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November 1, 2016

Dakota Access Pipeline Project: Why are there protests and what will be the end result?

The Dakota Access Pipeline ("the Pipeline") consists of 1,172 miles of 30-inch pipe that will carry 450,000 barrels of hydraulically fractured crude oil per day from oil fields in northwest North Dakota southeast across South Dakota and Iowa to south central Illinois where it will join another pipeline that will transport the oil to terminals and refineries on the Gulf of Mexico. The American Corps of Engineers ("ACOE") granted permits for the construction of the Pipeline on ACOE land under a relatively new fast track permitting process that allows the oil and gas industry to build fossil fuel pipelines across the U.S. without project-specific review or public input. State Agency permits were required for the construction within each of the States. Other than ACOE land, all of the land under which the Pipeline would be laid was privately owned, meaning that the developer would be required to obtain voluntary easements or have the land acquired under eminent domain. The actual construction of the underground pipeline began in March 2016. The projected completion date of the project was the fourth quarter of 2016 or January 2017.

There has been opposition to the Pipeline from the early approval phases commencing in 2014, but nothing like the protest that began in April 2016 when a Standing Rock Sioux elder and her grandchildren established the "Sacred Stone Camp" on her privately-owned land, claiming the Pipeline is a threat to the Standing Rock Sioux Reservation's water supply, sacred sites and cultural resources. The commitment to and growth of the protests reflect the sacred and culturally significant sites tied to the history of the Standing Rock Sioux Tribe's land.

The Standing Rock Sioux Tribe is part of the Sioux Indian Nation whose historic lands have been taken by the United States through various treaties dating back to 1868. Most notable was the 1877 Treaty following the Black Hills War that included the Battle of Little Bighorn with Custer and Sitting Bull. In 1890, the United States, in furtherance of its policy of allotment of reservation land and assimilation of Native Americans into the white culture, broke up the Great Sioux Reservation, creating six smaller reservations, including the Standing Rock Reservation. 1890 was also the year of the infamous slaughter at Wounded Knee. For the Standing Rock Sioux and Indians across the Nation, the Pipeline becomes one more chapter in the long history of wrongs to the Sioux and other tribes at the hands of the Federal Government.

In July 2016, the Standing Rock Sioux filed a suit against the ACOE, seeking a preliminary injunction stopping the construction of the Pipeline. The Tribe claimed that the ACOE and other federal government agencies had not properly consulted with the Tribe before shifting the route of the Pipeline away from the State Capitol (for fear of contamination of the Capitol's water supply) to within one-half mile of the Standing Rock Reservation and near Lake Oahe which is the source of the Reservation's water supply. Lake Oahe was created in the mid-1960s by the construction of a dam on the Missouri River and the flooding of a large amount of the Standing Rock Reservation land. According to the Standing Rock Sioux, the construction of the Pipeline near their reservation threatened the Tribe's public health and welfare, water supply and cultural resources.

Because of the high visibility of the protests and the on-going litigation, however, there may be additions to the federal regulations governing the federal permitting that gives more respect and weight to the lands and resources of the American Indian Tribes. Although the federal district court judge denied the Tribe's request for an injunction based on the failure of the ACOE to consult adequately with the Tribe, the United States government itself put a temporary hold on the construction near the Standing Rock Reservation. On September 9th, as the protests were increasing in numbers of participants and volatility, the Department of Justice, Department of the Army and the Department of Interior issued a joint statement announcing that the ACOE would not permit constructing the section of the Pipeline on ACOE lands that bordered on or went under Lake Oahe until it could determine whether it needed to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act or any other federal laws. The federal departments also announced their determination to do a better job ensuring that there is "meaningful consultation" with tribes regarding infrastructure-related reviews and decisions that will result in the protection of tribal lands, tribal resources and treaty rights.

While there is already a federal policy and federal legislation mandating tribal consultation when tribal lands are involved in federally regulated projects, the federal laws and federal regulations implementing the policy and laws provide little guidance on the required level of consultation with tribes or the weight to be given to the concerns and rights of the tribes. Should federal legislation or additional federal regulations be promulgated as an outcome of the meaningful protests of tribes across the United States near the Pipeline site, there will no doubt be requirements for additional layers of cultural and environmental oversight and federal agency review and authorization for pipeline projects and land development projects on or near historic tribal lands as well as currently recognized reservation and trust lands – an issue of concern for energy and utility companies seeking to meet the supply demands of customers.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Practice Area.


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