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Tribes remain cautious amid Dakota Access Pipeline uncertainty

Thursday, November 3, 2016

An aerial view of another #NoDAPL clash in North Dakota on November 2, 2016. Photo courtesy Morton County Sheriff's Department

Tribal leaders are reacting with caution after President Barack Obama suggested a potential change in the route for the $3.8 billion Dakota Access Pipeline.

Chairman Dave Archambault II of the Standing Rock Sioux Tribe credited Obama for expressing concerns about sacred sites. But he reiterated the need for a full environmental review of the controversial pipeline, which comes within a half-mile of his people's reservation.

"The nation and the world are watching," Archambault said in a statement after Obama's interview with NowThis became more widely circulated on Wednesday. "The injustices done to Native people in North Dakota and throughout the country must be addressed."

Chairman Harold Frazier of the Cheyenne River Sioux Tribe also was "encouraged" by Obama's remarks. But to date, he said no one from the U.S. Army Corps of Engineers or any other federal agency has contacted him about a potential change in the route.

"In the meantime, the state of North Dakota continues to violate my people’s human and constitutional rights as they stand as protectors of our water at the Oceti Sakowin camp," Frazier said in a statement on Wednesday. "Resolution of this issue is urgent."

EXCLUSIVE: @POTUS on Dakota Access Pipeline protests: “There's an obligation for authorities to show restraint" pic.twitter.com/OfITagV1WG
— NowThis (@nowthisnews) November 2, 2016

The majority of the pipeline in North Dakota has already been built on private property, where the Army Corps lacks jurisdiction. But a crucial portion crosses federal land at Lake Oahe along the Missouri River.

The Army Corps has yet to approve an easement for work at the site and Obama, during his interview, suggested that a decision was still "several more weeks" away.

The delay offers some measure of hope to the tribes that the easement might eventually be denied, which could force Dakota Access to change the pipeline route. But in their rush to complete the project, construction crews have already cleared, graded and, in some cases, bulldozed areas where sacred sites and burial grounds are located.

A new example of those kind of disturbances came to light at a public meeting on Wednesday. Energy Transfer Partners, the parent company of the pipeline, failed to provide timely notification about tribal artifacts uncovered at a construction site, according to the North Dakota Public Service Commission.

"I was really extremely disappointed that the company failed to notify us about this when it happened," Julie Fedorchak, the chair of the commission, said during the administrative portion of the meeting.

According to documents filed with the commission, the disturbance occurred on October 17. But Energy Transfer didn't provide official notice until 10 days later.

A photo submitted as part of a report to the North Dakota Public Utilities Commission shows an "exclusion zone" where Dakota Access Pipeline said it would avoid in order to address concerns about sacred sites. Source: Keitu Engineers & Consultants

The company eventually "did the right thing" and the pipeline route was modified to avoid further disturbances, Fedorchak said. Although ancestors apparently weren't uncovered, she noted that the artifacts were cairns, which are stone formations or stone features that tribes use to mark important places, including gravesites.

"The only way to full know if they are graves is to expose them and dig them up, which they obviously don't want to do," Fedorchak said. "Leaving them in place is obviously the most important thing."

A map submitted to the commission shows how Dakota Access shifted the construction route. Even though the change was very slight, it indicates how the company could have already addressed concerns raised by the tribes before work on the pipeline began.

Dakota Access in fact was worried about "environmentally sensitive areas," according to an application filed with the commission back in December 2014. Part of the route traces existing infrastructure, which the company believed would help avoid disturbances.

Pipeline backers also considered a route that would cross the Missouri River north of Bismarck, the capital and the second-most populous city in the state. But that was rejected before the application was ever filed so it was "never vetted or considered by us," the commission said last week.

Instead, the route chosen by Dakota Access crosses the river north of the Standing Rock Sioux Reservation and that's where the company's work has led to a string of violent confrontations with law enforcement in the last couple of weeks.

Water Protectors holding ceremony on the banks of the Cannon Ball River were met by Riot Police firing less-than-lethal...
Posted by Rob Wilson Photography on Wednesday, November 2, 2016

A water protection ceremony along the Cannon Ball River in North Dakota was met by another law enforcement action on November 2, 2016. Photos by Rob Wilson Photography [GoFundMe]

With the easement in limbo, #NoDAPL resisters have shifted some of their water protection efforts to Lake Oahe, where Dakota Access has already built a drill-pad for the pipeline. According to the Chairman Frazier, those demonstrations are occurring on federal land, which would typically be outside the reach of state and local authorities.

But Morton County Sheriff Kyle Kirchmeier on Wednesday said he was asked by the Army Corps to prevent "trespassing" on the land.

"A statement from the U.S. Army Corps of Engineers gave Morton County law enforcement 'permission to go onto USACE land to prevent further campsites from developing and threatening public safety,'" Kirchmeier said in a press release, apparently quoting from a directive from the federal agency.

In a letter to the Secretary of the Army and the Assistant Secretary of the Army for Civil Works, the official who oversees the Army Corps, Frazier questioned why the agency would instruct Morton County to forcibly remove and arrest any demonstrators.

"The real issue is this. Those lands are federal lands," Frazier wrote in the letter to Secretary Eric Fanning and Assistant Secretary Jo-Ellen Darcy, both of whom were nominated to their posts by President Obama.

"They are apparently free and open to the public," Frazier said. "Even if there is some restriction on the right of demonstrators, including members of my tribe, to exercise their Constitutional rights on this land, I am not aware of North Dakota’s authority to arrest and detain for criminal trespass on this land."

A federal appeals on September 16 court put a temporary hold on construction within 20 miles of Lake Oahe but the injunction was lifted on October 9. Since then, Dakota Access has worked feverishly on the pipeline in order to avoid the onset of winter.

But there is another reason to rush: Energy Transfer has promised investors that it will start shipping oil along the 1,168-mile pipeline on January 1, 2017. Delays associated with the easement, or from a possible reroute, hurt the partnership's financial interests.

A decision from the Army Corps is highly unlikely before the November 8 presidential election. Even if it comes before the end of the year, the controversy will continue to the next administration because lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe are pending in federal court.

A negative decision on the easement could also prompt Dakota Access to pursue litigation.

A map submitted by Energy Transfer Partners shows how the Dakota Access Pipeline crosses north of Cannon Ball on the Standing Rock Sioux Reservation in North Dakota. A route north of Bismarck, the capital city, was considered by the firm but was rejected due to environmental concerns. Source: ETP

Additionally, the Department of Justice, the Department of the Army and the Department of the Interior have initiated consultation with tribes about large infrastructure projects like Dakota Access. The last in-person meeting is scheduled for November 17 in Rapid City, South Dakota and a teleconference is being held on November 21.

Since that process began so late in the year, it will be up to the next administration to decide how to move forward.

Amid the uncertainty, Democratic presidential nominee Hillary Clinton has refused to take a stand on the pipeline. But she has vowed to engage in "meaningful tribal consultation and empowerment" if she wins on Tuesday.

Republican nominee Donald Trump chastised the Obama administration for placing "roadblocks" on infrastructure projects like Dakota Access. While he hasn't mentioned the pipeline by name, he has invested his own money in Energy Transfer Partners and he owns stock in Phillips 66 Company, a publicly-traded company that owns part of the pipeline.

Additional Dakota Access Pipeline documents can be accessed at the North Dakota Public Utilities Commission.