted the Court was seeking an opinion from the U.S. government. Later that month, more than 30 Tribal Nations in the Great Lakes region sent a letter requesting that the U.S. government weigh in on the case.

Robert Blanchard, chairman of the Bad River Band, issued a statement Wednesday in response to the U.S. government’s brief.

“Today, the United States agreed that Enbridge’s ongoing occupation of our land is illegal. We are grateful the U.S. urged the court not to let Enbridge profit from its unlawful trespass. But we are disappointed that the U.S. has not unequivocally called for an immediate end to Enbridge’s ongoing trespass, as justice and the law demand,” Blanchard said.

“Enbridge should be required to promptly leave our Reservation, just like other companies that have trespassed on tribal land. We are hopeful that the appeals court will put an end to Enbridge’s shameful decade of trespass and not condone its exploitation of our land and sovereign rights,” he said.

While the band appreciates the U.S. government’s support, it disagrees with the government’s argument that the courts do not have the authority to protect their reservation from an imminent rupture of the pipeline, Blanchard said.

“We trust that the appeals court will not strip away the hard-fought protections that we have secured for the Bad River watershed and Lake Superior through this litigation,” Blanchard said.

In an email to the Advance, Enbridge spokesperson Ryan Duffy maintained that a shutdown of the pipeline would violate the 1977 transit treaty.

“The Government of Canada has made its position clear. Such a shutdown is not in the public interest as it would negatively impact businesses, communities and millions of individuals who depend on Line 5 for energy in both the U.S. and Canada,” Duffy said.

Duffy also said that the company had begun relocating the pipeline off the Bad River Reservation long before the court’s order, but insisted that Enbridge’s 1992 agreement with the Bad River Band allowed the company to remain on the Reservation through 2043.

“We appreciate that leaders in both Ottawa and Washington are engaged in the Treaty resolution process and recognize Line 5 is critical energy infrastructure,” Duffy said.

Whitney Gravelle, president of the Bay Mills Indian Community, one of the Tribal Nation’s fighting against Enbridge’s Line 5 tunnel project in the Straits of Mackinac, also weighed in on the U.S. government’s brief.

“The filing leaves more questions than answers. It also leaves Bad River, other Tribal Nations throughout the region, and the 40 million people that rely on the Great Lakes at risk of a catastrophic spill. We fear it will take Line 5 failing again, and the disaster of an oil spill for our position to be taken seriously,” Gravelle said.

“This isn’t just about tribes, it is about clean water, it is about life. It is about every U.S. citizen and preserving our natural resources for generations to come,” Gravelle said.

The brief also drew criticism from a number of environmental groups, including the Sierra Club, National Wildlife Foundation, the Environmental Law and Policy Center, For Love of Water, Women’s Earth and Climate Action Network and the Michigan League of Conservation Voters.

“Given the paramount sovereign interests of the tribe, Enbridge’s trespass on the Bad River Band must end immediately. To this end, we are dismayed that the U.S. government did not unequivocally support the Bad River Band’s right to immediately end Enbridge’s illegal trespass and prevent a catastrophic oil spill from Line 5.” Liz Kirkwood, executive director of For Love of Water, said in a statement.

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