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Army Corps calls Dakota Access Pipeline resisters 'trespassers' in letter to county

Friday, November 4, 2016

A #NoDAPL water protection effort in North Dakota was met by another big law enforcement response on November 2, 2016. Photo by Rob Wilson [GoFundMe]

With a key easement for the Dakota Access Pipeline being delayed by the Obama administration, water protection efforts are shifting to additional sites in North Dakota.

But the U.S. Army Corps of Engineers is taking a harsh stance against the presence of pipeline resisters on federal property. A letter sent to Morton County Sheriff Kyle Kirchmeier on Tuesday refers to them as "trespassers."

"The Corps of Engineers has not provided any permits or permissions for anyone to access that area of the federal property that we manage," Colonel John W. Henderson, the Commander of the Omaha District, wrote in the November 1 letter. "It is an area that has not been opened for use by the public for recreational or camping purposes."

"As such, the Corps of Engineers would consider these individuals to be trespassers," Henderson told the sheriff. "On behalf of the Corps of Engineers, as a property owner, I am requesting law enforcement assistance in this matter, as needed."

The letter -- which was written without prior consultation of either the Standing Rock Sioux Tribe or the Cheyenne River Sioux Tribe -- was in fact taken as an invitation for action. A day later, Kirchmeier sent forces to the area, where more than 100 people suffered injuries after being shot at close range by less-lethal weapons and sprayed with chemicals.

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]

"Members of our youth council were again among the first to be wounded while in the water today, trying to rescue their relatives from being hurt," Eryn Wise of the International Indigenous Youth Council said in first-hand account provided by the Sacred Stone Camp, the original #NoDAPL encampment.

"I spent an hour washing pepper spray from their hair and faces," said Wise, who is from the Jicarilla Apache Nation and Laguna Pueblo. "They asked me, 'When will this end?’ I had no answer.”

Officially, the Army Corps has said it won't take action to remove #NoDAPL encampments from federal property adjacent to the Cannon Ball River. The additional water protection sites are located north of that area and some have taken to calling it the North Camp.

The area happens to be the same place where Dakota Access has already built infrastructure in hopes of completing the $3.8 billion project. Those efforts continue even though the pipeline partnership lacks an easement to drill underneath the Missouri River.

It's not entirely clear why Henderson is taking a different stance with respect to the North Camp but his letter flies in the face of some rather direct comments offered by President Barack Obama.

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

"It's a challenging situation," Obama said in interview with NowThis that was posted by the online news outlet on Tuesday night. "There is an obligation for protesters to be peaceful. There's an obligation for authorities to show restraint. And I want to makes sure that as everybody is exercising their constitutional rights to be heard that both sides are refraining from situations that result in people being hurt."

During the interview, Obama also hinted that a decision on the easement might take "several more weeks" to resolve. The delay could prevent Dakota Access from completing the pipeline in time to start shipping oil on January 1, 2017.

Up until the Obama administration put a hold on the easement on September 9 and reiterated its position on October 10, Energy Transfer Partners thought it had the upper hand in the battle. The parent company of the pipeline believed a decision had already been made and approval was a mere "formality."

"We were sent all the paperwork and [told] that it was merely on the desk of the final person for the signature," attorney Miguel A. Estrada, said during an October 5 hearing before a federal appeals court in Washington, D.C.

"It's not a formality now, is it?" said Judge Thomas B. Griffith of the D.C. Circuit Court of Appeals.

During the lengthy hearing, Griffith and the other judges focused heavily on the easement and whether the Standing Rock Sioux Tribe was consulted during the process. They noted that the Army Corps had already begun -- and possibly even completed -- an analysis of the drilling area and an attorney from the Department of Justice even supplied them with a map of how that has happened.

"Was the tribe part of that consultation?" Griffith asked.

"There was an extended effort to consult the tribe," argued James A. Maysonett, an attorney for the government.

The Omaha District of the U.S. Army Corps of Engineers included this map as part of a November 1, 2016, request for "law enforcement" in North Dakota. According to Colonel John W. Henderson, water protection efforts cannot occur in the areas outlined in red. The area sits north of the Oceti Sakowin Camp -- labeled here as the "Seven Councils Camp" -- and other #NoDAPL camps adjacent to the Cannon Ball River. Source: U.S. Army Corps of Engineers

But a significant issue emerged after Maysonett said the Army Corps had already begun to consider the possibility that the pipeline might need to "divert" -- or be rerouted, as President Obama suggested this week. The judges also wondered whether the tribe was consulted about that option.

According to Maysonett, the Army Corps has been using its engineering "expertise" to consider possible changes in the route at the water protection sites. But he did not directly say whether the tribe was consulted on those details.

"I don't know if we have the full record for that -- it's partly an engineering determination," Maysonett said in reference to a one-mile circle that the Army Corps has drawn around the crossing at the Missouri River.

"I'll have to confess ... it may be an issue that we need more of a record for," Maysonett added.

On July 28, Colonel Henderson signed a finding of no significant impact with respect to work at Missouri River. While his action was not a formal approval of the easement, the Cheyenne River Sioux Tribe doesn't want him involved in the process any longer based on what happened this week.

Henderson is "unfit to handle a sensitive issue of this magnitude and has a proven incapacity to deal respectfully and maturely with Indian people," Chairman Harold Frazier wrote in a letter to top Army officials on Wednesday.