Background
Enbridge operates Line 5, a 645-mile pipeline carrying crude oil and natural gas liquids between the United States and Canada. The pipeline crosses approximately 12 miles of Wisconsin’s Bad River Reservation. Enbridge’s federal rights-of-way over 12 parcels in which the Bad River Band holds ownership interests expired in June 2013, but Enbridge continued operating the pipeline across those parcels after the Band declined to consent to renewed easements.
The Band sued for federal common-law trespass and unjust enrichment and asserted that erosion near a bend in the Bad River created a public nuisance by threatening to expose and rupture the pipeline. The district court found for the Band, awarded $5,151,668 in restitution, ordered Enbridge to cease operating on the affected parcels by June 2026, and imposed a monitoring and shutdown protocol addressing the erosion risk. Both sides appealed.
The Court’s Holding
The Seventh Circuit affirmed that Enbridge has trespassed since 2013. The Band’s 1992 agreement consenting to a 50-year easement over separately identified tribal parcels did not obligate it to approve easements over parcels it later acquired. Nor did the agreement’s implied covenant of good faith require consent. Enbridge also could not rely on 5 U.S.C. § 558(c) to extend its expired rights-of-way because its renewal applications lacked the tribal consent required by federal law and therefore were not sufficient applications under the Administrative Procedure Act.
The court held that restitution and a permanent injunction are available remedies but vacated the remedies imposed. The restitution calculation likely double-counted Enbridge’s gain by combining pipeline profits with the economic benefit of deferring reroute costs, and it improperly discounted the latter figure according to the small percentage of Line 5 located on the trespassed parcels. The court also ruled that the June 2026 shutdown deadline did not give Enbridge a reasonable opportunity to complete its proposed reroute. It remanded for a new restitution award and an injunction requiring removal while allowing a realistic, closely supervised opportunity to reroute Line 5 around the Reservation.
Finally, the court reversed the public-nuisance judgment and vacated the related monitoring injunction. It held that the federal Pipeline Safety Act displaced the Band’s federal common-law nuisance claim because the statute assigns the Pipeline and Hazardous Materials Safety Administration authority to monitor and respond to the precise rupture risk alleged at the Bad River meander. The Act’s clause preserving “tort liability” did not save this federal common-law claim for regulatory-style injunctive relief.
Key Takeaways
- Enbridge’s continued operation of Line 5 across the affected trust parcels after its rights-of-way expired constitutes an intentional trespass; neither the 1992 agreement nor the APA supplied consent or another legal privilege.
- Restitution and injunctive relief remain available, but the district court must recalculate Enbridge’s wrongful gain without unexplained double counting or illogical apportionment and must refashion the injunction around a realistic, accountable reroute period.
- The Pipeline Safety Act displaced the Band’s federal common-law public-nuisance claim because Congress assigned pipeline-hazard regulation to a specialized federal agency.
Why It Matters
The decision confirms that pipeline operators cannot continue using tribal trust land after federal rights-of-way expire without the consent required by Congress, and that ambiguous contractual language will not be read to surrender a tribe’s sovereign authority to exclude others from its territory.
At the same time, the ruling requires courts shaping remedies to account for international treaty obligations, energy-market consequences, and the practical time needed to reroute major infrastructure. It also places regulation of the pipeline’s erosion-related safety risk principally with the federal pipeline-safety agency rather than federal common-law nuisance litigation.