By Juliana Perez Calle

The original route of the North Dakota Access Pipeline (DAPL) crossed near the capital of North Dakota, Bismarck, a city that is almost 90 percent white, but after the city’s “regulators expressed concern over the risk of a spill to the city’s water supply,” the pipeline was relocated to pass under Lake Oahe.[1] This lake is of religious significance to the Standing Rock Sioux Tribe (“Tribe”) and the source of the Tribe’s drinking and irrigation water.[2] The pipeline company Dakota Access began to clear its new pipeline route through private land, but it did so while it didn’t have federal permits to complete the route.[3] In fact, when the Tribe filed its complaint against North Dakota Access, the company had already cleared 48% of its route.[4]

The Tribe argued in its complaint that it did not receive proper consultation on the pipeline route and claimed construction of the pipeline along its ancestral lands would harm historically and culturally significant sites,[5] and pose environmental harms.[6] While litigation proceeded, the company bulldozed a landscape of Native American graves.[7] On September 9, 2016, the U.S. District Court for the District of Columbia found in favor of Dakota Access and denied the Tribe’s request for a preliminary injunction, concluding that the Army Corps of Engineers (“Corps”) likely complied with the adequate consultation requirements under the National Historic Preservation Act.[8] The court did not however, consider the concerns over potential environmental harms because it stated that the Tribe only claimed injury to historic or cultural sites.[9]

Yet, that same day the Department of Justice, Department of the Army Corps of Engineers, and the Department of the Interior announced that in consideration of the public interest, the Corps would not authorize construction of DAPL on Corps land bordering or under Lake Oahe until it could determine whether it has to reconsider the pipeline route under the National Environmental Policy Act (NEPA) or other federal laws.[10] On December 4, 2016, the Army Corps announced it would not grant Dakota Access the easement needed for construction under Lake Oahe and that it planned to prepare an Environmental Impact Statement (EIS) for alternative routes.[11] The DAPL EIS public comment phase was open on January 18, 2017 and was to run through February 20, 2017.[12]

Despite this victory for the Standing Rock Sioux Tribe, on January 24, 2017, President Trump issued an executive action ordering the Corps to grant the easement to Dakota Access.[13] On February 8, 2017 the Corps granted the easement to Dakota Access and withdrew from the EIS process.[14] In response, Standing Rock formally submitted its EIS comments, and challenged the EIS termination.[15] In it’s comment, Standing Rock concludes that the Corps should (1) not grant an easement without “government to government consultation with the Tribes” on the proposed pipeline location, (2) a NEPA analysis should “adequately [evaluate] the existence of and potential impacts to tribal rights and interests”, and (3) the Corps should assess “DAPL’s impact on tribal rights, lands, and resources…under the “public interest” evaluation required [by] the Section 408 process in light of the fact that the reservation is the permanent homeland for the Tribes, as well as other federal obligations towards the Tribes.”[16]

The Tribe states that “Lake Oahe is located on both the Standing Rock and Cheyenne River Sioux Reservations, and that the Tribes retain treaty hunting, fishing, and reserved water rights in the Lake.”[17] These reservation boundaries and rights were established under the Fort Laramie Treaties of 1851 and 1868,[18] and since Congress has not chosen to abrogate the treaty, the Tribes retain these rights over the Lake.[19] The Tribe also affirms that it retains water usage rights in Lake Oahe, in order to support their reservation homeland.[20] As a result of these treaty rights, the Tribe concludes that the statutory framework “requires consideration of the public interest, which necessarily includes impacts on tribal nations and tribal trust resources.”[21]

The Tribe then states that the DAPL project requires a more thorough discussion about how the pipeline will impact the Tribe’s water rights and use of Lake Oahe.[22] The Corps had concerns over the pipeline’s effect on Bismarck’s water supply and moved the route under Lake Oahe, but it did so without input from the Tribes.[23] The Tribe explains that a pipeline spill under Lake Oahe could similarly pose a risk to the Tribes as it would to Bismarck residents if a spill impacted Bismarck’s water supply.[24] Making matters worse, the DAPL spill model was not shared with the Tribes or the public, and assumes that the pipeline is above ground as opposed to the proposed buried pipeline that poses a “catastrophic release.”[25]

President Trump’s memorandum argues that it is in the national interest the pipeline be permitted and constructed because it is a “multi-billion dollar investment in [the] Nation’s energy infrastructure” and is ninety percent complete.[26] However lawyers for the Tribe argue that Dakota Access’ spending billions of dollars on a pipeline that still does not have all the permits it needs is an “irresponsible gamble with its investors’ money” and that “any risks on the finances of this project are caused by the company’s recklessness, not the government’s efforts to comply with the law.”[27] Not surprisingly, most recently, l20 investors of the 17 banks financing DAPL asked the banks to address or support the Tribe’s request for a reroute of the pipeline in order to “protect the bank’s reputational and financial risks” with the project.[28] Also recent, the city of Seattle ended its contract with Wells Fargo for the bank’s role as a lender to DAPL.[29]

Placing political pressure by cutting ties with businesses associated with the Trump administration’s agenda has been a reoccurring tactic by citizens seeking to raise their collective voices. For example, Uber’s CEO was forced to quit Trump’s economic advisory council and donate $1 million to the ACLU, after protestors of Trump’s Executive Order temporarily barring entry to all refugees and citizens of 7 Muslim majority countries,[30] called for a boycott of the service app.[31] Though the Trump administration appears to react little to opponent views, except when it threatens his children’s businesses,[32] businesses at the end of public outcry are taking a financial and reputational hit. As a result, if there any more Trump Executive Orders with little consideration of the majority public opinion, there is a safe bet the public will feel unable to reach the President and make a statement by targeting a related business.

Standing Rock has said that it “will vigorously pursue legal action to ensure the [EIS] order issued late last year is followed so the pipeline process is legal, fair and accurate.”[33] As a result of the Tribe standing by its sovereignty rights and the EIS process, release of the easement for Lake Oahe is a continued legal fight that likely won’t go away anytime soon, regardless of Trump’s Executive Order. If anything, the main take away from this saga is that pipeline companies should not take Tribal sovereignty for granted and not take unwarranted risks of spending its investors’ money without vetting the legal feasibility of construction through and near Tribal land like they would for any other American community such as Bismarck, North Dakota.

 

[1] Jan Hasselman, Why it’s right to keep the brakes on the Dakota Access oil pipeline, Washington Post (Nov. 2, 2016, 7:13 PM), https://www.washingtonpost.com/opinions/why-its-right-to-keep-the-brakes-on-the-dakota-access-oil-pipeline/2016/11/02/aebc5cbe-a118-11e6-8832-23a007c77bb4_story.html?utm_term=.ab9a1d3d1edd.

[2] Complaint for Declaratory and Injunctive Relief ¶¶ 2, 143, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-01534 (D.D.C. July 27, 2016).

[3] Jan Hasselman, Why it’s right to keep the brakes on the Dakota Access oil pipeline, Washington Post (Nov. 2, 2016, 7:13 PM), https://www.washingtonpost.com/opinions/why-its-right-to-keep-the-brakes-on-the-dakota-access-oil-pipeline/2016/11/02/aebc5cbe-a118-11e6-8832-23a007c77bb4_story.html?utm_term=.ab9a1d3d1edd.

[4] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 2016 U.S. Dist. LEXIS 121997, at **52-53 (D.D.C. Sept. 9, 2016)

[5] Complaint for Declaratory and Injunctive Relief ¶¶ 2, 143, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-01534 (D.D.C. July 27, 2016).

[6] Id at ¶¶ 9, 191.

[7] Mot. for Inj. Pending Appeal at 1, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-5259 (D.C. Cir. Sept. 12, 2016).

[8] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 2016 U.S. Dist. LEXIS 121997, at *1-2, *38, *58 (D.D.C. Sept. 9, 2016).

[9] Id at *3.

[10] Joint Statement from the Justice Dep’t, the Dep’t of the Army and the Dep’t of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps Engineers (Sep. 9, 2016), https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing.

[11] Victory for Standing Rock: DAPL Easement Not Granted, EarthJustice (Dec. 4, 2016), https://earthjustice.org/news/press/2016/victory-for-standing-rock-dapl-easement-not-granted.

[12] Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC’s Request for an Easement To Cross Lake Oahe, North Dakota, Army Dep’t (Jan. 18, 2017), https://www.federalregister.gov/documents/2017/01/18/2017-00937/notice-of-intent-to-prepare-an-environmental-impact-statement-in-connection-with-dakota-access-llcs#addresses.

[13] Trump Memorandum for the Secretary of the Army (Jan. 24, 2017), https://earthjustice.org/sites/default/files/files/Construction-of-the-Dakota-Access-Pipeline.pdf.

[14] U.S Army Corps of Engineers, Release no. 17-015 (Feb. 8, 2017), https://www.nwo.usace.army.mil/Media/News-Releases/Article/1077134/corps-grants-easement-to-dakota-access-llc/.

[15] Standing Rock formally submits EIS comments, challenges EIS termination, Stand with Standing Rock (Feb. 8, 2017), https://standwithstandingrock.net/standing-rock-sioux-tribe-scoping-comments-available/.

[16] Tribal Treaty and Environmental Statutory Implications of the Dakota Access Pipeline, Solicitor for the U.S. Department of the Interior at 4 (Dec. 4, 2016).

[17] Id at 5.

[18] Id at 5.

[19] Id at 10-12.

[20] Id at 14.

[21] Tribal Treaty and Environmental Statutory Implications of the Dakota Access Pipeline, Solicitor for the U.S. Department of the Interior at 16 (Dec. 4, 2016).

[22] Id at 22-23.

[23] Id at 26, 33.

[24] Id at 26-27.

[25] Id at 28.

[26] Trump Memorandum for the Secretary of the Army (Jan. 24, 2017), https://earthjustice.org/sites/default/files/files/Construction-of-the-Dakota-Access-Pipeline.pdf.

[27] Jan Hasselman, Why it’s right to keep the brakes on the Dakota Access oil pipeline, Washington Post (Nov. 2, 2016, 7:13 PM), https://www.washingtonpost.com/opinions/why-its-right-to-keep-the-brakes-on-the-dakota-access-oil-pipeline/2016/11/02/aebc5cbe-a118-11e6-8832-23a007c77bb4_story.html?utm_term=.ab9a1d3d1edd.

[28] Investor Statement to Banks Financing the Dakota Access Pipeline, (Feb. 16, 2017), https://www.calpers.ca.gov/docs/investor-statement-to-banks-financing-dakota-access-pipeline.pdf.

[29] Associated Press, Seattle Splits From Wells Fargo Over Dakota Access Pipeline, N.Y. Times, (Feb. 8, 2017, 3:45 AM), https://www.nytimes.com/aponline/2017/02/08/us/ap-us-seattle-pipeline-divest.html?_r=0.

[30] Executive Order: Protecting the Nation From Foreign Terrorist Entry Into The United States, (Jan. 27, 2017), https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states.

[31] Mike Isaac, Uber C.E.O. to Leave Trump Advisory Council After Criticism,

N.Y. Times (Feb. 2, 2017), https://www.nytimes.com/2017/02/02/technology/uber-ceo-travis-kalanick-trump-advisory-council.html.

[32] Richard Pérez-Peña and Rachel Abrams, Trump Assails Nordstrom for ‘Unfairly’ Dropping His Daughter Ivanka’s Line, (Feb. 8, 2017), https://www.nytimes.com/2017/02/08/business/ivanka-trump-nordstrom-tj-maxx.html.

[33] Standing Rock will challenge any suspension of pipeline’s environmental review, Stand with Standing Rock (Jan. 31, 2017), https://standwithstandingrock.net/standing-rock-will-challenge-suspension-pipelines-environmental-review/.

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