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Judge agrees to keep some Dakota Access spill information secret

Friday, April 7, 2017

Musician Taboo performs at the Native Nations Rise rally at the White House in Washington, D.C., on March 10, 2017. Photo by Indianz.Com / More on Flickr

The wealthy backers of the Dakota Access Pipeline will be able to keep some oil spill information out of the public's eyes as tribes continue to resist the controversial project.

A federal judge on Friday agreed to redact portions of five oil spill documents in order to address safety and security concerns about the pipeline. But he did so only because he said the U.S. Army Corps of Engineers rode to the company's rescue.

Without the federal government's help, Judge James E. Boasberg might not have granted the protective order sought by the firm. In fact, when it came to a majority of the 11 documents at issue, he said Dakota Access came up far short.

"Dakota Access offers very little in the way of specific facts to support its argument that terrorists or other individuals with malicious intent might use this information to craft a plan to harm the pipeline in a way that causes the greatest damage," Boasberg wrote in the 13-page decision.

The ruling resolves one of the outstanding issues in the ongoing litigation. Leaders of the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe had long been calling on the firm to make all of the information about the pipeline public in order for everyone assess its environmental impacts.

While the tribes are able to use the documents and refer to them in their court filings, the public won't be able to access a total of 50 redactions agreed to by Boasberg. The information appears to be significant in nature in addressing oil spills.

The secret information includes "maps of DAPL at certain crossings, the names of pipeline segments when paired with timelines for detecting and shutting down spills, graphs of spill-risk scores at various points along the pipeline, maps of spill scenarios and predictions as to the volume of oil that would be released, the names of systems used to monitor the pipeline for leaks, and methods of communication with those monitoring systems," the decision reads.

A portion of Judge James Boasberg's ruling regarding a protective order sought by the wealthy backers of the Dakota Access Pipeline. Source: Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers

Yet Boasberg said the company offered little in terms of facts when it initially made the request for a protective order. "Fortunately for Dakota Access," he wrote, the Pipeline and Hazardous Materials Safety Administration, a different federal agency, reviewed the documents at the request of the Army Corps.

Based on that agency's recommendations, Boasberg agreed to the 50 redactions in those five documents. The information includes oil spill modeling at two locations in North Dakota and three more in Illinois, according to the decision.

As for six remaining documents, Boasberg ruled against Dakota Access completely. He said the firm failed to show why the public should not be able to see the full contents of geographic-response plans and a prevention-and-response plan.

But the value of this set of information does not appear to be as great. The geographic-response plans, according to the decision, consists of phone numbers of local agencies and law enforcement along the route of the 1,172-mile pipeline.

The prevention-and-response plan is more specific and is potentially of more interest to the public: it refers to the path of the pipeline at Lake Oahe along the Missouri River. That's where the firm engaged in horizontal directional drilling, or HDD, under the waters in order to compete the project.

Dakota Access, according to the ruling, "requests the masking of the name, location, and mile post of each crossing at which HDD services were provided, as well as the length of HDD pipe."

Judge Boasberg said the information does not "implicate the security concerns Dakota Access raises" so he said all of the contents of the plan must be made public.

Xiuhtezcatl Martinez, a 16-year-old musician who is one of the young plaintiffs in a climate change lawsuit against the federal government, performs at the Native Nations Rise rally at the White House in Washington, D.C., on March 10, 2017. Photo by Indianz.Com / More on Flickr

The Lake Oahe site, located less than a half-mile north of the Standing Rock Sioux Reservation, was the focal point of the #NoDAPL movement. In December, the Obama administration ordered an environmental impact statement to address concerns about treaty rights, sacred sites and water resources.

But everything changed when President Donald Trump came into power. Four days after taking office on January 20, he ordered his administration to engage in an "expedited" review of the pipeline.

Barely two weeks later, the Army Corps granted permission for Dakota Access to complete work at Lake Oahe and the environmental review altogether was canceled altogether. Tribal leaders weren't consulted prior to the decision -- Standing Rock Chairman Dave Archambault II was in a plane on his way to a meeting at the White House when it happened and Cheyenne River Chairman Harold Frazier was told after the fact in a phone call.

The tribes are now asking Boasberg to set aside the Trump administration's approval. Although the pipeline is now finished -- Dakota Access completed work in about 49 days, far faster than anticipated -- they believe a favorable decision will require the firm to stop shipping oil along the route, which runs through North Dakota, South Dakota, Iowa and Illinois.

The tribes respective motions for summary judgement are pending before Boasberg. So are similar request from the Army Corps and Dakota Access.

It's not clear when Boasberg will make a decision because briefing is still occurring. And while Dakota Access has finished the pipeline and has placed oil beneath Lake Oahe, the project is not yet fully operational.

The firm, however, has stopped providing weekly updates to the court about its progress.