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Key Dakota Access document from Army Corps wasn't filed in court

Wednesday, February 8, 2017

The remaining residents of the #NoDAPL encampment are facing a deadline in late February 2017 to evacuate the site in North Dakota. Photo: Oceti Sakowin Camp

A key piece of information that explains how Republican President Donald Trump approved the Dakota Access Pipeline is being kept under wraps for now.

According to documents filed in federal court on Tuesday, the U.S. Army Corps of Engineers prepared a "technical and legal" analysis of the controversial project. But the memo, apparently dated February 3, was not supplied to the federal judge overseeing the #NoDAPL lawsuit even though he has called for as much transparency as possible.

"I also want to stay on top of this the best way I can," Judge James E. Boasberg, who has previously been blindsided by the White House regarding pipeline matters, said during a hearing at the federal courthouse in Washington, D.C., on Monday.

The Standing Rock Sioux Tribe, whose leaders filed the lawsuit last July, has sought more disclosure as well. Now that a final decision on the pipeline has been made, key documents from the Trump team are needed in order to continue the legal fight.

"The Trump administration – yet again – is poised to set a precedent that defies the law and the will of Americans and our allies around the world," Chairman Dave Archambault II said in a press release.

During Monday's hearing, attorney Jan Hasselman of the non-profit group Earthjustice started laying some of the groundwork for the ongoing battle. He asked Boasberg to order the Department of Justice to produce what is known as an administrative record -- essentially all of the documents used to make a decision -- in an expedited manner.

Boasberg, however, declined to issue an order after receiving assurances from a government attorney that the department would work as quickly as possible to submit the record to the court.

The U.S. Army Corps of Engineers prepared a "technical and legal review" of the Dakota Access Pipeline in a February 3, 2017, memo, but a copy wasn't supplied to the federal judge handling the #NoDAPL lawsuit.

Based on a memorandum signed by a senior official at the Department of the Army, the new administrative record would appear to be rather small. Only six documents were cited as references by Douglas Lamont, who is "performing the duties" of the Assistant Secretary of the Army for Civil Works for the Trump administration.

Five of those documents are already public record. They include Trump's January 24 memorandum, which ordered an "expedited" review of the pipeline.

The sixth document is the missing Army Corps analysis. It's not clear why it wasn't filed in court, seeing as how Trump's January 24 directive was submitted to Boasberg that same day and an Army memo dated January 31 was submitted on the following day.

Presumably, the missing memo will eventually be disclosed as part of the lawsuit. But its absence confirms fears in Indian Country about the agency's handling of the pipeline -- many distrust the Army Corps because of its long record of failing to consult tribes about the impacts of large infrastructure projects.

The Obama administration in fact took the Army Corps out of the picture when it ordered a new review of the final portion of the pipeline in order to address concerns raised in Indian Country. The Department of the Army was in charge of the environmental impact statement, according to a notice that was published in the Federal Register just two days before Trump was sworn in as the 45th president of the United States.

The review has now been canceled by the Army, according to one of the documents filed in court on Tuesday. No explanation, other than Trump's January 24 memo, was provided.

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)

Federal Register Notice:
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 (January 18, 2017)