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January 14, 2022

Tribal Voices Sidelined in Line 5 Tunnel Permitting Process

Rulings strike critical testimony of leading tribal experts from Public Service Commission's consideration

Contacts

Whitney Gravelle, Bay Mills Indian Community, (906) 248-8120

Christopher Clark, Earthjustice, (773) 841-898

Debbie Chizewer, Earthjustice, (773) 484-3077

David Gover, Native American Rights Fund, (720) 647-9637

Lansing, MI

On Thursday, an administrative law judge in Michigan excluded valuable witness testimony from being considered by the Michigan Public Service Commission (MPSC) in its decision about whether to issue a permit for the proposed Enbridge Line 5 pipeline tunnel through the Straits of Mackinac. In his ruling, the judge granted Enbridge Energy's request to strike from the record portions of testimony that underscored serious risks that the tunnel poses to public safety, climate change, and Tribal sovereignty.

The Bay Mills Indian Community intervened in the Public Service Commission's review process due to the threats that the tunnel poses to the Tribe's food and water supply, medicinal plant species, economic livelihood, and treaty rights. The Tribe has lived along the Straits of Mackinac since time immemorial and retains treaty-protected access for hunting, fishing, and cultural traditions.

Portions of Bay Mills President Whitney Gravelle's testimony were excluded, in which Gravelle stressed the cultural and spiritual significance of the Straits to the Anishinaabe people and the catastrophic impact an oil spill in these waters would have on every aspect of their existence.

"The Straits of Mackinac is a place of deep spiritual and cultural meaning to my people, where there are important cultural and historic resources still being learned of, and where Bay Mills and other Tribal Nations have Treaty rights,” Gravelle testified. "It is dangerous to construct a tunnel and route a pipeline through lands and waters that are central to our existence as indigenous people and as a Tribal Nation.”

The administrative law judge also struck a portion of the testimony of Vice President Jacques Leblanc, a lifelong Bay Mills commercial fisherman who detailed the ecological, economic, and cultural impacts of a spill in the Straits:

"If the Great Lakes ecosystem is harmed, I will have no means to continue supporting my family through treaty subsistence and commercial fishing or harvesting of medicines and animals,” Leblanc testified. "Beyond the harm that an oil spill or other event would have on the health of lake trout and whitefish, any disruption of the fishery for an extended period would stifle the transfer of fishing knowledge to younger generations."

In a positive note, the judge did allow the testimony of Richard Kuprewicz, a premier pipeline expert who testified about the serious risk of an explosion in the tunnel that could result in an oil spill and environmental catastrophe in the Straits.

Earthjustice, in partnership with the Native American Rights Fund, represents the Bay Mills Indian Community in the Tribal Nation’s fight to protect the Straits and the Tribe’s treaty rights throughout waters in Michigan.

Earthjustice attorney Christopher Clark, who is representing the Tribe before the Public Service Commission, expressed grave concerns about how the judge's decision to exclude these vital witness testimonies will hinder the Commission's ability to properly assess the scope of the tunnel project's real-world impacts.

"The Commission must evaluate the long-term impact of this project on climate change and on the cultural and historic resources that are indispensable to Tribes,” said Clark. "But the judge struck critical portions of the testimony of experts including Frank Ettawageshik, a tribal leader and leading climate change expert and advocate, and Dr. Chuck Cleland, a renowned ethnohistorian with decades of experience studying the affected area. This is deeply troubling."

"Despite today's decision, we are looking forward to making our case to the Commission that the serious and irreversible risks of this project are too great to permit."

“As a public agency, the Michigan Public Service Commission needed to know the critical information these silenced expert witnesses presented for consideration on behalf of the segments of the public who are tribal citizens. In the next few months, MPSC will now have to weigh the value of increased corporate profit for Enbridge against the impacts, risks, and damages a Line 5 oil pipeline tunnel would cause for the public, while hearing only the parts of the story that Enbridge wanted the Commission should hear,” said NARF Staff Attorney David L. Gover.

Cross-examination of witnesses before the Public Service Commission will begin today, January 14th.

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