January 9, Dear Judge Lipman:

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1 January 9, 2014 The Honorable Eric L. Lipman Administrative Law Judge Office of Administrative Hearings 600 North Robert Street Minnesota Re: Petition to Intervene In the Matter of the Application of Enbridge Energy, Limited Partnership for a Certificate of Need for the Line 67 Station Upgrade Project Phase 2 MPUC Docket No. PL-9/CN OAH Docket No Dear Judge Lipman: Please find enclosed Honor the Earth s Petition to Intervene, as well as certificate of service for the Petition to Intervene. Very truly yours, Winona LaDuke

2 STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS FOR THE MINNESOTA PUBLIC UTILITIES COMMISSION In the Matter of Application of Enbridge Energy, Limited Partnership for an Application For Certificate of Need for the Line 67 Upgrade Project HONOR THE EARTH PETITION TO INTERVENE Pursuant to Minn. R , Honor the Earth Organization hereby respectfully petitions to intervene as a party in the above-referenced proceeding. Background and Issues This case arises as a result of Enbridge Energy Limited Partnership s ( Enbridge ), application for a certificate of need to expand Line 67 by 230,000 bpd throughout its length in Minnesota. Line 67 currently transports crude oil from the tar sands in Alberta, Canada to a tank farm in Clearbrook, Minnesota, and from there to Line 67 s terminus in in Superior, Wisconsin, from where the crude oil is delivered either to the Calumet Refinery in Superior, Wisconsin, or into connecting pipelines for delivery to more distant markets. See Enbridge Certificate of Need Application PL9/CN ( Application ). The pipeline expansion falls under the definition in Minn. Stat. 216B.2421, subd. 2 (4) of a large energy facility. Such facilities are required to obtain a certificate of need ( CON ) from the Minnesota Public Utilities Commission ( Commission ) prior to construction. Minn. Stat. 216B.243, subd. 2, authorizes the Commission to issue a CON to Enbridge if it demonstrates that there is a need for the proposed capacity increase. Minn. R sets forth the criteria for consideration by the 1

3 Commission in deciding whether to issue a CON, which criteria include consideration of the accuracy of Enbridge s forecast of demand for the type of energy that would be supplied, the effects of Enbridge s promotional practices that may have given rise to the increase in energy demand, the ability of current and planned facilities to meet the future demand and the effect of the proposed facility in making efficient use of resources. The Commission must further consider whether a more reasonable and prudent alternative has been proposed and demonstrated by a preponderance of the evidence considering the appropriateness of the pipeline compared to other alternatives, the effect of the proposed pipeline upon natural and socioeconomic environments compared to reasonable alternatives, and a comparison of the effect the proposed pipeline on the natural and socioeconomic environments compared to those environments without the pipeline. Id. The CON evidentiary hearing for this proceeding is currently scheduled for April 1 to 3, The second pre-hearing order dated November 14, 2013, set the deadline for intervention as January 10, 2014, and so this petition to intervene is timely. Identity of Petitioner Honor the Earth is a nonprofit environmental organization, focused on addressing the resilience of Native communities, transitions to a local and fossil fuel reduced economy, and protection of the environment and rights of Native peoples. Honor the Earth s board and staff are comprised of Native people, including enrolled Ojibwe who reside within the l855 and l837 treaty areas, and are thus concerned explicitly about the impact and risk of this pipeline on the Anishinaabe economy and way of life. Honor the Earth also works directly with Anishinaabe tribal communities and First Nations in Wisconsin and Michigan who are impacted by the 2

4 expansion of this pipeline because it will increase the use of downstream aging infrastructure. Honor the Earth is also deeply concerned about the needs of North American Indigenous communities and the need for secure energy for these communities. We believe that the needs of Indigenous communities and indeed North America, would better be served by securing oil from already existing sources and infrastructure, rather than creating a nonessential, ecologically damaging and economically wasteful infrastructure. Outcome of Proceeding Directly Affects Petitioner s Interests The Anishinaabe of northern Minnesota retain treaty rights under the l837, l854, and l855 treaties to the land potentially impacted by the proposed expansion. In 1837, the United States entered into a treaty with several Bands of Chippewa Indians. Under the terms of this treaty, the Indians ceded land in present-day Wisconsin and Minnesota to the United States, and the United States guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land. The 1837 Treaty with the Chippewa states that "The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guaranteed to the Indians, during the pleasure of the President of the United States." 1 During his recent recapitulation of well-established Chippewa treaty rights, United States District Judge John Tunheim recognized that [t]his privilege of hunting and fishing is generally referred to as a usufructuary right the right to make a modest living by hunting and gathering off the land. 2 In his summary, Judge Tunheim emphasized that courts including the United TreatywiththeChippewa,7Stat U.S.$v.$Brown,Crim.No.13968(JRT/LIB);$U.S.$v.$Reyes,$et$al.,Crim.No.13970(JRT/LIB)Memorandum$Opinion$and$ Order$Rejecting$the$Reports$and$Recommendations$of$the$Magistrate$Judge,Case0:139cr JRT9LIB,JohnR. Tunheim,UnitedStatesDistrictJudge(D.Minn.2013),citingUnited$States$v.$Bresette,761F.Supp.658,660(D. Minn.1991). 3

5 States Supreme Court have consistently interpreted the 1837 and subsequent Chippewa treaties to preserve the Chippewa s hunting and fishing rights on Chippewa reservations in Minnesota. 3 Judge Tunheim also noted that the Minnesota Supreme Court has held similarly with regard to the White Earth Reservation. 4 Our treaty interests are directly put at risk by the proposed expansion, and our rights as Indigenous people are at jeopardy given the catastrophic impacts to our environment that would result a pipeline rupture.. We are deeply concerned about the risks associated with the pipeline and the potential for damage to water quality, as well as all living things that reside within treaty lands. In addition to the potential for negative environmental impacts to our environment, those who reside within treaty territory near the pipeline face the potential for their food sources to be contaminated. We already face an increased threat of illness and health problems because of a cultural diet of fish, deer, and other wildlife currently contaminated by industrial pollutants. The proposed expansion creates a new risk that our treaty lands and everything living on them will become further tainted. Oil pipelines spill. The more remote they are, the more likely a spill will receive little attention, if any. The oil spill in Deer River (2010) or in Pinewood (1979) is a case in point. The Pinewood spill occurred in 1979, when Lakehead Pipe Line Partners owned the pipeline; today Enbridge owns it. Only 60 percent of the oil that spilled into the earth was recovered, 40 percent was left to seep into the dirt and into the clay, and probably even further 3 See$$Id.,citingMinnesota$v.$Mille$Lacs$Band$of$Chippewa$Indians,526U.S.172, (1999)(holdingthatthe 1837TreatyprotectedtherightofChippewaIndianstohuntandfishontheMilleLacsReservation);Leech$Lake$ Band$of$Chippewa$Indians$v.$Herbst,334F.Supp.1001, (D.Minn.1971)(holdingthatthetreaty9based huntingandfishingrightsgavetheleechlaketribeexclusivejurisdictionoverhuntingandfishingonthe reservationsuchthatstatefishingandgaminglawsdidnotapplytomembersofthetribeonthereservation). 4 Id.,citingState$v.$Clark,282N.W.2d902,908909(Minn.1979)(holdingthattheChippewaIndiansontheWhite EarthReservationretainedusufructuaryrights). 4

6 into the watershed we drink from. It is said that 400,000 liters of oil were left in the earth; this translates to 100,000 gallons of oil left behind. The spill in Deer River, which is within the Leech Lake reservation boundaries, was not even noticed until local firefighters who were out combating a forest fire beside the exposed pipeline noticed oil sludge on the ground. Not only has this oil leaked into the surrounding water from this incident, but also throughout the years, sage and other medicine harvesting areas for the Leech Lake Ojibwe have been destroyed by the pipelines, wells have been contaminated, and the headwaters of Mississippi have been threatened by the possibility of contamination. Enbridge has claimed they have state of the art equipment that will notice a leak or spill as soon as it happens; but 250 gallons of crude oil was spilled onto reservation land without being noticed. Summary Honor the Earth seeks to protect the treaty rights and privileges of its members and staff by ensuring that the Commission has a fully developed factual record on which to evaluate the Application and any alternatives that may be submitted. Honor the Earth further notes that the public interest, as represented by Honor the Earth, is noticeably absent from this proceeding, such that we bring a unique perspective that should be heard. Allowing Honor the Earth party status so that it may question witnesses and brief legal and environmental issues, would serve to foster full exploration of public interest issues in this proceeding. Given the early stage of this proceeding, our intervention now would not prejudice any existing party., nor does Honor the Earth seek extension of any existing deadlines, such as for briefing or submission of testimony. 5

7 Therefore, Honor the Earth's timely intervention is in accordance with Minn. R and the Second Prehearing Order. Accordingly, Honor the Earth respectfully requests that its Petition to Intervene be granted. Dated: January 6, 2014 Respectfully submitted, Winona LaDuke Executive Director of Honor the Earth 6

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9 First Name Last Name Company Name Address Delivery Method View Trade Secret Service List Name Julia Anderson n.us Office of the Attorney General-DOC 1800 BRM Tower 445 Minnesota St Paul Blackburn PO Box Minneapolis, Tim Bray Crow Wing County County Road 142 Randall Doneen s Department of Natural Resources Brainerd, Lafayette Rd, PO Box 25 Saint Paul, Donovan Dyrdal TH ST NW Sharon Ferguson Thief River Falls, Minnesota Department of Commerce 85 7th Place E Ste 500 John R. Gasele jgasele@fryberger.com Fryberger Buchanan Smith & Frederick PA Travis Germundson travis.germundson@state. mn.us Saint Paul, Lonsdale Building 302 West Superior Street Duluth, Board of Water & Soil Resources 520 Lafayette Rd Saint Paul, Burl W. Haar burl.haar@state.mn.us Public Utilities Commission Suite th Place East Arshia Javaherian arshia.javaherian@enbridg e.com Enbridge Energy 26 East Superior Street Suite 309 Duluth, 55802

10 First Name Last Name Company Name Address Delivery Method View Trade Secret Service List Name Cynthia Johnson m Jon Kingstad Law Firm of Jon Erik Kingstad John Lindell Office of the Attorney General-RUD Eric Lipman Office of Administrative Hearings Peter Madsen n.us Janet Shaddix Elling m Office of the Attorney General-DOC Kevin Walli Fryberger, Buchanan, Smith & Frederick 3228 Boundary Road Mahtowa, Lake Elmo Bank Bldg STE Inwood Ave N Oakdale, BRM Tower 445 Minnesota St PO Box Bremer Tower, Suite Minnesota Street Minnesota Shaddix And Associates Ste W Bloomington Frwy Bloomington, st National Bank Building 332 Minnesota St Ste W