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Native Sun News: Tribes cite treaties in bid to halt Keystone XL

The following story was written and reported by Talli Nauman, Native Sun News Health & Environment Editor. All content © Native Sun News.

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Keystone XL challenges Indian treaty rights
By Talli Nauman
Native Sun News
Health & Environment Editor

Part I

PIERRE –– While the world waited for South Dakota’s pivotal decision on TransCanada Corp.’s application to renew its Keystone XL tar-sands crude-oil pipeline permit, tribal members capped nine days of hearings Aug. 6, with fiery statements insisting that treaty rights dictate denial.

The original 2010 permit from the state’s Public Utilities Commission expired due to inaction, and the Canadian company seeks to renew it in order to build 314 miles of pipeline through South Dakota territory granted to the Great Sioux Nation by the 1851 and 1868 Treaty of Ft. Laramie.

The South Dakota link is necessary to connect the Alberta, Canada tar-sands mines to the existing thousands of miles of pipeline TransCanada already built in the Keystone system network across the U.S. heartland.

“The Public Utilities Commission does not have authority to make decisions regarding the water resources which clearly will be affected by the TransCanada Keystone XL,” said hearing intervener Elizabeth Lone Eagle.

“You have no other option than to deny,” she said in her closing statement.

Quoting her father, Rosebud Sioux tribal member John Paul Clifford, she said, “You have no jurisdiction to rule on anything that could potentially affect Indian land on the reservation or those lands that are federal Indian trust lands and most certainly not to grant a permit to any corporate entity, foreign or domestic, which would encroach in any way by crossing, spilling or causing any disturbance ·to these lands, which afford financial support and homesteads to the Native American Indian tribal members."

“Any ruling you make which would have any effect on Indian lands is in direct violation of Article 6 of the U. S. Constitution, whereby treaties are deemed the ‘supreme law of the land’ and in particular treaties made with Lakota nations,” Clifford had told the commissioners earlier.

The commissioners responded with a unanimous vote to reject a formal petition from tribal and other interveners to deny the permit. They set a deadline for further arguments on Oct. 1 and another deadline for the filing of responses to the arguments on Oct. 30.

TransCanada’s counsel is expected to present arguments against treaty rights, and the statewide non-profit Dakota Rural Action is expected to present worst-case spill scenarios contained to date in confidential data files.

The commission set the dates after interveners in the permit application process argued to extend the deadlines because they also are intervening in another oil pipeline permit application process in October.

The Yankton Sioux Tribe, Rosebud Sioux Tribe, Indigenous Environmental Network, and Dakota Rural Action, are interveners in the application for the other pipeline, known as the Bakken Pipeline, or Dakota Access Pipeline, under consideration by the commission.

Together with the Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe and Bold Nebraska, they tried to bring an end to debate over the Keystone XL Pipeline at the state commission level.

Standing Rock attorney Peter Capossela argued on their behalf that commissioners should issue an order denying TransCanada’s permit, “based on failure to provide substantial evidence of compliance with the amended conditions” and on changes in federal Clean Water Act regulations that became effective in June 2015, after Keystone XL environmental studies already had been submitted.

“They haven’t proved their case,” Capossela stated.

“The laws have changed. Consequently, if TransCanada wants a permit to cross South Dakota, new studies are required to demonstrate compliance with the regulations,” he added.

However, TransCanada’s counsel argued that it has met its burden of proof and the commission lacks jurisdiction over federal water regulations.

Commissioner Gary Hanson noted that his panel had advised interveners to shoulder the burden of proving that TransCanada Corp. cannot meet particular parts of the 50 conditions the commission imposed on the construction project.

Dakota Rural Action executive board member Paul Seamans, whose private property is on the pipeline route, said in his closing statement that the company cannot keep the tax contribution promises it has made to South Dakota.

On TransCanada Corp.’s previously built pipeline through South Dakota, the Keystone 1, the company promised an estimated $9.1 million in taxes to the counties through which it passes, but only paid $3.5 million, or 39 percent of what counties were supposed to receive, Seamans calculated.

The company is now offering $20 million in tax revenues to the state in advertisements for Keystone XL, but at the rate that it paid taxes on the other pipeline, the amount would be more like $7 million, he said.

“I am disappointed that TransCanada is not more forthcoming,” he added.

After parties submit their documents to the commission, another public hearing and a potential commission decision can be expected in November, according to Joye Brown, an intervener, who added that a court appeal of the commission ruling is also expected after that.

The pipeline’s route through Nebraska is already tied up in court. Meanwhile, U.S. President Barack Obama and his State Department could rule on the federal permit that would allow TransCanada to build the pipeline from the Alberta tar-sands across the Canada-U.S. border into Montana on its way to South Dakota.

TransCanada Corp.’s Keystone Projects Manager Corey Goulet, who testified at the hearings, announced an update at the beginning of the public sessions, stating, “TransCanada has worked respectfully, honestly and collaboratively with landowners in the state to explain the safe construction, operation and maintenance of our pipeline."

“As a result, we have acquired 100 percent of easements from private landowners in South Dakota to build Keystone XL in the state.," the company said.

On Aug. 3, John Harter, a South Dakota rancher intervening in commission hearings, disavowed the statement, saying, “I want to be clear: TransCanada does not have an agreement with me. They don’t have an easement across my property. All agreements were voided by me due to a breach of contract by TransCanada. Any entry onto my property by TransCanada will be considered trespassing and they will be removed.”

Harter said the company “has never negotiated in fair and good faith. This is due to the state of South Dakota granting them the use of eminent domain, despite them being a foreign corporation building this pipeline for private profit."

“Lying, bullying, and coercion were all used to attain easements from South Dakotans, and to say that landowners have willingly handed their land over to this corporation is a total mischaracterization,” he wrote in The Hill’s Congress Blog, a forum for lawmakers and policy professionals.

TransCanada Corp. says the stretches of the Keystone Pipeline in operation so far are part of “one of the most modern and technologically advanced pipeline systems in the world.”

Harter counters: “What I learned in listening to TransCanada during the South Dakota Public Utilities Commission hearings last week is that they will not build the safest pipeline ever built. TransCanada has downgraded the pipe wall thickness in high consequence areas and under roads. Their lead engineer believes Keystone I, a pipeline that spilled 14 times in its first year of operation, is safe."

Oyate Wahacanka Woecun, a community movement of the Rosebud Sioux Tribe “to protect the rights of the people and the land for future generations” joined Harter in doubting the safety claims.

“Lack of safety assurances, consultations and plans clearly upholds our fears of the black snake's venomous effects on Unci Maka and our people,” the organization said following the hearings.

“The health, safety and welfare of our citizens and relatives must be defended and our future generations must be considered. We pray that the re-certification permit not be granted.”

(Contact Talli Nauman, Health and Environment Editor for NSN at talli.nauman@gmail.com)

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