Minn. appeals tribal court's greenlight on 'wild rice' lawsuit re Line 3

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REUTERS/Nicholas Pfosi

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(Reuters) - A Minnesota agency has appealed a federal judge's dismissal of its bid to end a case pitting it against a Native American tribe that sued, in tribal court, over a permit the agency granted Enbridge for its Line 3 oil pipeline replacement project, a Monday filing in federal appeals court showed.

The Minnesota Department of Natural Resources (DNR) is appealing to the 8th U.S. Circuit Court of Appeals a September ruling in which the federal judge in St. Paul tossed claims by the state that it is immune from being sued in tribal court. The judge ruled that it is rather the tribe, northwestern Minnesota's White Earth Band of Ojibwe, as well as the tribal court that are immune from being sued.

A lawyer for the tribe, Frank Bibeau, said: "It's a lot of time spent in federal court briefing the same issue, with DNR hoping for a different answer."

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A DNR spokesperson said: "The question of whether the Band has the authority to sue the State of Minnesota in Tribal Court remains unresolved at this time."

Michael Barnes, a spokesperson for Enbridge, said the company is not party to the lawsuit.

DNR's complaint asks the federal court to pause proceedings in the tribal lawsuit, and declare that the tribal court lacks jurisdiction to hear tribal claims against the agency.

U.S. District Judge Wilhelmina Wright on Sept. 3 dismissed DNR's complaint, citing the court's lack of subject-matter jurisdiction due to the tribe's protection from lawsuits arising from its sovereign immunity.

Dylan Hedden-Nicely, a professor of Native American law at the University of Idaho, said the tribe's sovereignty from lawsuits would likely continue to apply in the 8th Circuit. That immunity only ends if a tribe waives it or if Congress has abrogated it, he said.

"Whether (the plaintiffs) can concoct up some sort of an exception ... or they can convince the Supreme Court to carve out some sort of exception to this unique situation, that's a whole other matter," he said.

The White Earth Band of Ojibwe sued DNR in tribal court last month. Their complaint is novel because it names wild rice, a sacred subsistence crop, in addition to the tribe as plaintiffs.

It alleges that a June permit allowing Enbridge to divert nearly 5 billion gallons of water as part of construction work to replace sections of Line 3 violates the crop's rights and 19th-century treaties signed with the U.S. government that guarantee the tribe's right to gather wild rice on treaty land.

The judge presiding over the case in White Earth Tribal Court, Chief Judge David DeGroat, denied earlier this month Minnesota's bid to dismiss the case. DeGroat wrote that the tribe's sovereign immunity trumped the "state's claim of sovereign immunity."

Calgary-based Enbridge announced earlier this month that it would offer capacity for 620,000 barrels per day on Line 3 starting in October.

Minnesota hit with novel 'natural right' tribal lawsuit over Line 3

Minn. appeals court affirms water permit for Line 3

Minn. Supreme Court denies appeal of Line 3 approval

Enbridge set to open most capacity on long-delayed Line 3 pipeline

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