Education For Autonomy

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al.,  Plaintiffs
v.	Civil Action No. 16-1534 (JEB)
U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

Disclaimer: I am not an expert in Indian or Environmental Law. I am a Lawyer/ Activist/ Educator with a sincere interest in the rights and struggle of Native American/ First Nation people. In our social movements, especially in the current fight against the Dakota Access pipeline, there are many serious issues. U.S. Treaty rights (such as the Treaty of Fort Laramie signed with the Sioux in 1868), Indigenous Rights, Human Rights, International Law, and land ethics are all important and relevant to this movement and the big issue of oil pipelines on or near tribal reservations.

I am writing this to outline the Judge’s rationale in his final 58-page decision regarding a court challenge to permits for the Dakota Access pipeline in North Dakota. This is a “friendly” document to get clear on factual background and legal issues. We should understand how the law may (or may not) help us in future. Social media posts, conversations and rhetoric have spread about this lawsuit mentioning law that does not necessarily apply to this case.

I was present in court on Tuesday, September 6, 2016 for the Emergency Hearing after the Dakota Access pipeline used attack dogs against land protectors. In court I developed a sense of some background, the lawyer’s personas and the Judge’s demeanor and approach to the whole case. This is a Judge who interprets the law carefully and cautiously.

I used a simple citation system here. When I refer to the Judge’s Memorandum Opinion, I just cite the page number in parenthesis. I only used one primary source document to write this and I will try to post this synopsis and the full court opinion close together so the reader can refer to the Court’s official opinion easily to learn more in detail. I can send you a PDF version of the official court opinion via email, please send me a message via the contact info on this website.

 I will use the term “Court” and “Judge” interchangeably. They are essentially the same; the Judge represents the Court and will refer to himself as “this court” throughout his opinion. My community was interested in a simple breakdown in basic terms. That is my goal and I hope you find it interesting and useful. I do believe there are more lawsuits in the works…stay woke.

I am NOT in agreement with the Judge’s opinion or outcome of this case. I wish he had taken more liberty and been more courageous to CHANGE the law instead of just interpreting and following courts before him. The purpose of this synopsis is to summarize what the Court decided and why. Again, I think it is a bad outcome and I hope there are more lawsuits and legal grounds to fight DAPL and all future pipelines.

Knowledge is power. Onwards!

 Jennifer Laskin, Esquire

http://www.education4autonomy.info

INTRODUCTION

This is a brief synopsis of the “Memorandum Opinion” from the United States District Court for the District of Columbia. The presiding Judge was The Honorable James E. Boasberg, United States District Judge. He released this opinion on September 9, 2016 after hearing oral arguments on August 24, 2016. It is common for a Judge to hear oral arguments and take time to research and analyze the law, to synthesize the oral arguments with the law, as he/ she chooses to interpret it.

THE LAWSUIT

This lawsuit asked the Court to grant a preliminary injunction to stop the Army Corps of Engineers from granting access to the Missouri River for an oil pipeline. The Sioux Tribe is suing under the PERMIT REQUIREMENTS of the National Historic Preservation Act, the Clean Water Act and the River and Harbor Act. (p. 3-11) A preliminary injunction is a court order that prevents the losing party from doing a particular act. They are not granted easily and the court looks at the: 1) likelihood of success on the merits of the case, 2) potential for irreparable harm if not granted and 3) the public interest.

The legal question is: Did the Corps engage in sufficient consultation with the tribe under these laws? (p. 13) The court is not looking at the potential for environmental damage, or treaty/ land rights, they are ONLY looking at the permit process. Under the National Historic Preservation Act (1966), Section 106 “requires a federal agency to consider the effect of its ‘undertakings’ on property of historical significance, which includes property of cultural or religious significance to Indian tribes.” (p.3) Section 106 is the focus of the claim against the Army Corps of Engineers.

The name of the case is, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The 58-page opinion includes the facts of the case, the law under which this claim is brought, and an analysis of the decision by the Judge to allow the permits to remain in place. In his final decision, he did not require the Army Corps of Engineers to further consult the tribe to grant access to build the pipeline under the river. (The Corps decided on their own to halt the permit and re-consult with the tribe via a statement issued almost immediately after the Court opinion was published. At the time of this writing, the permit is postponed upon further notice.)

Judge B. opens his opinion with this: “Domestic oil pipelines, unlike natural gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverse private land.” (p.2) Therefore, the 1% of the pipeline that the general public could influence via the Federal Gov. (Army Corps of Engineers) is the Missouri and Cannonball River crossing, the only waterway involved in the pipeline process. (p.12)

The judge examined the record and the facts of the case extensively (p. 13-37). In the facts of the case he outlines the record (emails, phone logs and communication between the parties) and other documents submitted to the court spanning from 2009-2016. Dakota Access completed several land surveys, cultural site surveys, and rerouted their pipeline to avoid sites of cultural significance. (p. 14) According to the record, the Army Corps of Engineers did attempt to consult with the tribe via email, phone and “public meeting.” It seems no consultation satisfactory to the Sioux tribe ever really occurred. The Sioux have identified religious and culturally significant sites but the Army Corps found that these sites (such as Cannonball Village) were “not in the area that would be affected by DAPL-related construction work.” (p. 30).

THE TRIBE BELIEVES THE ARMY CORP SHOULD HAVE AUTHORITY OVER THE WHOLE PIPELINE

During 2014 the tribe presented a new and unique legal argument to the Army Corps. The tribe argued that the permit for the river crossing would indeed affect the entire pipeline and that the ENTIRE PIPELINE should be subject to the Army Corps jurisdiction. (p. 32) The tribe argued the law defines the “potential effect of an undertaking to include the indirect effects of the permitted activity on historic properties.” (p. 45) The Judge did not agree (p. 42) and cites case law to support his opinion that federal regulations and analysis should only apply to waterways that are directly affected by pipeline construction. (p. 46) The Judge agreed with the Army Corps in their determination that they do not have jurisdiction over routes that traverse private lands. “Such relief cannot stop the construction of DAPL on private lands, which are not subject to any federal law. (p.51) The Court also stated that the tribe never clearly defined the boundaries of their ancestral lands along the pipeline route, only that these lands extend “wherever the buffalo roamed.” (p.53) He notes there are requirements for tribal monitors and archeologists to be allowed at the sites to look for evidence of previously overlooked cultural resources where construction is happening (but not allowed on private land). (p. 55) Judge B. held the previously undiscovered resources around Lake Oahe, while under the Army Corps jurisdiction (because it is a waterway) are located “away from the activity required for the DAPL construction so these newly discovered cultural sites could not qualify to stop permits for the DAPL to be dug under the river. (p.56)

To close his opinion, the Judge pays respect and reverence to the horrid treatment of Native and First Nation people in the United States in a “hungry and expanding early America”. (p.50) He closes his opinion, “…the threat that new injury will compound old necessarily compels great caution and respect from this Court in considering the Tribe’s plea for intervention.” (p.51)

The core argument is this, in the “eloquent words” of the Sioux Tribal Chairman Archambault:

History connects the dots of our identity, and our identity was all but obliterated. Our land was taken, our language was forbidden. Our stories, our history, were almost forgotten. What land, language, and identity remains is derived from our cultural and historic sites . . .. Sites of cultural and historic significance are important to us because they are a spiritual connection to our ancestors. Even if we do not have access to all such sites, their existence perpetuates the connection. When such a site is destroyed, the connection is lost. (p.50)

CLOSING

The Judge alluded to the fact that he personally believed the Army Corps permit should extend to the whole pipeline but “could not conclude otherwise on this record.” (p. 48) We must push Congress and candidates to propose and pass laws to REGULATE oil pipelines. To create infrastructure that tribes NEED such as water systems and renewable energy projects.

I am NOT in agreement with the Judge’s opinion or outcome of this case. I wish he had taken more liberty and been more courageous to CHANGE the law instead of just interpreting and following courts before him. The purpose of this synopsis is to summarize what the Court decided and why. Again, I think it is a bad outcome and I hope there are more lawsuits and legal grounds to fight DAPL and all future pipelines.

I pray we collectively can defeat Big Oil and pipeline projects like this to change our entire dependence on fossil fuels though our daily lives and political processes. And to keep struggling by any means necessary and proper to save our earth and protect our children’s water.

Thank you for reading this. Please contact me via the contact tab on my website.

Jennifer Laskin, Esquire

http://www.education4autonomy.info