Press Release: Federal Appeals Court Denies State of Minnesota’s Bid to Take ‘Rights of Nature’ Case Away from Tribal Court

White Earth Nation Now Asks Tribal Appeals Court to Stop 5 Billion Gallon Water Permit for Enbridge Line 3 Tar Sands Oil Pipeline

September 27, 2021

Frank Bibeau, Plaintiff’s Attorney, frankbibeau@gmail.com, 218-760-1258

Thomas Linzey, Senior Counsel, Center for Democratic and Environmental Rights, tal@pa.net, 509-474-9761

White Earth, MN: On September 21, the Eighth Circuit Court of Appeals – a federal appellate court – denied a request from the Minnesota Department of Natural Resources (DNR) to stop a Chippewa tribal court from ruling on a case involving the State’s approval of 5 billion gallons of water for oil pipeline construction. 

Earlier this year, the DNR issued  a permit for the Enbridge corporation to use the water for construction of its Line 3 tar sands oil pipeline.

If completed, the pipeline would move nearly a million barrels of tar sands oil per day from Alberta, Canada, to Lake Superior in the United States. The pipeline would be constructed through untouched wetlands and the treaty territory of the Anishinaabe, through the Mississippi River headwaters to the lake’s shore. Some studies estimate that the climate change impact of the pipeline’s operation would be equivalent to the output of 45 new coal-fired power plants.

The DNR’s appeal to the Eighth Circuit is part of the agency’s ongoing fight to keep a tribal court from considering whether the State’s issuance of the water permit to Enbridge violates the legal rights of manoomin (wild rice) and the treaty rights of White Earth tribal members. 

Manoomin v. Minnesota DNR (see case timeline below)

In 2018, the White Earth Band of Ojibwe, of the Chippewa Nation, adopted a tribal law recognizing the rights of wild rice. The rights of manoomin law is the first tribal law to recognize the legally enforceable rights of a plant or animal species.

Treaties of the U.S. government with the Chippewa recognize the rights of tribal members to hunt, fish, and gather wild rice on their traditional lands which were ceded to the federal government. This case was brought to enforce both the rights of manoomin, as well as Treaty rights held by the tribe and tribal members. The Treaty rights, recognized in the 1837, 1854, and 1855 Treaties between the Chippewa and U.S., guarantee the rights of the tribe to gather wild rice and other aquatic plants from public waters on Treaty lands. 

The underlying case, Manoomin v. Minnesota DNR, was filed in August by the White Earth Band in tribal court, with manoomin as the lead plaintiff. The case seeks to stop the State’s water permit to Enbridge, as the taking of the water would violate the rights of wild rice – which depends upon abundant fresh water – and the rights of tribal members to gather wild rice. This is the first time a rights of nature enforcement case has been brought in a tribal court, and is the first rights of nature case brought to enforce Treaty guarantees.  

In an effort to delay a ruling in the case until Enbridge has completed the pipeline, the State sued the tribe in federal District Court, claiming that the tribe lacked jurisdiction over the issuance of the State permit. The District Court dismissed the case, holding that the State could not sue the tribe in federal court over the issue.

In response, the DNR filed an appeal of the District Court’s ruling to the Eighth Circuit Court of Appeals, asking that court to immediately stop the tribal court from considering the case. At the same time, the DNR filed an appeal to the White Earth tribal appellate court, asking it to reverse the lower tribal court’s decision that it had jurisdiction to hear the case.

On September 21, the Eighth Circuit issued an order denying the State’s request. That order clears the way for the tribal courts to determine whether the State’s issuance of the water permit violates the legal rights of wild rice and the treaty rights of tribal members.

On September 24, the White Earth Band of Ojibwe asked the tribal appellate court to immediately issue an injunction which would stop Enbridge from taking water pursuant to the State-issued permit. 

Frank Bibeau, plaintiff’s attorney in Manoomin v. Minnesota DNR, explained, “The State of Minnesota is seeking to prevent the tribe from exercising its treaty rights and the rights of manoomin. Federal and tribal courts have now both told the State that the tribe has jurisdiction to hear this case. It’s time to let this case move forward to protect the rights of wild rice and White Earth tribal members.”

Thomas Linzey, senior legal counsel at the Center for Democratic and Environmental Rights, which is assisting with this case, explained, “This is the first rights of nature enforcement case brought in a tribal court. The State is arguing that the tribal court doesn’t have jurisdiction in a case in which the State’s actions have put the rights of wild rice and tribal members at risk. It demonstrates how tribal sovereignty is integrally involved with the authority of tribes to protect nature.”

Timeline: Manoomin, et.al., v. Minnesota Department of Natural Resources, et.al. (Case No. GC21-0428)

December 2018: The White Earth Band of Ojibwe adopted a “rights of manoomin” tribal law, which recognized wild rice as having the rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, and preservation. 

June 4, 2021: Minnesota DNR issues permit to Enbridge to use 5 billion gallons of water to construct the Line 3 tar sands oil pipeline.

August 4, 2021: Manoomin, et.al., v. Minnesota DNR filed in White Earth Tribal Court.

August 12, 2021: Minnesota DNR files Motion to Dismiss the case in the Tribal Court.

August 18, 2021: Tribal Court denies the DNR’s Motion to Dismiss, explaining: "In passing legislation to protect its vital resources, the Band must also be able to exercise the jurisdiction to carry out that legislative purpose. To hold otherwise reduces Tribal sovereignty to a cynical legal fiction."

August 19, 2021: DNR files suit against the White Earth Band and tribal court Chief Judge David DeGroat, seeking declaratory and injunctive relief, to block the White Earth tribal court from ruling in the case. The suit is filed in federal District Court, District of Minnesota.

September 3, 2021: The federal District Court denies the Minnesota DNR’s motion for a preliminary injunction against the White Earth Band and the tribal court.

September 10, 2021: Minnesota DNR files appeal in the Eighth Circuit Court of Appeals, seeking to overturn the federal District Court’s denial of the motion to enjoin the tribal court from hearing the case.

September 13, 2021: Minnesota DNR files appeal in the White Earth Tribal Court of Appeals, seeking to reverse the lower tribal court’s denial of the DNR’s motion to dismiss the case.

September 21, 2021: The Eighth Circuit Court of Appeals denies the Minnesota DNR’s request to stop the tribal court from hearing the case.

September 24, 2021: The White Earth Band of Ojibwe files a request for an injunction in the White Earth tribal appellate court, seeking an immediate injunction to stop Enbridge from taking water pursuant to the State-issued permit. 

###