Former Solicitor of the Interior Hillary Tompkins is seen with former Secretary of the Interior Ken Salazar, center, and former Attorney General Eric Holder on December 8, 2009. Photo: Tami A. Heilemann / U.S. Department of the Interior

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Trump team puts hold on pro-tribal and pro-treaty Dakota Access legal opinion

Wednesday, February 22, 2017

A legal opinion that tribes have been using in their fight against the Dakota Access Pipeline has been suspended by the new Trump administration and could be rescinded altogether.

Hillary Tompkins, who was the first Native woman to serve as Solicitor at the Department of the Interior, authored the opinion on December 4, 2016. In it, she concluded that the controversial project impacts the treaty rights of the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe.

The conclusion was significant because it said the U.S. Army Corps of Engineers failed to fully consider those treaty rights in reviewing the pipeline in North Dakota. While her opinion was not binding on the agency, which falls under the authority of the Department of the Army, the tribes believed it bolstered the need for an environmental impact statement, or EIS, regarding the crossing at Lake Oahe along the Missouri River.

"Since the tribes retain rights associated with Lake Oahe, the Corps must consider the possible impacts of its DAPL permitting decisions on these reserved hunting, fishing, and water rights," Tompkins wrote in the 35-page opinion.

But visitors to the Solicitor's legal opinion page will find that Opinion M-37038 is no longer available. The page now reads "Suspended and temporarily withdrawn on February 6, 2017" and includes a link to a memo which explains that the Trump team "temporarily" suspended it pending further review, meaning it could be rescinded forever.

Conclusions from Opinion M-37038, a temporarily withdrawn legal opinion at the Department of the Interior, supported the need for additional review of the Dakota Access Pipeline. Indianz.Com saved a copy before it was removed from the internet by the Trump administration.

The action has ramifications for the ongoing #NoDAPL lawsuit. In a filing on Tuesday, Department of Justice, which is now under new leadership, said the opinion no longer carries any legal weight, undercutting the two tribes' opposition to the pipeline.

"Cheyenne River’s reliance on a suspended and temporarily withdrawn opinion by the Department of the Interior’s Solicitor is misplaced," the submission reads, while a footnote warns of even more developments: "The Corps expects to raise other issues relating to Opinion M-37038 in its response to Standing Rock’s motion for summary judgment."

It's common for officials in a new administration to put a hold on actions taken by their predecessors. But the process for reconsidering legal opinions tends to be a bit more deliberative -- for example, it took Interior almost a year to rescind one affecting a mine proposed on a sacred site during the George W. Bush era back in 2001.

President Donald Trump, on the other hand, rushed Dakota Access through the approval process without consulting the affected tribes. In fact it took three months after the November election for Standing Rock to secure a meeting at the White House but the Army Corps approved the final easement while Chairman Dave Archambault II was stuck in an airplane.

"I felt kind of slighted," Archambault said at the winter session of the National Congress of American Indians in Washington, D.C., last week. "They decided on Tuesday, the day I flew out."

With Opinion M-37038 on the chopping block, Standing Rock and Cheyenne River have quickly lost allies throughout the federal family. Thanks to new leadership teams, the Army Corps, Justice and Interior can no longer be counted on for assistance in addressing their concerns about treaty rights, sacred sites and water resources.

"This president, I feel, is motivated by money," Archambault said last week, referring to #DefundDAPL, a campaign that seeks to divest from banks and institutions that are financing Dakota Access and other infrastructure projects on indigenous lands.

Federal Register Notice:
Notice of Termination of the Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (February 17, 2017)

Prior 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)

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)