Monday, December 5, 2016

Dakota Access – Three Things to Watch in the Coming Weeks

Yesterday, the Army Corps of Engineers issued a statement that it would “not grant an easement” for the Dakota Access Pipeline (DAPL) to cross Lake Oahe “at the proposed location” (within half a mile of the Standing Rock Sioux Reservation) “based on the current record.”  The Army Corps instead will conduct a further evaluation of the pipeline route under NEPA implementing regulations, including a “robust consideration and discussion of alternative locations” for the crossing.  The DAPL, which is 99% complete, would bring half a million barrels of oil per day past the Standing Rock Sioux Reservation en route from the Bakken oil fields of northern North Dakota to refineries located in Illinois.  While opponents of the pipeline are celebrating the Corps’ decision as a victory for the tribe and for Lake Oahe, there may be more to this story in the coming weeks.  Three things to watch:

1. The Litigation –Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers is the tribe’s suit seeking to enjoin construction of the DAPL under the Rivers and Harbors Act, the National Historic Preservation Act, and the Clean Water Act. After the district court ruled that the Corps satisfied its tribal consultation obligations under these three statutes (and CEQ guidance on the administration of federal statutes impacting tribal affairs), the tribe appealed and the D.C. Circuit halted construction temporarily to consider the consultation issue.  The D.C. Circuit later lifted the stay, allowing construction to proceed, and is currently considering the merits of the consultation issue.  The merits briefs are due in the next several weeks, but given the Corps’ statement yesterday, the tribe has filed a motion to dismiss this appeal as moot, which is unopposed.  Therefore, this appeal’s days are numbered.   However, this litigation did not involve the easement required to cross under Lake Oahe pursuant to the Mineral Leasing Act (MLA), which is the final federal approval that Dakota Access needed to finish the pipeline.  If the result of the new NEPA analysis is that the pipeline should cross in the same location as originally proposed (considering there is another one following roughly the same trajectory under the lake, this is not outside the realm of possibility), the tribe would likely re-file the consultation claims if the Army Corps does not fully engage the tribe in the promised NEPA review (see number 3), along with an appeal of the easement decision.    

2. The Treaty Rights – The Corps’ decision is based in part on the tribe’s “treaty hunting and fishing rights.” It is unclear from the language of the Corps’s statement whether the Corps is reviewing treaty claims to the lake itself or usufructuary rights in the lake, although it is most likely the latter. Under the 1851 Treaty of Fort Laramie, which was the original treaty partitioning the Great Sioux Nation, the tribes (Standing Rock Sioux among them) retained off-reservation hunting and fishing rights in and around the Missouri River, part of which later became Lake Oahe.  In Article V, the Treaty provides that the tribes “do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.”  Unless successive treaties (or legislation) abrogated these off-reservation rights, the Sioux still possess them, and any pipeline completion route could not interfere with the exercise of these rights.  Unraveling this history and mapping the hunting and fishing locales may take the Corps some time, as it will require extensive consultation with the tribes (the Standing Rock Sioux are not the only tribe with usufructory rights in the lake, either, which could complicate this portion of the review).  If the tribes disagree with the Corps’ conclusions on the scope and nature of the treaty rights, that could form the basis for an additional federal claim.

3.The Army Corps under Trump – The Army Corps’ statement yesterday was a policy position, essentially promising further NEPA review of the decision already issued – allowing DAPL to cross at the same location as currently proposed. Indeed, Assistant Secretary Darcy stated that she had concluded that “a decision on whether to authorize the Dakota Access Pipeline to cross Lake Oahe at the proposed location merits additional analysis…” and that she could not give that authorization “based on the current record.”  She did not say that a) she would not grant authorization for the current proposed crossing in the future, based on a more complete record, or b) that there was any solid basis upon which to completely and finally eliminate the current proposed location.  She only stated that the Corps would more thoroughly review “reasonable alternatives”, “spill risk[s] and impacts”, and “treaty rights” to comply with the MLA and NEPA.  Even if the agency completes this review under President-elect Trump (which it might not, given the President-elect’s somewhat freewheeling approach to the rule of law thus far), there is no indication that the Corps will not revert back to the crossing at Lake Oahe, as long as it does not interfere with treaty hunting and fishing rights.

- Hillary Hoffmann

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