On Friday, after a DC District Court judge rejected the Standing Rock Sioux Tribe’s request for an injunction to halt construction of the Dakota Access Pipeline just outside its North Dakota reservation, the Obama administration stepped in to block construction under and around the nearby Lake Oahe – a reservior behind a dam on the Missouri River – at least temporarily.
The request rejected by Judge James Boasberg was a step in a lawsuit filed against the US Army Corps of Engineers alleging that the agency had failed to adequately consult the tribe about cultural and historic sites along the pipeline’s route as required under the National Historic Preservation Act, and that a pipeline leak could harm the tribe’s water supply, risking “irreparable harm.”
“After digging through a substantial record on an expedited basis, the Court cannot concur,” Boasberg wrote. “It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue.”
A week ago, the tribe’s former historic preservation officer Tim Mentz Sr. filed an affidavit with the court documenting what he said were more than two dozen burial sites along the pipeline’s route near Lake Oahe that qualified for protection under the National Register of Historic Places.
Boasberg was unconvinced. “[T]his Court does not lightly countenance any depredation of lands that hold significance to the Standing Rock Sioux,” he concluded, adding that previously discovered cultural resources were located outside the pipeline’s path, previous surveying had been conducted for a natural gas pipeline that now runs under the lake, and the pipeline would be buried at a depth unlikely to harm cultural artifacts. “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.”
But then, in a joint statement issued by the Department of Justice, Department of the Army, and Department of the Interior, the Obama administration requested a temporary stop to construction of the pipeline underneath the lake or within 20 miles of it to the east and west.
“We appreciate the District Court’s opinion on the US Army Corps of Engineers’ compliance with the National Historic Preservation Act,” the statement read. “However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain.” The Army would review previous decisions made about the project regarding the National Environmental Policy Act or other federal laws, the statement added.
It then went on to call for a discussion about whether steps toward “national reform” should be taken regarding how tribes are consulted on pipeline projects:
Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.
Finally, we fully support the rights of all Americans to assemble and speak freely. We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence. Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities. The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety.
In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites. It is now incumbent on all of us to develop a path forward that serves the broadest public interest.
Meanwhile in Iowa, where work was temporarily halted earlier this year after the discovery of possible tribal burial sites, the Bakken Pipeline Resistance Coalition has called for another protest against the project in Boone County, following one late last month resulting in the arrests of about 30 people. According to an email, the group plans to meet in Pilot Mound in the morning to organize and then visit a construction site near the E18 bridge over the Des Moines River, under which Dakota Access is burying part of the pipeline, “to engage in acts of peaceful protection of the river” on Saturday. Last weekend, protesters set up camp nearby to keep an eye on the pipeline’s construction.
