Photo by Rob Wilson Photography

“The state’s historic properties work on the Line 3 Replacement project to date has been so inadequate that it could be used as a ‘what not to do’ example in future guidance.”

- Joint Tribal Petition (Fond du Lac, Mille Lacs, Leech Lake, Red Lake, and White Earth Bands of Chippewa), 1/2/18

On Tuesday, the 5 Ojibwe bands intervening in Minnesota’s Line 3 case joined forces on an assertive legal action for the first time in this 4+ year battle.  They filed an appeal of the Public Utilities Commission’s (PUC) recent decision to exclude the cultural resources survey from the Environmental Impact Statement (EIS). Their legal brief meticulously documents the State’s consistent disregard for tribal rights and tribal concerns throughout this process, and profound failure to assess impacts to historic and cultural properties and treaty-protected resources.  The tribes asked the PUC to halt the process until a full survey of cultural resources is completed for the entire corridor and all alternative routes, with that data included in the EIS so that it can inform the PUC’s permit decisions.  

In early December, the PUC declared the Final Environmental Impact Statement (FEIS) for Line 3 "inadequate" and asked the Department of Commerce to put some bandaids on it.  One of those bandaids is a single sentence stating that if permits are granted, construction cannot begin until an ongoing survey of tribal cultural resources along a portion of the proposed route is complete.  The Fond du Lac Band of Lake Superior Chippewa (FDL), with support from all the other tribal, environmental, and landowner intervenors, argued assertively that the EIS should not be finalized until the survey is complete and the data analyzed and included in the EIS.  They also cautioned the State of Minnesota, with great passion, against repeating the profound cultural disrespect shown in the MN Department of Transportation’s archaeological debacle on the Fond du Lac Reservation last summer.   

But the PUC decided that the survey data does not need to be included in the EIS, or even included in the public record before the PUC makes its decision about Line 3 permits!  They simply want it complete before construction begins.  This means they think the existence and locations of cultural resources are irrelevant to their decisions about whether or not to permit the pipeline, or which route to choose.  The tribes are asking the PUC to show some respect, acknowledge the importance of our sacred places, and follow the law.    

The survey currently underway was initiated by Fond du Lac and is being conducted largely by FDL tribal members, who were trained by Rosebud Sioux and Arapaho specialists last fall.  Enbridge agreed to fund the work, in an attempt to remedy the utter lack of cultural resources data in the State’s EIS.  The only survey included in the EIS so far was done by Enbridge, without consultation with the Tribes or the State Historic Preservation Office, is extremely limited, and unsurprisingly concluded that almost none of the identified sites should qualify for protection!  Also, Enbridge’s expert witness for all the cultural and archaeological issues in their application and formal testimony is a non-Native consultant in Ohio that has no particular knowledge of this region or its inhabitants.  The agencies conducting the EIS have repeatedly ignored the explicit advice of the State Historic Preservation Office (SHPO), the Minnesota Indian Affairs Council (MIAC), and the tribes themselves, in extensive written comments, that this part of the EIS is grossly inadequate.  

The ongoing FDL-led survey includes collaboration with the US Army Corps of Engineers, effectively kicking off the federal side of the Line 3 permit battle.  But it only covers 66 miles out of the 300+ mile route that Enbridge has proposed for Minnesota.  The tribes are asking the PUC to expand the study to include the entire proposed route, plus all route alternatives.

Because the proposed route traverses the heart of Anishinaabe treaty territory, including many of the best lakes and wild rice beds in the Great Lakes region, and historic canoe and trade routes at the nexus of the continent’s major watersheds, it also cuts across a dense concentration of archaeological and cultural sites.  These are not only the sites from several hundreds years of Anishinaabe history, but also from thousands of years of Dakota and Nakota life here before that.

At the heart of the dramatic siege at Standing Rock over the Dakota Access pipeline was the State of North Dakota’s and US Government’s disregard for cultural resources impacted by the project, and the company’s intentional desecration of archaeological sites just hours after the tribe released their location data.  The State of MN should take great caution to avoid going down a similar path here with Line 3.  Indeed, the NoDAPL struggle should serve as a cautionary tale for Minnesota in more ways than one.  The Standing Rock Sioux Tribe’s lawsuit against the US Army Corps of Engineers is still active today, because the judge ruled that the Corps’s environmental review failed to adequately assess impacts on off-reservation hunting and fishing rights.    

In their joint appeal this week, the tribes asked the PUC for 3 things (with all work to be funded by Enbridge):

  1. Postpone approval of the EIS until a full cultural resources survey is completed on the entire proposed route and all route alternatives, and all data included

  2. Conduct and add to the EIS an analysis of Line 3’s potential cumulative impacts to treaty resources, including estimated dollar amounts of those resources’ values

  3. Establish a cooperative structure for planning, scheduling, and doing this work that includes state agencies, the MIAC, the SHPO, and the tribes themselves (including not just the 5 Ojibwe bands that are intervening, but also the other stakeholder Ojibwe Bands and Dakota Communities)

Unfortunately, the PUC’s recent decision to disregard the significance of the sacred places of the Anishinaabe, Dakota, and Nakota that have lived here for millennia, is the just the latest in a consistent pattern of insult and disrespect throughout the 4+ year campaign to stop the Sandpiper/Line 3 corridor.  The bands have had to fight for consultation.  Tribal voices have been silenced, tribal input ignored, expertise invalidated, and questions unanswered.  The EIS acknowledges that the project will have disproportionate impact on Native people, but no one at the State of MN seems to think that is a problem.  The state even muzzled and abused their tribal liaison, Danielle Molliver, when Enbridge complained to Governor Dayton that she was advocating for tribal interests too genuinely.

Largely in response to the shortcomings in the State’s environmental review, the Ojibwe bands have announced their own review process for Line 3, the Anishinaabeg Cumulative Impact Assessment (ACIA).  The comment period is open and tribal hearings are underway, with the next one scheduled for East Lake on January 16th.