The Legal Arguments for Stopping DAPL, and More Updates

Dakota Access Pipeline (DAPL) news summary:

• MPR reviews the legal arguments that could be used to force the government to continue the environmental review of DAPL, a process the story said could delay the project for up to two more years. However, the headline questions whether this is the “beginning of the end.”
• Indian Country Today is asking whether U.S. Sen. John Hoeven (R-ND) was mislead or intentionally misleading when he announced Wednesday that approval of the DAPL easement was just days away.
• Three U.S. Senators write President Trump to ask him to engage in meaningful consultation with the Standing Rock Nation.
• The city of Seattle will vote on ending its business relationship with Wells Fargo over DAPL.

For details, keep reading.

The MPR story had the ominous headline: Review of Dakota Access pipeline could be beginning of end for opponents. It laid out the three legal avenues to slow or stop DAPL. Should the Army Corps of Engineers withdraw the ongoing environmental impact statement (EIS) review and approve the pipeline’s easement under the Missouri River.

1. The study is needed to preserve treaty rights
2. The government can’t arbitrarily change course — the study is part of the legal process to finish the pipeline.

In addition, Standing Rock has an ongoing lawsuit, still in court. The story quoted a tribal attorney explaining that the suit alleges the government “broke environmental law by approving the pipeline’s crossing of numerous waterways.”

The story only has one paragraph to back up the headline that this could be “beginning of the end” for the opposition.

But Connie Rogers, a Denver attorney who specializes in federal permits, natural resources and Indian law, said the Army does have the discretion to change its mind. Since the original environmental assessment found nothing that would require an additional study, the Army was not required by law to order the fuller review and therefore can reverse course, she said.

As a post script, I would point out a sentence in the MPR story that struck me as odd: “Tribes have effectively used old treaty rights in other high-profile court cases.” Why refer to them as “old treaty rights”? Why not simply “treaty rights”? Yes, the treaties themselves are old, but why is that relevant? They are current rights. As written, it could be read by the get-over-it crowd as saying these are “old rights.” Would MPR write the following sentence: “News outlets have effectively used old freedom of press rights in other high profile court cases”? I don’t think so.

Was Sen. Hoeven Misleading or Misled on DAPL Easement Approval?

U.S. Sen. John Hoeven (R-ND), chair of the Senate Committee on Indian Affairs, made headlines Wednesday saying approval for the DAPL easement under the Missouri River was only days away.

That doesn’t appear to be the case. A story in Indian Country Today, Sen. Hoeven Wrong on DAPL Easement Approval, asks whether Hoeven was purposely misled, or was he himself misleading people? Hoeven and his staff did not respond to requests for comment. The story says:

Democratic senators focused on Indian affairs were alarmed by Hoeven’s statement, as this was not their understanding of where the process was at, according to Senate officials knowledgeable about the situation.

One Senate official, familiar with the Democratic concerns and speaking anonymously due to the sensitive nature of the situation, wondered whether Hoeven was purposely “muddying the waters” on behalf of the Trump administration to get the tribe to stand down on its push for people to support public comment on the EIS [Environmental Impact Statement]. …

Senators to President: Uphold U.S. Legal and Moral Responsibility to Tribe

Three Democratic U.S. Senators, all former chairs of the Senate Committee on Indian Affairs, wrote President Trump a letter Thursday to express their concerns about his Executive Memorandum expediting DAPL approval.

The authors were Sen. Maria Cantwell (D-WA), Sen. Tom Udall (D-NM), and Sen. Jon Tester (D-MT).

For the last forty years, federal policy, with respect to American Indian affairs, has recognized the federal government’s responsibility to support tribal sovereignty and self-determination, a policy that was heralded by President Nixon and furthered under President Reagan. This policy requires the United States to engage with tribal governments on a government-to-government basis. Your July 24th memorandum was issued without any consultation by you or your staff with the Standing Rock Sioux Tribe. …

We ask that you uphold the United States’ legal and moral responsibility to meaningfully consult with the Standing Rock Sioux Tribe before taking any further action with respect to the Dakota Access Pipeline.

Seattle to Vote on Ending Wells Fargo Contract Over DAPL

The Seattle Times reports that the Seattle City Council will vote on ending its contract with Wells Fargo and pulling $3 billion from the bank because of its financial support for DAPL. The Council’s Affordable Housing, Neighborhoods and Finance Committee voted unanimously Wednesday to send the measure to the full Council.