Opponents of the Dakota Access Pipeline gather in front of the Trump International Hotel in Washington, D.C., as part of the #IndigenousRising round dance on April 27, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Trump administration officially rescinds pro-treaty rights legal opinion

Tuesday, July 18, 2017

The Trump administration has quietly killed a legal opinion that tribes were using to fight the Dakota Access Pipeline.

On February 6, the Department of the Interior put a "temporary suspension" on the M-37038 opinion. A day later, the Trump team approved the final portion of the pipeline over the objections of the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe.

Both tribes had relied on M-37038 -- which was issued by the Obama administration -- in their legal battle against the controversial Dakota Access crude oil pipeline. One of the key findings in the opinion was that the final portion in North Dakota impacts their treaty rights and that the U.S. Army Corps of Engineers "must consider" those rights before moving forward.

"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," the 35-page opinion stated.

And even though a federal judge concluded that the Army Corps in fact failed to fully consider those rights, the "acting" Solicitor of the Interior rescinded M-37038 earlier this month. A July 7 memo said the opinion offers little value in light of the ongoing lawsuit.

"The opinion was written to provide pre-decisional advice to a non-Interior agency with respect to a particular matter," Daniel Jorjani, whose official title is Principal Deputy Solicitor at the department, wrote in the memo. "The Corps made its decision, the record for judicial review has been completed, and any reconsideration or further decision-making by the Corps will be governed by the orders and guidance provided by the courts. The advice provided by M-37038 is thus no longer needed."

Conclusions from Opinion M-37038, a rescinded legal opinion at the Department of the Interior, supported the need for additional review of the Dakota Access Pipeline.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

The withdrawn opinion was titled "Tribal Treaty and Environmental Statutory Implications of the Dakota Access Pipeline." Although it helped the tribes in their lawsuit, it was not the basis for a federal judge's decision to order the Army Corps to undertake a more thorough review of the final portion.

Instead, Judge James Boasberg said the agency failed to take a "hard look" at issues raised by the tribes, including treaty rights, oil spills and environmental justice.

Despite the ruling, the Army Corps has yet to heed the judge's directive. As of Tuesday morning, more than a month after the decision, the agency has not provided notice of its intent to prepare an environmental impact statement for the final portion of the pipeline.

In a new court filing, the Trump administration indicated that the review is still on the table. But it looks like a revised analysis is far off, according to the Department of Justice.

"The Corps is actively evaluating the issues remanded to it by the court and expects to complete its review of those issues by late December 2017," government attorneys wrote on Monday.

Oil started flowing through the pipeline on June 1, thanks to the Trump administration's approval of the final portion. The wealthy backers of the project say oil should continue flowing while the Army Corps conducts its review.

"A shutdown while the Corps provides additional explanation for its determinations, under a statute that calls only for a process and not a particular substantive outcome, would add insult to injury," attorneys for Dakota Access wrote on Monday.

The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe have until August 7 to respond to the new filings, according to a schedule adopted by the judge last month. Both tribes want oil to stop flowing until the Army Corps addresses their concerns.

"Never before have so many tribes stood together in the spirit of peaceful but insistent residence," Standing Rock Chairman Dave Archambault II wrote in a letter to supporters last week. "Never before have so many non-Native allies from around the world come to stand with us and acknowledge that the unfair mistreatment is beyond tolerable and must not continue."

Additional briefing will conclude on August 28 so a decision on the status of the pipeline is also far off.

Office of the Solicitor Documents:
M-37038 - Tribal Treaty and Environmental Statutory Implications of the Dakota Access Pipeline (December 4, 2016)
Temporary Suspension of M-37038 (February 6, 2017)
Withdrawal of M-37038 (July 7, 2017)

Federal Register Notices:
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)
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)