## Facts

- Enbridge owned and operated “Line 5,” a crude-oil and natural-gas liquids pipeline segment crossing the Bad River Reservation in Wisconsin.
- The Bad River Band previously granted Enbridge 20-year rights-of-way over certain Band-owned parcels.
- Rights-of-way for 12 Band-owned parcels expired in 2013; the Band declined renewal.
- Enbridge continued operating Line 5 across those parcels after expiration, despite lacking renewed authorization.
- A key disputed area involved Line 5’s crossing under a Bad River meander experiencing erosion, flooding, and river migration.
- The Band presented evidence that erosion increased the risk of pipeline exposure, undermining, rupture, and severe contamination of wetlands, wild rice resources, and downstream waters.
- Enbridge disputed that rupture was imminent and emphasized monitoring, mitigation work, and the pipeline’s regional energy and economic importance.
- After a bench trial, the court issued findings and rulings on liability (trespass and nuisance) and equitable and monetary relief.

## Issues

1. Whether Enbridge’s continued operation of Line 5 on Band-owned parcels after rights-of-way expired constituted a continuing trespass.
2. Whether the erosion-related rupture risk at the Bad River meander constituted a public nuisance warranting injunctive relief despite no spill having occurred.
3. What remedies were appropriate, including the scope and timing of injunctive relief and any monetary award, in light of environmental risk, tribal interests, and asserted energy-supply impacts.

## Decision

- The court held Enbridge liable for continuing trespass for operating Line 5 across the 12 Band-owned parcels without valid rights-of-way after 2013.
- The court found a public nuisance based on an unreasonable risk of catastrophic environmental harm from the pipeline at the Bad River meander.
- The court ordered injunctive relief requiring Enbridge to end the trespass by removing or rerouting Line 5 off the Band’s land on a court-ordered timeline, rather than ordering immediate shutdown.
- The court imposed interim protective conditions to reduce risk during the transition period.
- The court awarded monetary relief to compensate the Band for Enbridge’s unlawful occupation and use (described as trespass-related compensation and unjust enrichment).

## Legal Principles

- Operating and maintaining infrastructure on another’s land without a valid property interest or consent after an authorization expires can constitute a continuing trespass.
- Public nuisance liability may be based on a foreseeable, escalating, and severe risk of harm to public rights in shared resources, even before an actual disaster occurs.
- Courts may reject arguments that general regulatory approvals or broad public-interest claims substitute for a valid property right when assessing trespass.
- Equitable relief in trespass and nuisance cases may be tailored through balancing, including phased compliance and interim risk-reduction measures, rather than immediate cessation where abrupt shutdown would cause substantial disruption.
- Monetary relief may be awarded to compensate for unauthorized use and to avoid conferring a de facto permanent easement through continued occupation.

## Conclusion

The court concluded that Enbridge’s post-expiration operation of Line 5 across Band-owned parcels was a continuing trespass and that the erosion-driven rupture risk at the Bad River meander constituted a public nuisance, justifying phased injunctive relief requiring removal or reroute and an additional monetary award for unauthorized use.


Bad River Band of Lake Superior Chippewa Indians v. Enbridge Energy Co., 2023 WL 4043961 (W.D. Wis. 2023)