Standing Rock Sioux get a big court win, but fight for DAPL is not over
“When we first entered into this, we understood the history, we knew the facts, we knew the laws. We still have to bring it all up. […] Just because [the situation] is legally right, it’s morally and ethically wrong. What happened at Standing Rock is a movement, and you don’t see the benefits of a movement until way later.”
~David Archambault II, chairman of the Standing Rock Sioux, addressing court ruling
The 91-page decision issued Wednesday by a federal court ruling against the U.S. Army Corps of Engineers for violating the law with an inadequate environmental review of the $3.8 billion Dakota Access Pipeline garnered some long-delayed activist hurrahs this week. But it is a victory with caveats.
The pipeline—which runs 1,172 miles from the Bakken Formation of North Dakota (and Montana) through South Dakota and Iowa to refineries and other pipelines in southern Illinois—is designed to eventually carry 520,000 barrels a day of oil hydraulically fracked out of the Bakken shale. Most of that run is built on private land. But the pipeline also crosses Lake Oahe, a dammed portion of the Missouri River, and the only source of drinking water for the Standing Rock Sioux.
Led by Native people, the activists in their thousands opposed the pipeline project with direct action from temporary camps set up on and near the Standing Rock Sioux reservation, which straddles the border of North Dakota and South Dakota. Their actions led to more than 750 arrests and a number of clashes involving violence initiated by the local sheriff’s department and private security forces. It became the biggest and longest confrontation between Indians and government authorities since activists of the American Indian Movement occupied the hamlet of Wounded Knee on the Pine Ridge Reservation of South Dakota in 1973.
In his ruling D.C. Circuit Court Judge James Boasberg, an Obama appointee, stated:
“Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial. To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. […]
“Even though a spill is not certain to occur at Lake Oahe, the Corps still had to consider the impacts of such an event on the environment.”
In addition, the judge scolded the Army for giving the go-ahead because the pipeline does not cross reservation land. But it runs just over half a mile from the Standing Rock Sioux reservation, and federal rules require that projects built near communities of color, poor communities, and Indian reservations have to be assessed on the basis of environmental justice. The Army shrugged off those rules.
While this is clearly a major win for the tribe, the details show the decision to be a mixed victory. For one thing, despite saying the Corps failed to follow the National Environmental Policy Act (NEPA) in granting an easement under Lake Oahe, he did not tell Energy Transfer Partners, the builder, to shut off the oil that has been flowing through the pipeline for more than two weeks. The court will deal with that matter next Wednesday when lawyers for all parties meet to discuss what happens next.
The judge also ruled against the tribe on other issues. The Corps, he wrote, did not violate administrative law by speedily approving the pipeline. In earlier cases, he had ruled that the pipeline poses no harm to Standing Rock’s cultural heritage, nor does it hurt the religious practice of the Cheyenne River Tribe, which had joined Standing Rock’s latest lawsuit. Boasberg did not say one way or another whether the Corps’ had made the wrong decision in granting the easement, only that it had failed to cover ground NEPA requires to be reviewed before making a decision.
In a statement issued the day of the ruling, Standing Rock Sioux Chairman Dave Archambault II said:
“This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing. The previous administration painstakingly considered the impacts of this pipeline and President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests. We applaud the courts for protecting our laws and regulations from undue political influence, and will ask the Court to shut down pipeline operations immediately. ”
“This is a huge victory for the tribal nations of the Oceti Sakowin, Water Protectors around the world and for the Indigenous leaders who led organizing efforts to stop the Dakota Access Pipeline.
We’re ecstatic with the court’s decision, and applaud the Standing Rock Sioux Tribe and Cheyenne Sioux for continuing to hold the line and tak[ing] the fight against the Trump administration and the Dakota Access Pipeline to the nation’s courts. We hope this decision leads to the stoppage of oil flowing in the Bakken crude oil pipeline as a permanent remedy to protecting the drinking water of the Cheyenne River and Standing Rock Sioux Nations. […]
Despite underhanded, brutal tactics by Energy Transfer Partners to suppress Indigenous peoples, our movement will not be stopped. We will continue to support any and all efforts to divest from fossil fuels and stop the Dakota Access Pipeline once and for all.”
Although the pipeline does not cross reservation land, it has been installed on ancestral Sioux territory. This was once permanently guaranteed to the tribes as part of a treaty delimiting the Great Sioux Nation. But it was grabbed at gunpoint in 1877 by the U.S. government in the wake of the Battle of the Little Big Horn in which the Sioux and their Cheyenne allies delivered a blow to the 7th Cavalry that became a Pyrrhic victory for all seven Sioux bands. All who were not killed in the Army’s bloody response in 1876-77 were corralled on reservations downsized from the original treaty-guaranteed territory.
Most of the pipeline had already been built when the Corps granted Energy Transfer Partners (ETP) the easement 11 months ago. In September, President Barack Obama asked the company to voluntarily stop construction at Lake Oahe after he ordered a review of the Corps’ easement decision. In December, that review led to his revocation of ETP’s permit. But before January was over, Pr*sident Donald Trump reversed that decision at the same time as he invited the builder of the Keystone XL pipeline to resubmit its application, which was approved two months later.
After the oil began flowing in the Dakota Access Pipeline earlier this month, Robinson Meyer wrote in The Atlantic :
As recently as 2015, Trump owned between $500,000 and $1 million in stock in Energy Transfer Partners, according to the Dallas Morning News. This amount had decreased to less than $50,000 by the spring of 2016.
Hope Hicks, a spokeswoman for Trump, said in late November that he divested himself of Energy Transfer Partners and all other stocks in the summer of 2016. But the White House has repeatedly declined to offer proof of this.
“‘The sun is still shining, and the water is still clean.’ For him to say that just goes to show how out of touch and how out of tune he is with the people in his own country,” said Archambault on Thursday. “He’s putting his own grandchildren’s future at risk. But he doesn’t see it like that. He doesn’t see the cost in the future, he just sees the dollars gained today.”
That, sadly, is not something only Donald Trump does.
Full Disclosure: I participated for 51 days of the 71-day occupation of Wounded Knee by the American Indian Movement in 1973.
Think this is an important story? LIKE our Facebook page for more updates on this and other critical issues!
(Originally appeared at DailyKos.)