The Battle for Bad River

Photo: Alex Schwartz (Earther)
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“Water is life” takes on new meaning at the Kakagon-Bad River Sloughs. Here, the water itself feels alive. The 10,000-acre wetland on the southwestern shore of Lake Superior is an ever-changing landscape of marshes, bogs, and lagoons. Cedar and pine forests give way to fields of aquatic grasses like wild rice, which filter nutrient-rich sediment from upstream waterways and even the lake itself. Muskrats slosh among the cattails, endangered piping plovers nest on nearby beaches, and sturgeon and walleye lay eggs in the calm shallows. These are the lungs of Lake Superior, and you can feel them breathing.

The sloughs are the crown jewel of the Bad River Watershed, where 1,000 square miles of rivers, creeks, and tributaries meet North America’s largest lake. The wetlands are the last of their quality and size on Lake Superior, and in 2012 they were named a Ramsar Wetland of International Importance. The sloughs have managed to stay largely unaltered thanks to the Bad River Band of Lake Superior Chippewa (Ojibwe), whose reservation encompasses this crucial ecosystem. The tribe’s relationship with this land extends beyond ownership or even stewardship—in every possible sense, this is their home, and it must be protected.

Yet further upstream from the sloughs runs what the tribe says is a disaster waiting to happen.

The Battle for Bad River
Photo: Alex Schwartz (Earther)

Several miles from the sloughs, a 66-year-old, 30-inch-wide steel pipeline buried near the Bad River transports nearly 23 million gallons of crude oil and natural gas every day. As the river meanders, the flow of water inches closer to the aging pipeline and could cause it to rupture, sending oil gushing into the slough and Lake Superior.

Like a giant Brita, the marshes and wild rice beds can filter out many things that get sent downstream, but they’d be no match for crude oil. Thick, toxic globs of it would coat thousands of acres of pristine wetlands within minutes, eventually dispersing along the southern coast of Lake Superior and washing up on the shores of the nearby Apostle Islands. As the oil settles, it would contaminate the Bad River Band’s groundwater aquifer, from which the tribe gets most of its water, and destroy the sloughs’ sacred wild rice beds, on which members depend for food and income.

“The power of our land and our water is shifting that pipe,” Mike Wiggins Jr., Bad River’s tribal chair, told Earther. “That’s a perpetual dance with danger.”

To Bad River tribal members, wild rice is more than a superfood; it’s why they live here. Manoomin, the Ojibwe word for wild rice, means “good seed.” Ceremony surrounds the planting and harvesting of the crop, all of which is still done carefully, sustainably, and without heavy machinery—the same way the tribe’s ancestors did. Bad River’s efforts to protect and manage this crucial resource have maintained these wild rice beds as the largest and most pristine on the Great Lakes.

The Ojibwe migration story tells of a long journey from what is now New England and the St. Lawrence River Basin to the western Great Lakes. The first of seven prophets foretold the arrival of a light-skinned people who would challenge the tribe’s way of life, compelling them to move westward toward the place where food grows on water. The first Ojibwe travelers who canoed into the sloughs from the lake found what they were looking for when they saw vast beds of wild rice shimmering in the wind. Ever since, the rice has been integral to life at Bad River.

Line 5 carries light crude derived from Canada’s tar sands and North Dakota’s Bakken formation and natural gas liquids 645 miles from Superior, Wisconsin, to Sarnia, Ontario. Enbridge, the Canadian energy company that operates the pipeline, entered into easements with Bad River in 1953 to lease about 13 of those miles from the tribe, razor cutting a line in the forest and bisecting the reservation with the buried line. Fifteen of those easements had limits of 20 years and were renewed twice in the latter half of the 20th century, but the tribe let them expire for good in 2013. Four years later, they passed a resolution emphasizing their decision not to renew the easements and calling for the removal of the pipeline from reservation lands.

The Battle for Bad River
Photo: Alex Scwartz (Earther)

Wiggins says the tribe entered into discussions with Enbridge following that resolution, but they didn’t reach an agreement because of “irreconcilable differences.”

“They’re a for-profit, foreign-based company that wants to continue operations for profit,” he said. “They don’t have the legal authority to do that.”

Bad River intends to prove that lack of authority in court. At the end of July, with oil still flowing through the pipeline, the tribal council felt they had no other option but to sue Enbridge to have the pipeline removed. The complaint, which says the easements required Enbridge to remove all equipment and restore the land to its original condition within six months of expiration, asserts that the company is trespassing on sovereign land. Enbridge has until the middle of September to respond to the litigation.

Beyond trespassing claims, the complaint cites Enbridge’s questionable safety record and the conditions of Line 5 at a specific site near the Bad River as necessary reasons for decommissioning the pipeline. Its age is of particular concern. The Pipeline and Hazardous Materials Safety Administration (PHMSA) explains that alternating pressures associated with the flow of oil through a pipeline can bend and crack steel over time, and several Enbridge pipelines younger than Line 5 have already failed because of this “fatigue cracking.”

Engineers who built the pipeline expected it to last 50 years. Now 16 years past its expiration date, no major replacements have been made. On the stretch of Line 5 that includes the Bad River Reservation, Enbridge identified 844 “anomalies,” referring to cracks or features resembling cracks in 2011, according to data acquired by the National Wildlife Federation (NWF) in 2017. NWF also found that Line 5 itself has leaked at least 29 times since 1968, spilling more than a million total gallons of oil.

Many Great Lakes residents still remember Enbridge’s most infamous disaster in the region, when another pipeline, Line 6B, released more than 843,000 gallons of heavy tar sands oil into a tributary of the Kalamazoo River in Michigan. The 2010 leak was the costliest oil spill in U.S. history as well as one of the nation’s largest inland spills, all made worse by the fact that Enbridge’s own failure detection methods failed. The company didn’t notice the rupture for 17 hours, during which oil continued to flow until a utility worker saw it spilling into the creek and called Enbridge directly. Following the spill, 34 miles of the waterway remained closed for cleanup efforts for as long as two years.

Bad River’s complaint says the remoteness of the reservation makes noticing a spill there even harder, especially because Enbridge’s spill mitigation efforts “still rely, in part, on the public to report leaks,” according to a 2018 Administrative Hearing in Minnesota.

There are at least 14 known Line 5 stream or river crossings within reservation boundaries, all of which eventually make their way into the sloughs. But the complaint specifically calls the crossing near the Bad River itself “one of impending disaster.” When Enbridge routed the pipeline across the reservation, they likely expected the land to stay the same for as long as it was buried there. But the river had other ideas.

Over time, rivers on gently sloping land tend to erode banks unevenly when faced with the slightest disturbance in their paths, like burrowing animals or fallen tree. The disturbances can cause the constantly moving water to curve widely, changing shape and re-forming the land around it over time. The Bad River’s meander in particular has formed a peninsula surrounding a part of Line 5 that wasn’t buried deeper than the riverbed. The northern side of this peninsula will inch closer to the southern side until the two connect, pinching off the curve of water to the west into an oxbow lake. Line 5 sits directly in that erosive path. In 1963, the bank of the river was 320 feet from the pipeline; today, it’s only 28 feet away, and the rate of erosion is increasing.

As climate change tightens its grip on the Midwest, downpours in the region have worsened dramatically, sending more water down the Bad River and causing it to eat away more quickly at the surrounding soil. Bad River has experienced two 200-year storm events in the past three years, including a major flood in 2016 that left much of the reservation’s infrastructure underwater for weeks. Wiggins said another flood event could be the straw that breaks the camel’s back and leaves the pipeline exposed and unsupported. That makes it vulnerable to river currents, which could oscillate the pipe and create fatigue damage it wasn’t designed to handle. An exposed Line 5 would also risk a direct hit from fallen trees and logs, which the river carries naturally. Edith Leoso, Bad River’s tribal historic preservation officer and a tribal member, compared the fast-moving debris to torpedoes pummeling the pipeline’s steel.

PHMSA has warned pipeline operators of meandering rivers’ dangers to buried lines. The tribe’s complaint alleges that once the Bad River reaches Line 5, the water will win—and then lose.

“Imagine the [Exxon] Valdez happening in Lake Superior,” Leoso told Earther. “That’s pretty traumatizing to me.”

Just two days after the Bad River Band filed the complaint, Enbridge expressed openness to rerouting Line 5 around the Bad River Reservation. Nick Vander Puy, a non-Native area resident who fishes, harvests wild rice, and participates in tribal ceremonies and activism, told Earther this apparent retreat in the company’s public relations strategy shocked him. But given Bad River’s history with environmental hazards, he says Enbridge would be wise to back down while they have the chance.

From pipelines to toxic waste dumps, indigenous lands are disproportionately targeted by multinational companies as sites for concentrated environmental degradation, but over the years, Bad River has managed to fend off corporation after corporation seeking to destroy their land and resources.

In the summer of 1996, trains entering the reservation carrying sulfuric acid met a group of activists made up of mostly Bad River tribal members. The group laid on the tracks, protesting both the transport of toxic material through their land and the mining operation it was destined for: Michigan’s aging White Pine Mine, just five miles from Lake Superior. Eleven billion gallons of the acid would be dumped into the Earth over 20 years to expose the last remaining copper ore that hadn’t been extracted yet. Bad River’s tribal government had asked Wisconsin Central Railway, Ltd., to halt the transport citing concerns that shoddy tracks could cause the train to spill the acid onto reservation lands to no effect.

After 28 days of blockading the trains, during which protestors burned sacred fires and performed ceremonies, the railway agreed to temporarily halt the transport of sulfuric acid through Bad River, and the Environmental Protection Agency ordered an environmental impact assessment for the White Pine Mine. The mining company gave up on the project, and it has never been revived since. The action is revered as one of the most successful displays of tribal sovereignty in recent history.

Around the same time Enbridge’s easements expired in 2013, Bad River was focused on opposing another mining project by Gogebic Taconite to create one of the world’s largest open-pit iron ore mines in the Penokee Hills, just a few miles south of the reservation. They expected the mine to release a host of toxins into the air and water, which would eventually find their way into the sloughs. Bad River mobilized against the project by forming the Anishinaabe Environmental Protection Alliance (ANEPA), a tribal committee focused on informing the local community and building allyship on environmental issues through outreach and education. In 2015, Gogebic Taconite backed down after discovering more environmentally sensitive watershed areas in the Penokee Hills. After the mine fight, ANEPA has turned its focus to Line 5.

“We have a different strength and spirit and passion here that you probably might not find anywhere else in the world, because we’ve defeated many things,” tribal member Aurora Conley, vice chair for ANEPA, told Earther. “There are people that are willing to sacrifice their lives for this place—for that rice.”

Tribal elder Joe Rose has been a force in Bad River’s environmental battles. The 84 year old lives on the shore of Lake Superior in a remote part of the reservation, where he manages a private campground for school and tribal groups. Were Line 5 to rupture, he’d lose the ability to tap maple sap from his sugarbush located a quarter mile downstream and harvest the wild rice he’s been picking in the sloughs since he was 9 years old.

Rose remembers a time on the reservation when light bulbs were kerosene lamps, bathrooms were outhouses, and a pipeline wasn’t buried beneath one of the most sensitive watersheds in the Great Lakes. He was a young man when Enbridge first installed Line 5.

“I don’t think our tribal council realized what it really was,” Rose told Earther. Others at Bad River say it’s likely the Bureau of Indian Affairs handled the easement negotiations in the tribe’s trust.

Since the pipeline was built, Rose has been involved in every environmental battle Bad River fought and won, including the blockade and subsequent negotiations surrounding the White Pine Mine sulfuric acid trains in 1996. He says sometimes, drastic measures (like blocking a train) need to be taken to protect this land, and he’s prepared to see the end of Line 5.

hbj“We’re batting a thousand against all of these threats,” Rose said. “I don’t figure I’m getting into a fight unless I’m gonna win.”

In the two days between Bad River’s filing of the lawsuit and Enbridge’s statement about rerouting Line 5, the company’s stock fell five percent, one of their biggest losses in six months. It still hasn’t recovered.

“Don’t fuck with the Chippewa,” Vander Puy said.

Bad River’s lawsuit comes less than a month after Michigan Attorney General Dana Nessel filed a lawsuit against Enbridge to shutdown Line 5, which splits into two pipelines along the lakebed of the Mackinac Straits as it crosses between Michigan’s two peninsulas. NWF released a report in 2012 emphasizing the grave risk the aging pipeline poses to this ecologically sensitive area, which lies at the confluence of Lakes Michigan and Huron and contains one of the most productive fisheries in the Great Lakes. A leak from these pipelines would enter a complex system of currents that could send globs of crude oil to more than 700 miles of coastline, according to a University of Michigan study. Nessel’s lawsuit alleges that the state neglected its duty to protect the public trust resources of the Great Lakes when it signed the pipeline easements in 1953.

Nessel called the pipelines “an unacceptable risk to the Great Lakes” in a news release.

Image for article titled The Battle for Bad River
Photo: Alex Schwartz (Earther)

Ojibwe and Odawa communities throughout Michigan and Wisconsin retain the right to hunt, fish, and gather on land they ceded to the U.S. government through treaties in the mid-1800s, not just on their own reservations. This land encompasses most of the northern regions of both states and includes crucial fisheries around the Mackinac Straits. Were Line 5 to rupture, it would wreak unimaginable havoc on whitefish and lake trout populations in the Straits—and the tribal members whose livelihoods still depend on them.

“It would basically devastate and negate our ability for future generations to fish in a traditional way,” said Mike Ripley, a tribal member of the Sault Ste. Marie Band of Chippewa Indians and the environmental coordinator for the Chippewa Ottawa Resource Authority (CORA), which helps Michigan tribes regulate and exercise their off-reservation treaty rights.

Ripley told Earther that CORA supports all ongoing legal challenges to Line 5—and there are quite a few of them. Along with the city of Mackinac and the Straits of Mackinac Alliance (a citizen’s group), the Grand Traverse Band of Chippewa Indians has a contested case against permits Enbridge received to install more anchor supports for the Mackinac Straits section of the pipeline instead of shutting it down.

The Sault Ste. Marie tribe, Grand Traverse, and other environmental advocates are also suing the U.S. Coast Guard on the grounds that it’s unprepared to clean up a potential oil spill from Line 5. If they succeed, the flow of oil would need to be halted until the Coast Guard can come up with an adequate response plan.

“Each one of these cases builds the larger legal case to shut down the oil pipeline and remove it,” Ripley told Earther.

On paper (the Constitution, to be exact), tribal sovereignty strengthens cases like Bad River’s, said Liz Kirkwood, executive director of For Love of Water (FLOW), a non-profit working to protect the Great Lakes waterways. Because tribes have sovereign status, Kirkwood said it’s a lot easier for them to prove imminent danger in court regarding environmental hazards. She said Great Lakes indigenous communities are instrumental in the fight to shut down Line 5.

“We’ve always known that the power rests with the sovereign tribes,” Kirkwood told Earther.

While treaty rights in theory supersede the Constitution, judges don’t always uphold them, according to Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University’s College of Law and a member of the Grand Traverse Band. That said, courts have generally affirmed indigenous treaty rights around the country. Treaties give each tribe the right to a livable homeland, and any entity threatening that is grounds for a legal challenge. And thanks to the Canons of Construction, courts are obligated to rule in favor of the tribes when treaty rights are ambiguous.

In 1987, a Wisconsin district judge affirmed the treaty rights of six Wisconsin Ojibwe bands to exercise their off-reservation treaty rights even when their hunting and fishing methods were in violation of Wisconsin state law. Last year, the Supreme Court upheld a lower court ruling that required the state of Washington to replace hundreds of blocked culverts (pipes that allow salmon to migrate underneath roadways) in accordance with the treaty rights of 21 tribes to fish for salmon off-reservation.

Fletcher says the main courtroom challenge for tribes is whether a judge will understand the concepts of treaty rights and tribal sovereignty. Indigenous law is complicated, and Fletcher says most tribes have to not only assume that judges know nothing about it, but that they could be hostile to indigenous people.

“For some people who don’t know the history of’s really easy to be unsympathetic,” Fletcher told Earther.

Fletcher pointed out that Bad River Band’s case doesn’t even concern treaty rights. In essence, it’s a property rights issue. As a sovereign entity, Bad River reserves the right to property, which Enbridge threatens by refusing to follow the terms of the easements. Conservative judges typically respond well to this type of stance, suggesting the legal landscape may not be as harsh as tribal lawyers originally thought.

As tribes and environmental organizations go after Enbridge on multiple fronts, it’s clear that the Great Lakes have had enough of Line 5. As the human world moves away from fossil fuels and begins to find deeper value in the nature that surrounds it, even a multinational corporation worth $67 billion dollars is starting to feel the heat. It’s definitely a David and Goliath situation—only this time there are many Davids, all motivated by the simple yet powerful need to protect these life-giving waters.

“I don’t know how it’s going to turn out,” Wiggins told Earther, “but I know that we’re right.”

The Battle for Bad River
Photo: Alex Schwartz (Earther)