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Wisconsin Public Media | By Danielle Kaeding

A federal appeals court has found that Canadian firm Enbridge has been trespassing on the Bad River tribe’s reservation and must remove its oil and gas pipeline, but it gave the company more time to complete the Line 5 reroute that is already underway.

A three-judge panel for the 7th Circuit U.S. Court of Appeals issued the 

Thursday. The decision comes seven years after the Bad River tribe 

 Enbridge in federal court to shut down and remove Line 5 from its lands.

In 2023, U.S. District Court Judge William Conley 

 Enbridge has been trespassing on 12 parcels of land, ordering the company to pay $5.15 million in restitution to the tribe. Conley also ordered Enbridge to remove or reroute Line 5 within three years, a deadline that had since been put on hold.

On Thursday, the federal appeals panel upheld the lower court’s decision that Enbridge is trespassing, but it ordered a federal judge to revisit the amount of damages and give the company a “reasonable opportunity” to complete the Line 5 reroute.

“Enbridge’s trespass cannot continue unchecked across the Band’s sovereign land. To decide otherwise would be substantially in tension with the 1854 Treaty and the statutory scheme governing rights-of-way on tribal lands,” Judge Michael Scudder 

“But it weighs heavily with us that an injunctive order halting Line 5’s operation without an alternative in place risks violating the Transit Treaty, sparking international fallout with Canada, and inflicting harmful effects on energy consumers,” he continued.

Bad River declined to renew pipeline easements on the disputed parcels, which expired in 2013. Enbridge had argued a 1992 agreement overseeing pipeline easements across other tribal lands compelled the tribe to consent to their renewal. The federal appeals panel disagreed, saying the company got “what it bargained for.”

 is currently underway. It runs 41 miles around the tribe’s reservation in Ashland and Iron counties. The pipeline carries up to 23 million gallons of oil per day from Superior through northern Wisconsin and Michigan to Sarnia, Ontario.

Enbridge spokesperson Juli Kellner said in a statement that the company is reviewing the decision and next steps. Kellner noted the ruling recognized the pipeline’s role in foreign relations and revoked the deadline for shutting down Line 5. It also eliminated the lower court’s finding that the pipeline is a public nuisance on the reservation

“The decision also recognized the Line 5 Wisconsin Segment Relocation Project as the practical long-term solution to this dispute,” Kellner wrote.

Enbridge, the U.S. and Canada have pointed to a 1977 treaty guaranteeing the flow of oil between the two nations and the pipeline’s significance to their regional economies, which serves 10 refineries and propane facilities in the Midwest.

In the decision, Scudder wrote the three-year timeline for removing the pipeline was too aggressive, but it said the grace period it’s affording Enbridge “does not reflect our approval of the company’s behavior.”

As far as damages awarded to the tribe, the panel found Conley likely “double-counted” by giving Bad River a portion of Enbridge’s overall profits tied to Line 5’s trespass in addition to the company’s economic benefit from delaying the cost associated with rerouting Line 5.

Earthjustice Senior Attorney Stefanie Tsosie, who represents the Bad River tribe, said in a statement that it’s important the court upheld the band’s sovereign right to govern its own lands.

“Each day, Enbridge operates Line 5 in illegal trespass and makes more than a million dollars in profit. We are hopeful that Enbridge will face meaningful consequences,” Tsosie said.

Scudder ordered the district court to come up with a new award that accounts for the significant passage of time since the original amount. The federal appeals panel said the court may also consider the ongoing trespass, any interest owed for Enbridge’s failure to pay damages to date and each party’s conduct with regard to the Line 5 reroute.

The panel urged the court to take steps to provide “oversight and accountability” in the form of monetary penalties or reporting to ensure that Enbridge completes the reroute “as soon as possible.”

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The 7th Circuit Court of Appeals directed a lower court to revisit monetary damages and timeline for removing Line 5

Federal appeals court finds Enbridge trespassing on tribal lands, must remove Line 5

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