Counter proposal to Bad River Band of Lake Superior Chippewa



FOR SETTLEMENT NEGOTIATION PURPOSES ONLY. INADMISSIBLE AND WITHOUT PREJUDICE.

March 6, 2020

Chairperson Michael Wiggins, Jr.
and Members of the Bad River Band Tribal Council
Bad River Band of the Lake Superior Tribe of Chippewa Indians
P.O. Box 39
Odanah, Wisconsin 54861

Dear Chairperson Wiggins and Members of the Tribal Council,

Thank you all for meeting with us on February 24th to discuss the possibility of settling outside of court. It was a privilege to be part of the Council meeting, and we thank you for taking time out of your busy agenda to meet with us.

Following that meeting, you sent a letter to me proposing to settle the amount for past use of tribal lands for the sum of $45 million and indicating that, in addition to that payment, a settlement of the litigation would require Enbridge to take the following steps:

  • Expeditiously cease operation of Line 5 on the Bad River Reservation.
  • Take all steps necessary to decommission Line 5 or to reroute it outside of the Bad River watershed.
  • Enter into a stipulated court order memorializing these comments.

We have reviewed the aforementioned letter and, although we are not able to accept those terms, we ask that you consider the following counter-proposal for settlement on all issues:

  • Payment: Enbridge pays the Bad River Band $30 million to be paid at the following milestones:
    • Execution of the settlement agreement;
    • Operation of the Line 5 re-route; and
    • Decommissioning of Line 5 on Tribal Lands.
  • Line 5 Operations on the Reservation Will Cease: Enbridge is permitted to continue to operate Line 5 on the Reservation until the Line 5 re-route around the Reservation is complete and operational. Please note we are moving forward with the permitting process as expeditiously as possible. Permits have been submitted, and approvals are expected in the next twelve to fourteen months allowing for construction to start in the Spring of 2021 with completion of the reroute and cessation of operation on the Reservation in 2021. Thereafter, Line 5 on the Reservation will completely cease operations and be purged of all oil. Until the re-route is operational, the Band agrees that Enbridge may continue to access and inspect Line 5 and the Band will permit Enbridge’s required maintenance work and inspections.
  • Re-Route Details:
    • Environmental permitting rules require Enbridge to submit a route that is the Least Environmentally Damaging Practicable Alternative (LEDPA). Enbridge reviewed a re-route outside of the Mashkii-ziibi (Bad River) Watershed and provided the Wisconsin Department of Natural Resources and the U.S. Army Corp of Engineers with environmental data regarding a route outside the Mashkii-ziibi (Bad River) Watershed. However, primarily because it would entail a linear footprint more than twice the distance of our planned route and an additional 800 acres of environmental disturbance, our analysis clearly determined that it is not the LEDPA and would not be permitted. Therefore, to protect the Mashkii-ziibi (Bad River) Watershed, Enbridge will implement numerous industry leading construction techniques and safety measures such as horizontal directional drilling (HDD) under significant water bodies, remote control valves, and brand-new thicker steel that we can discuss with the Band in more detail.
    • Prior to executing a formal settlement agreement, Enbridge will work with the Band regarding the re-route. Enbridge agrees to pay for pipeline design experts to assist the Band. Enbridge will demonstrate to the Band and its experts how the re-route will protect all the waters of the Reservation, the Mashkii-ziibi (Bad River) Watershed, and Anishinaabeg-gichigami (Lake Superior). Enbridge and the Band will discuss, in good faith, any changes the Band and its experts may have concerning the construction methods and selection of components relating to the re-route. Upon execution of the settlement, Enbridge agrees to implement mutually agreed to changes and the Band agrees to not oppose or take other action to halt permitting, construction, or completion of the re-route.
    • Enbridge commits to continue to train and hire Bad River citizens to serve as Tribal Monitors on the traditional archaeological surveys and conduct an independent cultural resources survey.
  • Miscellaneous terms:
    • The Band agrees to provide consents and other agreements as may be necessary for any required BIA approval of the foregoing.
    • Enbridge’s continued commitment to train and hire Bad River citizens to work on ongoing monitoring, maintenance projects, and inspections on the Reservation.
    • The parties agree to execute mutual releases and dismiss the litigation, such that all disputes are behind the parties and will not recur.
    • Other terms and conditions such that the foregoing is enforceable in a mutually binding agreement, which we can discuss in greater detail.

We are hopeful that a negotiated settlement will not only provide the Band with the above benefits, but will also address the issues raised in Chairperson Wiggins’ February 25th Letter.

We understand that the Tribal Council’s regular meeting is scheduled for March 18, 2020, and we would be happy to hold the offer open through to the end of that meeting and respectfully request to be included on the agenda to discuss this offer.

This is a settlement communication, made to try and resolve contested litigation. As such, it is not admissible in any form or forum and is absolutely without prejudice to Enbridge’s claims, defenses, and legal positions.

I hope to hear from you soon regarding our request to meet with you and the other Members of the Council on March 18. Thank you, Chairperson Wiggins and Members of the Council.

Sincerely,

Vern Yu
Enbridge Energy, Limited Partnershi

cc: Bad River Tribal Council
Erick Arnold, Bad River Attorney
Riyaz Kanji, Kanji & Katzen PLLC, Bad River Outside Attorney
Brad Shamla, Vice President, U.S. Operations
Arshia Javaherian, Enbridge Energy, Attorney
David Mullon, Venable LLP, Attorney