Environment | National | Politics

Indian Country united in call for full review of Dakota Access Pipeline

Thursday, October 13, 2016

Chairman Dave Archambault II of the Standing Rock Sioux Tribe addresses the 73rd annual National Congress of American Indians convention in Phoenix, Arizona, on October 11, 2016. Photo by NCAI

Indian Country continues to push for a more thorough review of the $3.8 billion Dakota Access Pipeline and some prominent Democrats are joining the cause.

In a letter to President Barack Obama on Thursday, five lawmakers acknowledged his administration's ongoing review of a crucial easement for the controversial pipeline. They also welcomed the opening of government-to-government talks on large scale infrastructure projects like Dakota Access.

But with construction of the pipeline back on track in North Dakota after a federal appeals court lifted a temporary injunction, Sen. Bernie Sanders (I-Vermont), Sen. Patrick Leahy (D-Vermont), Sen. Dianne Feinstein (D-California), Sen. Ben Cardin (D-Maryland) and Sen. Ed Markey (D-Massachusetts) are calling on Obama to take stronger action. They say all work should be halted pending additional tribal consultation and the completion of a full environmental review.

"The pipeline's construction is not only a violation of tribal treaty rights, but has the potential to cause more damage to sacred land," the letter, of which Sanders is the lead author, stated.

"Until there has been full and meaningful tribal consultation, all pipeline permits and easements should be revoked or denied," it continued.

The Standing Rock Sioux Tribe has long been calling for "meaningful" consultation about the pipeline's impact on sacred sites, water resources and the environment. The issue is being litigated in federal court as part of a closely-watched lawsuit against the U.S. Army Corps of Engineers.

"For me, it's about the river, the Missouri River," Chairman Dave Archambault II said at the National Congress of American Indians annual convention in Phoenix, Arizona, on Tuesday. "The Missouri River is why we have water for life, drinking water for our members, drinking water for our animals and it's also an area where there are sacred places."

"It's something we want to protect for the future," Archambault added.

Indian Country has rallied to the cause, with more than 300 tribes -- an unprecedented declaration of unity -- joining the #NoDAPL movement. NCAI President Brian Cladoosby, who has traveled to North Dakota to show his solidarity, said the federal government must consider the "best interests" of the community at Standing Rock in reviewing the pipeline.

"At the end of the day we just need the Corps of Engineers to deny the easement and for the Corps of Engineers to require DAPL to do a full environmental impact statement," Cladoosby, who also serves as chairman of the Swinomish Tribe of Washington, said in an interview in Phoenix on Sunday.

The easement mentioned by Cladoosby remains an extremely important piece of the puzzle. Without it, the Dakota Access partnership can't complete the pipeline on federal land at Lake Oahe along the Missouri River.

"The Army has to make a determination that the easement is in the public interest and complies with federal law," James A. Maysonett of the Department of Justice told the D.C. Circuit Court of Appeals at a packed hearing on October 5.

Prior to the hearing, the D.C. Circuit placed a hold on work around Lake Oahe but a panel of three judges lifted it on Sunday evening. The next day, the Obama administration said the Army Corps hopes to complete its review of the easement "soon" but did not offer a timeline.

Documents from the Standing Rock Sioux Tribe's #NoDAPL lawsuit
Posted by Indianz.Com on Thursday, October 13, 2016

Indianz.Com on Facebook: D.C. Circuit Court of Appeals Order in #NoDAPL Lawsuit

The D.C. Circuit has since shut the door, for now, on additional briefs in the appeal. That could put a crimp on Indian Country's coordinated front -- NCAI and the Native American Rights Fund have been working with tribes to develop a "strong and unified voice" as part of the lawsuit.

The National Indigenous Women’s Resource Center, whose leaders brought significant attention to the Dollar General case that went before the U.S. Supreme Court last year, is among those hoping to submit a brief to the D.C. Circuit.

"As sovereign Nations, the Tribes in North Dakota have an inherent right to protect their women and children from anyone or anything that threatens to bring crime onto tribal lands," the organization wrote in a call for organizations to join its proposed brief. "But when Native Nations are excluded from the federal consultation process, they lose any and all meaningful opportunity to consult on the harmful effects a pipeline will have on their land, water, and ultimately—the lives of their citizens."

But in an order issued on Tuesday, the court said briefing was "deferred" pending further action. The parties are instead being asked to submit motions by November 10 and by November 25.

While no further information was provided in the order, the request for "procedural" and "dispositive" motions indicates the court might be looking to resolve the appeal without additional briefs on the merits or a hearing on the merits. But the process won't become clearer until those submissions are received by the D.C. Circuit.

The Standing Rock Sioux Tribe launched the appeal after a lower court rejected its motion for a preliminary injunction to stop the pipeline. While the ruling on September 9 was an initial setback, Judge James E. Boasberg outlined the unusual and complex nature of the dispute.

"A project of this magnitude often necessitates an extensive federal appraisal and permitting process. Not so here," Boasberg wrote. "Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government."

"In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land," he continued.

Immediately after the ruling, the Department of Justice, the Department of the Army and the Department of the Interior issued an extraordinary joint statement that highlighted the lack of the easement for the pipeline. It also announced the talks on infrastructure projects, which began this week as a listening session at NCAI on Tuesday. Additional sessions take place throughout the months of October and November.

The consultation effort runs independent of the Dakota Access easement review and of the lawsuit, although similar concerns are being raised throughout all the proceedings.

And the anticipated decision on the easement -- whether in favor or against Dakota Access -- could lead to additional or expanded litigation from any or all of the parties.

"I know that many of you have come together across tribes and across the country to support the community at Standing Rock," Obama said at the White House Tribal Nations Conference on September 26. "And together, you’re making your voices heard."

With additional reporting by Tara Gatewood from Phoenix, Arizona.

D.C. Circuit Court of Appeals #NoDAPL Documents:
Standing Rock Sioux Tribe's Emergency Motion for Injunction Pending Appeal (September 12, 2016)
Dakota Access LLC Opposition (September 14, 2016)
U.S. Army Corps of Engineers Opposition (September 14, 2016)
Standing Rock Sioux Tribe's Reply (September 15, 2016)
Injunction Blocking Construction of Dakota Access Pipeline (September 16, 2016)
Order Setting October 5 Hearing (September 21, 2016)
Order Allocating Oral Argument Time (September 21, 2016)
Order on Emergency Motion (October 9, 2016)