News is coming thick and fast as protests over the new Dakota Access pipeline heat up. In the latest developments, a federal appeals court ruled that it will take more time to consider a request for an emergency injunction against the pipeline from the Standing Rock Sioux Tribe. Meanwhile, last Friday the US Army Corps of Engineers set the stage for protests to continue indefinitely, by issuing a Special Use Permit for protesters to legally occupy federal land at Lake Oahe.
While all this is unfolding, a major new pipeline spill in Alabama has provided the Dakota Access protesters with a vivid demonstration of the risks and hazards posed by oil pipelines near sensitive lands.
US Army Corps Welcomes Dakota Access Protesters
The Army Corps of Engineers (USACE) was instrumental in passing the Dakota Access project through the permitting process, but that doesn’t necessarily make it a member of the fossil fuel fan club.
In fact, USACE has been front and center in the Defense Department’s clean energy transition.
Take a look at a recent USACE ruling against a new coal terminal in Washington State, and you’ll also see a federal agency that is beginning to leverage tribal concerns and treaty rights in order to fulfill an environmental stewardship mission.
When the protests erupted onto the national radar earlier this month, the Obama Administration asked the pipeline developer, Energy Transfer Partners, to voluntarily halt construction within 20 miles of the lake.
The new USACE ruling enable the protesters to continue occupying a site near Lake Oahe south of the Cannonball River, as a matter of free speech. The ruling effectively supports a large encampment that has hosted thousands of protesters. Here’s an explainer from Native News Online:
The purpose for requesting and granting a Special Use Permit under Title 36 is to provide applicants temporary use of federal lands for lawful purposes. In turn, the applicant assumes responsibility for maintenance, damage and restoration costs, ensures the health, welfare, safety, supervision, and security of participants and spectators, and provides liability insurance.
Under the terms of the permit, the Standing Rock Sioux Tribe has committed to ensuring that the land is eventually restored to its previous state.
The establishment of a legal protest site hasn’t stopped other groups from taking action. On Sunday, protested at the pipeline route in Sandusky, Iowa, resulting in about 40 arrests.
No, Dakota Access Is Not Like A Wildlife Refuge
In some quarters there have been attempts to draw parallels with the Malheur National Wildlife Refuge occupation in Oregon earlier this year. However, that episode involved the armed occupation of an existing federal facility by out-of-state persons who threatened federal employees as well as local law enforcement and other local community members.
In fact, during the Malheur episode the occupiers disrupted Paiute lands and mishandled artifacts stored at the facility, essentially accomplishing what the Dakota Access developer is accused of doing.
Lawmakers Weigh In On Dakota Access
In other Dakota Access news last week, Congresswoman Betty McCollum (DFL-Minn.), who co-chairs the Congressional Native American Caucus, joined with 18 other House Democrats to voice concerns over the failure to follow through on tribal consultation on the pipeline route.
In a letter to President Obama, the lawmakers wrote:
The federal government has a moral and legal trust responsibility to ensure that federally permitted projects do not threaten historically or culturally significant tribal places, the trust lands of tribal nations, or the waters that run through them.
That’s all well and good, but Native News Online correspondent Mark Charles (Navajo) points out disregard for tribal rights is baked into the US Constitution. Under the current state of affairs, the protection of tribal rights boils down to “the whim of the judge, or…the benevolence of the President.”
Charles also underscores a key difference between the Dakota Access pipeline and the Keystone XL project. Keystone was a cross-border project that required State Department approval, which it did not get. Dakota is an interstate project, which means that federal jurisdiction is limited:
…the US Army Corps of Engineers…only has jurisdiction of the waterways and lands extending 350 feet on either side of the waterways…Because of this limited jurisdiction…the government could only halt construction bordering and under Lake Oahe.
Now that the protesters have established a legal right to keep Dakota Access in the public eye, look for more news to come. According to USACE, “oahe” is a Lakota Sioux word that roughly translates into “a place to stand on.”
Photo: Oahe dam by USACE.
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