Wisconsin DNR doing its best to keep breaking treaties so Enbridge can keep making money
The state’s supposed environmental protection agency is devaluing wetlands to go back on treaty promises and promote fossil fuel infrastructure
In case you missed them, the impacts of climate change are already sitting in our collective living room. Squints at you through wildfire smoke to check notes about it being a 1000-year flood. Never fear, the Wisconsin DNR is here to help protect the environment a Canadian oil company permanently alter sensitive and rare wetlands. They’re getting rid of ecological kitchen and bathroom space, if you will, all the while telling us to STFU, because it’s not technically a reduction in home size. And refusing to address the smoke.
To accommodate Enbridge Energy and a reroute of their 72-year-old Line 5 pipeline, which has been illegally pumping oil through Mashkiiziibii (the ancestral homelands of the Bad River Band of Lake Superior Chippewa), Wisconsin DNR’s lawyers are arguing that converting forested wetlands into nonforested wetlands is not technically a reduction of wetlands on the landscape.
This is alarming. Forested wetlands do things a scrubby swamp can’t, like cool streams, shelter specific wildlife, and provide deeper water filtration and stabilization of the landscape. Our state’s environmental protection agency shouldn’t be pretending otherwise.
Milwaukee Beagle attended some of a contested case hearing on the permits for the reroute in mid-September, to report on the Bad River Band’s continued fight for their homeland and lifeways, and all of our collective futures.
AN ECOSYSTEM’S RIGHT TO EXIST
In a conference room at Northwood Technical College in Ashland, the day’s testimony begins with wild rice harvesting sticks, cedar, tobacco, sage and sweetgrass all on the table as a demonstrative exhibit.
“We should not have to prove that those are resources worth protecting,” said John Petoskey, who represents Mashkiiziibii as a Senior Associate Attorney at Earthjustice. “It is Enbridge's responsibility to justify why this project merits destroying these resources, and frankly, they have not done that.” Still, he appreciated the plants in the room. “It was a good way to start the hearing because that's calling in the ancestors”.
“Cedar is usually harvested in the low-lying, wet areas,” says Bad River tribal chairman Robert Blanchard, referring to the kinds of places Enbridge wants to fill, dredge, and cross their oil pipeline over. Blanchard was elected in 2023 and has lived here, in his ancestral homelands on the shores of Lake Superior all his life. He shares that he’s not feeling the best at the moment, so he had to have some cedar tea this morning.
The Bad River Band have fought doggedly to get Line 5 shut down (in concert with dozens of other Indigenous nations and environmental groups along the pipeline route) for over a decade. Enbridge now wants to reroute Line 5 outside their reservation, but still within the Bad River Watershed, and still with intent to permanently alter over 100 acres of high-quality wetlands. It’s an environmentally underhanded move, the oil company equivalent of holding a middle finger up to your face and saying “na na na na I’m not touching you”.
The project is not dissimilar to Enbridge’s proposed solution for their aging pipeline’s crossing of neighboring Lakes Michigan and Huron (an underground tunnel) in that it has a massive climate-change-shaped logic hole, and also might just be future-faking on the company’s part.
Enbridge is asking to be allowed to continue to operate Line 5 on the Bad River Reservation while they build this reroute (like they continue operating Line 5 in the turbulent Straits of Mackinac while they get around to their supposed tunnel). They made over $1.5 billion trespassing on Mashkiiziibii over the last decade, why would they stop now?
COLONIAL ENVIRONMENTAL ‘PROTECTION’
Despite Enbridge’s horrible track record, including the catastrophic Kalamazoo River oil spill in Michigan in 2010 and the largest ever oil spill in the state of Wisconsin just days before their permitting decision, the Wisconsin Department of Natural Resources issued permits to Enbridge allowing them to do the reroute in November of last year.
Earthjustice, on behalf of the Bad River Band, petitioned for a contested case hearing on the decision about a month later, stating that “If constructed, the Project will surround the Band on three sides—all directly upstream of the Reservation—and will jeopardize territory adjoining the Reservation and the Band’s rights within Lake Superior.” They were joined by several Wisconsin environmental organizations. Hearings in the case began in August.
“It can be overwhelming to see a world where an oil pipeline takes precedence over the protection of something as basic as water,” Anya Janssen, a staff attorney with Midwest Environmental Advocates, told Milwaukee Beagle. Her firm is co-representing Mashkiiziibii on behalf of Sierra Club, 350 Wisconsin, and the League of Women Voters of Wisconsin.
By issuing those permits to Enbridge and now defending that decision, the State of Wisconsin is continuing the tradition of colonial governments, who have broken basically all of the 370+ treaties signed with Indigenous nations over the course of U.S. history. These treaties were necessary for the creation of states like Wisconsin and Michigan. Anishinaabe nations in the area (including the Ojibwe, Odawa and Potawatomi) were promised they could maintain access to natural resources and their lifeways in perpetuity. That means forever.
“Those treaties do not just represent an exchange of promises between two sovereigns,” said Petoskey. “It's an exchange of promises between this generation and those that are coming.”
Treaties have been broken in overt ways, but often, there are fancy administrative avenues for this to happen, forcing tribes to engage in endless lawsuits to preserve their rights. Colonial government agencies set up to ‘protect’ the environment regularly sign off on treaty-violating bullshit that leaves the ecosystem worse off for all involved. They preserve support by allowing and promoting racism amongst nonnative sportspeople and outdoors enthusiasts (see the ‘Walleye Wars’ and continued harassment against tribal harvesters all across the northwoods).
BAD FAITH ARGUMENTS
Naomi Tillison has directed the Mashkiiziibii Natural Resources Department for almost nine years. Her testimony in Ashland began with the fact that Enbridge is using inadequate wetlands mapping data – old and outdated information that doesn’t properly characterize the landscape. Forested wetlands are often under-mapped.
Tillison also discussed the most recent pipeline maintenance the company has conducted on the reservation, which caused substantial impacts to wetlands despite promised protective measures, and took twice as long as originally anticipated.
There were constant objections because of Tillison’s legal status as a “non-expert” (she’s the agency director, she doesn’t conduct the science herself) to the point that Administrative Law Judge Angela Chaput Foy had to weigh in. “Director Tillison must be able to read a map and interpret,” said Foy after a particularly painful few minutes of cross-examination. It was hard to imagine that Enbridge and the WDNR have respect for tribal sovereignty based on how they were treating her.
“Enbridge is scared of what she has to say,” said Petoskey. “That's why they want to silence her.”
He explained that permitting processes in the state typically consider far fewer wetlands at a time, and that Enbridge is basically asking for a bulk discount on environmental monitoring and assessment.
“Enbridge seems to think that because they've got 41 miles of wetlands that the standard should be lower, but the law doesn't put on the kid gloves just because you're impacting more resources.”
Even so, the most outrageous moment of the day was when one of the lawyers for the Wisconsin DNR asked Tillison “Conversion of a wetland type doesn’t result in a reduction of wetlands on the landscape, does it?” Tillison, who had just explained that some forested wetlands would permanently be converted into nonforested due to the proposed reroute, emphasized that there would still be a “reduction in function” with far more patience than I can even imagine mustering.
Trying to argue that conversion of wetland type is technically not a reduction of wetlands on the landscape is ecologically laughable. It’s highly concerning that the agency charged with protecting our state’s environment on behalf of the public is taking this tack. It suggests self-protective collapse. It smells like retroactive legal implications for the WDNR (on more than just this permit) if they lose the case.
Their lawyer’s cross-examination the next day of John Bratton (PHD, PG, Senior Geologist at Limnotech) was aggressively focused on the past, asking for examples of similar projects which have “needed this level of characterization". It seems unnecessarily defensive if you’re only concerned about the permit in question, because this watershed obviously deserves special consideration.
The Kakagon and Bad River Slough complex is, according to the tribe’s February letter to the US Army Corps of Engineers (who also need to approve the project), “one of the only remaining extensive coastal wild rice wetlands in the Great Lakes Basin”, and a Ramsar site, designated important by international law.
Bratton shared that there is a high likelihood of countering artesian (pressurized) groundwater conditions along the proposed reroute, and that Enbridge’s exploratory drilling was, in his opinion, “not sufficient”.
FELONIES FOR WATER PROTECTORS
It’s not just the Wisconsin DNR throwing Indigenous people under the bus. In 2019, Jason Fields and Chris Sinicki co-authored a bill making it a felony — punishable by up to $10000k and 6 years in prison — to protest on pipeline property. This was in direct response to Indigenous-led protests of Enbridge’s pipelines. The bill was backed heavily by the pipeline workers’ union, and other Democrats quickly signed on, ultimately including Governor Tony Evers. Instead of protecting treaty rights, the state responded by escalating punishment for the very people defending their land and water.
There are always men from the local union hall present at these hearings, standing in support of Enbridge. They are a reminder of how easily racism gets baked into “jobs versus environment” framing, and how Democrats have repeatedly chosen to protect white union interests at the expense of true solidarity.
I asked John Petoskey about the personal toll of having been fighting for treaty rights since his youth (as a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, he started in activism).
“Part of that relationship [with the land] is coming to the defense of your relatives when they’re harmed,” he said. “I really try to draw on that strength of resistance, that legacy of resistance to keep me going. It shouldn’t be greed that robs us of the future. That future is ours and that’s what we’re here fighting for.”
The hearings wrap up this week with the DNR giving their testimony. Judge Foy is expected to make a decision before 2026.
