Environment | Law | National | Politics

More tribes join effort to halt completion of Dakota Access Pipeline

Monday, February 13, 2017

Cleanup efforts continue at Oceti Sakowin in North Dakota, which served as home to thousands of people as part of the ongoing #NoDAPL movement. Photo: Oceti Sakowin Camp

The fight over the Dakota Access Pipeline is entering a crucial phase as tribes and their citizens place their faith in a system of justice that hasn't always addressed their concerns.

In a brief highlighting the federal government's long history of troubled dealings with the first Americans, the 16 tribes of North Dakota, South Dakota and Nebraska urged a federal judge to halt construction on the final portion of the pipeline. The Great Plains Tribal Chairman’s Association said completion of the controversial project will cause "irreparable harm" to the rights promised in treaties that are regarded in the U.S. Constitution as the "supreme law of the land."

"The approval of DAPL without fully involving the affected tribes and seeking their free, prior, and informed consent, and without considering treaty hunting, fishing, protectorate, and water rights is another in a long line of actions that place the interests of non-Indians above the interests of Native peoples of the Great Plains to the detriment of the tribes," the brief, which was submitted on behalf of the 16 tribes by the Native American Rights Fund on Friday, stated.

The filing wasn't the only one lodged on Friday. The Standing Rock Sioux Tribe formally joined the Cheyenne River Sioux Tribe in seeking an order that would block the final portion of the pipeline pending further consideration of treaties, sacred sites, water resources and other issues that so far have been ignored by the new Donald Trump administration.

"In every era, when the United States responds to demands from those seeking to advance particular economic interests – for gold in the Black Hills, for land for non-Indian homesteaders on our reservation, or for navigation or hydropower – it has always been the tribe that has borne the heavy burdens, through the loss of our lands and harm to our way of life," Chairman Dave Archambault II said in a sworn declaration. "While so much has been taken away by the misdeeds of the federal government, the tribe has survived, and we have an obligation to protect what remains for the good of our children."

And now that the Trump administration has approved the pipeline, both tribes are seeking to amend their original complaints to account for the latest developments. They argue that the decision by the U.S. Army Corps of Engineers to grant the easement for Dakota Access, along with the decision by the Department of the Army to cancel an environmental review of the final portion, constitute new actions that can be challenged in court.

"We must take positive steps to see that our rights are not ignored by the federal government," Archambault stated in his declaration. "That is why we have stressed the importance of meaningful consultation regarding the Dakota Access pipeline. We must see that the federal government, which has solemn obligations under our treaties and under the trust responsibility, hears our voices, and protects our reservation and our way of life. As Chairman of the tribe, I have done all I can to advance these principles."

Standing Rock is also supporting the addition of a new party to the lawsuit. Steve Vance, the historic preservation officer for Cheyenne River, filed papers on Saturday seeking to join the case on religious freedom grounds.

"Mr. Vance is a sincere practitioner of the traditional Lakota faith," his attorneys wrote in a proposed complaint. "Mr. Vance believes that the siting of the Dakota Access Pipeline under Lake Oahe will desecrate the waters such that they will be rendered unsuitable for use in the sacraments required by his religious faith, in particular the Inipi ceremony," they added, in reference to sweat lodge activities that depend on clean water from the Missouri River.

We are all in this together United in Defense of Mother Earth and our Sacred Water 👊🏾💦👊🏾Ladonna !!! pic.twitter.com/U9GovFWXUB
— Honor the Earth (@HonorTheEarth) February 11, 2017

Thanks to Republican President Donald Trump, who ordered an "expedited" review of Dakota Access just four days after taking office, the pipeline is set to cross the Missouri, or more specifically, go under the river. The wealthy backers of the project intend to start filling it with crude in 60 days and oil could be flowing along the entire 1,172-mile route in less than 90 days.

That is, unless Judge James E. Boasberg takes action on Indian Country's requests. So far in the litigation, he has twice refused to halt construction but that was before the Army Corps granted an easement for work in North Dakota and before the Army terminated the environmental impact statement, or EIS, that was ordered only two days before Trump was sworn in as the 45th president of the United States.

Boasberg is hearing arguments on Monday afternoon and could issue a decision at any time. If he refuses to halt construction, something he did last September, an appeal is possible.

The case already made one trip to the D.C. Circuit Court of Appeals but construction resumed without a full resolution of an injunction sought by Standing Rock. This time, both Cheyenne River and Standing Rock are pushing for action so presumably both would participate in an appeal.

On the other hand, if Boasberg grants some form of a restraining order or injunction, Dakota Access is vowing a challenge. The firm already missed a January 1 target date to start transporting oil from North Dakota to Illinois.

"Dakota Access is not willing to agree with a further delay," attorney David Debold said during a February 6 hearing

Debold also offered a preview of the argument Dakota Access will make against attempts to halt construction. He contends the tribes are not harmed by drilling under the Missouri, or even the installation of pipe under the river, but by the movement of oil along that pipe. Since shipments aren't expected until 83 days at the earliest, he believes there would be no need for a restraining order or injunction at a sooner date.

"We don't agree that the drilling of the pipeline, the construction of the pipeline is harmless," countered Jan Hasselman, an attorney for Standing Rock.

The Army Corps, as the defendant in the lawsuit, has not yet disclosed its legal strategy going forward. But the Department of Justice is now under new leadership -- former Sen. Jeff Sessions (R-Alabama), Trump's pick for Attorney General, was sworn into office last week after being confirmed by the Senate on a vote that fell largely along party lines.

Monday's hearing takes place at 2pm Eastern in Courtroom 19 of the federal courthouse in D.C. It occurs as hundreds of tribal leaders and tribal citizens are in the nation's capital for the winter session of the National Congress of American Indians.

"Treaties are the supreme law of the land," NCAI President Brian Cladoosby said in a statement last week objecting to the approval of the pipeline. "To suddenly change the decision and issue the easement after already starting the legal process of preparing an environmental impact statement is arbitrary and capricious.”

Just hours before the critical hearing, Cladoosby is delivering the first State of Indian Nations of the Trump era. The event takes place at the Newseum, a private facility steps away from the federal courthouse.

"As we continue to stand together as indigenous people ... we can change our world thoughts, we can change what's happening to our water, our land and our people," LaDonna Brave Bull Allard, a Standing Rock citizen who founded the Sacred Stone Camp, the original #NoDAPL prayer site, said on Sunday from Minnesota where she was taking part in an inter-tribal water conference that drew allies from the U.S. and Canada.

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)