Photo: Courtesy of Jerry Anderson Aerial Photography
Even in this age of Trump where executive orders are shot out of the White House as if it were a malfunctioning ball machine on meth, reality has a way of pressing the pause button. The Ninth Circuit Court of Appeals upheld the travel ban suspension in a unanimous decision, and funds to build the multi-billion dollar border wall aren’t exactly sitting in Peña Nieto’s wire transfer queue.
But the battle over the Dakota Access Pipeline is another story altogether.
Game changing developments have been cropping up nearly every day. The Trump administration has set in motion a path to pipeline completion that’s advancing at a bewildering pace, and DAPL opponents — most notably the Standing Rock, Cheyenne River, Yankton and Oglala Sioux Tribes, whose drinking water, ancestral lands and spiritual ceremonies would be irreparably harmed by a spill — are waging a renewed battle on all fronts.
But even for those of us who refresh our news feeds every 90 seconds, it’s hard to keep up. Major outlets offer woefully little coverage when compared to Trump’s tweetstorms and Kellyanne Conway’s flowing stream of alternative facts and political gaffes. Staying informed involves a complicated cocktail of social media channels, NGO newsletters and blogs, government agencies, federal court dockets, as well as alternative and mainstream media reports.
Since sanity is not overrated, preserve yours and let the following timeline help elucidate what has transpired on the ground, out of the White House and inside the courtroom ever since DAPL was dealt a double whammy back in early December 2016.
A DAPL Timeline: Early December 2016 Through Mid February 2017
12/4/2016: The U.S. Army Corps of Engineers Refuses to Issue an Easement Under Lake Oahe
After months of peaceful and prayerful resistance, DAPL opponents at Standing Rock and their supporters around the world had good reason to celebrate. On December 4, 2016 — just one day before the U.S. Army Corps of Engineers planned to remove and prosecute any remaining protestors — it reversed course and unexpectedly declined to grant the easement DAPL needed to drill under Lake Oahe. Instead, the Corps determined that a full scale Environmental Impact Statement (EIS) would be required to properly consider tribal treaty rights, assess risks and consider alternative measures, such as rerouting the pipeline.
The decision was a huge blow to DAPL and its parent company, Energy Transfer Partners. They claimed that failure to deliver oil by January 1, 2017 would jeopardize crucial shipping contracts and potentially undermine the project’s economic feasibility.
12/5/2016: DAPL Seeks a Court Order Allowing Construction to Proceed
The very next day, DAPL filed papers seeking a court order declaring that it was entitled to construct, operate and maintain the pipeline under Lake Oahe, despite the Corps’ December 4 decision. The crux of the company’s argument was that the Corps had already granted the necessary permissions on July 25, 2016 under Section 408 of the Rivers and Harbors Act and that a separate easement under Section 185 of the Mineral Leasing Act was either superfluous or could be inferred.
Judge Boasberg, an Obama appointee, declined to expedite the matter and set a January briefing schedule and February hearing date — effectively delaying any decision until Trump, whose personal investments in DAPL have been widely reported, assumed office.
12/6/2016: The Standing Rock Sioux Tribe Chairman Requests that Water Protectors Return Home, But An Estimated 2,300 Remain
Now that the battle had shifted to the courtroom, Standing Rock Sioux Tribe Chairman Dave Archambault II issued a statement expressing his sincere gratitude to the water protectors and requesting that — in light of the Corps’ decision and the harsh winter ahead — they return home to stay safe and avoid potential confrontations with law enforcement.
While thousands left the camps, Chase Iron Eyes, a Standing Rock Sioux Tribe member and former U.S. congressional candidate, reported that roughly 2,300 demonstrators remained in the camps vowing to stay until the drill pad was gone and the “black snake” declared dead.
1/6/2017: The Standing Rock and Cheyenne River Sioux Tribes and the Corps Ask the Court to Dismiss DAPL’s Request to Continue Construction
Under the briefing schedule set by the court back in December, the Corps and both the Standing Rock and Cheyenne River Sioux Tribes filed papers opposing DAPL’s request for a court order permitting the company to continue drilling.
Against the historical backdrop of broken treaties and federal dispossession of tribal lands (including those surrounding Lake Oahe) and in light of the government’s trust responsibility — a legally enforceable fiduciary obligation to protect tribal rights — both tribes made two primary legal arguments:
First, they argued that an easement under Section 185 of the Mineral Leasing Act is indisputably required — a fact made abundantly clear to DAPL by the Corps.
Second, they pointed out that while the Corps’ December 4 decision did not grant the easement, it also did not reject it outright — rather, it determined that a more in-depth EIS review was warranted — and so no final agency action had been taken. DAPL’s claims based on that decision were therefore not legally actionable and should be dismissed. The Corps agreed and sought dismissal on the same grounds.
1/18/2017: The Formal EIS Process Commences
Despite DAPL’s best efforts (via emergency court application) to impede the EIS process, on January 18, the Department of the Army published in the Federal Register its official Notice of Intent to Prepare an Environmental Impact Statement, triggering the required public scoping period.
Required at the outset of every EIS to ensure a robust and thorough analysis, the scoping period seeks public input to identify key issues and possible alternatives. The DAPL comment period was slated to stay open through February 20, 2017.
But the inauguration of Trump just two days later would change everything.
1/24/2017: President Trump Instructs the Corps to Reverse Course
On Trump’s very first Tuesday in office, he issued a presidential memorandum instructing the Corps to “take all actions necessary and appropriate to … review and approve in an expedited manner…requests for approvals to construct and operate the DAPL, including easements” and to consider “whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement[.]”
In other words, Trump dropped a bomb on the #NoDAPL victory that would fully detonate two weeks later.
Trump also issued a tandem order that same day inviting TransCanada to “promptly re-submit” its Keystone XL application, reviving yet another controversial pipeline. And on February 16, it did just that.
2/1/2017: 75 Water Protectors and A Journalist Are Arrested
As DAPL politics in Washington heated up, so too did tensions at the protest camps.
With Oceti Sakowin (the largest camp) situated in a flood plain, water protectors, including Chase Iron Eyes, began raising tipis and constructing a new camp on higher ground — Sioux land under the 1851 and 1868 Fort Laramie treaties.
While linking arms and singing, 75 water protectors were approached by a militarized police force and arrested. Chase Iron Eyes was charged with criminal trespass and inciting a riot. And like Democracy Now!’s Amy Goodman before her, journalist Jenni Monet was charged with criminal trespassing and participating in a riot.
2/7 – 2/9/2017: The EIS is Terminated, the Easement is Granted & Drilling Begins
Following Trump’s executive order, the Department of the Army issued on February 7 two critical documents:
- A Notice of Termination, stating that it “no longer intends to prepare an environmental impact statement.”
- A memorandum sent to Congress rescinding the December 4 Corps decision on the basis that “there is no cause for completing any additional environmental analysis.”
It’s worth noting that this decision was made within a week of two major incidents at pipelines owned by DAPL co-owners Enbridge and Phillips 66. In Texas, 600,000 gallons of oil were spilled, and in Louisiana, a natural gas liquids pipeline exploded, killing one employee and injuring two others.
Bypassing the typical two-week waiting period, the Corps granted the easement on February 8 — apparently without any regard for the fact that Chairman Archambault was en route to Washington for a scheduled meeting with Trump administration officials.
Energy Transfer Partners began drilling under Lake Oahe the very next day, indicating that the pipeline could be operational in 83 days.
And just like that, the new administration eviscerated — at least for the time being — the December 4 victory.
But Chairman Archambault had this to say: “As Native peoples, we have been knocked down again, but we will get back up, we will rise above the greed and corruption that has plagued our peoples since first contact.”
2/9 – 2/14/2017: The Legal Battle Blazes On
If DAPL’s first week of February was marked by political upheaval, the second brought a deluge of court filings.
The day after the easement was granted, the Cheyenne River Sioux Tribe filed two emergency motions — one seeking a temporary restraining order (TRO) to immediately enjoin construction, and the other seeking a preliminary injunction to withdraw the easement.
While the court denied the TRO for prematurity — it concluded that harm sufficient to warrant such relief wouldn’t begin until oil started flowing under Lake Oahe — it ordered DAPL to provide weekly reports regarding its expected first day of operation and scheduled a hearing on the preliminary injunction for February 28.
Both the Standing Rock and Cheyenne River Sioux Tribes made motions to amend their complaints to include Religious Freedom Restoration Act claims, arguing that the Corps failed to consider the pipeline’s substantial impact on tribal members’ free exercise of religion. From a legal standpoint, these claims are significant; arising under the First Amendment, they require strict constitutional scrutiny and would impose a more challenging standard of review.
Represented by Earthjustice, the Standing Rock Sioux Tribe also filed a motion seeking expedited summary judgment on its primary claims, calling the Corps’ decision to grant the July 25, 2016 permissions and February 8, 2017 easement “arbitrary, capricious, and contrary to law.” More specifically, the tribe argued that the Corps violated (1) the National Environmental Policy Act (NEPA) by failing to prepare an EIS and (2) its trust responsibility by disregarding tribal treaty rights. The tribe has asked the court to vacate the easement and other permit decisions; oral arguments will likely be heard at the end of March.
Raising the stakes, the Oglala Sioux Tribe filed a lawsuit, claiming that it too possesses “treaty and statute-protected rights” to the “sacred” waters of the Missouri River and that a “crude oil spill from the DAPL into Lake Oahe would damage the ecology of the river basin, impair the tribe’s rights, and contaminate the drinking water of the tribe’s citizens.” The Oglala are the fourth tribe to sue the Corps; the Yankton Sioux Tribe filed a complaint in September 2016, and earlier this week notified the court of its intention to seek injunctive relief and resume briefing on an expedited basis.
So, What’s Next?
At least two things are certain.
Emboldened by the pipeline-happy Trump Administration — which now includes former Exxon Chairman & CEO Rex Tillerson as Secretary of State and climate change denier Scott Pruitt as EPA Administrator — Energy Transfer Partners will do everything in its power to ensure that North Dakota crude is flowing under Lake Oahe as quickly as possible.
And the Standing Rock, Cheyenne River, Yankton and Oglala Sioux Tribes and their supporters around the world will use every legal, financial and political tool at their disposal to prevent that from happening.
Looking Out on the Legal Landscape
The February 28 hearing on the Cheyenne River Tribe’s preliminary injunction motion is the next significant date on the court calendar. Because oil isn’t currently slated to flow until the end of April, the court’s earlier decision on the tribe’s TRO application suggests it’s likely to decline this request as well — unless it’s moved by the tribe’s arguments that the “Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments.”
And sometime in late March the court will hear arguments on whether the Corps violated both NEPA and its legal trust obligation to protect tribal treaty rights. Should the court rule in the Standing Rock Sioux Tribe’s favor, the easement and other permissions will be vacated and the project halted in its steps — a resounding legal victory.
How the court will rule is anybody’s guess. Jan Hasselman, counsel for the the Standing Rock Sioux Tribe, believes the Corps’ failure to pursue the EIS and grant the easement was an “arbitrary and capricious reversal of course” and that the “Trump administration is circumventing the law” by “wholly disregarding the treaty rights of the Standing Rock Sioux and ignoring the legally required environmental review.”
The first step “will be to identify the proper standard of review” regarding the Corps’ decision. While the review standard is typically deferential, Mr. Perch-Ahern believes that may not be the case here “given the quick departure from the previous administration’s decision.” He notes that the “record will support an argument” by the tribes that the Corps’ February 8 decision was “a product of political whim, not reasoned judgment” and that “Trump’s capriciousness concerning some of his executive actions … could subtly influence the ultimate decision.”
And Trump’s now infamous “so-called judge” tweet has not exactly endeared him to members of the judiciary.
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
That said, Mr. Perch-Ahern points out that “the record has been so topsy-turvy with respect to NEPA decision-making that the Judge could simply defer to this as a decision subject to agency discretion or go the other way and claim a role for sharper judicial review.”
Whether the Corps can then satisfy that standard of review is “the million-dollar question.”
The #DivestDAPL Movement is Gaining Traction
Thousands of miles from the courtroom and Lake Oahe, another kind of battle is being waged against DAPL with a very potent weapon — money.
Individual consumers, cities (including Seattle, Davis and Santa Monica) and tribal nations across the United States have elected to end their relationships with, and divest billions of dollars from, Wells Fargo and other DAPL financiers.
OpenInvest, a San Francisco tech startup, has even developed a feature that automatically removes DAPL-associated lenders and energy companies from a user’s investment portfolio, replacing them with new investments.
Whether the movement builds rapidly enough to reach a tipping point remains to be seen — but this message in support of tribal treaty rights and clean water is growing louder and clearer every day.
The Tribes Are Taking Their Message to Washington
On March 7-9, native leaders will descend upon our nation’s capital to lobby for indigenous rights and erect tipis on the National Mall. And at 10 am on Friday, March 10, thousands will participate in the Rise With Standing Rock Native Nations March from the Mall to the White House to demand that the Trump administration respect native rights, ancestral lands and sacred waters.
As Taylor McKinnon, Public Lands Campaigner at the Center for Biological Diversity, puts it, the DAPL resistance is “the iconic fight of our day” and this march will powerfully represent “unprecedented solidarity among original nations and those seeking environmental justice.”
The Veterans Are Returning to Standing Rock
For the second time since early December 2016, the Veterans Stand community is gathering at Standing Rock to serve as a human barrier between tribal members and a militarized police force. As one Vietnam vet from Boston told The Guardian, “Finally, it’s the U.S. military coming on to Sioux land to help, for the first time in history, instead of coming on to Sioux land to kill natives.”
What Can You Do?
If you stand with the tribes and oppose the pipeline’s construction under Lake Oahe, here are some ways you can lend your support:
- Visit Defund DAPL to join the divestment movement and encourage your friends, families and local officials to do the same.
- Sign up to attend the Rise With Standing Rock Native Nations March. If you can’t make it to Washington, participate in peaceful solidarity gatherings in your local communities.