Charles Newman (MDes R&R 2018), Elias Logan (MArch II 2018): The Dakota Access Pipeline: An Investigation of the Historical, Spatial, and Legal Underpinnings of Land and Territory

ADV 9132: Ecology, Infrastructure, Power I Instructor: Pierre Bélanger

By Charles Newman and Elias Logan

On January 24, 2017 President Trump devoted a moment of his first Friday in the Oval Office to signing a Presidential Memorandum that spurred an approval process of the previously suspended Dakota Access Pipeline (DAPL). The President’s signature reopened review of an easement allowing the DAPL to traverse Lake Oahe just north of the Standing Rock Sioux Reservation that had been denied by a December 4, 2016 memorandum issued by the Assistant Secretary of the Army for Civil Works, Jo Ellen Darcy.

At the moment of this initial memorandum, the deadline issued by the USACE for the DAPL opposition to vacate campsites was just hours away. With temperatures dropping to dangerously frigid levels and thousands of veterans arriving in solidarity with water protectors, Federal lawmakers found themselves in a challenging situation; one that could only be defused by denying the pending easement.

There are several technicalities worth clarifying in the discussion of the two oppositional memoranda. At the time of the December 4 ruling, many articles falsely described this action as the denial of a permit for the Lake Oahe Crossing. This permit, which references the Navigable Rivers and Harbors Act, was granted months earlier and cannot legally be undone. The memorandum instead concerned an easement of USACE lands which, in flanking Lake Oahe, effectively blocked the act of drilling beneath it.

Furthermore, Trump’s pen did not grant permission to resume construction, but rather ordered the expedition of approvals, cited the aforementioned and previously approved Lake Oahe crossing permit, and prompted reconsideration of the December 4 memorandum issued by the Assistant Secretary of the Army for Civil Works. So while much media has painted the picture of a battle between the past and present Presidential administrations, it is ultimately the Department of the Army whose permission is required to proceed with construction on the remaining segments of pipeline within USACE lands along Lake Oahe.

 Such permission was obtained in a statement signed by Deputy Assistant Secretary of the Army, Paul Cramer, on February 7. Just days later on February 9, Dakota Access LLC resumed construction on the remaining 1.4 miles of pipeline. The days between December 4 and February 9 then- in which drills stood poised, frozen as the ground below, awaiting executive or environmental action- represent but a hiccup in the life of the Dakota Access Pipeline. The full story of its conception, opposition, and looming completion lie in a complex historical, spatial, and legal framework of contradictory policies, disputed treaties, and ethical conflicts.

“ …an imported concept”

When considering the opposition to the Dakota Access Pipeline project along Lake Oahe (formed by the dammed Missouri River) at Standing Rock, it is essential that the discussion be framed within the context of history. For some, this history begins and ends with an one administration’s decision to halt construction and another’s order to press forward in the face of opposition. For many, we must refer to the spring of 2016 when meetings were held and established laws were followed in planning the project. For still others, the ideologies of resistance that we see in confrontation with capitalist motivations has been playing out for centuries.

To understand this larger frame of historical context, we must first acknowledge that territory and man’s role as an agent of destiny is an imported concept. This model of inhabitation has never been fully accepted by indigenous peoples and has come to exemplify the challenges and contradictions of colonialist strategy.

The territorial disputes of today can be traced back to the Fort Laramie Treaty of 1851, when the Great Sioux Nation was established as a vast, yet defined tract of land spanning from the Dakotas to present day Montana and Wyoming. This agreement came to establish hunting rights and settler travel corridors, demarcating territory as distinct from the land’s resources; concepts inseparable within the indigenous way of life. Over a span of 25 years, strategies of subversion, war, enforced dependency, and bureaucratic negligence violated the treaty. Revised, unsigned treaties were ratified in its place, consolidating native populations towards the present day reservation system. To date, the Sioux still claim rights to lands seized during this time period.

Henry Whipple, the government-appointed chairman of the commission that was unsuccessful in obtaining the informed consent of the Sioux to relinquish these lands and rights, encountered this resistance first hand in 1877. Upon seeing the Black Hills of South Dakota annexed for the prospect of mineral wealth, further consolidating the Sioux territory, he said “I know of no other instance in history where a great nation has so shamefully violated its oath.” (ND.gov)

While the DAPL passes .5 miles north of the present day Standing Rock Sioux Reservation, it does cross land bounded by the Cannonball and Heart Rivers belonging to the Fort Laramie Treaty of 1851 which the Sioux maintain were wrongfully seized from them in 1877.

“…echoes of an intent to control”

From 1877 to recent history, numerous policies were developed and implemented to both indoctrinate and eradicate the cultural traditions of the Sioux. These policies, based upon standards of indigenous identity defined by the American government, included restrictions on language and celebration that were enforced through required boarding schools for children.

While these antiquated policies have since been revised in an effort to acknowledge past atrocities and normalize tribal relations, the echoes of an intent to control and a willingness to negate responsibility continue to play out in the legal framework of Federal and State policy.

“…formations that do not fit any federal concepts or definition”

These contradictions and the complexity of colonialist strategy is acutely represented in the Missouri River Programmatic Agreement of 2004. Signed by the leadership of the Army Corps of Engineers and over a dozen tribal officials whose reservations lie within the Missouri River basin, this document outlines communication protocol between indigenous tribes and the Federal government with regard to compliance under the National Historic Preservation Act (NHPA).

The document repeatedly clarifies that formal communication must be done in “government to government” fashion, and is extremely thorough in defining this relationship as the two entities being “equal participants”. Throughout the document however, this precision begins to break down when historic properties are defined as “important viewsheds, buttes, mountains, high ridges, and other natural formations that do not fit any federal concepts or definitions.”  Tribal concepts of territory, according to the document, “see the resources holistically.” This attempt to resolve cultural differences results in unconventional obscurity with regards to standard legal practice. This obscurity extends to the topic of communication where the document states, “Tribes must be consulted before decisions are made”, but that a lack of response can “not be construed as concurrence or non-concurrence.”

This Programmatic Agreement, signed by the federal government, stands in complete and obvious contradiction with the Department of Defense (DoD) American Indian and Alaska Native Policy, which plainly states that “there is no obligation to consult with tribes in advance of a proposal that ‘may have the potential to significantly affect’ tribal interests.” These discrepancies and ambiguities allow the federal government to pick and choose between language and policy that fits its agenda at the time of need.

Understanding these contradictions as a strategy of subversion, perhaps it is not surprising that the Standing Rock Sioux did not sign the Missouri River Programmatic Agreement. Regardless of the reason for their abstinence, the Sioux still do attend biannual meetings concerning the agreement and are formally addressed by the USACE in such meetings. This only further underlines a federal method of operation that, even in striving for inclusivity, further confuses trust with law.

It is within this context of both history and obscurity that we find ourself confronted with the Dakota Access Pipeline protests so widely publicized in recent months.

“ …not an inadvertent loophole; an intentional gap.”

The Dakota Access Pipeline has been drawn across the American landscape through a specific system of approvals that operates between State and Federal levels of authority. Nationwide Permit 12, issued by the USACE, is used to expedite large scale linear infrastructure projects that cross numerous jurisdictions. Without Nationwide Permit 12, utility projects including power lines, telephone lines, sewerage lines, oil pipelines, and even large water distribution systems would have to adhere to individual, repetitive state and county approval processes. Doing so would make such projects financially impossible largely because of an approval process made immeasurably long by the time required for public comment.

Nationwide Permit 12, however, requires no public consultation. This permit is not an inadvertent loophole, but rather an intentional gap opened in the standard construction permitting process. Further, the USACE is not concerned with the majority of the path of any proposed project. Instead, the USACE attends to moments that could affect interstate or international commerce, namely, navigable waterways as defined by the Navigable Waters and Harbors Act. These episodes of intersection trigger the need for standard USACE permits, regardless of whether the lines pass over or under the waterway. Beyond these areas of intersection, the USACE assumes that all private property agreements and easements are secured or will be secured as construction moves forward.

Once the provisional issuance of a Nationwide Permit is made, the assigned district office then works with the applicant to secure individual water crossing permits. Some Nationwide Permits, according to the Omaha District office in Bismarck, trigger as many as 40 individual permits. Multiply this by a dozen or so ongoing Nationwide permit projects, and the logistical capacity of local USACE offices would be overwhelmed with public notification and opinion. Unsurprisingly then, these permits rarely result in public information meetings where residents can voice their concerns, opinions, or opposition.

1,172 miles, 47 counties, 8 standard permits, 1 nationwide approval.

The only forum, then, in which the public can make its voice heard occurs at the state level. Upon initial issuance of the Nationwide Permit, each state affected has 60 days to issue a blanket approval, a conditional approval, or to deny the permit. The states make this assessment in accordance with Section 401 of the Clean Water Act (CWA), the National Environmental Protection Act (NEPA), and the National Historic Preservation Act (NHPA). While Nationwide Permit protocols differ from state to state, North Dakota carries out its own Environmental Assessment (EA) that grants or denies the issuance of a permit for state lands. This assessment gives the state effective veto power over any Nationwide project.

“ …a Finding of No Significant Impact.”

North Dakota’s EA for the DAPL project was carried out by agencies and officials – including the State Engineer and State Historic Preservation Office- who were contacted soon after the Nationwide Permit 12 arrived at the USACE District Office in Bismarck. Between January 8 and March 24, 2016, private citizens were granted the opportunity to review a draft version of the document. By expressing their concerns- amongst dozens of other independent commenters- on the state level EA, the Standing Rock Sioux compromised the federal government-to-government communication protocol. While some lawmakers have claimed that the Sioux failed to voice their opposition during this review process, the EA document negates their testimony in the form of 23 separate comments provided by the Tribe.

Aside from noting a general lack of consultation, the principal concerns stated by Sioux officials were the project’s “potential for environmental damage to waters which are critically important to the Tribe” and “impacts to known sites of tribal significance”.

The Standing Rock Sioux maintain two water intakes south of the proposed DAPL  Lake Oahe Crossing. The Fort Yates intake has frequently encountered difficulty with sediment blockage and is being phased out in favor of the newer Mobridge intake location.

Dakota Access proposes the pipeline be constructed 92’ below the bed of Lake Oahe via the method of Horizontal Directional Drilling (HDD). This strategy confines surface disruption to private lands now owned by Dakota Access rather than USACE easement properties.

Water concerns expressed in the document were answered with testaments to the pipeline’s sound construction and operational infallibility. Contingency plans (including the potential provision of bottled water) were added in response to the unlikely event of a spill impacting the Sioux’s downstream water intakes.  

In regard to the identified cultural sites, comment responses by state officials maintained the project’s avoidance of these areas and pledged continued tribal consultation even as the document was approved. With the resolution of these items left as a matter of trust between parties, state officials approved the EA through the issuance of a ‘Finding of No Significant Impact’ (FONSI) on April 1, 2016. Sioux leaders, with an eye to these unresolved issues, established the Sacred Stone camp as a site of cultural and spiritual resistance later the same day. As organizational capacity increased, solidarity grew, and pipeline crews progressed towards the disputed Lake Oahe Crossing, the tribe formally indicated their dissatisfaction with the consultation process by filing an injunction on July 27, 2016 that claimed the USACE had violated the Clean Water Act (CWA), Rivers and Harbors Act (RHA), and National Historic Preservation Act (NHPA) in approving the project.

On September 9, the Federal Court gently denied the Sioux claim, ruling that the law of the land had been followed. Moments later, the Department of Justice (DoJ), Department of the Army (DoA), and Department of the Interior (DoI) issued a joint statement halting construction on the USACE easement lands bordering the Lake Oahe Crossing. This was accompanied by a request to the applicant to abstain from building within a 20 mile radius of the river crossing in order to help diffuse the situation and allow the USACE to reconsider the case while discussing “nationwide reform with respect to considering tribes’ views on these types of infrastructure projects”.  

“… conflicting interpretations of significance”

During the nearly three months time between the DoJ/DoA/DoI ordered stoppage and the December 4 denial to build on easement lands, a storm of media has outlined the massive assemblage of water protectors at Standing Rock. As the nation was captivated by the unprecedented show of tribal unity, popular support, and intense clashes between ‘water protectors’ and law enforcement, some North Dakota State officials reassessed their conclusions in the approved EA. For instance, the State Archaeologist conducted a second survey of the easement tracts which identified sites of tribal significance as falling outside of the proposed construction corridor (and zone of reported bulldozing of September 3 which the Sioux claim destroyed sacred sites). It was only after this second survey, however, that officials consulted the Standing Rock Tribal Historic Preservation Officer during an onsite meeting that included other tribal officials, USACE authorities, and state lawmakers. Recalling the breadth and ambiguity of cultural sites noted in the Missouri River Programmatic Agreement, it is worth noting the conflicting interpretations of significance that appear to be at the heart of disputes between the State Archaeological Team findings and Sioux claims.

“ …as fragile as it was entangled.”

Meanwhile, Dakota Access continued to purchase private lands and lay pipe up to the disputed easement property- actions which ignored the DoJ/DoA/DoI Joint Statement request to voluntarily suspend construction within 20 miles east and west of the Lake Oahe Crossing. While not cooperative, these actions were legal under the ratified Nationwide Permit 12, which does not regulate construction activities outside of navigable water crossings.

In fact, once the state FONSI was granted, Dakota Access (still referred to as ‘the applicant’) was within the law to begin construction while pursuing river crossing permits concurrently. Under this scenario, the applicant might build thousands of miles of linear infrastructure before securing standard permits at intersections along the path. One can imagine the inertia-like force of the completed infrastructure being leveraged- even compounded by tactics of lobbying and coercion- to push construction through segments in which there is opposition. Additionally, the applicant might pursue legal justification using any combination of conflicting language between the Missouri River Programmatic Agreement and the DoD American Indian and Alaska Native Policy, exploiting gaps within the nationwide permitting process.

Such a scalar situation is precisely the case with the Dakota Access Pipeline, whose total length of 1,172 miles is largely complete. With just a proposed 1.4 miles (7,500’) of pipe below USACE easement lands and Lake Oahe remaining unbuilt, the situation at the turn of Presidential administrations remained as fragile as it was entangled.   

On February 7, the Department of the Army granted permission to proceed with construction of the Dakota Access Pipeline on USACE easement lands (shown in orange). The proposed Lake Oahe crossing had been approved through a standard permit of the Navigable Rivers and Harbors Act under Nationwide Permit 12. Aerial Image + Survey Data sourced from U.S. Army Corps of Engineers.

“… into the contradictory history of treaties and policies”

When, on December 4, the USACE issued a decision denying Dakota Access permission to construct the pipeline on easement lands, the thousands of water protectors who had flocked to Standing Rock rejoiced alongside the millions who sympathized with and supported the efforts from afar. The new administration’s Presidential Memorandum issued on January 24, however, has shown just how premature the celebration at Standing Rock had been.

While the overturned denial has been widely reported to have permitted construction, the language within the memorandum merely requests a review and expedition of the easements approval and grants avenues for the USACE to circumvent any additional Environmental Impact Assessments. The responsibility of issuing the permit has therefore been passed down to Army and Army Corps leadership, which has communicated solidarity with the new administration’s motivations to complete the DAPL “and other important energy infrastructure projects.” On February 7 the Department of the Army announced its intention to grant the easement and pledged to execute the remainder of the project at “a time most convenient to the Corps and the Company.” It is here that we see the responsibility for authorizing the project, ultimately ascribed to the executive branch, fragmented down through the cracks of law into the contradictory history of treaties and policies.

“… through ignorance if not malice”

As the drills of Dakota Access make their way under the icy riverbed of Lake Oahe, decision makers have argued that the benefits of the pipeline will reduce gas prices while bolstering stock values and economic indicators. The case has also been made in the name of ‘national interest’ (as it was in the Presidential Memorandum) and ‘energy independence’, blurring the line between the greater good and the allures of financial gain.

Arguments of resistance have cited conflicts of interest among members of the new administration, many of whom are invested in DAPL affiliates. Others have focused the fight upon clean water, demonizing oil companies for their relentless pursuit of profit at the expense of the environment.

Each of these arguments overlooks the nuance of the situation when considered through the historical, spatial, and legal underpinnings of land and territory. Understanding the territorial agglomeration of the United States of America as a grand iteration of eminent domain for private gain, we all become implicated- through ignorance if not malice- in the colonial project whose most disenfranchised are those most deeply entwined with this land.

As water protectors maintain their posture of resistance on the frozen prairies of North Dakota and Washington clears a path for Dakota Access to lay its final segments of pipe, we would be wise to keep an eye to the pages of history as they are written before us. For if we decide which pages we consider relevant, we risk perpetuating the shame that has so plagued our colonial history.

“Our country must forever bear the disgrace and suffer the retribution of its wrongdoing. Our children’s children will tell the sad story in hushed tones, and wonder how their fathers dared so to trample on justice and trifle with God.”

  • Bureau of Indian Affairs, Annual Report, 1876 (ND.gov)
Sources

Interviews

  • Garland Ebele, North Dakota State Engineer. October 25, 2016.
  • Paul Picha, North Dakota Chief Archeologist. November 02, 2016
  • David Olson, Regulatory Program Manager, Army Corps of Engineers. November 02, 2016
  • Patricia McQueary, Omaha District Program Manager. November 07, December 07, 2016