Background
Enbridge operates Line 5, which carries crude oil and natural gas liquids between the United States and Canada. The pipeline crosses 12 miles of Wisconsin’s Bad River Reservation. Enbridge’s federal rights-of-way over 12 parcels in which the Bad River Band owns interests expired in June 2013, but Enbridge continued operating the pipeline across those parcels.
The Band sued for federal common-law trespass and unjust enrichment. It also asserted a federal common-law public-nuisance claim based on erosion near a bend in the Bad River known as “the meander,” where the river was approaching the buried pipeline. Enbridge counterclaimed that a 1992 agreement required the Band to consent to renewed easements.
The district court ruled for the Band, awarded $5,151,668 in restitution, ordered Enbridge to stop operating Line 5 across the affected parcels by June 2026, and imposed monitoring and shutdown requirements to abate the nuisance. Both sides appealed.
The Court’s Holding
The Seventh Circuit affirmed that Enbridge has trespassed since its rights-of-way expired in 2013. The 1992 agreement concerned separate tribal parcels and did not unmistakably surrender the Band’s sovereign authority to deny consent over parcels it later acquired. Enbridge’s incomplete renewal applications also did not extend the expired easements under 5 U.S.C. § 558(c) because they lacked the statutorily required tribal consent.
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 gains by combining pipeline profits with the benefit of deferring rerouting costs, and it inadequately justified discounting the latter benefit according to the percentage of Line 5’s total mileage in trespass. The three-year shutdown deadline was also too aggressive because an injunction must give Enbridge a reasonable opportunity to complete its proposed reroute around the Reservation, considering the pipeline’s economic importance and the United States’ treaty obligations to Canada.
The court reversed judgment for the Band on public nuisance and vacated the related safety injunction. It held that the Pipeline Safety Act displaced the federal common-law nuisance claim because the statute assigns the federal government authority to monitor and address precisely the type of pipeline hazard alleged at the meander. The Act’s provision preserving “tort liability” did not save a federal common-law action seeking regulatory-style injunctive relief.
Key Takeaways
- Enbridge is trespassing because its easements over the allotted parcels expired in 2013, the Band did not consent to renewals, and the 1992 agreement did not require that consent.
- The district court may award restitution and order removal, but it must recalculate Enbridge’s wrongful gain without unexplained double counting and craft an injunction allowing a reasonable opportunity to finish the reroute.
- The Pipeline Safety Act displaced the Band’s federal common-law public-nuisance claim concerning the rupture risk at the Bad River meander.
Why It Matters
The decision confirms that a pipeline operator cannot rely on an old agreement or incomplete administrative applications to remain on tribal trust land after its rights-of-way expire. It also emphasizes that restrictions on a tribe’s sovereign authority to exclude others from its territory must be stated unmistakably.
At the same time, the ruling requires equitable remedies to account for international treaty obligations, energy markets, and the practical time needed to reroute major infrastructure. Pipeline-safety risks governed by the Pipeline Safety Act, meanwhile, generally fall to the federal regulatory agency rather than federal common-law nuisance litigation seeking court-imposed operating rules.