Case: 3:19-cv-00602-wmc Document #: 360 Filed: 09/07/22 Page 1 of 56




                   IN THE UNITED STATES DISTRICT COURT
                  FOR THE WESTERN DISTRICT OF WISCONSIN

BAD RIVER BAND OF THE LAKE
SUPERIOR TRIBE OF CHIPPEWA
INDIANS OF THE BAD RIVER
RESERVATION,

                           Plaintiff and Counter Defendant,
                                                              OPINION AND ORDER
      v.
                                                                 19-cv-602-wmc
ENBRIDGE ENERGY COMPANY, INC., and
ENBRIDGE ENERGY, L.P.,

                           Defendants and Counter Claimants.

      v.

NAOMI TILLISON,

                           Counter Defendant.



      Enbridge Energy owns and operates an oil and natural gas pipeline that extends 645

miles between Superior, Wisconsin to Sarnia, Ontario. By virtue of various, long-term

easement agreements, the pipeline was constructed in part on the Bad River Reservation

in northern Wisconsin on parcels of land allotted to individual Indians, owned by non-

Indians and owned in whole or in part by the Bad River Band of the Lake Superior Tribe

of Chippewa Indians. In recent years, the Bad River Band has grown concerned about the

potential environmental impacts this pipeline may have on its lands, and it has

consequently refused to renew Enbridge’s easement on 12 parcels now owned in whole or

in part by the Band. Although the easements expired in 2013, Enbridge has refused to

remove the pipeline from these 12 parcels.
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        The Band filed this lawsuit, accusing Enbridge of trespass and unjust enrichment

for continuing to operate across the Reservation without valid easements, as well as

nuisance, ejectment, and a violation of the Band’s regulatory authority. In turn, Enbridge

counterclaimed that the Band breached its contract granting an easement and its related

duty of good faith and fair dealing. Before the court now are the parties’ cross motions for

summary judgment.

        The Band moves for summary judgment on its claims of trespass and unjust

enrichment, and on its entitlement to a monetary remedy, arising out of Enbridge’s

continued operations of the pipeline across the 12 parcels on which its easements have

expired. The Band also moves for summary judgment on Enbridge’s counterclaims for

breach of contract, and further requests a permanent injunction requiring Enbridge to cease

operation of the pipeline and to safely decommission and remove it. (Dkt. #165.)1 In

turn, Enbridge moves for summary judgment on the Band’s remaining claims of nuisance,

ejectment and violation of the Band’s regulatory authority.

        For the reasons discussed below, the court will grant the Band’s motion with respect

to its trespass and unjust enrichment claims, Enbridge’s counterclaims and the Band’s

entitlement to a monetary remedy. Nevertheless, the court must deny the Band’s request

for an automatic injunction, as an immediate shutdown of the pipeline would have

significant public and foreign policy implications. While inclined to grant alternative

injunctive relief to the Band, requiring Enbridge to reroute its pipeline outside the


1
 Several interest groups filed amicus briefs in this case articulating their views on the legal questions
and factual issues before the court, and on potential injunctive relief in particular. The court has
considered all of the amicus briefs.

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Reservation, the court will seek input from the parties before deciding the terms of a

permanent injunction. Finally, the court will grant Enbridge’s motion with respect to the

Band’s state law nuisance, ejectment and regulatory authority claims, but will deny the

motion as to the Band’s federal nuisance claim.



                        OVERVIEW OF UNDISPUTED FACTS2

    A. Enbridge’s Line 5 Pipeline

       Enbridge operates a network of pipelines and other infrastructure to transport

Canadian oil and natural gas liquids to refineries in the United States and Canada,

including Line 5 that is the subject of this lawsuit (“the pipeline”), which transports about

23 million gallons of crude oil and natural gas liquids daily. In northern Wisconsin, the

pipeline traverses through 12 miles of the Bad River Reservation, which was established by

the Treaty with the Chippewa Tribe in 1854.            The pipeline corridor through the

Reservation is approximately 60 feet wide and constitutes less than 1.9% of the entire

pipeline. At the time the pipeline was built in 1953, some parcels on the Reservation were

owned by the Band and held in trust by the United States; some were owned by individual

tribal members; and some were owned by non-Indians.           In 1952, the United States

Department of the Interior, Bureau of Indian Affairs (“BIA”), granted Enbridge a single,

20-year easement, which covered all the parcels on the Reservation owned either by the

Band or by individual Indians. In the early 1970s, the BIA renewed that easement for

another 20-year term.


2
  The following facts are undisputed except where noted. Additional, undisputed facts will be
discussed as they become relevant in the opinion itself.

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   B. Negotiation of the 1993 Easements

       Because that second, 20-year easement was set to expire in June 1993, Enbridge,

the Band, and the BIA began discussing potential renewal of the easement in the early

1990s. At that time, the Band was the sole owner of 13 parcels all held in trust by the

United States, which accounted for approximately 2.8 miles of the length of the pipeline

corridor through the Reservation, with the 60-foot-wide easement covering approximately

20.1 acres in total area. In addition, the pipeline ran across another 15 “allotment parcels”

owned by individual Indians, with multiple individuals holding fractional ownership in

each of those parcels, all of which were also held in trust by the United States. The Band

further held a small percentage of ownership in three of the allotment parcels.

       Naturally, Enbridge wanted an easement that would run for longer than 20 years.

However, the BIA, which was responsible for negotiating easements on the 15 allotment

parcels, notified Enbridge that it would not issue easements longer than 20 years on the

allotment parcels. Still, the BIA advised that the Band could grant longer easements on its

13 wholly owned parcels were it inclined to do so. Thus, the BIA told Enbridge to negotiate

directly with the Band for new easements on those 13 parcels.

       In June 1992, Enbridge submitted several easement renewal applications to the BIA.

The first was an application for new easements on the 13, Band-owned parcels, referred to

as “Tribal Lands.” (Dkt. #166-19.) That application stated the right-of-way over those

parcels would be “2.8 miles” in length, and it attached a “Tribal Lands Schedule” listing

all parcels by their precise township and range legal descriptions. (Tribal Lands Application

(dkt. #166-20).)    The second actually consisted of 15, separate applications for the


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allotment parcels, which also described the precise land at issue for each allotment parcel

easement. (Dkt. #210-2.)

       1. Band’s wholy owned parcels

       The Band and Enbridge proceeded to negotiate for an easement over the Band-

owned parcels and had agreed that Enbridge would pay the Band $800,000 for a 50-year

easement over the 13 Band-owned parcels by December 1992, subject to the BIA’s

approval. If the BIA did not approve, Enbridge had further agreed to pay the Band

$450,000 for a 20-year easement. Also, in December 1992, the Bad River Tribal Council

passed two resolutions providing the Band’s consent and approval for a 50-year easement

over its wholly-owned parcels in exchange for $800,000. Enbridge and the Band then

memorialized their agreement by contract (“the 1992 Agreement”), with the two Tribal

Resolutions attached as exhibits to the contract.

       As required under 25 U.S.C. § 323, the Band next submitted the two Tribal

Resolutions and the 1992 Agreement to the BIA for its approval, along with a cover letter

from the Band’s Chairman, David Moore, stating that “[t]hese documents express the

terms by which the Bad River Tribe has agree to grant to Lakehead [Enbridge’s predecessor]

a fifty year right of way over its existing easement.” (Dkt. #166-23.) In response, the BIA

asked the Band to explain why a 50-year easement would be in the best interest of the Bad

River community, as opposed to one again renewing the 20-year easement, and suggested

that the Band might want to explore alternative uses for their lands in 20 years. (Dkt.

#166-21.) The Band responded that it had received a good price, which it intended to

invest. At that point, the BIA issued a 50-year easement expressly covering the 13, Band-


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owned parcels, with the term beginning on June 3, 1993, and ending on June 2, 2043.

(Dkt. #166-14.) Enbridge then paid the Band the $800,000 payment required under the

parties’ 1992 Agreement.

      2. 15, separate allotment parcels

      The BIA negotiated separately with Enbridge for 20-year easements over the 15

allotment parcels, including the three parcels in which the Band had a small ownership

interest. In particular, Enbridge and the BIA eventually agreed that Enbridge would pay

$179,000 total to the individual owners of the 15 allotment parcels for a 20-year easement,

although the Band did not receive any compensation for its small interest in three of those

parcels. Those easements issued in May 1993. The easements expressly stated that they

were “limited as to tenure for a period not to exceed 20 (Twenty) years, beginning on June

3, 1993, and ending on June 2, 2013.” They also provided as follows:

             At the termination of this Grant of Easement, Grantee shall
             remove all materials, equipment and associated installations
             within six months of termination, and agrees to restore the
             land to its prior condition. Such restoration may include but
             not be limited to filling, leveling and seeding the right-of-way
             area.

(Dkt. #166-15.)

   C. The Band’s Acquisition of Additional Ownership Interests in Allotted
      Parcels

      Many parcels of land on the Bad River Reservation are owned by various individual

landowners because of historical allotment policies that had divided up tribal land. In

1982, Congress enacted the Indian Land Consolidation Act, 25 U.S.C. § 2202–2221, to

counter past policies strongly encouraging allotment of Reservation lands to individual


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tribal members, and to assist tribes in acquiring full or fractional ownership on lands within

their reservation generally. Under this Act, the BIA was responsible for assisting the Band

in obtaining ownership interests in land within the Bad River Reservation borders.

Between 1994 and 2013, therefore, the BIA assisted the Band in acquiring ownership

interests in 12 of the 15 allotment parcels in the pipeline corridor for which the BIA had

issued 20-year easements in 1993. The Band presently owns 100% of two of the parcels

and more than 45% fractional ownership in the remaining 10.



   D. The Band Refuses to Renew Easements on the Allotment Parcels

       In January 2013, with the 20-year easements expiring in June 2013, the BIA

reminded Enbridge of the approaching end of the easements over the 15 allotment parcels.

In March 2013, Enbridge submitted applications to the BIA to renew the easements on

those allotment parcels for yet another 20-year period. At the same time, Enbridge failed

to submit with its applications any documents showing that the owners of the allotment

parcels had consented to the renewal of these easements, despite the Band’s consent now

being necessary to renew the easements on 12 of those 15 parcels because the Band now

had a full or fractional ownership in each of them.

       In fairness, Enbridge had notified the Band that it wanted to renew these easements.

Moreover, the Band requested detailed environmental, pipeline safety, and emergency

response information from Enbridge pertaining to its operation of the pipeline, including

records of spills and regulatory violations. The Band was particularly concerned about

these issues because a different pipeline operated by Enbridge had failed and spilled more

than a million gallons of crude oil into a Michigan river in 2010, and federal investigators
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had concluded that Enbridge’s actions were responsible for the environmental

consequences of the spill. While Enbridge provided some information requested, the Band

responded that the information produced was deficient.

       During 2015 and 2016, the Band and Enbridge continued to discuss potential

renewal of the easements on the allotment parcels, as well as operation and maintenance

protocols for the pipeline going forward. However, the Band remained unconvinced that

the easements should be renewed, and on January 4, 2017, the Band’s governing body

enacted a resolution affirming the Band’s unwillingness to consent to new easements.

(Dkt. #166-33.) That resolution asserted that: the lands, rivers and wetlands in the Bad

River and Lake Superior watersheds were sacred to the Band; an oil spill on the Reservation

“would be catastrophic” and would “nullify our long years of effort to preserve our health,

subsistence, culture and ecosystems”; the Band would not renew the easements; and Band

staff would take steps to initiate the pipeline’s decommissioning. (Id.) Nonetheless,

Enbridge has refused to remove the pipeline from Reservation lands, and continued to

transport petroleum and natural gas liquid products across the Bad River Reservation.

       When further efforts to reach an understanding failed, the Band filed this lawsuit

against Enbridge in July 2019, raising trespass and unjust enrichment claims against

Enbridge based on its refusal to remove the pipeline from the 12 former allotment parcels

in which the Band now had full or fractional ownership, and for which the easements

expired in 2013. As mentioned, the Band also raises nuisance, ejectment, and violation of

regulatory authority claims against Enbridge for its operation of the pipeline on tribal trust

parcels, for which Enbridge has a 50-year easement expiring in 2043. In response, Enbridge


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then filed its counterclaims for breach of contract and its underlying duty of good faith

and fair dealing. Specifically, Enbridge contends that the parties’ 1992 Agreement granting

the 50-year easement on the Band’s wholly-owned parcels, implicitly obligates it to consent

to renewed easements over all parcels in which the Band has an ownership interest,

including the 12, former allotment parcels.



                                        OPINION

      As discussed at the outset, the Band seeks partial summary judgment on its trespass

and unjust enrichment claims, which relate solely to Enbridge’s refusal to vacate the 12

former allotment parcels, and on Enbridge’s counterclaims for breach of contract and its

underlying general duty of good faith and fair dealing. In turn, Enbridge seeks summary

judgment on the Band’s remaining claims for nuisance, ejectment, and violation of the

Band’s regulatory authority. The court will address the Band’s motion first, followed by

Enbridge’s motion.



I. The Band’s Motion for Partial Summary Judgment

      The Band contends that Enbridge has been trespassing on the 12 allotment parcels

now owned in whole or in part by the Band since the 20-year lease with the BIA granting

the easements expired in June 2013. More specifically, because the easements were not

renewed, the Band contends that Enbridge was required by the plain language in the leases

to remove the pipeline within six months of expiration, and in continuing to operate the

pipeline through the Bad River Reservation, has been unjustly enriched by its trespass.




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       To succeed on its trespass claim, the Band must prove three elements: (1) it has an

ownership interest in the parcels; (2) Enbridge physically entered or remained, or it caused

something to enter or remain, upon the property; and (3) Enbridge lacked a legal right --

express or implied -- to enter or remain. See Grygiel v. Monches Fish & Game Club, Inc., 2010

WI 93, ¶ 40, 328 Wis. 2d 436, 461, 787 N.W.2d 6, 18; Restatement (Second) of Torts

§ 329 (1965)).3 Enbridge does not challenge the Band’s ability to prove the first and

second elements of its trespass claims, nor could it, since the undisputed evidence

establishes that the Band owns or co-owns 12 allotment parcels through which Enbridge’s

pipeline passes and has continued to operate despite the easements expiring in 2013.

However, Enbridge argues that the Band cannot succeed on the third element of its trespass

claim for three basic reasons: (a) the Band is obligated to consent to Enbridge’s pipeline

running on the 12 allotment parcels for 50 years under the parties’ 1992 Agreement; (b)

Enbridge’s easements have not actually expired because it filed timely applications for

renewal of the easements; and (c) the Band’s attempt to remove or interfere with Enbridge’s

operation of the pipeline violates federal statutory law. The court addresses each of these

arguments below.




3
  The parties agree that federal law applies to the Band’s trespass and Enbridge’s contract claims,
while the court may look to state law and the Restatement (Second) of Contracts for guidance, so
the court has assumed the same. See FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 283 (7th Cir.
2002) (“[T]here’s no discussion of choice of law issues, and so we apply the law of the forum
state.”); see also Davilla v. Enable Midstream Partners, L.P., 913 F.3d 959, 965 (10th Cir. 2019)
(considering federal and state common law to resolve trespass claim brought by Indian landowners).

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   A. The 1992 Agreement

          As an initial matter, Enbridge argues that the 1992 Agreement granting 50 year

leases on other parcels, somehow requires the Band to consent to easements over the 12

allotment parcels under both the agreement’s express terms and implied duty of good faith

and fair dealing. In particular, Enbridge argues that because the so-called “objective” of

the 1992 Agreement was to permit Enbridge to operate its pipeline across the Reservation

for 50 years, the agreement should be interpreted as providing the Band’s “advanced

consent” to easements over all parcels in which it had or might in the future acquire an

ownership interest, however small. As discussed below, however, the Band only consented

under the 1992 Agreement to a 50-year easement on the 13 parcels that were, at that time,

wholly owned by the Band, and nothing more.


          1. Contract language

          To determine whether the Band is obligated by the 1992 Agreement to consent to

renewed easements over the 12 allotment parcels, the court begins with the language of

the agreement itself. See First Bank & Trust v. Firstar Info. Servs., Corp., 276 F.3d 317, 322

(7th Cir. 2001) (to determine contractual intent of the parties, court must first consider

the plain language of their agreement). The consent provision of the 1992 Agreement

states:

                The Secretary may grant to the Company a right of way for the
                construction, operation and maintenance of a pipeline for fifty
                (50) years within the Existing Right of Way. Said pipeline
                right of way shall be granted pursuant to and in accordance
                with the Tribal Council’s Resolution Granting Pipeline Right
                of Way, the form of which is attached and marked Exhibit “A.”
                The consideration and damages to be paid by the Company for

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               such pipeline operation and right of way and associated
               damages is the sum of Eight Hundred Thousand Dollars
               ($800,000.00), which sum shall be paid as set forth herein.

(1992 Agreement (dkt. #166-5) § 1.a.) “Existing Right of Way” is defined in the 1992

Agreement as the portion of the land in Enbridge’s “Original Rights of Way” in which the

Band had a “legal interest.” (Id. at 2.) “Original Rights of Way” was defined as both tribal

land and allotment land over which Enbridge operated its pipeline on the Reservation.

(Id.)

         Under this consent provision, the Band’s consent to an easement in the 1992

Agreement was coterminous with the consent reflected in the Tribal Resolution attached

as Exhibit A to the 1992 Agreement. See Matthews v. Wisconsin Energy Corp. Inc., 534 F.3d

547, 554 (7th Cir. 2008) (where contractual provision required performance “in a manner

that is consistent with” specific referenced policies, the contract “clearly and expressly

incorporates” those policies as part of the contract); see also 11 Williston on Contracts

§ 30:25 (4th ed.) (“When a writing refers to another document, that other document, or

the portion to which reference is made, becomes constructively a part of the writing, and

in that respect the two form a single instruction.”).

         For its part, the Tribal Resolution stated that the Band consented to an easement

that was coterminous with the easement identified in Enbridge’s Tribal Lands Application

to the BIA. The Tribal Resolution unambiguously limited the Band’s consent to the lands

covered by that application:

               WHEREAS, the Lakehead Pipe Line Company [Enbridge’s
               predecessor] . . . has requested consent from the Bad River
               Band . . . for a fifty (50) year right of way easement for a
               pipeline over and across any lands in which the Tribe has a

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              legal interest within the Company’s existing rights of way, all
              as is described more fully in the Company’s Application of
              Right of Way dated June 10, 1992 (hereineafter
              “Application”); and

              WHEREAS, the Tribal Council . . . has reviewed the
              Application and has been advised by the Tribe’s attorney with
              respect to the Application; and

              WHEREAS, the Company has offered to pay Eight Hundred
              Thousand Dollars ($800,000.00) in full consideration for such
              fifty (50) year Right of Way Easement for a pipeline;

              THEREFORE BE IT RESOLVED, that the Tribal Council . . .
              hereby accepts the offer of the Company, consents to the
              Company’s requests and Application, and requests the
              Secretary of Interior . . . to approve and grant the Application
              and the rights of way[.]

(1992 Tribal Resolution (dkt. #166-22).)

       Enbridge’s Tribal Lands Application, in turn, identified an easement for which the

“[a]pproximate distance of the right-of-way will be 2.8 miles[.]” (Tribal Lands Application

(dkt. #166-19).) That distance was the lineal distance of the 13 parcels within the pipeline

corridor then wholly owned by the Band, in other words, not the allotment parcels. The

“Tribal Lands Schedule,” attached as part of the Tribal Lands Application, listed those

same 13 parcels by their precise township and range legal descriptions, listed a cumulative

length of the right-of-way of approximately 2.8 miles and identified the parcels as “Bad

River Tribal Trust Indian Lands.” (Tribal Lands Schedule (dkt. #166-20).)

       The obvious import of these documents is that Enbridge’s Tribal Lands Application

was limited to the 13 Band-owned parcels, the Band’s 1992 Resolution limited the Band’s

easement approval to the 13 parcels in the Application, and the 1992 Agreement, which

was entered “pursuant to and in accordance with the” Resolution, was likewise limited to

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the 13 Band-owned parcels identified in the Application. Certainly, this is how the BIA

interpreted the parties’ 1992 Agreement, as it issued an easement after receiving these

documents that was expressly “limited to and more particular described as” the same 13

parcels covered by Enbridge’s Tribal Lands Application, which were again set forth by their

precise township and range legal descriptions. (BIA Tribal Land Easement (dkt. #166-

14).) See Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 783 (7th Cir. 2005) (stating federal

principles of contract interpretation) (“A document should be read as a whole with all its

parts given effect, and related documents must be read together.”).

       Despite the clarity of these documents, Enbridge argues that that 1992 Agreement

also addressed the allotment parcels over which the Band later obtained an ownership

interest. But Enbridge’s arguments rely on a strained and unpersuasive reading of the 1992

Agreement. First, Enbridge argues that the terms of its Tribal Lands Application were not

incorporated into the 1992 Agreement because it does not mention the Tribal Lands

Application. But this argument ignores that the 1992 Agreement expressly incorporates the

Band’s 1992 Resolution, which expressly limited its reach to the lands identified in the

Tribal Lands Application. Similarly, the cases Enbridge relies on are inapposite, as they

address situations in which a contract mentioned additional terms, but unlike here, failed

to attach or identify specifically the terms or documents that were incorporated. See Gupta

v. Morgan Stanley Smith Barney, LLC, 934 F.3d 705, 715 (7th Cir. 2019) (contract

contained merger clause and did not incorporate any other terms or documents); 188 LLC

v. Trinity Indus., Inc., 300 F.3d 730, 737 (7th Cir. 2002) (contract did not identify

specifically any terms or documents that were incorporated).


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       Second, Enbridge tries to end run the limited parcels on which the 50-year easement

was actually granted by arguing that § 3 of the 1992 Agreement implicitly granted the same

50-year easement on allotment land over which the Band had no interest or a de minimis

(2%) interest. Section 3 states:

              The Tribe and the Company will do whatever they can
              reasonably do to ensure that all of the objectives of the Tribe
              and the Company, as those objectives are expressed in this
              Agreement, are achieved, even if it means that one or both of
              the parties must do something which is not expressly described
              herein. One of the Company’s objectives under this Agreement
              is to obtain from the Tribe all consents and authorizations it is
              possible for the Company to obtain, whether necessary or not
              to obtain a fifty (50) year easement for Right of Way for a
              pipeline over the Company’s existing pipeline Right of Way in
              which the Tribe has an interest.

(1992 Agreement (dkt. #166-5) § 3.) Thus, Enbridge now argues that since its “objective”

under the 1992 Agreement was to obtain consent to operate its pipeline across the entire

reservation for 50 years, and because the Band agreed in § 3 to provide “all consents and

authorizations” necessary to achieve this objective, the Band is obligated to provide

consent for Enbridge to operate across allotment parcels, even those parcels that the Band

obtained an interest in after signing the 1992 Agreement.

       However, § 3 does not expressly or implicitly impose such an obligation on the

Band. Indeed, the provision says nothing about the Band assisting Enbridge in obtaining

a right-of-way across allotment land, let alone the entire Reservation. If the provision was

intended to address a 50-year right of way across the entire Reservation, if could have said

so simply by using the term “Original Rights of Way,” which the contract defined

specifically as both tribal land and allotment land on the Reservation.           Instead, the


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provision uses “Existing Pipeline Right of Way,” which is defined as the land owned by the

Band at the time of the 1992 Agreement.           As telling, the provision would also have

expressly included additional consideration if it had imposed additional, specific

obligations, such as “advance consent” to future easements. But the 1992 Agreement

mentions no consideration to be paid to the Band besides the $800,000 set forth in § 1, in

exchange for the 50-year easement across tribal land. To the contrary, that compensation

was paid to the majority owner(s) of each allotment parcel, and then for only a 20-year

easement just as the BIA directed.

       Thus, contrary to Enbridge’s arguments and as the Band argues, § 3 is simply a

“further assurances” or “best efforts” clause that required the parties to take actions

necessary to consummate the contract, even if the actions were not required specifically by

the contract. See Boyd Grp. (U.S.) Inc. v. D’Orazio, No. 14 CV 7751, 2015 WL 3463625,

at *5 (N.D. Ill. May 29, 2015) (clause requiring parties “to do such acts and things, all as

the other parties may reasonably request for the purpose of carrying out the intent of this

Agreement” was a further assurances clause that did not impose new or different

obligations on the parties not set out elsewhere in the contract). In this regard, § 3 is akin

to the contract’s implied duty of good faith recognized by Wisconsin common law and

discussed below, rather than a provision expanding the four corners of the contract itself

beyond recognition. For example, the Band was obligated by this provision to explain

persuasively to the BIA why it was requesting a 50-year easement on its then, wholly-

owned parcels, as opposed to the historical and BIA-required, 20-year easement assigned

to the allotment parcels. The provision required nothing more, and certainly did not


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constitute an open-ended promise for easements over an unspecified number of parcels the

Band might acquire in material part or in while sometime in the future, and that appeared

nowhere else in the Agreement or referenced documents. To hold otherwise would be to

“read language into a contract which is not there.” Dakota, Minnesota & E. R.R. Corp. v.

Wisconsin & S. R. Co., No. 09-CV-00516-WMC, 2010 WL 3282936, at *5 (W.D. Wis.

Aug. 19, 2010).      This is particularly true where, as here, the contract is between

“sophisticated parties . . . who know how to say what they mean and have an incentive to

draft their agreement carefully.” ConFold Pac., Inc. v. Polaris Indus., Inc., 433 F.3d 952, 955

(7th Cir. 2006).

       Third and finally, Enbridge argues that the court must interpret the 1992

Agreement as applying to allotment parcels, as well as Band-owned parcels, “to avoid an

absurd result,” arguing that it never would have paid $800,000 for a 50-year easement on

specific tribal parcels if it knew that the Band could block renewal of easements on other

parcels after 20 years. However, Enbridge knew full well at the time it signed the 1992

Agreement that there was a substantial risk its easements on the allotment parcels would

expire after 20 years, having been apprised that the BIA would only grant 20-year easements

on the allotment parcels, and that there was no guarantee these easements would be

renewed, regardless of who owned them at that time. Individual landowners did not have

to consent to renewal, so there was always the possibility that Enbridge would not be able

to operate its pipeline across the Reservation for 50 years. That Enbridge did not chose to

pay less for a 20-year easement on the Band-owned parcels as it had for the allotment

parcels or paid more for the Band’s express guarantee as to its future easements, were both


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its choice. Instead, Enbridge accepted the risk and paid $800,000 for a 50-year easement

over the Band-owned parcels, while paying less for 20-year easements on the other parcels.

Although Enbridge’s gamble did not pay off, it is not absurd for the court to enforce the

contract provisions to which the parties plainly agreed.


       2. Duty of Good Faith and Fair Dealing

       Enbridge next argues that even if the contract language did not require the Band to

consent to easements over the allotment parcels, an implied duty of good faith and fair

dealing imposed that obligation under Wisconsin common law, and the Band breached

that duty by refusing to provide consent to the BIA to extend the right-of-way across the

allotment parcels.4 The Band argues in response that the implied duty of good faith does

not require it to give up its sovereign power to control its territory.

       Wisconsin recognizes a duty of good faith and fair dealing as being implied in every

contract. Wis. Alumni Research Found. v. Xenon Pharms., Inc., 591 F.3d 876, 885 n. 5 (7th


4
  Enbridge also says that the Band breached its applied duty of good faith and fair dealing by
attempting to remove the pipeline from the parcels covered by the 50-year easement and by refusing
to permit Enbridge to conduct maintenance on the pipeline. (Enbridge Opp. Br. (dkt. #207) 100–
101.) However, Enbridge failed to develop any breach of contract or bad faith arguments about
the 50-year easement or maintenance requests in its opposition brief; instead, it included two
conclusory proposed findings of fact, apparently to support these claims. (Enbridge PFF (dkt.
#209) ¶ 57) (alleging that Tribal Council is trying to terminate 1992 Agreement and remove
pipeline from entire Reservation), ¶ 93 (alleging that the Band “unreasonably refused to permit
Enbridge (and its contractors) to conduct maintenance on the Line where it crosses the Reservation,
primarily on the purported justification that Enbridge is in trespass”).) Such “perfunctory and
undeveloped arguments” are waived. M.G. Skinner & Associates Insurance Agency v. Norman-Spencer
Agency, 845 F.3d 313, 321 (7th Cir. 2017) (“Perfunctory and undeveloped arguments are waived,
as are arguments unsupported by legal authority.”); Estate of Moreland v. Dieter, 395 F.3d 747, 759
(7th Cir. 2005) (same). Further, the Band also moved for summary judgment on Enbridge’s breach
of contract claims, so this was the time for Enbridge to support those claims with sufficient evidence
and argument to raise a genuine dispute of material fact. Having failed to do so, the Band is entitled
to summary judgment on Enbridge’s breach of contract and duty of good faith claims relating to
the 50-year easement and maintenance disputes as well.

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Cir. 2010) (Wisconsin law).5 However, the duty of good faith requires no more from a

party then to honor the other party’s rights under the contract, id. at 829, and precludes

parties from engaging in conduct that “denie[s] the benefit of the bargain originally

intended by the parties,” Zenith Ins. Co. v. Employers Ins. of Wausau, 141 F.3d 300, 308 (7th

Cir. 1998), or “frustrat[es] the purpose of the agreement.” Estate of Chayka, 47 Wis. 2d

102, 107, 176 N.W.2d 561 (Wis. 1970). Conduct that violates the duty of good faith

may include: “evasion of the spirit of the bargain, lack of diligence and slacking off, willful

rendering of imperfect performance, abuse of a power to specify terms, and interference

with or failure to cooperate in the other party’s performance.” Foseid v. State Bank of Cross

Plains, 197 Wis. 2d 772, 797, 541 N.W.2d 203 (Ct. App. 1995). Thus, the similarity

between this duty and the contractual duty of both parties in § 3, quoted in full above, to

“do whatever they can reasonably do to ensure that all of the objectives of the Tribe and

Company, as those objectives are expressed in the Agreement.”

       Nevertheless, Enbridge argues that the Band violated the duty of good faith because

of its refusal to consent to easements over the now 12, Band-owned allotment parcels

somehow frustrates the purpose of the parties’ 1992 Agreement. However, that argument

has no more traction than that under § 3. Certainly, Enbridge’s 50-year easement over the

Band-owned tribal land is of little import unless Enbridge has permission to operate its

pipeline across the entire Reservation, and without the Band’s consent to easements on the




5
  Some courts have found that the duty of good faith is implied under federal common law well.
E.g., Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817, 828 (Fed. Cir. 2010) (“The duty of good
faith and fair dealing is inherent in every contract, including contracts to which the federal
government is a party.”) (citing Restatement (Second) of Contracts § 205).

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12 Band-owned allotment parcels, Enbridge cannot obtain the permission that it needs.

Still, Enbridge’s argument ultimately fails for at least two reasons. First, the only purpose

or objective shared by and express in the 1992 Agreement was to grant Enbridge an

easement to operate across the then Band-owned parcels for 50 years. As discussed above

with respect to § 3, the agreed upon purpose was not, as Enbridge now asserts, to permit

it to operate across the entire Reservation for 50 years. Moreover, Enbridge knew of the risk

that its 20-year easements contemporaneously granted by the BIA might not be renewed,

and yet failed to protect itself from that risk. In the end, the duty of good faith and fair

dealing cannot be used to add obligations and conditions to an agreement that go beyond

the agreement reached by the parties. Betco Corp., Ltd. v. Peacock, No. 14-CV-193-WMC,

2016 WL 7429460, at *6 (W.D. Wis. Dec. 23, 2016), aff’d, 876 F.3d 306 (7th Cir. 2017)

(“implied duty of good faith is not a license to rewrite a contract”).

       Second, and as importantly, the implied duty of good faith and fair dealing cannot

be applied to deprive the Band of its sovereign authority over its land. Rather, the court

must interpret all contracts in light of the Band’s sovereign power and must construe

contracts to avoid, if possible, foreclosing the exercise of sovereign authority. Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982).       A sovereign will be found to have

surrendered a sovereign power by contract only if the surrender was explicit and

unambiguous. Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41,

52 (1986) (quoting Merrion, 455 U.S. at 148) (“[S]overeign power, even when unexercised,

is an enduring presence that governs all contracts subject to the sovereign’s jurisdiction,

and will remain intact unless surrendered in unmistakable terms.”). In this case, nothing


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in the 1992 Agreement clearly and unmistakably surrenders the Band’s power to exclude

Enbridge from parcels of land acquired after the agreement was signed; nor are there

explicit or unmistakable terms in the 1992 Agreement by which the Band agreed to grant

Enbridge a right-of-way across all parcels owned by the Band for the next 50 years.

      Accordingly, on this record, the only way to find a waiver of the Band’s broader

sovereign power over other parcels would be to infer one under the contractual implied

duty of good faith, but to do so would be contrary to law. See United States v. Cherokee

Nation of Oklahoma, 480 U.S. 700, 707 (1987) (“[A] waiver of sovereign authority will not

be implied, but instead must be ‘surrendered in unmistakable terms’”) (citations omitted);

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58–59 (1978) (waiver of sovereign powers

“cannot be implied but must be unequivocally expressed”) (citations omitted); Grand

Canyon Skywalk Dev. v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1195, 1205 (9th Cir. 2013) (sovereign

powers must be “expressly waived in unmistakable terms within the contract”). While

Enbridge argues that the Band’s power to exclude is not a sovereign power, and the Band

simply has the same authority to exclude that belongs to any landowner, which can be

limited by contract, the Supreme Court has expressly rejected the view that tribal power

to exclude from its land is akin to “the power possessed by any individual landowner or

any social group to attach conditions . . . to the entry by a stranger onto private land.”

Merrion, 455 U.S. at 146.     Instead, the Court explained that “a hallmark of Indian

sovereignty is the power to exclude non-Indians from Indian lands” and “to control

economic activity within its jurisdiction.” Id. at 140. Indeed, the Bad River Band’s

sovereign power over its lands was acknowledged in the 1854 Treat with the Chippewa,


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State of Wisconsin v. Hitchcock, 201 U.S. 202, 214 (1906), which created a permanent

reservation for the Band with permanent rights of occupancy and possession, including the

power to exclude and to “place conditions on entry, on continued presence, or on

reservation conduct.” Oneida Cnty., N.Y. v. Oneida Indian Nation of New York State, 470

U.S. 226, 235 (1985).

       Further, Congress recognized the extent of tribal sovereign authority in this area by

making tribal consent a statutory requirement to an encumbrance on tribal land. Under

the Nonintercourse Act, a transfer of any rights in tribal land to a non-Indian person or

entity requires the consent of both the Secretary of the Interior and the tribe itself. See 25

U.S.C. § 177; Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960). With

respect to right-of-way easements across tribal lands in particular, the Secretary of the

Interior has the authority to grant an easement for a pipeline through a Reservation or

individual Indian allotment, 25 U.S.C. § 321, but cannot authorize a right-of-way

easement across land owned or co-owned by a tribe “without the consent of the proper

tribal officials.” 25 U.S.C. § 324; see also 25 C.F.R. § 169.4.6 Thus, in exercising its power

to exclude non-Indians, the Band is acting not only as a landowner, but as a local

government and sovereign. Merrion, 455 U.S. at 146, n.12 (“Over tribal lands, the tribe

has the rights of a landowner as well as the rights of a local government, dominion as well



6
  Both case law and BIA regulations also recognize that these statutory requirements arise from the
Band’s tribal sovereignty. See Pub. Serv. Co. of New Mexico v. Barboan, 857 F.3d 1101, 1112 (10th
Cir. 2017) (discussing § 324 and noting that, “unlike ordinary heirs inheriting interests in land,
tribes are sovereign political entities possessed of sovereign authority”) (citation omitted); “Rights-
of-Way on Indian Land,” 80 Fed. Reg. at 72,505–06 (BIA acknowledging that “[c]onsenting to
rights-of-way on trust or restricted land is one of several tools . . . that animate the traditional
notions of sovereignty”).

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as sovereignty.”). Moreover, the Band’s decision effectively to refuse additional, 30-year

easements to Enbridge on allotment parcels was not just was the exercise of a sovereign

power to which Enbridge was always subject, which the implied duty of good faith and fair

dealing cannot waive, but to do otherwise would be effectively renewing these easements

without BIA approval.

       In sum, the Band did not breach the 1992 Agreement and did not violate its implied

duty of good faith and fair dealing by refusing to grant Enbridge easements over the 12

allotment parcels acquired after signing the agreement; nor did the 1992 Agreement

provide the Band’s consent to Enbridge for continued operation of its pipeline on the

allotment lands now owned by the Band beyond the express, 20-year easement approved

by the BIA and long since expired. Instead, the 1992 Agreement expressly limited the 50-

year easement to the 13 Band-owned parcels identified and created no obligation as to any

other parcels along the pipeline corridor. Accordingly, Enbridge cannot rely on the 1992

Agreement as a source of consent or legal authorization to continue operating its pipeline

on the allotment parcels without a valid easement.



   B. Enbridge’s Efforts to Renew the Easements

       Next, Enbridge argues that the Band’s trespass claim fails because, regardless of the

1992 Agreement, the Administrative Procedures Act, 5 U.S.C. § 558(c), gives Enbridge the

right to continue operations on the allotment parcels. Section 558(c) states that a timely

application for renewal of an easement or license form a federal agency stays expiration of

an easement or license until a final decision is made, so long as the application was made

“in accordance with agency rules.” See also Pan-Atl. S. S. Corp. v. Atl. Coast Line R. Co., 353
                                              23
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U.S. 436, 439 (1957) (describing requirements of § 558(c)). Thus, Enbridge argues that

because it submitted applications for renewal of its easements on the allotment parcels

before they expired, and there is no final decision from the Interior Board of Indian Appeals

on those applications, Enbridge can continue operating its pipeline without being in

trespass indefinitely.

       This argument fails lacks support in the evidence. While Enbridge submitted 15

written applications for renewal of the allotment parcels in March 2013, approximately

three months before the easements would expire by their terms in June 2013, the BIA

denied those applications in November 2020 because Enbridge had “failed to obtain

landowner consents” (id. at 2) (emphasis added) with its right-of-way applications. Although

Enbridge filed timely administrative appeals from the denials, which are technically still

pending before the Interior Board of Indian Appeals, Enbridge’s renewal applications did

not comply with the BIA’s rules for seeking renewal of easements over tribal land on their

face. In particular, Enbridge asserts that there was no regulation at the time expressly

requiring the submission of landowner consents with its applications, but the application

forms submitted in 2013 identified the documents that the BIA required to be submitted

with a renewal request, including “Written consent of landowner (ROW Form 94.7).”

(Dkt. #258-3.)

       Plus, contrary to Enbridge’s assertion, the regulations at the time of submitting the

renewal applications, 25 C.F.R. § 169.14 (2013), required it to deposit “the total estimated

. . . consideration for the right-of-way” as “specified in the consent covering that parcel.”

The BIA guidance at the time likewise listed “Written consent of landowner” as a


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“Required” item to be submitted with the renewal application. See https://iltf.org/wp-

content/uploads/2016/11/BIA-Procedural-Handbook-Grant-of-Easement-for-Right-of-

Way-on-Indian-Lands.pdf (last visited September 7, 2022). In light of this guidance,

Enbridge had and has no plausible argument that its 2013 renewal applications complied

with the BIA’s rules, much less were sufficient to stay expiration of its easements under

§ 558(c). To hold otherwise would lead to Enbridge being permitted to operate its pipeline

indefinitely on the Band’s land without its consent, so long as the BIA failed to issue a final

decision on the applications despite their patent invalidity.



   C. Pipeline Safety Act and Federal Preemption

       Enbridge’s final argument is that the Band’s trespass claim is barred by the federal

Pipeline Safety Act, 49 U.S.C. § 60101, et seq., which establishes a comprehensive regime

of safety requirements for interstate pipelines and precludes domestic authorities from

regulating pipeline safety. 49 U.S.C. § 60104(c) (“A State authority may not adopt or

continue in force safety standards for interstate pipeline facilities or interstate pipeline

transportation.”) Enbridge also cites several cases holding that state or local actions are

preempted by the Act. E.g., Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872 (9th Cir.

2006) (Pipeline Safety Act preempted City of Seattle from enforcing its own more stringent

pipeline safety provisions); Kinley Corp. v. Iowa Utilities Board, Utilities Division, Department

of Commerce, 999 F.2d 354 (8th Cir. 1993). Enbridge argues that because the Band is

withholding its consent to renewed easements on the allotment parcels based on safety

concerns, the Band’s actions are preempted by the Act.



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       The glaring problem with this argument is that while the Band’s refusal to consent

to easements may be based in part on safety concerns (at least environmental in nature),

it is not based on any imposition of safety standards. Nor has Enbridge been able to cite

any legal authority supporting its argument that the Pipeline Safety Act would require a

tribe (or any other landowner for that matter) to grant or renew an easement for a pipeline

across its land simply because it has concerns about the safety of doing so. See Enbridge

Energy v. Town of Lima, No. 13-CV-187-BBC, 2013 WL 12109106, at *4 (W.D. Wis. Apr.

4, 2013) (“[B]ecause defendants’ road use proposal and demands are not safety

regulations, they do not come within the express preemption provision of the Pipeline

Safety Act.”)

       For all of the reasons explained above, therefore, Enbridge has failed to undermine

plaintiff’s overwhelming evidence of the three elements of the Band’s trespass claim or

asserted any viable defense. Thus, the Band is entitled to summary judgment on its

trespass claim, as well as on Enbridge’s counterclaims for breach of contract and related

implied duty of good faith and fair dealing.



   D. Unjust Enrichment and Restitution

       The Band has also moved for summary judgment on its claim of unjust enrichment.

To succeed on this claim, the Band must show that Enbridge obtained a benefit at its

expense, or in violation of its legally protected rights. See Restatement (Third) Restitution

and Unjust Enrichment § 1 (“Restatement of Restitution”); see also See Cent. States, Se. &

Sw. Areas Health & Welfare Fund v. Pathology Lab’ys of Arkansas, P.A., 71 F.3d 1251, 1254

(7th Cir. 1995) (federal common law on restitution and unjust enrichment “tracks the
                                               26
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consensus of the states,” which is summarized in the Restatement of Restitution). The

Band claims that Enbridge benefited monetarily by trespassing in violation of its legally

protected rights and should be found liable for unjust enrichment, including payment of

restitution. Enbridge raises three arguments in opposition to the Band’s unjust enrichment

claim, but none is persuasive.

       First, Enbridge argues that there is no federal cause of action for unjust enrichment,

relying on a single, district court decision that found “no authority” in federal common law

setting forth “the elements of an unjust enrichment claim.” Schafer, Tr. of Wayne Penn

Schafer Separate Prop. Tr. Established Oct. 5, 1982 v. Centerpoint Energy Oklahoma Gas, No.

17-CV-365-GKF-FHM, 2018 WL 10140171, at *5 (N.D. Okla. May 21, 2018). As far as

this observation goes, it is certainly not precedential, or even persuasive. Regardless, the

Seventh Circuit has recognized unjust enrichment claims under federal common law,

equating them with common law principles of restitution. ConFold Pac., Inc. v. Polaris

Indus., Inc., 433 F.3d 952, 957 (7th Cir. 2006); Cent. States, 71 F.3d at 957.         More

specifically, “A person who is unjustly enriched at the expense of another is subject to

liability in restitution.” Restatement of Restitution § 1; see also id. § 40 (“A person who

obtains a benefit by an act of trespass . . . is liable in restitution to the victim of the

wrong.”); Bobak v. Fed. Exp. Corp., No. 97 C 7066, 1999 WL 160223, at *7 (N.D. Ill. Mar.

10, 1999) (recognizing common law theory of unjust enrichment).

       Second, Enbridge argues that there are disputed issues of fact precluding summary

judgment on the Band’s unjust enrichment claim. However, the only disputed issues that

Enbridge discusses relate to the 1992 Agreement, and in particular whether Enbridge had


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permission under that agreement to maintain its pipeline on the allotment parcels owned

by the Band. As discussed above, there are no genuine factual disputes regarding the 1992

Agreement, and Enbridge had no valid basis for believing that it could maintain its pipeline

on tribal land without the Band’s permission and a valid easement from the BIA, leaving

only a question as to the appropriate remedy.

       Third, and relatedly, Enbridge argues that the Band cannot pursue an equitable

remedy for unjust enrichment because it can seek fair rental value for Enbridge’s trespass,

which provides an adequate legal remedy. However, as discussed more in the section

below, addressing a “profits-based remedy,” the basis for the Band’s restitution claim is

that an award of fair rental value alone would not be an adequate remedy, and similarly

that ordinary trespass damages would be inadequate to address Enbridge’s actions.

Enbridge has failed to refute this argument sufficiently to prevent the Band from being

allowed to seek an appropriate remedy for unjust enrichment.

       In sum, the Band has submitted evidence sufficient to compel a reasonable jury’s

finding of unjust enrichment, and Enbridge has failed to raise any legal or factual dispute

that would preclude entry of summary judgment on liability as to that claim. Therefore,

the Band is entitled to a finding at summary judgment that Enbridge is liable for unjust

enrichment, as well as unlawful trespass.



   E. The Band’s Remedies

       This brings us to the Band’s motion for summary judgment on its entitlement to

certain remedies. As an initial matter, Enbridge concedes that if the Band is successful on

its trespass claim, the Band is entitled to fair market rental value on the expired easements
                                             28
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for the 12 allotment parcels. As noted, the Band in turn contends that the rental value of

the easement would not be a sufficient damage award, and seeks a ruling that it is entitled

to recover a profits-based remedy for its trespass and unjust enrichment claims. The Band

also seeks a permanent injunction requiring Enbridge to cease operation of the pipeline, to

safely decommission it, and to remove it.


   1. Accounting and profits

       The court also agrees that the Band is entitled to a profits-based remedy for

Enbridge’s trespass and unjust enrichment. Specifically, the Supreme Court has recognized

that an accounting for profits is available under federal common law specifically for trespass

to Indian lands. United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 344 (1941) (railroad

that unlawfully used Indian lands was required to “account for all rents, issues and profits

derived from the leasing, renting or use of the lands”); Oneida Cnty., N.Y., 470 U.S. at 235–

36 (“Indians have a common-law right of action for an accounting of ‘all rents, issues and

profits’ against trespassers on their land.”) (quoting Santa Fe, 314 U.S. at 344); see also

Davilla v. Enable Midstream Partners, L.P., No. CIV-15-1262-M, 2016 WL 6952356, at *3

(W.D. Okla. Nov. 28, 2016) (where pipeline found in trespass after expiration of BIA

easements, Indian landowners entitled, under federal common law, “to an accounting of

defendants’ profits from the operation of their pipeline and recovery of the pro-rata share

of those profits that is attributable to the portion of the pipeline that has been located on

their property”).

       As explained in the Restatement on Restitution, an appropriate remedy for unjust

enrichment is also “the amount of profit wrongfully obtained.” Restatement on Restitution

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§ 49. Similarly, “[e]nrichment resulting from intentional trespass is not properly measured

by ordinary rental value,” as that remedy would leave the conscious wrongdoer “on a parity

with a person who—pursing the same objectives—respects the legally protected rights of

the property owner.” Id. § 40, cmt. b. Instead, the proper remedy for willful or intentional

trespass includes “consequential gains” in the form of profits that the trespasser achieved

by violating the property owner’s rights. Id. See also Restatement (Second) of Torts § 929

(“[I]f the defendant is a willful trespasser, the owner is entitled to recover from him the

value of any profits made by the entry.”).

       Enbridge also raises several arguments in opposition to the Band’s request for a

profits-based remedy, but none is persuasive. First, Enbridge contends that the Band did

not plead a claim for accounting, but this is simply incorrect. Indeed, the Band sought in

its complaint “an order awarding the Band damages for trespass and restitution for unjust

enrichment, including for profits derived from Enbridge’s unlawful transmission of

petroleum products across the Band’s lands.” (3d Am. Cpt. (dkt. #85-1) Prayer for Relief,

¶ H).) A request for profits and restitution for unjust enrichment is the equivalent of a

request for an “accounting.” See Restatement of Restitution § 51(4) (“Restitution remedies

that pursue this object [depriving a wrongdoer of profits] are often called ‘disgorgement’

or ‘accounting’”); Liu v. Sec. & Exch. Comm’n, 140 S. Ct. 1936, 1942 (2020) (“depriv[ing]

wrongdoers of their net profits from unlawful activity” has “gone by different names,”

including “restitution,” “disgorgement,” “accounting” and “accounting for profits”).

Accordingly, the Band adequately pleaded its request for a profits-based remedy following

an accounting.


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       Second, Enbridge argues that restitution or a profits-based remedy is not

appropriate for trespass cases, and that the only appropriate remedy is a rental fee or

market value of the land, particularly if nothing was removed from the property. However,

the only cases that Enbridge cites in support concern innocent trespassers. E.g., Enbridge

Energy, Ltd. P'ship v. Engelking, 2017 WI App 1, ¶ 22, 372 Wis. 2d 833, 890 N.W.2d 48

(landowner entitled to rental value of the land for duration of the trespass, where trespasser

“did not act willfully or wantonly in disregard of the [landowner’s] rights, but rather

committed an honest mistake when they located the three additional pipelines in an area

they erroneously believed, based on the language of the Right of Way Grant, was part of

the conveyed right of way”); Young v. Appalachian Power Co., No. CIV.A.2:07-479, 2008

WL 4571819, at *8 (S.D.W. Va. Oct. 10, 2008) (“Plaintiffs have adduced no evidence

that the defendant was a “conscious wrongdoer.”); Mullins v. Equitable Prod. Co., No.

2:03CV00001, 2003 WL 21754819, at *1 (W.D. Va. July 29, 2003) (rental value was

appropriate remedy where pipeline was built on plaintiff’s property “in error”).

       Here, although initially an owner of an easement, Enbridge is now a conscious or

willful trespasser. A “‘conscious wrongdoer’ is a defendant who is enriched by misconduct

and who acts (a) with knowledge of the underlying wrong to the claimant, or (b) despite a

known risk that the conduct in question violates the rights of the claimant.” Restatement

of Restitution § 51(3). For the reasons discussed above, a reasonable jury would have to

find that Enbridge was enriched by trespassing on the Band’s land and had no reasonable

basis for believing that its presence continued to be lawful. To the contrary, Enbridge knew

that: its easements had expired; and it was required by federal statute to have permission


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from the Band, as well as a valid easement from the BIA. Instead, Enbridge continued

operating its pipeline on the allotment parcels.          Moreover, contrary to its argument,

Enbridge could neither have reasonably believed that the 1992 Agreement, nor that its

incomplete renewal applications permitted Enbridge to continue operating on the

allotment land owned by the Band. Instead, on this record, a reasonable jury would have

to find that Enbridge was a conscious trespasser from whom the Band can recover a profits-

based remedy. See In re de Jong, 793 F. App’x 659, 660 (9th Cir. 2020) (trespasser who

knew lease would expire but did not vacate premises was a conscious trespasser liable for

“disgorgement of all profits derived from the trespass,” because “a conscious trespasser will

be stripped of all gains from unauthorized interference with another’s property”).

       Third, Enbridge argues that the Band’s request for restitution, profits, or any other

relief, including injunctive relief, is barred by the doctrine of laches, since the Band waited

several years after Enbridge’s easements expired before filing this lawsuit.7 Laches is an

equitable doctrine that considers the inequity of permitting a claim to be enforced. City of

Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197, 217 (2005) (laches is an

equitable remedy that may “bar long-dormant claims for equitable relief”). To support a

defense of laches, however, Enbridge would have to show (1) a lack of diligence by the




7
  Enbridge says in a footnote that it has “a number of other affirmative defenses” that would bar
the Band’s claims and that preclude summary judgment on the Band’s trespass claim. (Enbridge’s
Opp. Br. (dkt. #207) 143, n.84.) However, if Enbridge wanted to raise affirmative defenses in
opposition to the Band’s trespass or unjust enrichment claims, summary judgment was obviously
the time to do so. By failing to develop these arguments in its opposition brief, Enbridge has waived
those affirmative defenses to the Band’s trespass and unjust enrichment claims.

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Band, and (2) prejudice to Enbridge. See Lingenfelter v. Keystone Consol. Indus., Inc., 691 F.2d

339, 340 (7th Cir. 1982). Neither have been established here.

       Nevertheless, Enbridge argues that it engaged the Band in good faith negotiations

before easements on the allotment parcels expired in 2013, and that the Band failed to

meaningfully respond for more than two years to its offer. It further alleges that the Band

never demanded that Enbridge cease operations or remove the pipeline until January 2017,

when the Tribal Council passed a resolution stating that it would not renew the easements

for the pipeline, and that the Band did not accuse Enbridge of trespass until it filed this

lawsuit in July 2019. Enbridge also argues that it was prejudiced by the Band’s delay in

crying foul, because (1) it could have started working sooner on a plan to reroute the

pipeline outside of the Reservation boundaries, and (2) the lapsed time has increased

Enbridge’s potential liability for damages to the Band.

       The court is not persuaded that the doctrine of laches bars any of the Band’s claims

in this case. Enbridge relies on cases in which equitable principles barred the enforcement

of rights that had long gone stale. For example, in Cayuga Indian Nation of N.Y. v. Pataki,

413 F.3d 266, 269 (2d Cir. 2005), the Cayuga Indian Nation filed suit against the State

of New York, claiming that a flaw in the original transfer of its reservation land over 200

years ago violated federal law, so it was entitled to possession of the land. The Second

Circuit found the claim was barred by laches because “this type of possessory land claim—

seeking possession of a large swath of central New York State and the ejectment of tens of

thousands of landowners—is indisputably disruptive.” Id. at 275–277. In so holding, the

Second Circuit relied on City of Sherrill, 544 U.S. 197, in which the Supreme Court held


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that equitable principles precluded the Oneida Indian Nation from reviving its sovereignty

over land that was formerly part of its historic reservation. The Tribe resisted payment of

property taxes to the City of Sherrill on the ground that its acquisition of fee title to the

parcels revived the Tribe’s sovereignty over the land. Id. The Supreme Court rejected that

claim, concluding that the “long lapse of time” and “dramatic changes in the character of

the properties” precluded the Tribe from gaining “the disruptive remedy it now seeks.” Id.

at 216-217.     Specifically, referring to the doctrines of laches, acquiescence and

impossibility, the Court held that the “Oneidas’ long delay in seeking equitable relief

against New York or its local units, and developments in the city of Sherrill spanning

several generations,” rendered the shift in governance sought by the Tribe inequitable. Id.

at 221.

       The equitable considerations in this case are not remotely analogous to the

circumstances in Cayuga or Sherrill. The Band’s enforcement of its sovereign authority over

the allotment parcels will not disrupt significant and justified expectations concerning the

character of the land. The Band’s claims are also not long-dormant claims that it has

sought to revive after 200 years. Although the Band did not seek to enforce its rights over

the allotment parcels until it filed suit in 2019, Enbridge had no justified expectations in

continuing to operate the pipeline over the allotment parcels for years without paying

compensation. Regardless, Enbridge was well-aware that it lacked a valid easement over

the parcels, and it knew or should have known that federal law required both the Band’s

and BIA’s approval. Lastly, Enbridge has cited no legal authority suggesting that a court




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in law or equity should apply principles of laches to protect individuals who have been

knowingly operating contrary to federal law.

       Fourth, and finally, Enbridge argues that permitting the Band to recover a profits-

based remedy would be a “windfall” to the Band because it obtained ownership of the

allotment parcels “at taxpayer expense through federal programs, and for a minute fraction

of the amounts it is now seeking in damages as a result of its ownership in these lands.”

(Enbridge Opp. Br. (dkt. #207) 120.) This argument is tone-deaf and meritless. As

Enbridge is well-aware, the allotment parcels were part of the Band’s original territory, and

were severed as a result of the federal government’s allotment policy, the purpose of which

was “simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries,

and force the assimilation of Indians into society at large.” Lac Courte Oreilles Band of Lake

Superior Chippewa Indians of Wisconsin v. Evers, – F.4th –, 2022 WL 3355076, at *6 (7th Cir.

Aug. 15, 2022) (quoting Cnty. of Yakima v. Confederated Tribes & Bands of Yakima Indian

Nation, 502 U.S. 251, 254 (1992)); see also Oneida Nation v. Vill. of Hobart, 968 F.3d 664,

670–71 (7th Cir. 2020) (“as a result of allotment, Indians drift[ed] toward complete

impoverishment and lost their land”) (citations omitted). The land consolidation and

reorganization programs by which the Band acquired the 12 allotment parcels at issue here

were intended to reverse the decimation of tribal land wrought by the government’s

allotment policy, and to “give tribes the opportunity to re-establish their governments and

land holdings.” Oneida Nation, 968 F.3d at 671. In light of this historical background,

Enbridge’s argument that the Band would receive a “windfall” by enforcing its sovereign

rights over the land it has recovered is meritless.


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       Accordingly, the court is persuaded that restitution or a profits-based remedy is

appropriate and necessary in this case, both to address the violation of the Band’s sovereign

rights and to take away what otherwise would be a strong incentive for Enbridge to act in

the future exactly as it did here. If Enbridge was required to pay only what it would have

paid the Band for an easement, the court would essentially be granting Enbridge a de facto

condemnation power, and excusing it from complying with the bargaining and easement

process for Indian lands established by federal law. Cf. Pearson v. Target Corp., 968 F.3d

827, 831 (7th Cir. 2020) (“We base our decision here on long-established principles of

equity. It has long been axiomatic ‘that no person shall profit by his own wrong.’”);

Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 576 (7th Cir. 2004) (“[O]ne way to

deter [an intentional tort] is to make it worthless to the tortfeasor by stripping away all his

gain, since if his gain exceeded the victim’s loss a damages remedy would leave the

tortfeasor with a profit from his act.”). For all of these reasons, the court will grant

summary judgment to the Band on its request for a profits-based remedy.

       The Band did not request a specific amount of monetary relief in its motion for

summary judgment, and neither side addressed how a profits-based remedy should be

calculated in this case. Accordingly, the court will direct the parties to submit supplemental

briefing on how the court should determine the amount of profits-based relief to which the

Band is entitled, including the ordering of a third-party accounting, and whether the

ultimate question as to a final dollar amount should be resolved by the court or a jury.




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       2. Permanent injunction

       Finally, the Band argues that if the court finds Enbridge in trespass, it should issue

a permanent injunction prohibiting the further flow of crude oil and natural gas across the

relevant parcels and requiring the safe removal of Line 5 from the 12 allotment parcels

owned by the Band.       However, a finding of liability on a defendant’s part does not

automatically give rise to an entitlement to injunctive relief, even if the defendant’s actions

clearly violate federal law. Liebhart v. SPX Corp., 998 F.3d 772, 779 (7th Cir. 2021). To

the contrary, an injunction issues “only as necessary to protect against otherwise

irremediable harm.” LAJIM, LLC v. Gen Elec. Co., 917 F.3d 933, 944 (7th Cir. 2019); see

also United States v. Bethlehem Steel Corp., 38 F.3d 862, 867 (7th Cir. 1994) (“Ordinarily, a

court is obligated to conduct an equitable balancing of harms before awarding injunctive

relief, even under an environmental statute which specifically authorizes such relief.”)

       Nonetheless, the Band argues that this court should not weigh the equities in

deciding whether to enjoin Enbridge permanently from using the pipeline in its Tribal

lands, because an injunction is mandatory under the circumstances here. In particular, the

Band says that permitting Enbridge to operate in trespass would violate the Nonintercourse

Act, which requires tribal consent to any conveyance of a right on Indian land. 25 U.S.C.

§ 177 (“No purchase, grant, lease, or other conveyance of lands, or of any title or claim

thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity,

unless the same be made by treaty or convention entered into pursuant to the

Constitution.”)




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       In so arguing, the Band relies on Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978), a case that analyzed a different statute and statutory scheme under the Endangered

Species Act. Id. at 171. The Court held that the Endangered Species Act required the

district court to enjoin completion of a dam where it was undisputed further construction

would cause the complete elimination of an endangered species.             Id.   Under these

circumstances, an injunction was the only means of ensuring compliance with the

Endangered Species Act. Id. at 194. However, the Band cites no cases applying Hill to a

trespass or unjust enrichment claim, nor any case applying Hill to prevent a violation of

the Nonintercourse Act. Nor has the Band cited any case in which a court disregarded

traditional equitable principles and issued an automatic injunction to prevent a

Nonintercourse Act violation.

       Instead, the Supreme Court noted that “the Nonintercourse Act does not address

directly the problem of restoring unlawfully conveyed land to the Indians,” Oneida Cnty.,

470 U.S. at 239, and recognized that “equitable considerations” might limit the relief

available to Indians seeking to enforce their property rights. Id. at 253, n.27. In rejecting

an Indian tribe’s request for injunctive relief for equitable reasons, the Supreme Court also

explained that “[t]he substantive questions whether the plaintiff has any right or the

defendant has any duty, and if so what it is, are very different questions from the remedial

questions whether this remedy or that is preferred, and what the measure of the remedy

is.” City of Sherrill, 544 U.S. at 213 (citing Oneida Indian Nation of New York State v. Cnty.

of Oneida, N.Y., 199 F.R.D. 61, 90 (N.D.N.Y. 2000) (“[T]here is a sharp distinction

between the existence of a federal common law right to Indian homelands and how to


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vindicate that right.”)); see also Yankton Sioux Tribe v. United States, 272 U.S. 351, 357

(1926) (recognizing the impracticability of returning to Indian control land that

generations earlier passed into numerous private hands).

       Although this case is distinguishable from the City of Sherrill and other cases

involving land that has been held by non-Indians for decades, or even centuries, there are

still equitable considerations that affect the Band’s injunction request. See City of Sherrill,

544 U.S. at 219 (recognizing that certain requests for injunctive relief may be

“impractical”). In particular, there are concerns raised by Enbridge and several amici about

the impact on foreign relations, consumers, refineries, regional economies, and

international energy supply, resulting from an immediate shutdown of the Line 5 pipeline.

Under the circumstances, therefore, the court will follow the Supreme Court’s guidance

that in choosing between various methods of enforcing Congress’s policy choices, discretion

be exercised as to “whether a particular means of enforcing the statute should be chosen

over another permissible means.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S.

483, 497–98 (2001).

       Applying this principle, the court concludes that the Band is entitled to a remedy

for Enbridge’s trespass and unjust enrichment, particularly in light of Congress’s clear

statement in the Nonintercourse Act, but that the court is not required to issue a permanent

injunction that would eject Enbridge immediately from the allotment parcels without

considering the relevant equities. See Davilla v. Enable Midstream Partners L.P., 913 F.3d

959, 973 (10th Cir. 2019) (holding that district court erred by ordering defendant to

remove pipeline “on the basis of liability alone”).


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       Generally, in determining whether to enjoin a continuing trespass permanently, a

federal district court must consider whether: (1) an injunction is necessary to prevent

irreparable harm; (2) remedies available at law, such as monetary damages, are inadequate

to compensate for that injury; (3) the balance of hardships between the plaintiff and

defendant; and (4) the public interest would not be disserved by a permanent injunction.

Liebhart, 998 F.3d at 779 (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391

(2006).) Here, the Band has submitted ample evidence to show that an injunction is

necessary to prevent irreparable harm, and that remedies available at law, such as monetary

damages, would be inadequate compensation. Indeed, “[a]s a general rule, interference

with the enjoyment or possession of land is considered ‘irreparable’ since land is viewed as

a unique commodity for which monetary compensation is an inadequate substitute.”

Pelfresne v. Vill. of Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989). This is particularly

true here, where the harm of a continuing trespass would dispossess the Band of its sovereign

right to control its own land. See Merrion, 455 U.S. at 141 (“power to exclude non-Indians

from Indian lands” is “a hallmark of Indian sovereignty”).           For the same reason,

interference with the Band’s sovereignty cannot be adequately remedied with monetary

damages.

       As for the third factor, the court agrees the balance of hardship between the parties

weighs heavily in the Band’s favor since Enbridge’s conduct was willful. See Sierra Club v.

Franklin Cnty. Power of Illinois, LLC, 546 F.3d 918, 935 (7th Cir. 2008) (“[I]t is an accepted

equitable principle that a court does not have to balance the equities in a case where the




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defendant's conduct has been willful.”) (citation omitted). However, genuine disputes of

material fact exist regarding the fourth factor: the public interest.

       Certainly, the Band persuasively argues that the public interest is served by

protecting the Band’s treaty rights, sovereignty and rights of self-government, as well as

advancing Congress’s policy choices as articulated in the Nonintercourse Act’s prohibition

on unconsented conveyances of Tribal land. Enbridge does not counter any of the Band’s

arguments in that regard, but it raises several other, valid and significant public interest

concerns. In particular, Enbridge, and several amici, argue that an immediate shutdown of

the Line 5 pipeline would have widespread economic consequences. Both sides have

submitted expert opinions from oil industry economists and experts in the logistics of

shipping crude oil and natural gas liquids, who provide varying opinions regarding the

impact of shutting down the pipeline, as well as whether there are viable mechanisms for

replacing the energy products currently conveyed by Line 5. Indeed, the Band concedes,

as it must, that genuine factual disputes exist regarding Enbridge’s economic arguments

and the impact that decommissioning the pipeline would have on energy supply and local

economies. (Band’s Reply Br. (dkt. #256) 88.)

       Further, there is little question that an immediate shutdown of the pipeline would

have significant public policy implications on the trade relationship between the United

States and Canada. As the Band concedes, Line 5 falls under a treaty between the two

nations regarding pipeline transit: 1977 Transit Pipeline Treaty (Agreement Between the

Government of the United States and the Government of Canada Concerning Transit

Pipelines, Jan. 28, 1977, 28 U.S.T. 7449, 1977 WL 181731 (“Transit Treaty”).              A


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provision of the Transit Treaty prohibits any “public authority” of either nation from

“institut[ing] any measures” that would impede the flow of oil in certain cross-border

pipelines, including Line 5. See Transit Treaty, Art. II. Disputes about the pipeline must,

according to the treaty, be subject to international arbitration, a procedure that Canada

recently requested with respect to Line 5. (Statement by Canadian Minister (dkt. #357-

2).) The Canadian Minister of Foreign Affairs, Melanie Joly, recently issued a statement

expressing concern about a shutdown of the pipeline on the Bad River Reservation, and

supporting a proposal by Enbridge to relocate that segment of Line 5 outside and around

the Reservation. (Id.) Indeed, Enbridge goes so far as to argue that Canada’s request for

international arbitration precludes this court from issuing any injunctive relief or, at the

very least, requires this court to stay the Band’s request for an injunction.

       Even so, the court is not persuaded that it must stay resolution of the parties’

ongoing dispute, given that: there is no indication the Band will be involved in any

arbitration between the United States and Canada; and the Band’s property rights are

themselves recognized in a federal treaty -- the 1854 Treaty between the United States and

the Chippewa; and again, a court cannot find that Congress abrogated Indian treaty rights

absent unambiguous language to that effect. Cook v. United States, 288 U.S. 102, 120

(1933) (“A treaty will not be deemed to have been abrogated or modified by a later statute,

unless such purpose on the part of Congress has been clearly expressed.”); see also United

States v. Dion, 476 U.S. 734, 739–40 (1986) (“What is essential is clear evidence that

Congress actually considered the conflict between its intended action on the one hand and

Indian treaty rights on the other, and chose to resolve that conflict by abrogating the


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treaty.”). There is no such abrogation language in the 1977 Transit Treaty, as the Transit

Treaty does not mention Indian treaties or treaty rights at all, let alone the 1854 Treaty

with the Chippewa.

       Regardless, it is possible to craft injunctive relief that would not interfere with the

Transit Treaty or Canada’s concerns about the economic impact of an immediate

shutdown. Enbridge has represented to this court that it is working on a reroute of the

pipeline, which would take Line 5 completely outside of the Bad River Reservation, and

should take only six years to complete. (Enbridge Opp. Br. (dkt. #207) 148.) Thus, if

Enbridge has been working diligently on the reroute plan, it should be able to complete

that reroute within five years. Thus, the court is inclined to issue an injunction that: (1)

requires Enbridge to complete a reroute of the pipeline outside the Bad River Reservation

within five years; (2) requires Enbridge to pay the Band a fee for the easement in the

interim; and (3) would subject Enbridge to a doubling of that fee if the reroute is not

completed within five years. Such an injunction would balance the equities between the

Band’s sovereign interests, broader economic concerns, and foreign relations.

       However, the court will not issue any permanent injunctive relief without further

input from the parties. Specifically, the court will hold a status conference with the parties

at which the parties should be prepared to provide input on: (1) Enbridge’s likelihood of

completing the reroute within five years; (2) how to determine the appropriate measure of

past and future rent and damages to the Band; and (3) what issues, if any, must be resolved

by a jury or this court. After the court receives the parties’ input on these issues, it will

determine the type of trial necessary to resolve this case.


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II. Enbridge’s Motion for Summary Judgment

       In addition to its trespass and unjust enrichment claims addressed above, the Band

claims that the pipeline is a public nuisance under state and federal common law due to

the risk of a rupture near the Bad River, which could have devastating environmental

impacts to the Band’s Reservation Lands.           The Band also asserts its own regulatory

authority under federal common law to assess the pipeline’s safety and to eject the pipeline

from the Bad River Reservation. Enbridge moves for partial summary judgment on these

remaining counts in the Band’s third amended complaint: count 1 (federal nuisance); count

2 (state law nuisance); count 4 (ejectment); and count 5 (Band regulatory authority). The

court will briefly address Enbridge’s arguments as to count 2, count 4, and count 5, before

considering Enbridge’s arguments regarding the Band’s federal nuisance claims in count 1.



   A. State law nuisance

       Enbridge argues that the Band is not within the class of eligible plaintiffs who may

bring a public nuisance action under Wisconsin law. Specifically, Wis. Stat. § 823.01

provides that “[a]ny person, county, city, village or town may maintain an action to recover

damages or to abate a public nuisance[.]” Enbridge argues that because the statute does

not list tribes, and because the term “person” is not typically construed to include tribes,

see Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989), the Band lacks standing to

sue under that particular statute. The Band fails to address this argument in its opposition

brief; instead, it argues general standing to bring suit under Article III of the United States

Constitution. (Band’s Opp. Br. (dkt. #282) 28–29.) However, the Band’s Article III

standing is not in dispute. Enbridge is only challenging the Band’s eligibility to maintain

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a public nuisance action under Wisconsin law. See Tucker v. U.S. Dep't of Com., 958 F.2d

1411, 1416 (7th Cir. 1992) (whether plaintiff is “within the class of persons who have

been given a right to litigate the violation” is “[an]other sense[] of standing besides the

Article III sense”). By failing to respond to Enbridge’s argument, the Band has effectively

conceded that it does not fall within the class of persons who may bring a public nuisance

claim under Wisconsin law, at least for purposes of summary judgment in this case. See

Cincinnati Ins. Co. v. Eastern Atlantic Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001) (failure to

respond to nonfrivolous argument in opposition brief “acquiesces” to the argument, and

“[t]hat acquiescence operates as a waiver”).



   B. Ejectment

       The court agrees with Enbridge that the Band’s ejectment claim (count 4) is

duplicative of the Band’s trespass claim. In fact, the Band acknowledges the ejectment

claim is based on its holding “valid and lawful ownership interest in twelve [allotment]

parcels[, and] Enbridge’s maintenance and operation of the pipeline on those parcels

constitute[ing] the wrongful use and possession of them,” which “operates to withhold

rightful possession from the Band.” (Band’s Opp. Br. (dkt. #282) 26 (citing 3d Am.

Compl. (dkt. #85-1) ¶¶ 160–61, 163).) Of course, these are the same basic allegations that

support the Band’s trespass claim; plus, the Band seeks the same remedy -- ejectment -- for

both claims. As discussed above, the court is not going to order immediate ejectment of

Enbridge from Reservation land because of larger public policy concerns, but will consider

input from the parties in crafting an appropriate equitable remedy in this case. Because it

is entirely duplicative and adds nothing further to the court’s equitable analysis, therefore,
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the court will dismiss the Band’s ejectment claim. See Brooks Jay Transportation, Inc. v. FedEx

Ground Package Sys., Inc., No. 17-CV-084-WMC, 2017 WL 5136014, at *3 (W.D. Wis.

Nov. 3, 2017) (dismissing duplicative breach of contract claims that were based on same

allegations and sought same remedy); Borzych v. Frank, No. 06-C-475-C, 2006 WL

3254497, at *8 (W.D. Wis. Nov. 9, 2006) (dismissing duplicative claim that was “simply

a repackaging” of another claim).



   C. The Band’s regulatory authority

       The court will also dismiss the Band’s regulatory authority claim (count 5) in light

of the Band’s concession that the claim is not yet ripe. (Band’s Opp. Br. (dkt. #282) 27.)

While the Band also requests that the court hold this claim in abeyance “unless and until

a live controversy develops” (id. at 28) the court has no such authority. See Med. Assur. Co.

v. Hellman, 610 F.3d 371, 375 (7th Cir. 2010) (district court erred by staying unripe claim,

and stating that the “proper disposition . . . would have been to dismiss”). Accordingly,

the court will dismiss the regulatory authority claim without prejudice for lack of subject

matter jurisdiction.



   D. Federal nuisance claim

       This leaves the Band’s federal common law nuisance claim (count 1). The Band

alleges that, as a result of bank erosion, high river flows, and local geomorphology, the Bad

River is encroaching on and will soon reach the Line 5 pipeline to the east of where it is

presently buried. When this happens, the Band has offered evidence that the river will

strip the pipeline of its supporting soils, exposing it to currents and other stresses that,


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according to the Band, the pipeline was never designed to withstand, leading to a high risk

of pipeline rupture. Moreover, there is no reasonable dispute that a rupture would cause

significant environmental damage to the Bad River and its surrounding natural resources,

including wild rice beds and fisheries on which the Band depends. Accordingly, the Band

argues that Enbridge’s continued operation of the pipeline in the face of such a rupture

presents a grave risk of harm in violation of the federal common law of public nuisance,

and it asks the court for declaratory and injunctive relief at summary judgment enjoining

Enbridge from further use of Line 5 for the transmission of crude oil and natural gas liquids

across the Reservation. The Band also seeks an injunction requiring Enbridge to remove

the pipeline from the Reservation in a prompt and safe manner, and for such other relief

as the court deems just under the circumstances.

         On the other hand, Enbridge argues that it is entitled to summary judgment on the

Band’s federal nuisance claim fails because:       (1) Congressional regulation under the

Pipeline Safety Act, 49 U.S.C. § 60101, et seq. has displaced the federal common law on

which the Band’s claim rests; and (2) the Band cannot prove the elements of a public

nuisance claim. Since the outcome of the two arguments dictates the disposition of both

parties’ motions for summary judgment as to count 1, the court addresses each argument

below.

         1. Displacement by the Pipeline Safety Act

         The doctrine of displacement rests on the premise that federal common law is

subject to the paramount authority of Congress. Michigan v. U.S. Army Corps of Engineers,

667 F.3d 765, 777 (7th Cir. 2011) (“Asian Carp I”); see also Am. Elec. Power Co. v.


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Connecticut, 564 U.S. 410, 423–24 (2011) (“[I]t is primarily the office of Congress, not the

federal courts, to prescribe national policy in areas of special federal interest.”)          The

important question for displacement analysis is “whether Congress has provided a

sufficient legislative solution” to the particular nuisance at issue to warrant a conclusion

that the legislation “has occupied the field to the exclusion of federal common law.” Asian

Carp I, 667 F.3d at 777. Said another way, the question “is simply whether the statute

‘speak[s] directly to [the] question’ at issue.” Id. at 2537 (quoting Mobil Oil Corp. v.

Higginbotham, 436 U.S. 618, 625 (1978).)8

       Enbridge points out that the very purpose of the Pipeline Safety Act is to protect

against risks of damage posed by interstate pipelines. See 49 U.S.C. § 60102(a)(1) (purpose

of Act is to “provide adequate protection against risks to life and property posed by pipeline

transportation and pipeline facilities by improving the regulatory and enforcement

authority of the Secretary of Transportation”).          Moreover, to achieve this purpose,

Congress instructed the Department of Transportation to “prescribe minimum safety

standards for pipeline transportation and for pipeline facilities.” Id. § 60102(a)(2). In

addition, the Act contains an express preemption provision that preempts at least all state

laws and regulations purporting to impose additional safety requirements on interstate




8
  Enbridge argued in its opening brief that the Band’s federal common law nuisance claim was
“preempted” by the Pipeline Safety Act. (Enbridge Br. (dkt. #231) 11–17.) After the Band argued
that federal statutory law does not preempt federal common law, Enbridge limited its argument about
the Band’s federal claims to a “displacement theory” in its reply brief. (Enbridge Reply Br. (dkt.
#323) 8–9.)

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pipeline operations: “A State authority may not adopt or continue in force safety standards

for interstate pipeline facilities or interstate pipeline transportation.” Id. § 60104(c).9

       The court is unpersuaded by Enbridge’s argument for several reasons.                  First,

Enbridge’s argument relies primarily on cases concluding that different statutes -- not the

Pipeline Safety Act -- preempt certain types of federal common law claims. For example,

Enbridge discusses City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 317 (1981), in

which the Supreme Court held that a federal common law action to abate a nuisance caused

by a city’s discharges of sewage effluent into Lake Michigan was displaced by the Clean

Water Act, because under that Act, “[e]very point source discharge is prohibited unless

covered by a permit [which the city had], which directly subjects the discharger to the

administrative apparatus established by Congress to achieve its goals.” Id. at 318 (footnote

and emphasis omitted).       In particular, the Court explained that the permits at issue

incorporated “the specific effluent limitations established by [the] EPA” under the Act, and

there was “no question that the problem of effluent limitations has been thoroughly

addressed through the administrative scheme established by Congress.” Id. at 319–20.

Thus, the Court found “no basis for a federal court to impose more stringent limitations

than those imposed under the regulatory regime by reference to federal common law.” Id.

Similarly, in Am. Elec. Power Co., the Supreme Court found a public nuisance claim

displaced by the Clean Air Act because the plaintiffs were “ask[ing] for a decree setting




9
  In reply, Enbridge also concedes both that the Band’s actions do not constitute safety standards
under state law that would fall under the Act’s express preemption provision, this Federal Act does
not preempt federal common law. However, it argues that because the Band’s public nuisance claim
is based on safety concerns, the Pipeline Safety Act displaces the Band’s nuisance claim.

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carbon-dioxide emissions for each defendant[,]” which was something Congress had

addressed already in the Act. 564 U.S. at 415. Specifically, that Act already provided “a

means to seek limits on emissions of carbon dioxide from domestic powerplants” on the

same terms as sought by the plaintiffs’ public nuisance claim. Id. at 425.

       In this instance, however, the Band is not seeking an injunction that would impose

safety regulations addressed already by the Pipeline Safety Act or federal regulation.

Rather, the Band seeks a solution to the threat posed by the alleged imminent exposure of

the pipeline at the Bad River meander. Enbridge identifies no provision of the Act that

provides a legislative solution to that issue, such as how close a river can come to exposing

a pipeline or what to do when a pipeline faces an imminent threat of exposure to a river.

It is not sufficient that the Pipeline Safety Act addresses pipeline safety generally, that

federal regulations prescribe some standards governing pipeline construction and operation,

or even that the Department of Transportation could order a pipeline to be shut down.

See Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856 (9th Cir. 2012) (“The

existence of laws generally applicable to the question is not sufficient; the applicability of

displacement is an issue-specific inquiry.”) (citing Asian Carp I, 667 F.3d at 777). Under

City of Milwaukee and Am. Elec. Power, the question for displacement is whether the statute

has provided a “sufficient legislative solution” to the particular nuisance at issue. Asian

Carp I, 667 F.3d at 777. Because the Pipeline Safety Act does not address the particular

situation at issue, the Band’s claim is not displaced.

       Second, Enbridge cites some decisions by other federal circuit courts of appeals

addressing the Pipeline Safety Act in particular, but each involved state laws or regulations


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regarding interstate pipeline safety that violated the express preemption provision of the Act

discussed above. E.g., Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872 (9th Cir. 2006)

(Pipeline Safety Act preempted the City of Seattle from enforcing its own more stringent

pipeline safety provisions); and ANR Pipeline Co. v. Iowa State Commerce Comm’n, 828 F.2d

465 (8th Cir. 1987) (Iowa law imposing safety standards for pipelines preempted by the

Act). Here, again, the Band is not seeking to impose specific pipeline safety standards on

Enbridge, so its nuisance claim is not barred by the Act’s express preemption provision as

Enbridge itself conceded. 49 U.S.C. § 60104(c) (preempting only state law “safety standards

for interstate pipeline facilities or interstate pipeline transportation”) (emphasis added).

       Third, the Pipeline Safety Act contains a savings clause that expressly preserves tort

claims. That clause states that the Act “does not affect the tort liability of any person.”

49 U.S.C. § 60120(c); see also 49 U.S.C. § 60121(d) (“This section does not restrict a right

to relief that a person . . . may have under another law or at common law.”). Relying on

this savings clause provision in particular, other district courts have rejected the argument

that federal common law tort claims against pipeline operators were barred by the Pipeline

Safety Act. E.g., Cheverez v. Plains All Am. Pipeline, LP, No. CV15-4113 PSG (JEMX), 2016

WL 4771883, at *5 (C.D. Cal. Mar. 4, 2016); Am. Energy Corp. v. Texas E. Transmission,

LP, 701 F. Supp. 2d 921, 925, 927 (S.D. Ohio 2010) (holding that claim seeking injunctive

relief against pipeline company that would require it to “develop and implement a

mitigation plan to protect its pipelines” not preempted by Pipeline Safety Act).

       There is no dispute that the Band’s nuisance claim is a common law tort action. See

Restatement (Second) of Torts § 821B (identifying elements of the tort of public nuisance).


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Nonetheless, Enbridge argues that the savings clause in § 60120(c) was only intended to

preserve tort claims for money damages, not claims for injunctive relief. In other words,

Enbridge suggests that the Band could sue for money damages in the event the pipeline

ruptured and caused harm to the Band’s land, but cannot sue to prevent damage from

occurring in the first place. Not only is this language contradicted by Congress’ adoption

of the generic word “relief,” rather than “money damages,” in the savings clause, but

Enbridge cites no legal authority suggesting that the savings clause is so limited. Moreover,

injunctive relief is typically an available remedy against someone found liable in tort for

nuisance, assuming a plaintiff demonstrates the likelihood of irreparable harm. See LAJIM,

917 F.3d at 944 (“[O]nce a court finds a defendant liable for creating a risk of imminent

and substantial danger, it will usually be the case that injunctive relief is warranted.”)

(citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987) (“Environmental

injury, by its nature, can seldom be adequately remedied by money damages and is often

permanent or at least of long duration, i.e., irreparable. . . . [T]herefore, the balance of

harms will usually favor the issuance of an injunction to protect the environment.”); see

also Cheverez, No. CV15-4113 PSG (JEMX), 2016 WL 4771883, at *5. Of course, as

discussed above, an injunction is not automatic, and courts must consider the traditional

equitable factors. But the mere fact that the Band has requested injunctive relief because

of safety concerns does not mean that its nuisance claim is displaced by the Pipeline Safety

Act.

        2. Merits of the Band’s nuisance claim

        Enbridge also contends that the Band cannot establish the necessary elements of a


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public nuisance action. The Band’s nuisance claim has three elements: (1) unreasonable

interference with public rights, health, safety or welfare; (2) if not presently occurring,

interreference must be imminent or certain to occur; and (3) the defendant must have

caused the nuisance. Michigan v. U.S. Army Corps of Eng’rs, 758 F.3d 892, 900 (7th Cir.

2014) (Asian Carp II). Enbridge does not and cannot deny that a pipeline rupture on the

Bad River Reservation would cause significant and negative environmental consequences.

Instead, Enbridge argues that the Band’s nuisance claim fails because it cannot show that

a rupture is sufficiently “imminent,” and because the Band has rejected Enbridge’s

numerous offers to mitigate the risk of rupture by either lowering the pipeline or taking

other remedial measures that would address the threat.

       “Imminence,” for purposes of public nuisance law, considers whether the alleged

harm is “sufficiently close to occurring” such that the court “should order the defendants

to take some new action that will be effective to abate the public nuisance.” Asian Carp I,

667 F.3d at 781–82. As the Seventh Circuit has explained:

              There is no meaningful legal difference for purposes of the
              ultimate resolution of a public nuisance claim between a
              threatened nuisance that is “imminent” and one that is
              “immediate,” “significant,” “real,” an “unreasonable risk,” or
              anything similar. The job of a court considering the merits of a
              public nuisance claim is simply to determine whether the
              activity complained of is a nuisance and, if so, whether it is
              sufficiently close to occurring that equitable relief is necessary
              to prevent it from happening.

Id. at 782.

       In this instance, there are genuine disputes of material fact regarding whether the

threat of rupture is “imminent,” as well as the adequacy of Enbridge’s proposed abatement


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measures. In particular, the parties have submitted differing expert opinions regarding the

likely timing of pipeline exposure, with the Band’s experts opining that the pipeline will be

exposed to the Bad River within 2 to 5 years, though it could be significantly less time, and

that such exposure would likely lead to pipeline damage and release of oil into the Bad

River watershed. (WWE Rep. (dkt. #269) 17). Not surprisingly, Enbridge’s experts

disagree with the Band’s assessments and argue that, in any event, 2 to 5 years does not

qualify as “imminent.” The Band’s experts have also evaluated Enbridge’s mitigation

proposals and explain why the proposals would be ineffective, as well as require a further,

unwanted expansion of Enbridge’s easements on Reservation land. Enbridge’s experts

again disagree. The court cannot resolve these disputes at summary judgment. Certainly,

the mere possibility of a rupture occurring would not be sufficient to sustain a nuisance

claim. Ultimately, though, whether a pipeline rupture is sufficiently imminent to sustain

a public nuisance claim depends on whether the risk is “unreasonable,” and “granter than

a reasonable [person] would incur.” Asian Carp I, 667 F.3d at 781 (citation omitted). The

factual disputes regarding this issue must be resolved at a trial. Accordingly, Enbridge’s

motion for summary judgment on the Band’s public nuisance claim must be denied.

       For public policy reasons explained above, however, the court would not grant an

immediate injunction requiring Enbridge to remove Line 5 from the Band’s lands, even if

the Band succeeded in proving its nuisance claim. Instead, the court will consider requiring

Enbridge to work with the Band to create an effective mitigation plan that could be

implemented on the pipeline while Enbridge completes its reroute. The court will direct




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the Band to explain whether it wishes to continue pursuing its nuisance claim in light of

the court’s conclusions.



                                          ORDER

       IT IS ORDERED that:

       1) Plaintiff Bad River Band of the Lake Superior Tribe of Chippewa Indians of the
          Bad River Reservation’s motion for partial summary judgment (dkt. #165) is
          GRANTED IN PART and DENIED IN PART as set forth above.

       2) Defendants Enbridge Energy Company, Inc., and Enbridge Energy, L.P.’s
          motion for partial summary judgment (dkt. #230) is GRANTED IN PART
          AND DENIED IN PART as set forth above.

       3) The various motions for leave to file amicus briefs (dkt. ##213, 235, 239, 294,
          340) are GRANTED.

       4) Plaintiff’s motion for leave to file supplemental authority (dkt. #353) is
          GRANTED.

       5) Defendants’ motion for leave to file supplemental brief (dkt. #357) is
          GRANTED.

       6) The court will hold a video conference on Friday, September 9, at 2 p.m., at
          which time the parties should be prepared to discuss: (1) whether Enbridge can
          complete a reroute of the pipeline within five years or less; (2) how the
          appropriate measure of past and future rent and damages to the Band should be
          determined; (3) what issues, if any, must be resolved by a jury, and what issues
          may be resolved by the court; and (4) whether the Band wishes to continue
          pursuing its federal common law public nuisance claim for injunctive relief.

       7) The parties’ deadline for all final pretrial submissions, including exhibit lists and
          deposition designations, is extended by one week, to September 16, 2022.
          Objections are due by September 30, 2022.




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 8) The parties’ motion for clarification (dkt. #359) is DENIED as moot.


 Entered this 7th day of September, 2022.

                                  BY THE COURT:

                                  /s/
                                  __________________________________
                                  WILLIAM M. CONLEY
                                  District Judge




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