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U.S. tribes take Dakota Access pipeline fight to court

Don Horne   


While the Trans Mountain and Energy East are making headlines at home, Canada doesn’t have the monopoly on pipeline opposition.

Four Native American tribes that are fighting the Dakota Access oil pipeline in court are seeking to challenge the recent conclusion of federal officials that a spill would not greatly impact tribal populations.

According to Canadian Press, the Standing Rock, Cheyenne River, Yankton and Oglala Sioux tribes have all sought permission from U.S. District Judge James Boasberg to contest recent findings that the U.S. Army Corps of Engineers provided the judge.

Boasberg is working with the North Dakota and South Dakota tribes, along with the Corps and Texas-based pipeline developer Energy Transfer Partners, to determine the best way to proceed. A status conference is scheduled Wednesday in his courtroom in Washington.


Here’s a look at where the lengthy legal battle stands.


The 140-page report from the Corps details more than a year of what the agency says is “additional analysis” of the $3.8 billion pipeline, which began moving North Dakota oil to a shipping point in Illinois in June 2017.

But even the nature of the work is in dispute. The tribes contend the Corps has simply rubber-stamped earlier conclusions that were blessed by pro-energy President Donald Trump days after he took office. The tribes call the work a sham and argue that the Corps either didn’t allow them adequate input or give enough weight to the information they provided. The Corps has said the tribes have been difficult to work with.

Boasberg in June 2017 ruled that the Corps largely complied with environmental law when permitting the pipeline but needed to do more study of its impact on tribal rights. The agency completed the work in August but didn’t release the full report until October, after it had been vetted by the federal Pipeline and Hazardous Materials Safety Administration for sensitive information.


The report includes a lot of technical, scientific information the Corps says backs up its earlier determination that the chances of an oil spill are low and that any effects on tribal rights including hunting and fishing would be limited.

One section deals with the concept of environmental justice and whether the project poses a higher risk of adverse impacts to minority and poor people.

The pipeline skirts the northern edge of the Standing Rock Reservation and crosses beneath the Lake Oahe reservoir on the Missouri River, which provides water for the suing tribes. Boasberg in June 2017 criticized the Corps for focusing its study more on the mostly white demographics near the crossing, and the tribe accused the Corps of gerrymandering because its study area didn’t include the reservation.

The Corps report says extending the area of its analysis to include more minority populations doesn’t change its conclusion, given what it says is a low risk of a catastrophic spill.

“The mere presence of large minority or low-income populations in the affected area does not alone determine the presence of disproportionately high and adverse environmental impacts,” the report says.

The report acknowledges that a spill could hurt water quality for spiritual ceremonies, medicinal and ceremonial plants, and other tribal uses, but it says any such effects would be temporary.

The Corps also studied water intakes on the Standing Rock and neighbouring Cheyenne River reservations downstream from the river crossing, as well as intakes near a potential crossing much farther north of the reservations, in the Bismarck area. That site was studied and ultimately scrapped.

“The analysis finds that the Lake Oahe crossing area contains fewer potentially affected minority individuals than does the North Bismarck Alternative crossing, and that water intakes (and the minority and low-income populations that rely on them) would be at greater risk with the North Bismarck alternative,” the report states.


The four tribes want a full environmental study that includes consideration of route alternatives. The Corps had planned to do a more extensive study before Trump took office in January 2017 and pushed through the stalled project.

“Regrettably but not surprisingly, the Corps ignored this court’s admonition to approach the (additional study) with an open mind,” Standing Rock attorney Jan Hasselman said in a recent court filing.

The tribes maintain that Energy Transfer Partners underestimates the potential of a spill. The tribes also argued that spill estimates are outdated because the company is now thinking about expanding the pipeline’s capacity.

Grow America’s Infrastructure Now — a pro-pipeline coalition of businesses, trade associations and labour groups — said tribal opposition to the Corps study “is proof positive that those opposing the Dakota Access pipeline are unwilling to accept the reality that this project was lawfully permitted and constructed.”

“After almost four years, it is clear that DAPL is the most studied, reviewed and litigated pipeline in the history of the United States,” GAIN Coalition spokesman Craig Stevens told Canadian Press.


The four tribes, the Corps and Energy Transfer Partners filed a joint report with the court on Thursday about how they think the case should proceed. But there’s no consensus, so Boasberg will need to sort things out during the hearing Wednesday in Washington.

One thing seems clear, based on the proposals of both sides: The case that was first filed in the summer of 2016 will linger into the summer of 2019.

(Canadian Press)


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