A Call to Administrative, not Judicial, Action: The Dakota Access Pipeline and the Faulty Army Corps of Engineers’ But-For Analysis

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

On September 9, 2016, District Court Judge James Boasberg, for the United States District Court for the District of Columbia, denied the Standing Rock Sioux Tribe’s motion for preliminary injunction against the United States Army Corps of Engineers (USACE).[1] The motion for preliminary injunction was to block the USACE’s operation that permitted the Dakota Access LLC’s construction of the Bakken pipeline, also known as the Dakota Access Pipeline (DAPL).[2] Although the ruling incensed opponents of the pipeline,[3] Judge Boasberg correctly ruled on the motion for preliminary injunction because the injury the Sioux people would incur during the DAPL’s construction could not be prevented by the Court. The Court decided the controversy correctly because the specific problem facing the Standing Rock Sioux Tribe was created, and endures, due to inadequate legislative and administrative measures.

 The Parties:

Standing Rock Sioux Tribe

The Great Sioux Nation, known as Oceti Sakowin or the “Seven Council Fires” is an amalgamation of seven member bands of tribes; Mdewakanton, Sisseton, Teton, Wahpekute, Wahpekon, Yankton, and Yanktonai.[4] The Great Sioux Reservation, inhabited by the peoples of the Great Sioux Nation, was formed during the Treaty of Fort Laramie, a treaty between the United States government and the Sioux peoples.[5] Included in the Treaty was the demarcation of land, much of it sacred to the Sioux that would become the Great Sioux Reservation.[6] Originally, the Great Sioux Reservation covered almost half of modern day South Dakota.[7] However, over time, Congressional acts have subdivided and dwindled the Great Sioux Reservation into scatted plots of land, including the Standing Rock Sioux Reservation.[8] Situated on the border of North and South Dakota, the Standing Rock Reservation is one of the largest reservations in the United States.[9]

United States Army Corps of Engineers

The United States Army Corps of Engineers (USACE) is a federal agency within the Department of Defense. Tasked with both military and civil missions, the Corps provides “engineering solutions for our Nation’s toughest challenges.”[10] Within the Civil Works mission, the Corps endeavors projects concerning navigable waters, flood risk management, hydropower, and natural resource management.[11] Another crucial function of the Corps, and central to the DAPL controversy, is its permitting function. An entity must acquire a USACE permit to “work on the navigable waters of the United States” including the discharging of “dredged or fill material” into the waters of the United States.[12]

Dakota Access LLC

Dakota Access, LLC, is a subsidiary partner of Energy Transfer Crude Oil Company, LLC. Touted as a measure to reduce our dependence on foreign oil, the DAPL will transport domestic crude oil from the oil rich Bakken region in North Dakota to Illinois.[13] Spanning 1,172 miles,[14] the DAPL will almost exclusively be built upon private lands, negating the need for USACE permitting.[15] However, the proposed DAPL route traverses Lake Oahe, a body of water under USACE’s jurisdiction.[16] Accordingly, Dakota Access was required to seek a USACE permit allowing it to construct the pipeline under the lake.[17] USACE granted the permit, prompting outcry from the Standing Rock Sioux Tribe, this resulted in the controversy at hand.[18]

 The Problem: Insult to Injury

Pick-Sloan Missouri Basin Program: Early tension between the Army Corps of Engineers and the Standing Rock Sioux Tribe

Critical to understanding the current DAPL controversy is an understanding of the long relationship between the Army Corps of Engineers and the Tribe, a storied and tumultuous relationship wrought with mistrust.  The scholar, Vine Deloria, a member of the Standing Rock Sioux Tribe, has called the Pick-Sloan program “the single most destructive act perpetrated on any tribe by the United States.”[19] In the 1940’s, Congress passed the Flood Control Act of 1944. Under the authority of the Act, and as a response to uncontrollable flooding of the Missouri basin, a Congressional committee tasked the Army Corps of Engineers with implementing the Pick-Sloan program to resolve the flooding.[20] Accordingly, the Army Corps of Engineers decided to dam the Missouri River in multiple locations, including the Oahe Dam.[21] A consequence to damming is flooding, and the Oahe Dam flooded more than 200,000 acres of the Standing Rock Sioux Reservation; it “destroyed more Indian land than any other public works project in America.”[22]

The flooding of the Reservation was catastrophic for the Sioux; “[e]ntire towns were destroyed…gravesites and other places of spiritual significance were lost.”[23] To this very day, erosion caused by the Pick-Sloan dams routinely causes “Native American human remains, and artifacts and cultural objects” to wash up on the shores of the Missouri River.[24] Beyond the destruction of sacred burial grounds, the Oahe Dam destroyed fertile land that was invaluable to the Standing Rock Sioux Tribe’s independence and way of life.[25]

Critical to understanding the current controversy surrounding the DAPL is the USACE’s handling of the Pick-Sloan program. The tribes affected by the Pick-Sloan program lament that they were not properly consulted prior the project’s commencement.[26] Throughout the process of implementing the Pick-Sloan program, the USACE overstepped its bounds. However, before a court could intervene, the damage was wrought.[27] The damage is ongoing; each time the USACE regulates the Missouri River’s flow, more tribal land is eroded (taken) for which the tribes are not compensated.[28]

DAPL: Current tension between the Army Corps of Engineers and the Standing Rock Sioux Tribe

To say the least, the Standing Rock Sioux Tribe harbors animosity against the Army Corps of Engineers. the extreme consequences of the Sloan-Pick program persist to this day, the Tribe is grappling with the prospect of further cultural destruction while the past is ever-haunting them. To recap, the Oahe Dam, which destroyed more Indian land that any other public work, created the Oahe Reservoir. The Oahe Reservoir is the very reservoir under which the USACE granted Dakota Access permission to construct a vital portion of the DAPL.

After the USACE granted a permit to Dakota Access for the Oahe Reservoir crossing, the Standing Rock Sioux Tribe filed its motion for summary judgment stating that the USACE should be enjoined because the Corps “flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue.”[29] The duty to consult is required under the NHPA that mandates that a federal agency complete a Section 106 review before commencing a project or “undertaking.”[30] This review “encourages” but does not “mandate preservation,” although it requires that federal agencies “must assume responsibility for the consequences of the projects they carry out.”[31] Section 106 review is a consultation that includes “seeking, discussing, and considering the views of other participants.”[32]

That said, the Standing Rock Sioux Tribe claims that the USACE did not properly consult with the Tribe as required by Section 106. Due to the failure to consult, the Tribe and the Tribal Historic Preservation Officer condemned the Corps’ determination that the DAPL project overall had “no historic properties subject to effect.”[33] Interestingly, the Corps, as well as the State Historic Preservation Officer, agreed with the “no effects” determination, but the Advisory Council on Historic Preservation (ACHP) did not.[34]

The ACHP and the Tribe reject the SHPO and USACE’s “no effects” determination because they disagree on the definition of an “undertaking,” and the subsequent scope of analysis for an “undertaking.”  USACE limits an undertaking to the actual project under its jurisdiction. In other words, USACE considers the DAPL “undertaking,” for its purposes, to only be the small portion that would lie beneath the Oahe Reservoir. On the other hand, the ACHP, a federal agency tasked with advising the President on historic preservation policy, believes the “undertaking” for the DAPL to be the entire pipeline. The discrepancy in defining an “undertaking” concerns the USACE’s scope of analysis, more specifically the causation (but-for) analysis. USACE rejects an interpretation that but for their permit, the DAPL would not be possible, therefore making the entire pipeline an “undertaking” under USACE jurisdiction. Instead, USACE limits its analysis of the “undertaking,” including for Section 106 review to only the portion that crosses the United States waters under its jurisdiction.

 Motion Denied: the Court’s Unfortunate, but Proper, Denial

The Court began the opinion denying the motion for preliminary injunction with background information on the parties to the suit. Following the introductions, the Court explained the legislation involved in the conflict including the National Historic Preservation Act, the Clean Waters Act, and the Rivers and Harbors Act. These Acts collectively give the USACE jurisdiction over the navigable waters of the United States, including the Oahe Reservoir, while also imposing obligations on the Corps to comply with regulations within the scope of its work.[35] After an explanation of the applicable legislation, the Court delved into an exhaustive account of the communication between the Standing Rock Sioux Tribe and the USACE.

The purpose of lengthy factual history of the parties’ communication acts to buttress the Court’s seemingly tentative stance that the USACE adequately attempted to, and thereby did, properly consult with the Tribe. After explaining that parties on both sides firmly rejected their opponent’s claims, the Court unsatisfyingly sided with the USACE without explaining away the extremely significant condemnation by the Advisory Council on Historic Preservation. Lastly, based upon its assumption of the USACE’s stance as correct, the Court proceeded through a typical analysis of requisite standard for the issuance of a preliminary injunction.

While ruling on the motion, the District Court for the District of Colombia found itself in a difficult position navigating the USACE’s administrative policies while attempting to honor the situation of the Standing Rock Sioux Tribe. However, the deficiency that failed the Tribe was a policy and administrative law failing.  In response to the Court’s denial of the motion, the Department of Justice, the Department of the Army, and the Department of the Interior swiftly issued a statement effectively halting any further construction on the pipeline.[36]  The statement addresses the need for policy reform to improve the consultation process on projects of the magnitude as the Dakota Access Pipeline.[37]

Accordingly, the judiciary should only interpret the law as presented. Unfortunately, the policies adhered to by the USACE, specifically its decision to reject a but-for analysis when considering the effects of an undertaking, should be revisited. This article makes a point of emphasizing the USACE’s insensitive handling of the Pick-Sloan program to underscore the mistrust and anger the Standing Rock Sioux Tribe harbors for federal resource programming. Indeed, while rejecting the Tribe’s motion for preliminary injunction, the USACE stated that abut-for analysis would not preclude the construction of the pipeline; DAPL would simply reroute the pipeline to avoid seeking a permit from USACE.[38] However, the USACE should return to its but-for analysis, as a show of faith in its regulatory permitting, and ought to be more patient with its Section 106 consultation process especially in this instance where the  relationship is historically delicate and strained.

Conclusion

As a whole, the Court ran the gamut of emotions; at times seeming very remorseful for the plight of the Standing Rock Sioux Tribe, and at times displaying frustration for the irresponsive nature of the Standing Rock Sioux Tribe in the Section 106 consultation process. In considering the motion for preliminary injunction, the District Court was bound by faulty policy. Under the current policies, denying the motion for preliminary injunction was proper because, under the USACE’s current scope of analysis (rejecting a but-for analysis for undertakings), the injury that the Tribe would incur was not related to construction of the DAPL at the Oahe Reservoir site, the portion of the DAPL under USACE jurisdiction.

 

[1] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, No. 16-1534 (JEB), 2016 U.S. Dist. LEXIS 121997 (D.D.C. Sept. 9, 2016) (denying preliminary injunction).

[2] Id.

[3] Id. at *7.

[4] Anton Treuer, Atlas of Indian Nations 163 (1st ed. 2014).

[5] David J. Wishart, Encyclopedia of the Great Plains (2011), http://plainshumanities.unl.edu/encyclopedia/doc/egp.na.107.  The Treaty was signed as a compromise in order to end the violent clashes between the Sioux and the United States government.

[6] Id.

[7] Id.

[8] Standing Rock Sioux Tribe, History, http://standingrock.org/history/. The Standing Rock Sioux Reservation is comprised of members ethnically originating from the Teton and Tanktonai bands, two of the bands from the “Seven Council Fires.”

[9] South Dakota Department of Tourism, Standing Rock Sioux Tribe (2016), https://www.travelsouthdakota.com/about-south-dakota/sd-tribes-plains-indians/sioux-tribes/standing-rock-sioux-tribe.

[10] U.S. Army Corps of Engineers, Mission & Vision (2016), http://www.usace.army.mil/About/Mission-and-Vision/.

[11] U.S. Army Corps of Engineers, SIO Guidance, 18 (Sept. 2014), http://www.usace.army.mil/Portals/2/docs/USACE_101_Sep_2014.pdf. CHECK CITATIONS WITH BLUEBOOK

[12] U.S. Army Corps of Engineers, Regulatory Program Frequently Asked Questions (2016), http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Frequently-Asked-Questions/.

[13] Dakota Access, LLC, DAPL Fact Sheet (August, 2016), http://www.daplpipelinefacts.com/docs-dapl/08092016/DAPL_FactSheet33-8_09_16.pdf.

[14] Id.

[15] Standing Rock Sioux Tribe, 2016 U.S. Dist. LEXIS 121997, at *3.

[16] Id at *17.

[17] Id.

[18] Id at *3.

[19] Peter Capossela, Impacts of the Army Corps of Engineers’ Pick-Sloan Program on the Indian Tribes of the Missouri River Basin, 30 J. ENVTL. LAW & LITIGATION 1, 157 (March 2015).

[20] Id. at 145.

[21] Id. at 155.

[22] Id.

[23] Trymaine Lee, No Man’s Land: The Last Tribes of the Plains, http://www.msnbc.com/interactives/geography-of-poverty/nw.html.

[24] Capossela, supra note 19, at 199.

[25]Kathleen Danker, “The Violation of the Earth”: Elizabeth Cook-Lynn’s From the River’s Edge in the Historical Context of the Pick-Sloan Missouri Dam Project, 12 Wicazo Sa Rev. 2, at 87-89 (1997); Trymaine Lee, No Man’s Land: The Last Tribes of the Plains, http://www.msnbc.com/interactives/geography-of-poverty/nw.html. Prior to the damming, the Tribe relied on natural resources such as the river, timber, and native flora and fauna to subsist in traditional manner.  The flooding that destroyed their aforementioned natural resources led to a devastating decline in the buffalo population. Calling themselves Pte Oyate, or “Buffalo people”, the decimation of the buffalo population crippled the Standing Rock Sioux Tribe emotionally and economically, “erasing Native dignity.”

[26] Danker, supra note 25, at 88.

[27] Id at 89.

[28] Capossela, supra note 19, at 199.

[29] Standing Rock Sioux Tribe, 2016 U.S. Dist. LEXIS 121997, at *1.

[30] Id at *2.

[31] Advisory Council on Historic Preservation, Protecting Historic Properties: a Citizen’s Guide to Section 106 Review, http://www.achp.gov/docs/CitizenGuide.pdf.

[32] Council on Environmental Quality Executive Office of the President and Advisory Council on Historic Preservation, NEPA and NHPA: a Handbook for Intergrating NEPA and Section 106 (2013), http://www.achp.gov/docs/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf.

[33] Standing Rock Sioux Tribe, 2016 U.S. Dist. LEXIS 121997, at *49.

[34] Id at *51. Each state is responsible for organizing a State Historic Preservation Office as required by the NHPA. On the other hand, the Advisory Council on Historic Preservation is a federal regulatory agency tasked with advising the President on historic preservation policy, as well as acting as an advisory committee providing “guidance and advice and generally oversees the operation of the Section 106 process.

[35] Standing Rock Sioux Tribe, 2016 U.S. Dist. LEXIS 121997, at *17.

[36] Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, U.S. Department of Justice (2016), https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing (last visited Oct 15, 2016).

[37] Id.

[38] Standing Rock Sioux Tribe, 2016 U.S. Dist. LEXIS 121997, at *16.

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