Line 3: White Earth argues DNR water permit violates wild rice rights

A stalk of developing wild rice stands in Big Rice Lake, a 3,000 acre lake south of Remer, Minn.
John Enger | MPR News 2014

The White Earth Nation of Ojibwe is suing the Minnesota Department of Natural Resources in tribal court on behalf of wild rice.

The north-central Minnesota band argues that letting Enbridge Energy temporarily pump up to 5 billion gallons of groundwater during construction of the Line 3 oil pipeline puts wild rice — manoomin, in the Ojibwe language — at risk and violates members’ treaty rights.

It's believed to be the first case brought in a United States tribal court on behalf of the rights of nature, a recent movement gaining momentum around the globe. It seeks to establish legal rights for nature and ecosystems, rather than treating them as property.

Enbridge is building the new, larger Line 3 pipeline along a new route through a water-rich part of northern Minnesota, near lakes and wetlands that are home to wild rice, an important part of Ojibwe culture.

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In 2018, White Earth leaders adopted a tribal law recognizing the rights of wild rice to exist and flourish.

"The legal argument is that manoomin, in our culture and world, is a living entity, like everything else,” said Frank Bibeau, a tribal attorney representing the White Earth band. “It has rights just like us to exist and flourish and multiply. And it's not being watched out for.”

In June, the DNR granted Enbridge an amended permit to temporarily pump up to 5 billion gallons of shallow groundwater — about 10 times more than it originally requested — while crews are installing the new pipeline in the trench. 

The complaint argues that the DNR unilaterally decided to issue Enbridge the amended permit without the consent of tribal leaders. It argues that the increased pumping puts wild rice at risk and interferes with tribal members’ rights to use treaty lands to hunt, fish and gather wild rice.

It also argues that wild rice is an indicator species threatened by climate change, which the band argues will be exacerbated by building the new Line 3 pipeline that will carry crude from the oil sands region of Alberta, Canada, to Enbridge’s terminal in Superior, Wis.

The DNR declined to comment on the lawsuit. A spokesperson said they are reviewing the complaint.

Agency officials have said they do not believe the permitted pumping will have long-term impacts on wetlands or groundwater, because the water is discharged back to the same area within a few days. 

The lawsuit asks for an injunction against the DNR to nullify the water permit. It also asks the tribal court to declare wild rice within the Ojibwe ceded territories is protected and possesses inherent rights, and that tribal members have legal rights to harvest wild rice and protect the waters that support it within the ceded territory.

Bibeau said the DNR likely will not submit to a tribal court ruling, but the band plans to take the case to a federal court.

A favorable decision could help advance the movement to establish legal rights of nature across the country, said Thomas Linzey, senior legal counsel for the Center for Democratic and Environmental Rights, based in Spokane, Wash.  

The movement aims to create a new doctrine of environmental law, in which people can enforce the rights of nature’s ecosystems on their own, Linzey said.

“In a nutshell, it's about advancing human civil rights-type protections for ecosystems and nature itself,” he said. 

The first effort to enforce rights of nature in the U.S. is taking place in Orange County, Fla., where voters passed a measure in November 2000 to protect local waterways.

Backers of the measure recently sued on behalf of five waterways to stop a developer who wants to fill wetlands for a mixed-use development.

“The developer’s project is clashing with the law because the law says wetlands have a right to exist,” Linzey said.