Dakota Access’s Trail of Broken Laws

There are several laws and regulations designed specifically to prevent the kind of conflict the world is witnessing at Standing Rock.  Energy Transfer Partners and the US Army Corp willfully ignored these laws and created the current crisis.  While thousands of unarmed people have been subject to policy brutality, and hundreds have been imprisoned, Energy Transfer Partners (ETP) and the US Army Corp have gotten off free so far.  Here are the laws they have violated.

National Environmental Policy Act (NEPA)  42 U.S.C. 4321, et seq.; 40 C.F.R. Parts 1500-1508

NEPA requires different levels of environmental permitting, depending on the size of the project, for any activity that involves federal or tribal funding or affects their resources.  By crossing rivers and federal lands (including the US Army Corp lands along the Missouri River), by being an interstate project, and by passing through tribal historical sites and within spitting distance of their freshwater intake valves, the Dakota Access Pipeline certainly meets this criteria.  Technically, it’s up to the Army Corp to require NEPA compliance.  ETP avoided triggering a larger Environmental Impact Statement (EIS) in favor of smaller Environmental Assessments (EA’s) by dividing their one project into numerous smaller ones.  (The language is counter-intuitive, but a “statement” (EIS) is a much bigger permit, and a much longer process involving more public scrutiny, than an “assessment”(EA).) Courts have ruled against the practice of partitioning a large project into smaller ones to avoid an EIS.  

The violation:  In this case, the Army Corp is clearly violating NEPA by not requiring an EIS. 

ETP also needs the much-discussed Army Corp easement and Clean Water Act Permit to go under the river.  This was granted in July 2016, but revoked on September 9 by President Obama, citing the need for additional tribal consultation.  It has yet to be re-issued.

What should have happened:  The Army Corp should have required an EIS in early 2014 before a route was selected, so that route alternatives became part of the deliberative process open to public comment.  An EIS should include multiple alternatives for public review and comment.  That did not happen here.

Environmental Justice, Executive Order 12898

The 1994 Executive Order 12898 requires federal agencies to avoid disproportionately adverse human health or environmental impacts of its programs, policies, and activities on minority and low-income populations.  According to the US EPA, this order “means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.”  The conflict at Standing Rock is a classic example of why that order was issued and what it is supposed to prevent.  As can be seen in ETP’s own document (see map below), their route permit application submitted to North Dakota in December 2014, the original pipeline route passed upstream of Bismarck (92% white).  It was moved south to near the Standing Rock Indian Reservation after objections regarding the risk of a spill and contamination of Bismarck’s water supply.

The violation:  This is a textbook violation of this Executive Order.  It appears the community of Bismarck, with a greater ability to navigate in the world of white corporate law, used quiet and effective pressure against ETP.  Like a wolf picking out a weaker animal in the herd, ETP pivoted to Standing Rock, where it figured it could push its way through with a combination of pacifying lies (“we will re-route if necessary”) and corporate power (such as the ability to essentially call out the military to support them).

What should have happened:  ETP should have identified a route that did not place undo risk and burden on the Standing Rock Sioux Tribe.  

This map, from page 22 of Energy Transfer Partner’s application for a route permit from North Dakota, shows the initial pipeline corridor north of Bismarck, as well as the lack of changes after they met with the tribe in September and October, 2014.

Tribal Consultation, National Historic Preservation Act (NHPA), as amended in 1992, Section 106 (36 CFR Part 800); and Executive Order 13175

This law requires any federal agency to consult with tribes when engaging in any action, including permitting an oil pipeline, that may affect sites of religious and cultural significance, even if they are off reservation land.  The Executive Order 13175 states that federal agencies “are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.”  That is, they must consult with tribes when considering any policy or action that impacts tribal communities, such as permitting a pipeline that threatens their water supply or allowing local law enforcement onto federal land.

SRST Chairman Dave Archambault, being arrested on August 12, 2016.  He resorted to demonstrating after ETP and the US Army Corp ignored legal requirements for consultation.

With DAPL, ETP avoided this requirement in their original pipeline route, dated May 29, 2014 on the map above, because the pipeline was not located near tribal lands.  After running into opposition from the citizens of Bismarck, they re-routed the pipeline, dated September 29, 2014 on the map above.  When they met with the Standing Rock Sioux Tribe (SRST) the following day, they were clearly set on their new route, even though they were engaging in tribal consultation for the first time.  This is called “pre-decisional”; they had made up their mind before they met with the tribe.  At that meeting, they promised to re-route to avoid sites of cultural importance.  ETP’s route permit application acknowledges they met with the tribe again in October.  On page 39 of that report, ETP states, “Discussion of cooperative cultural resource investigations between Dakota Access archaeological field crews and THPO [Tribal Historic Preservation Officer, as defined by Section 106] sanctioned tribal monitors was initiated.” This sounds good, but it’s clear that: 1) the consultation did not continue after this; and 2) the route did not change as a result of these meetings, despite very clear concerns expressed by the tribe (compare the black route of September 29, 2014 with the nearly identical red route of November 6, 2014).  Thus, the timeline is:

• May 29, 2014:  pipeline route is north of Bismarck
• Sept 29, 2014:  pipeline route is moved to near Standing Rock
• Sept 30, 2014:  ETP begins consultation with SRST (Army Corp not present); tribe voices concerns and opposes current route
• Oct, 2014:  ETP and SRST meet again to discuss historical sites
• Nov 6, 2014:  pipeline route is finalized, with no change from the Standing Rock area.

Likewise, the Army Corp failed to consult with the tribe until well after the pipeline route was finalized.  At President Obama’s request, the Army Corp is now consulting with the tribe, but at the eleventh hour after the pipeline is 99% completed.

The violations: ETP ignored the requirement for tribal consultation by 1) not meeting with the tribe until September 30, 2014, after a new route had been selected; and 2) not changing the route at all after the tribe described obvious concerns regarding religious and cultural sites as defined by NHPA.  The US Army Corp violated this law by not consulting with the tribe until ordered to do so by President Obama in September, 2016, over two years after they should have done so.

ETP also violated Section 106 on September 3 when they deliberately destroyed sacred sites before a judge could issue an injunction to save them.  See text box below: 

On August 29, 2016, a local landowner just north of the reservation permitted Tim Mentz, a professional archaeologist who previously worked for the State Historic Preservation Office, to examine the pipeline corridor route immediately west of Highway 1806.  Mentz documented “82 significant historical markings, of which 27 were grave locations.”  On September 2, the tribe filed in federal court for an immediate injunction to halt construction and released the precise locations of the historical sites (which tribes generally don’t do unless it’s absolutely necessary).  SRST Chairman Dave Archambault described what happened next: “The corridor work was many miles away from the historic site that was identified.  The next day after we filed, Saturday, September 3, 2016, the construction workers and equipment leap-frogged ahead and bulldozed the site.” 

The US Army Corp also violated (and continues to violate) Executive Order 13175 through their support of police actions at the site.  While the county and state militias have no legal obligation to consult with the tribe, all federal agencies must engage in “government-to-government” consultation for any action that affects a tribe.  In this case, that would include:

• US Army Corp for allowing state and local law enforcement to operate on Army Corp property; in this case, the following locations are on their property (see map below):
  • Backwater Bridge where the crowd was sprayed with a water cannon in 25F weather, tear-gassed, and shot with rubber bullets, and where Sophia Wilansky was severely injured by a concussion grenade; 
  • The law enforcement blockade/wall across Highway 1806; 
  • Turtle Hill, which local law enforcement have turned into a military outpost, and where local police maced and pepper-sprayed people standing in water; and where police deliberately broke up Indian canoes; 
• US Dept of Defense for the provision of federal military surplus equipment (weapons, Humvees, etc.) used against a tribe; 
• Federal Aviation Administration’s (FAA) for their no-fly zone to prevent drones (while law enforcement fly constantly);
• US Border Patrol for their provision of troops to assist the local law enforcement. 

Any action within the orange boundary (Army Corp lands) that affects the tribe requires “government-to-government” consultation.

All of these are federal actions affecting tribal lands and a tribal community and thus require tribal consultation (which, of course, seems crazy because the SRST would never agree to any of these things).  

In the video above, looking across the water to Turtle Hill, a tribe member explains to a journalist that local law enforcement should not be on federal land.  At the end of the video, the journalist is shot by a rubber bullet, despite posing no threat to law enforcement and actually being rather far from them.

These riot police, spraying mace, are standing on federal property at Turtle Hill, engaged in an activity that affects the tribe, and thus are in clear violation of Executive Order 13175.

What should have happened:  ETP should have engaged the SRST in summer 2014, when they were pivoting away from Bismarck; and, after finally meeting with the tribe in September and October 2014, should have fulfilled their promise of re-routing for cultural concerns, but instead completely ignored the information they received from the SRST. Likewise, the Army Corp should have engaged in this consultation before issuing their permit in July 2016 (which was later revoked by Obama in September 2016).  

ETP should not have deliberately destroyed sacred sites. 

Regarding the police actions, without tribal consultation, the US Army Corp should not allow state and local law enforcement on their property, the US Department of Defense should not allow their equipment to be used against a tribe, the FAA should not issue a no-fly zone to prevent news coverage, and the US Border Patrol should not send personnel.  

This is likely a partial list of the violations of law that have occurred.  These laws and procedures exist for a reason.  Had ETP and the Army Corp followed these laws, this conflict could have been avoided.