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By: Theodore J. Griswold | Partner | firstname.lastname@example.org
Yesterday, while many were sipping their Sunday coffee, the U.S. Army Corps of Engineers announced that the Department of the Army will not approve an easement that would allow the proposed Dakota Access Pipeline (DAPL) to cross under Lake Oahe in North Dakota. I am sure more than one cup of coffee spilled with elation and disbelief that the Water Protectors at and near the Standing Rock Sioux reservation had achieved a major victory against Dallas-based Energy Transfer Partners (ETP). (Standing Rock Press release is here, and Corps release is here).
When the Dakota Access Pipeline (DAPL) was originally proposed, the pipeline was to follow an alignment that crossed the Missouri River north of Bismarck, North Dakota and never approached the Standing Rock lands. However, when concerns were raised by the Bismarck community regarding water supply threats caused by the pipeline tunneling beneath the City’s water source, the project alignment was revised to the south and west. The revised alignment crossed through disputed lands which the Standing Rock Sioux claimed were dedicated to their use, and proposed to cross the Missouri River by tunneling beneath Lake Oahe, which is just upstream from the Standing Rock reservation and is the Tribe’s water source. Crossing beneath the Lake would require that the US Army Corps of Engineers grant an easement to construct and maintain the pipeline. The proposed alignment could not be completed without the approval of easement, and the easement decision is a discretionary decision by the Department of the Army, meaning that it must undergo environmental review, and the Army is not required to grant the easement.
Earlier this year, with the full knowledge that this critical easement was not approved or in place, ETP began construction of the pipeline along this alternative alignment, crossing the disputed Standing Rock Sioux lands. This premature construction raised the ire of the nationwide Native American community, leading to thousands of “water protectors” to take up residence in protest, seeking to halt the progress of the pipeline while the easement decision was being considered. The militarized police and private security response to the protests were broadcast first on social media, and ultimately in the mass media. The restraint and tenacity of the protestors gained international attention and support for the water protectors. Two messages were being challenged by the Native American and environmental communities—1) Bismarck’s water source was deemed worthy of protection, but the Tribe’s was not, and 2) ETP was not going let details like easements (or cultural heritage sites) affect their project. The Standing Rock Community did not accept these messages, and the rest is (recent) history.
I understand that the opposition to the DAPL alignment arose from the younger members of the Standing Rock community. Good for them. They may need to be around for a while to continue their vigilant efforts. Make no doubt about it– This is a significant battle victory for the Native American and environmental communities; however, as we have learned in many other efforts to preserve cultural heritage and environmental resources (e.g. our recently completed 16 year battle to protect Gregory Canyon and the San Luis Rey River from a landfill, here), it will likely take battles on many fronts to finally achieve protection of the Standing Rock water source and cultural heritage lands.
The current Corps decision does not negate the possibility of the proposed alignment. Rather, the Corps’ stated that “[a]lthough we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.” The intention is to consider alternative routes through an Environmental Impact Statement with full public input and analysis. At the end of this process, there are no guarantees that the same alignment may not be chosen, and with a new administration in January, we will have a president that is financially invested in ETP. But that is a battle for another day.
Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at email@example.com and 619.515.3277.