Trump administration blames tribes for delay in new Dakota Access study

Wednesday, March 21, 2018

The Trump administration is blaming tribes as it delays a highly-anticipated study of the Dakota Access Pipeline.

The U.S. Army Corps of Engineers originally planned to issue the new analysis on or before April 2. The study was ordered after a federal judge said the first decision -- made less than three weeks after President Donald Trump took office -- was flawed and failed to take tribal concerns into account.

Government attorneys, including a senior official brought in by the Trump team, now acknowledge the study won't be completed by the deadline. They note that the Standing Rock Sioux Tribe only "recently" submitted more than 300 pages of documents, while the Cheyenne River Sioux Tribe, the Oglala Sioux Tribe (misspelled as "Ogallala" in a filing) and the Yankton Sioux Tribe have yet to register their concerns.

"As a result of the difficulties in obtaining requested information from the plaintiff tribes in a timely manner, the Corps no longer believes it will be able to complete the remand by April 2, 2018," the legal team from the Department of Justice said in a filing on Friday.

The tribes opposed to the $3.8 billion pipeline, which went into service last June thanks to the Trump administration, have indeed been slow to explain their concerns about oil spills and treaty rights. But that's because the Army Corps has failed to provide them with critical information and engage in "meaningful" government-to-government consultation, their attorneys allege.

Cheyenne River in fact alerted the court about the inadequate consultation more than a month ago. Standing Rock raised the same warnings earlier this month, complaining of being "stonewalled" by the Army Corps.

"At the most basic level, this entire case arose because the Corps failed to meaningfully engage with the tribe, listen to its legitimate concerns about the siting of the pipeline at Oahe, and make a reasoned decision in light of that information," Standing Rock said in a March 2 filing.

"Despite the court’s findings, the Corps appears to be poised to make the same mistakes again," the tribe said as it acknowledged the request for consultation might lead to a delay in the updated analysis.

Oglala and Yankton are more recent entrants in the litigation. After they filed separate lawsuits against the Army Corps, their cases were consolidated with Standing Rock's, which Cheyenne River joined early on in the game.

Native Nations Rise

Indianz.Com on Flickr: Native Nations Rise in Washington, D.C.

Together, the tribes continue to assert that the Army Corps ignored their issues as it considered the final segment of the controversial pipeline in North Dakota. The analysis began during the Obama administration but was put on hold in December 2016 in response to a massive outcry from Indian Country, which in turn attracted interest worldwide.

The agency, however, didn't get around to initiating a new environmental review until January 18, 2017. Everything changed once Trump came into power two days later.

Without consulting any of the affected tribes, Trump directed his administration on January 24, 2017, to "expedite" consideration of the pipeline's last remaining easement at Lake Oahe, less than a half-mile north of Standing Rock. Barely two weeks later, the Army Corps approved the final portion and eventually canceled the review.

Again, the actions occurred without prior consultation. The Standing Rock chairman at the time was on his way to a meeting with the White House to discuss the pipeline and was told about the easement when his airplane landed in Washington, D.C. Cheyenne River leaders were informed in a phone call after the fact.

The seemingly rushed nature of the affair resulted in a federal judge declaring the analysis to be flawed. But that ruling came two weeks after oil began flowing through the 1,200-mile pipeline on June 1, 2017.

Four months later, Judge James Boasberg said much of the same thing even as he refused to order a halt to oil shipments. But he said the Army Corps had to take another stab at the final portion on remand, a process that is now tied up in sparring between tribes and the agency.

The delay has benefited the wealthy backers of the pipeline. Though Energy Transfer Partners, whose top executive was a top donor to Trump's presidential campaign, took a beating in the media and in the public eye as thousands flocked to North Dakota in 2016 to support the tribes, revenues have been on the rise and a merger was successfully completed a year ago.

"Dakota Access remains willing to visit the Standing Rock Reservation as part of response planning efforts so that Standing Rock can help identify any areas of particular concern and assist with planning for the staging of equipment and similar logistics in the event of a spill or leak," attorneys for the pipeline partnership wrote in a filing on Friday.

The firm, though, is backing the Trump administration when it comes to consultation. The filing alleges the tribes have failed to participate in key meetings and have been slow to provide information to the Army Corps.

"As a result of plaintiffs’ tactics, the Corps has been forced to delay its final action following remand," Dakota Access said.

The protracted litigation, on the other hand, has not helped the tribes. In a ruling on Monday, Judge Boaberg dismissed numerous claims, including ones based on the federal trust relationship and the 1851 Treaty of Laramie, advanced by the Yankton Sioux Tribe.

Completion of the pipeline "dooms" the tribe's claims under the National Historic Preservation Act, Boasberg wrote in the 40-page decision. Similarly, claims asserted under the National Environmental Protection Act are "futile," the judge said.

"The project’s construction and routing could instead be tailored or modified to avoid problematic federal lands or water," the decision stated. "This conclusion remains as true today as when the court issued its first opinion in this case. "