A judge just dealt a huge setback to Native Americans fighting the Dakota Access Pipeline

By Nidhi Prakash  |  September 9, 2016 | 8:11pm
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Update:  Federal agencies, including the Justice Department and the Army Corps. of Engineers, weighed in on the Dakota Access Pipeline after a federal court ruling this afternoon, saying the pipeline’s construction will not go ahead on public land around Lake Oahe in North Dakota until the agencies conduct further reviews of possible damage to Native American historical sites. They called for the company, Energy Transfer Partners, to halt construction on private lands surrounding the public area they will review. In a joint statement, the agencies said:

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.  Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.  The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution.  In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

They also said they will invite native leaders to the White House for extensive consultations on whether the current approval process for projects like the pipeline can be improved to be more inclusive and respectful of native rights.

Texas oil company Energy Transfer Partners’ controversial Dakota Access Pipeline was granted construction permits by the Army Corps. of Engineers with sufficient consultation from affected Native American tribes, a federal judge just ruled. The pipeline, designed to carry oil some 1,172 miles from North Dakota through South Dakota, Iowa, and Illinois, will go ahead as planned.

Judge James Boasberg, of the D.C. District Court, wrote in his decision Friday that he did not take the question of violating native rights lightly, but that he did not see sufficient evidence that the pipeline would cause damage to tribal ancestral lands.

“As it has previously mentioned, this Court does not lightly countenance any depredation of lands that hold significance to the Standing Rock Sioux,” he wrote in the decision. “Aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care. Having done so, the Court must nonetheless conclude that the Tribe has not demonstrated that an injunction is warranted here.”

Boasberg’s ruling offered no explanation of his decision, The Associated Press reported.

Native American activists have been protesting the pipeline’s construction for several months, saying it threatens sacred sites and could impact the drinking water supply of tribes with reservations near the pipeline’s route.

The pipeline was slated to carry between 450,000 and 550,000 barrels of light sweet crude oil, and was scheduled to begin operations by the end of the year, according to the company. The company says the project cost $3.7 billion and that they’ll be paying $129 million annually in property and income taxes. Construction began in June this year.

The Standing Rock Sioux Tribe’s case, filed July 27, was based on the allegation that the Army Corps. of Engineers granted permits for the construction of the pipeline without proper consultation with local tribes. They also alleged that the pipeline permits, specifically permits for construction at 200 water crossings, violated the National Historic Preservation Act.

“We will have to pursue our options with an appeal and hope that construction isn’t completed while that (appeal) process is going forward,” Jan Hasselman, the tribe’s attorney, told the A.P. “We will continue to pursue vindication of the tribe’s lawful rights even if the pipeline is complete.”

While the case has been ongoing, thousands of Native American and environmentalist activists have converged at Standing Rock in North Dakota to take a stand against the pipeline:


Earlier this week, Judge Boasberg issued a temporary restraining order to halt construction on part of the pipeline after tribe leaders raised concerns that the work would destroy ancient prayer and burial grounds. At the same time, the judge denied a request for a halt to work on another portion of the pipeline.

Native leaders said that over Labor Day weekend, the company began work on the part of the pipeline not covered by the restraining order, allegedly destroying burial grounds and sacred artifacts found on the site, which the tribe’s lawyer had submitted evidence of to the court last Friday.

“This demolition is devastating,” Standing Rock Sioux Tribal Chairman David Archambault II told Indian Country Media Network. “These grounds are the resting places of our ancestors. The ancient cairns and stone prayer rings there cannot be replaced. In one day, our sacred land has been turned into hollow ground.”

On Saturday, protesters and private security hired by the company clashed at the construction site, with the security guards allegedly using dogs and pepper spray against protesters.

The company has denied that it caused any damage. “We were legally on private property that we have an easement on and have all the proper permits and approvals. We were constructing according to our plans. Additionally, there has been nothing destroyed as claimed,” a spokesperson told reporters in a statement.

Ahead of today’s ruling, North Dakota governor Jack Dalrymple sent National Guard troops to the main site of the protest to provide administrative and traffic control support, he said. “The Guard members will serve in administrative capacities, and assist in providing security at traffic points,” Dalrymple said at a news conference Thursday.

But the move, for Native American leaders, was reminiscent of violent government interventions used against native people in decades past. “To an average non-Native person, that might feel safe,” one leader, Spotted Eagle, told Indian Country Today Media Network. “To us, it feels really familiar, and it personally takes me back to the Whitestone Massacre. But we know how to handle these situations.”

This is unlikely to be the last conflict over the pipeline. The tribe’s lawyer has indicated that they will appeal the decision. And another tribe, the Yankton Sioux of South Dakota, filed a separate lawsuit against the Army Corps. of Engineers and the U.S. Fish and Wildlife Service challenging the legality of the construction permits Thursday.

 
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