LANSING — Four Michigan tribes have been granted permission to participate in a regulatory case involving plans to tunnel the Line 5 pipeline in the Straits of Mackinac, giving three of them an opportunity to formally assert their treaty rights this way for the first time.
Administrative Law Judge Dennis Mack this week granted permission for Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, and Little Traverse Bay Bands of Odawa Indians to formally intervene in the case pending before the Michigan Public Service Commission.
Mack also granted the status to the Nottawaseppi Huron Band of the Potawatomi, which is based in Calhoun County near the site of the Line 6B pipeline spill in 2010. That pipeline is also owned by Enbridge.
Bay Mills Tribal Attorney Whitney Gravelle said it was a historic decision, and the first time tribes will formally intervene in a case before the MPSC. Moreover, it gives tribes the first opportunity to assert treaty rights in their broader effort to decommission the pipeline.
Gravelle said the tribes are “really excited and looking forward” to participating in the case. Tribes’ treaty rights that date back to 1836 — and effectively give them property rights across a wide swath of the Lower Peninsula and the eastern half of the Upper Peninsula — are at the center of their opposition to Line 5, as MiBiz recently reported.
“It’s important for people to continue to understand that Line 5 puts the tribal way of life, tribal treaty rights and tribal cultural resources at risk every single day and it’s time to decommission the pipeline,” Gravelle said.
The case before the MPSC will determine whether Enbridge can relocate Line 5 to a planned tunnel beneath the Straits of Mackinac. An agreement reached between Enbridge and the state in the final weeks of Gov. Rick Snyder’s administration outlined the deal, which has since become a strong point of contention for opponents who say it favors a private company over public rights in the Great Lakes. The deal would involve relocating the pipeline, which tribes argue would conflict with their treaty rights in the area.
Some local officials in Northern Michigan as well as labor unions support the tunnel project, arguing that it’s a safer alternative to the pipeline as it currently exists along the lakebed.
“This tunnel project will ensure Michigan continues to receive a safe, reliable energy supply while enhancing the protection of the Great Lakes,” Dan McKernan, spokesperson for Operating Engineers 324, wrote in a letter to the MPSC last week.
Matthew Fletcher, director of Michigan State University’s Indigenous Law and Policy Center, called it “unique” and “quite important” that tribes will intervene in the MPSC case.
The three tribes have treaty rights in the Straits of Mackinac, while the Nottawaseppi band has “had dealings with Enbridge and as citizens of the state,” Fletcher said, referring to the 2010 oil spill.
“Their interest is ensuring Enbridge is a good citizen, the kind of partner the state should be involved with,” Fletcher said. “In essence, the state is turning over access to its public resources to this company with this track record. You’re going to see all of those issues arise in the Public Service Commission proceedings in a way that is probably unique to this case.”
Mack also set a timeline for how the case will proceed over the next 11 months.