Non Response From Tribe Undercuts Legal Protest
BY CHRIS WHITE
Court documents indicate the U.S. government approached the Standing Rock Sioux tribe more than 15 times prior to approving a hotly contested oil pipeline in North Dakota.
The Army Corps of Engineers attempted more than a dozen times between 2014 and 2016 to discuss the Dakota Access pipeline route with the Standing Rock Sioux Tribe. The tribe either failed to respond to requests for consultation or dragged its feet during the process, even after continued badgering from the Corps, according to court documents.
News of the Corps’ exhaustive outreach efforts could potentially hurt the central claim in the tribe’s legal protest, namely that government agents failed to give the tribe proper consultation.
Members of the Standing Rock Sioux Tribe rallied in August outside the U.S. District Court for the District of Columbia while the group’s legal team waged a battle inside the courthouse over the $3.8 billion project. The tribe attempted to slap a preliminary injunction against Energy Transfer Partner, the company building the 1,200-mile pipeline.
The tribe haggled with the oil pipeline developers over whether the National Historic Preservation Act (NHPA) can and should be used to prevent construction on the pipeline. The NHPA is legislation intended to allow the government to preserve historical and archaeological sites.
The battle eventually culminated in Judge James Boasberg denying the motion for a preliminary injunction to the tribe, arguing it could not show how the pipeline would damage the group’s sacred ground.
The Obama administration temporarily shelved the entire project in response to the court decision in order to give the government time to determine the effects it might have on the environment.
Protesters continue to argue that the tribe was not consulted during the so-called NADPL’s planning stages, despite their victory. Lawmakers have jumped on board the anti-pipeline train, too.
Democratic Rep. Betty McCollum of Minnesota, joined by 19 of her colleagues, wrote the Obama administration a letter Wednesday claiming the government “neglected” to properly consult with Standing Rock Sioux.
Boasberg’s decision, however, indicates McCollum’s claims are inaccurate.
“There was a stringent regulatory review process here,” Julie Fedorchak, the chair of the North Dakota Public Service Commission, told reporters following the court’s decision. “There gets to be a point where you wonder if there’s enough review that can be done to satisfy environmental groups.”
The Sioux “had chances to consult and have their issues addressed, and they chose not to,” said Fedorchak, whose agency regulates oil and natural gas pipelines in the state.
On Oct. 24, 2014, for instance, the government sent a letter to the tribe with information about the proposed pipeline routes as well as maps documenting the known cultural sites the Corps had identified.
“In addition,” the judge’s opinion reads, “the letter requested that any party interested in consulting on the matter reply within thirty days. No response was received from the Tribe”
There are other examples of the tribe delaying the process, including on Feb. 12, 2015, when the Corps Senior Field Archaeologist Richard Harnois emailed tribe preservation officer Waste Win Young in an attempt to solicit comments on the issue of pipeline drilling – but, again, no reply.
Later, Young informed the Corps’ Tribal Liaison at a meeting that consulting with the Corps was unnecessary, as she was working directly with the company constructing the pipeline.
The tribe was unable to provide declarations from Young about any of these early consultations, which, according to the judge, fatally damaged Standing Rock Sioux’s cause “because many of the facts relevant to the Tribe’s NHPA claim involve her.”
The pipeline will shuttle nearly 600,000 barrels of Bakken crude oil per day from western North Dakota to southern Illinois, among other states, and will create an estimated 8,000 to 12,000 jobs, according to reports.
Energy Transfer Partners, the company overlooking the pipeline, worked with the Sioux to reroute the pipeline around 91 various sites considered sacred to the Standing Rock Sioux Tribe.