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Tribal Protests in North Dakota Spur Further Talks on DAPL Pipeline Route

An oil pipeline crossing permit is at the center of a dispute in North Dakota, where the Standing Rock Sioux tribe (SRST) is protesting the transit of the Dakota Access Pipeline (DAPL), a high volume, high pressure crude oil pipeline, under Lake Oahe in the Missouri River. The lake is the primary source of drinking water for the 11,000-member tribe.

The current route of the pipeline is 10 miles upstream of Fort Yates, the tribal headquarters of the SRST, and the county seat.

The discussion takes place in an environment where oil pipelines spill thousands of barrels of oil in North Dakota annually, one significant spill from a buried pipeline saturating an area of farmland the size of seven football fields in 2013. On December 5, 2016, a leak 150 miles from Lake Oahe spilled 4,200 barrels of oil, 3,100 of that into the nearby Ash Coulee Creek, which feeds into the Little Missouri River, causing further concern to the tribe. 

Pipeline contractor Energy Transfer Partners, operating as Dakota Access, LLC prepared a draft Environmental Assessment (EA) requesting Section 408 permits to cross 2.83 miles of federal flowage easements at the Missouri River upstream of Lake Sakakawea, and 0.21 miles of federally owned property at Lake Oahe in Morton and Emmons Counties, North Dakota.

The 1,172-mile-long pipeline also transits more than 200 waterbodies in North Dakota, covered under a Nationwide Permit.

The draft EA spelled out pipeline safety procedures for protecting the integrity of the buried pipeline, and regular reports on the pipeline integrity. It described the hydrostatic testing of each pipeline section before it is placed, and verified the stability of the arc-welded steel pipeline.  

The EA describes the chosen method of crossing at Lake Oahe as horizontal directional drilling (HDD). This involves drilling a hole 2,715 feet long in hard clay 92 feet below the river bed, which would contain the pipeline.  

The draft EA also stated that Omaha District personnel had consulted the National Historic Preservation Act (Section 106), Tribes, Tribal Historic Preservation Offices, State Historic Preservation Offices, the Advisory Council on Historic Preservation, and interested parties, as required. 

The Omaha District conducted a 30-day public comment period from December 9, 2015 to January 8, 2016. Agencies having objections to the plan were the EPA, the Department of the Interior, the Advisory Council on Historic Preservation, which cited risks to water supplies, inadequate emergency preparedness, potential impacts to the Standing Rock reservation and insufficient environmental justice analysis. 

Reid J. Nelson, director, Office of Federal Agency Programs at the Advisory Council on Historic Preservation, objected to the draft EA, stating that the findings of culturally significant properties were based on an incomplete identification effort, and that the investigations had not included the input of federally recognized Indian tribes who ascribe religious and cultural significance to properties. 

On March 11, Philip Strobel, National Environmental Policy Act regional compliance director for the Environmental Protection Agency (EPA), stated in a letter to the Corps that the crossings could affect the primary source of drinking water for much of North Dakota, South Dakota, and Tribal nations, and recommended a new assessment that considers locations that would not endanger drinking water supplies. 

The Lake Oahe route was only selected after the first route, which crossed the river near the city of Bismarck, North Dakota, was objected to by its residents.

On July 25, Omaha District Commander Col. John W. Henderson signed a Finding of No Significant Impact (FONSI) for the Dakota Access Pipeline (DAPL) Project, which summarized the environmental effects evaluation, and granted Section 408 permission for the project to cross the easements at Lake Sakakawea and Lake Oahe. 

The Draft EA and the Final EA are available on the Omaha District website: www.nwo.usace. army.mil.

LAKE OAHE

 Lake Oahe is a flood control and navigation project formed by a dam at Missouri River Mile 1072.3, stretching from Pierre, South Dakota, 231 miles upriver to Bismarck, North Dakota.  The 11,000-member Standing Rock Sioux tribe (SRST) derives its drinking water from the reservoir, which also provides flood control, electric power, irrigation and navigation benefits, administered by the Corps of Engineers.

The reservoir has a capacity of 23,137,000 acre-feet of water, and is a maximum of 205 feet deep, with a shoreline 2,250 miles long.  

The Standing Rock tribe filed suit against the Corps of Engineers on July 27, protesting the easement and alleging violations of several federal laws, including the Clean Water Act, the National Historic Protection Act, and the National Environmental Policy Act (NEPA), in its approval of the permits.

Tim Mentz Sr., an SRST member who con-ducts surveys of culturally significant artifacts on the reservations for preservation under the National Historic Register, testified in court on behalf of the lawsuit that there were many important artifacts that had not been registered by the team doing research for the permit, and described an image of the Big Dipper on a grave he had found in the pipeline easement.

 “This is one of the most significant archeological finds in North Dakota in many years,” he said.

The day after Mentz’s testimony, September 3, the contractors bulldozed the area containing the Big Dipper, 82 other cultural features and 27 graves, sparking a violent confrontation be-tween security guards and members of the Tribe, who had been camping in the area since April to protest the pipeline crossing. 

News cameras captured the incident, and within days, millions around the world had viewed it on the Internet, and began expressing sympathy for the self-described “water protec-tors.” Sympathizers began arriving in the camp, which soon swelled to more than 2,000 persons.

 On September 9, federal Judge James Boas-berg ruled against the SRST’s request for an in-junction against the pipeline crossing of Lake Oahe, expressing sympathy for the SRST for the “indignities visited upon the Tribe over the last centuries” and acknowledging the complexity of the case, but concluding that the tribe had not demonstrated that an injunction was warranted. 

Later that day, the Department of the Army, the Department of Justice, and the Department of the Interior made a joint announcement to the effect that the Army would not authorize the pipeline at Lake Oahe until it could deter-mine whether to reconsider previous decisions under the National Environmental Policy Act (NEPA) or other federal laws, and requested that the pipeline company pause its construction within 20 miles east or west of Lake Oahe.  

The statement also acknowledged a need for reform regarding the consdieration of tribes’ views on infrastructure projects on tribal land, and announced that the Army would meet with the tribes to determine how to improve their input. 

Energy Transfer Partners objected to the decision to stop work near Lake Oahe, and responded that “In spite of consistently stating at every turn that the permit for the crossing of the Missouri River at Lake Oahe granted in July 2016 comported with all legal requirements, including the use of an environmental assessment, rather than an environmental impact statement, the Army Corps now seeks to engage in additional review and analysis of alternative locations for the pipeline.”

The statement accused the Obama Administration of abandoning the rule of law in favor of the Indian tribe, which it described as a “narrow and extreme political constituency.” 

The company stated its intention to complete construction without any rerouting around Lake Oahe. 
“Nothing this Administration has done to-day changes that in any way,” the statement concluded.

The protests and confrontations with police continued, and on November 14, the Honor-able Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works, issued a letter inviting the SRST to engage in discussion regarding the easement. 

“The Army continues to welcome any in-put that the Tribe believes is relevant to the proposed pipeline crossing or the granting of an easement,” she said. 
“While these discussions are ongoing, construction on or under Corps land bordering Lake Oahe cannot occur because the Army has not made a final decision on whether to grant an easement. The Army will work with the Tribe on a timeline that allows for robust discussion and analysis to be completed expeditiously,” she said.

SRST Chairman David Archambault II met with Corps officials in Washington, and on December 4 announced that the Corps would undertake an environmental impact statement on the project. He expressed appreciation to the Obama Administration for taking the time to consider the tribe’s concerns. 

“In a system that has continuously been stacked against us from every angle, it took tremendous courage to take a new approach to our nation-to-nation relationship, and we will be forever grateful,” he said. 

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