Updated: 4:23 p.m.
The Fond du Lac Band of Lake Superior Chippewa has filed a lawsuit against 3M and 23 other companies over contamination of its water and fish with PFAS, so-called “forever chemicals.”
The complaint was filed last week in federal district court in South Carolina, where hundreds of PFAS cases have been consolidated. The Band alleges manufacturers and distributors of the chemicals, which were used to make firefighting foam that was used for decades near the Fond du Lac reservation, have threatened “the health, welfare and rights of the Band.”
The lawsuit follows hundreds of similar cases already filed against 3M and other companies by states and cities and other entities over contamination of public water systems by PFAS and related compounds, which don’t break down in the environment. Some have been linked to serious health issues, including cancers and other diseases.
But it’s one of only a few suits known to have been filed by Native American tribes. The Kalispel Tribe in Washington filed a similar suit in 2020, and the Red Cliff Band of Lake Superior Chippewa filed suit last year, said attorney Roe Frazer, who’s representing both the Red Cliff and Fond du Lac Bands. He said he expects other tribes to follow suit.
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“They are for a better environment for all, not just them,” said Frazer, of the Nashville-based law firm Frazer PLC. “They know that by taking action, not only can they help just the tribes, they can help those surrounding communities as well.”
The Band’s lawsuit focuses on the use of PFAS in foam used to fight oil fires, especially at airports and military bases.
But for decades prior it was used routinely during fire training exercises and to fight fires and perform testing at the Duluth Air National Guard Base, located about 15 miles east of the St. Louis River, which forms the border of the Fond du Lac reservation.
As a result, the Band alleges that PFAS seeped into groundwater and a “flow zone” adjacent to the base, “contaminating both Lake Superior and the water wells on the Band’s reservation lands.”
The Minnesota Pollution Control Agency has also detected elevated levels of PFAS in a tributary of the St. Louis River estuary. An investigation determined the PFAS pollution originated from foam used at a Lake Superior College aircraft firefighter training facility in west Duluth.
All the contaminated areas are located within the 1854 Treaty area, where the Fond du Lac Band retains rights to hunt, fish and gather wild rice and other important cultural food sources.
Minnesota and Wisconsin have also placed fish advisory limits on smelt harvesting on Lake Superior. “By being asked to lower its fish consumption, the Band is losing meals, and it is also losing its historical practices and cultural life associated with fishing,” the complaint states.
The Band is seeking financial damages to pay for the remediation of PFAS chemicals in its ground and surface water, to treat drinking water contaminated with PFAS, to remediate soil, restore fisheries, and to monitor tribal members for potential health impacts of PFAS exposure.
The Band did not make anyone available for an interview. But Frazer, who has represented tribes throughout the Upper Midwest on environmental issues, said PFAS pollution is a “huge issue to them,” particularly to tribes like the Fond du Lac Band whose culture is tied so intimately to the land and water — “not only for food, but for cultural transference over time.”
“Tribes don’t frivolously file lawsuits,” said Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law in St. Paul.
“They only dedicate resources to litigation when there is something that they feel is imminent, causing harm to their reservation and their people.”
And without stronger enforcement from federal regulators, Eagle Woman said, “it does force tribes to expend resources to make sure they have clean water and subsistence materials and treaty resources.”
In a statement, 3M said it will continue to address PFAS litigation by defending itself in court or through negotiated settlements.
“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS. We have and will continue to deliver on our commitments — including remediating PFAS, investing in water treatment, and collaborating with communities.”
The Maplewood, Minn. based company has said it plans to stop making PFAS chemicals by the end of 2025.
Last month 3M agreed to a $10.3 billion resolution to resolve lawsuits over drinking water contaminated by “forever chemicals.”
The settlement, which still needs court approval, would resolve current and future drinking water claims and according to the company would provide funding for PFAS treatment technologies without the need for further litigation.
Tribal water systems are not included in that settlement, Frazer said.
Twenty-three attorneys general from across the U.S. this week, including Minnesota Attorney General Keith Ellison, urged the federal court to reject the deal, saying it would force nearly all public water providers nationwide to participate unless they withdraw individually, even those that haven’t filed suits or tested for PFAS.
The attorneys general did not take a position on a separate $1.18 billion settlement to resolve PFAS complaints against DuPont de Nemours Inc. and spinoffs Chemours Co. and Corteva Inc.
Those chemical companies are also named as defendants in the Fond du Lac Band’s lawsuit.
With some estimates of the total cleanup of PFAS chemicals nationwide in the hundreds of billions of dollars, that has some questioning whether 3M may at some point file for bankruptcy.
“That’s many times the market capitalization of 3M,” said David Larson, law professor at Mitchell Hamline School of Law. “The actual cleanup costs may so far exceed the assets of 3M that it could be the end of that company.”
For the Fond du lac Band and other tribes, they are seeking to protect their ability to hunt and fish in a clean environment — treaty rights negotiated by their ancestors generations ago to remain in perpetuity.
In this case, those “forever rights,” as EagleWoman called them, are pitted against “forever chemicals.”
“So we see tribal values playing out in protecting the land and the resources, and wanting to do the same things that ancestors did, provide a way forward for our culture, lifeways and survival for future generations.”