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

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  • Crop vested with tribal-given rights sues Minnesota permitting agency
  • Water diversion for pipeline also violates crop-gathering rights in government treaty
  • Pipeline builder Enbridge says construction permits include specific conditions to protect wild rice stands

(Reuters) - The White Earth Band of Ojibwe tribe in northwestern Minnesota has sued the state of Minnesota in tribal court over its issuance to Enbridge of a permit to divert water as part of its Line 3 oil pipeline replacement project in the state's north.

In a Wednesday complaint, the tribe recognizes that wild rice, a sacred subsistence crop, has rights, and 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 that run through the state violates the rights of the crop as well as those of the tribe. Treaties signed with the U.S. government in the 19th century guaranteed the tribe's right to gather wild rice on treaty land, the complaint says. The plaintiffs say the legal challenge is the "first case brought in a tribal court to enforce the rights of nature."

A spokesperson, Gail Nosek for Minnesota Department of Natural Resources (DNR), the named defendant in the case, said the body will review the complaint and has no further comment at this time.

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Enbridge spokesperson Michael Barnes said: "Line 3 construction permits include conditions that specifically protect wild rice waters."

"As a matter of fact Enbridge pipelines have coexisted with Minnesota's most sacred and productive wild rice stands for over seven decades," he added.

The White Earth Band of Ojibwe, which is part of the Chippewa nation, adopted in 2018 a tribal law that gives wild rice, or mamoomin as it known in Ojibwe language, certain rights.

Frank Bibeau, a lawyer for the plaintiffs, said: "This action is about upholding manoomin's right to exist and flourish as established by tribal law, and about Minnesota's legal obligations pursuant to the Treaties signed with the Chippewa."

In the complaint, the plaintiffs say that by granting Enbridge the "water-appropriation permit," DNR is "impermissibly interfering with the rights of tribal members to maintain their spiritual relationship with manoomin."

Current levels of waters in sections of the Mississipi River that sustain wild rice in areas at issue in the complaint are very low and insufficient to feed tributary rivers where the crop grows, according to the complaint.

The water being diverted for Line 3's construction work is outside the tribe's reservation, but on territories covered by the treaties, said Bibeau.

The complaint asks for a declaration that manoomin, within territories the Chippewa sold under the treaties, has inherent rights to exist, flourish and regenerate. It also asks to rescind all DNR water appropriation permits issued for Line 3.

About 80% of the work to construct the 330-mile section in Minnesota of Line 3, which runs from Alberta to Wisconsin, is completed, Barnes said. The water at issue will be used as part of horizontal drilling among other things, according to the permit.

Kathryn Fort, the director of the Indian Law Clinic at Michigan State University's College of Law, said that it was unclear whether Minnesota would be bound by a ruling in the case.

"Tribal court decisions are binding in the tribal nation they are decided in," she said.

"Beyond that, it gets very situation specific."

The case is Manoomin et al v. Minnesota Dept. Of Natural Resources (DNR) et al., White Earth Band of Ojibwe Tribal Court, No. N/A.

For Manoomin et al.: Frank Bibeau with the White Earth Band of Ojibwe.

(NOTE: This story has been updated with a comment from the Minnesota DNR.)

Read more:

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Enviros, tribes appeal Line 3 approval to Minn. Supreme Court

Army Corps asks judge to toss enviros, Native tribes suit over Line 3

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