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Cheyenne River Sioux Tribe slams Trump for lack of consultation on Dakota Access

Thursday, February 23, 2017

Chairman Harold Frazier of the Cheyenne River Sioux Tribe addresses a #NoDAPL rally outside of the federal courthouse in Washington, D.C., on August 24, 2016. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

The Cheyenne River Sioux Tribe is launching a new effort aimed at stopping the Dakota Access Pipeline ahead of a critical hearing in federal court.

The tribe already requested a preliminary injunction to prevent oil from flowing through the pipeline based on threats to its religious practices. A federal judge is hearing arguments in Washington, D.C., next week as the controversial project, dubbed the Black Snake in Lakota philosophy, moves quickly toward completion.

But the tribe is also seeking a judgment against the U.S. Army Corps of Engineers for approving the final portion of the pipeline in North Dakota. A motion filed on Wednesday slams the agency for granting an easement to Dakota Access and its wealthy backers only three weeks after President Donald Trump took office.

"The United States Army Corps of Engineers’ approval of the Dakota Access Pipeline is a clear case of allowing the fox to run the henhouse," the 56-page brief states.

Authorities in North Dakota continue to clear out Oceti Sakowin, which hosted tens of thousands of people as part of the #NoDAPL movement. Photo: Morton County

After months of pressing their case to the Obama administration, Cheyenne River leaders, like their counterparts at the Standing Rock Sioux Tribe, have been sidelined by the new Republican regime in Washington. There's been little productive communication with Trump's team with regard to the easement or the environmental impact statement that was supposed to address treaty rights and other key issues.

"President Trump, without any tribal consultation, issued an executive memorandum that ordered the Corps to expedite its decision, rescind the EIS notice, and to grant the easement to Dakota Access, 'to the extent permitted by law,'" Cheyenne River Sioux's filing reads.

But the tribe countered that the granting of the easement was "plainly arbitrary and capricious, and unlawful" and in violation of the federal government's treaty and trust responsibilities.

The tribe also blasted the new administration for putting a hold on a pro-treaty legal opinion that had been issued by the Solicitor at the Department of the Interior in December. The document, known as Opinion M-37038, has been removed from the department's website by the "acting" leader of the agency.

"This political decision to erase this analysis from the books, does not diminish its sound basis in law," the tribe said in a footnote. "The withdrawal of the opinion, without reasoned explanation, underscores the results-oriented mindset that has permeated the government’s decision-making related to this project."

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Judge James E. Boasberg has agreed to expedite the tribe's request. Responses from the Trump administration and Dakota Access are due March 23 and the tribe can file a reply by April 6, according to an order he issued on Thursday.

The timeline means it is possible that oil will already be flowing through the pipeline by the time the judge receives all of the pleadings. Dakota Access, in a status report submitted on Tuesday, said the project could be finished anywhere between March 6 and April 1.

The tribe hopes Boasberg will issue the injunction and prevent that from happening. But he has refused to halt construction after being asked to do so by Standing Rock on two different occasions last year and by Cheyenne River earlier this month.

If Boasberg follows that pattern again, Cheyenne River could take the matter to the D.C. Circuit Court of Appeals, which last year temporarily suspended work on the pipeline. During a hearing in October, at least two judges questioned why Dakota Access kept building despite lacking the final easement in North Dakota but now that hurdle has been cleared thanks to Trump.

Separate from Cheyenne River's efforts, Standing Rock is seeking to set aside the easement. Responses from the Trump administration and Dakota Access are due March 7, just as allies are expected in Washington for Native Nations Rise.

The event kicks off with a symbolic camp near the Washington Monument on March 7. But unlike the #NoDAPL sites in North Dakota that are being cleared out by state and federal authorities after hosting tens of thousands of people last year, overnight stays are not being allowed.

Native Nations Rise concludes with a march from Army Corps headquarters to the White House on March 10.

Indian Country #NoDAPL Briefs:
Oglala Sioux Tribe (February 21, 2017)
Pueblo of Pojoaque / Association on American Indian Affairs / University of New Mexico School of Law Natural Resources and Environmental Law Clinic (February 21, 2017)
National Indigenous Women's Resource Center / 13 Tribes / 105 Non-Profit Organizations (February 21, 2017)
National Congress of American Indians / 34 Tribes / 11 Tribal Organizations / 2 Civil Rights Organizations (February 22, 2017)

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)