The late American Indian Movement activist Dennis Banks can be seen third from right at the #NoDAPL encampment in North Dakota in 2016. Photo: Joe Brusky

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Dakota Access Pipeline decision still missing in action

Monday, September 24, 2018

As the developers of the Dakota Access Pipeline try to keep a lawsuit alive in one court, the wealthy backers of the controversial project benefit from a lack of action in another.

On August 31, the Trump administration reaffirmed its prior approval of the final portion of the $3.8 billion crude oil pipeline. The decision hardly came as a surprise to many in Indian Country, given that the president himself frequently boasted of the alleged benefits of the costly infrastructure project.

But nearly a month later, the decision remains missing in action. Outside of a select few at the U.S. Army Corps of Engineers, no one -- not the Standing Rock Sioux Tribe or even the federal judge in Washington, D.C., handling the litigation against the pipeline -- has seen the Trump administration's justification. Nothing has been filed in court as of Monday afternoon.

The delay has prevented the litigation from moving forward. Without the actual decision in hand, the tribe can't determine its next step in the dispute, such as how to address the Army Corps's claim that an oil spill doesn't pose a risk to treaty territory along the Missouri River.

"Despite our good-faith efforts to cooperate as stakeholders in this process, the Corps merely issued a cynical and one-sided document completely disregarding our concerns," Chairman Mike Faith, Jr. wrote in Indian Country Today last week. "They took our hard work and threw it in the trash, almost as if they are refusing to hear our voices."

Native Nations Rise

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

Meanwhile, the pipeline developers are encountering some legal hurdles of their own. Energy Transfer Partners -- whose chief executive is worth billions of dollars and was one of the top individual donors to Donald Trump's presidential campaign -- has been struggling to keep a lawsuit that was filled with incendiary claims alive.

In August 2017, more than two months after the pipeline became operational, the firm accused "rogue environmental groups and militant individuals" of spreading "lies" and "misinformation" about the project. Since then, little has come to light in terms of actual evidence of those claims.

In fact, the federal judge assigned to the case pointed out that it took Energy Transfer Partners a year to go beyond the "John and Does" cited in the original complaint. Two of the recently-named defendants are tribal citizens -- Cody Hall and Krystal Two Bulls.

Hall, a citizen of the Cheyenne River Sioux Tribe, and Two Bulls, who is a citizen of the Oglala Sioux Tribe, were affiliated with the Red Warrior Camp, which was part of the massive #NoDAPL encampment that arose in opposition to the pipeline. According to the lawsuit, Red Warriors received "$500,000 in seed money" from Greenpeace and another group called Earth First.

Right now. Come hold space with us at scout camp (site of Sept3 DAPL dog violence). There's a paddy wagon 10 mins north of gathering now. pic.twitter.com/SyODXdJp0U
— RedWarriorCamp (@RedWarriorCamp) October 23, 2016

No documentation of the funds was offered in the amended complaint, which was filed on August 6. And just two weeks later, Judge Billy Roy Wilson ordered Earth First to be dismissed as a defendant, saying there was no proof that the group actually exists as an entity that can be sued in court.

That same day, Wilson also gave Energy Transfer Partners a deadline. The firm has 30 days from August 22 to "identify and serve all Doe Defendants" or face another setback.

"Continued failure to identify and effect service on these Defendants will result in their dismissal," the judge wrote in an order.

Hall and Two Bulls were not named prior to August 6 and have not yet been served with the lawsuit, according to court records. Energy Transfer Partners also identified three other people who it said were involved in the #NoDAPL campaign -- two appear to be affiliated with Mississippi Stand, another anti-pipeline group, while the other is said to be a "pipelines organizer" for Greenpeace USA.

Of the environmental groups initially named as defendants in the lawsuit, only Greenpeace remains. The organization is seeking to be dismissed as well.

Energy Transfer Partners has since responded to that motion, again attempting to link Greenpeace and the dismissed-Earth First to the Red Warrior Camp. Still, no concrete documentation of the "$500,000 in seed money" was provided.

The Dakota Access Pipeline became operational on June 1, 2017, thanks to the Trump administration's approval of the final portion, which lies on federal land less than a half-mile from the northern border of the Standing Rock Sioux Reservation. Two weeks later, a federal judge ruled that the review process was flawed because tribal objections weren't taken into account.

The August 31 decision was written in response to that ordered. So far, the Army Corps has only submitted a two-page "memorandum for record" in court regarding its decision.

In a separate filing, the Department of Justice said the actual decision was "undergoing a confidentiality review" before its release to the public.

Despite the flaws in the process, Judge James Boasberg in Washington, D.C., has refused to stop oil from flowing through the pipeline despite multiple requests from tribal opponents.

The lawsuit targeting environmental groups and activists is being handled in federal court in North Dakota.