Review of pipeline could be beginning of end for opponents

Thursday, February 2, 2017
Cleanup begins Monday at an encampment near Cannon Ball, North Dakota, where Dakota Access oil pipeline opponents have protested for months. The work could take weeks, and the cost isn't known.
KXMB via AP

BISMARCK, N.D. -- The Army's review of a proposal to finish the Dakota Access pipeline could be the beginning of the end for opponents who have been fighting the project for nearly a year.

But the American Indian tribe at the center of the debate, the Standing Rock Sioux, vows to keep battling the pipeline in court out of fear an oil leak could contaminate its drinking water.

On Tuesday, the acting secretary of the Army ordered a review of an earlier decision to block the last section of pipeline from being laid under a Missouri River reservoir. The move came just days after President Donald Trump issued a memo calling for reconsideration of the December decision by the Army Corps of Engineers.

Based on a discussion with the Army secretary, Robert Speer, Republican Sen. John Hoeven said Wednesday there is no doubt in his mind permission to finish the project will be granted.

A government assessment last summer determined the final segment would not have a significant effect on the environment. Then-assistant Army secretary for civil works Jo-Ellen Darcy on Dec. 4 declined to give permission for construction to begin, however, saying a broader environmental study was needed.

The pipeline builder, Energy Transfer Partners, called Darcy's decision politically motivated and accused then-President Barack Obama's administration of delaying the matter until he left office.

Two days before he left the White House, the Corps launched an environmental study that could take up to two years.

Army attorneys have said the environmental study could be withdrawn. If that happens, the tribe probably will challenge the move on two fronts: The study is necessary to preserve tribal treaty rights, and it's part of the legal process for obtaining final permission to finish the pipeline, as the Army has maintained, according to tribal attorney Jan Hasselman.

The Army cannot arbitrarily change its mind because of the change in White House administrations, said Monte Mills, co-director of the University of Montana's Indian law clinic.

Given the Army said in December an environmental study was necessary, Mills said, the Army would have to explain how its new decision was consistent with the legal standards it used in December and how there's a reasonable basis for change.

Otherwise, the tribe could argue the reversal was "arbitrary and capricious," in violation of federal law, he said.

But Connie Rogers, a Denver lawyer who specializes in federal permits, natural resources and Indian law, said the Army has the discretion to change its mind.

Because the original environmental assessment found nothing that would require an additional study, the Army was not required by law to order the fuller review and therefore can reverse course, she said.

The tribe said under the Fort Laramie Treaties of 1851 and 1868, the federal government is obliged to consider a tribe's welfare when making decisions affecting the tribe.

That would be one likely argument against the Corps withdrawing the environmental study the tribe has demanded, Hasselman said.

Tribes effectively have used old treaty rights in other high-profile court cases.

For example, a landmark ruling in Washington state in 1974 affirmed tribal fishing rights in treaties stemming from the 1850s.

"Without question, treaties, especially during modern times, have proven to be very successful legal vehicles for tribes in defense of existential threats," said Gabriel Galanda, a Seattle lawyer who represents tribes throughout the West.

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