Secret DAPL Analysis Withheld from Tribes: Government Memo Spotlights Flawed Process

In the waning days of the Obama administration, the top lawyer for the U.S. Department of Interior wrote about significant flaws in the permitting process for the Dakota Access Pipeline (DAPL) easement under the Missouri River at Lake Oahe. The government had not honored federal trust responsibilities to consult with Native nations. Worse, the government had kept key environmental analysis secret, unavailable for review by Native nations and the general public. Worse yet, some of the analysis was simply inaccurate — and since it was secret it couldn’t be challenged.

The 38-page memo is from Hilary Tompkins, the Department of Interior’s solicitor, to the Secretary. The conclusion is this:

[T]here is ample legal justification for the Corps to exercise its discretion to suspend or revoke the existing Section 408 permit and/or postpone a decision on the proposed easement conditional on additional analysis
and government-to-government consultation concerning the tribal-specific issues discussed in this Memorandum … If the Corps ultimately does decide to authorize the easement, additional tribal consultation is necessary to develop conditions for the authorization that will protect the Tribes’ rights and interests in and around Lake Oahe. (page 35)

Disturbingly, the Dec. 4 memo details problems with the government’s process that until recently have been hidden.

Credit goes to Peter d’Errico, a consulting attorney on indigenous issues, for digging through the memo and bringing this issue to light.

The Department of Interior memo highlights errors made under the Obama administration and tries to rectify them. It highlights some of the arguments tribes could use in court to try to block DAPL now that the Trump administration is trying to push it through.

The pipeline company’s environmental analysis used poor and inaccurate spill modeling. Recall it was Dakota Access LLC — the pipeline company itself — that conducted the initial environmental assessment, with federal government review.) This was hidden from public review. According to the memo:

While I understand that the applicant [Dakota Access LLC] conducted spill modeling for the DAPL project, it appears to have been summarized in a confidential evaluation that was not shared with the Tribes or the public. But review of the spill model indicates that it does not correlate with the majority of actual releases that occur during operation of an oil pipeline. Further, the spill model assumes that the pipeline is aboveground rather than considering the actual pathway of a buried pipeline and its potential catastrophic release. Similarly, and perhaps most importantly, the Tribes were not afforded the opportunity to consider and independently analyze any of the information that led to the Corps’ conclusion … (p. 28)

Keeping environmental analysis secret violated the federal government’s trust responsibilities to Native nations. According to the memo:

[T]he applicant appears to have prepared a memorandum entitled “DAPL-Route Comparison and Environmental Justice Considerations” in response to the AccuFacts Report. However, that report was considered “confidential” and was not provided to the Tribes. The United States cannot fulfill its trust responsibility if it makes decisions with such potentially significant impacts on tribal treaty rights based on confidential, adversarial analysis that the opposing tribe cannot independently review. (p. 34)

Dakota Access LLC did not take treaty rights into consideration in its environmental analysis. According to the memo:

Based on my review of documents to date, it appears that the permit applicant [Dakota Access LLC] believes that the existing analysis considers all potential environmental impacts and mitigates for all risk even if that consideration is not based on express recognition of the tribal interests discussed herein. [Emphasis added.] As explained below, however, these latter concerns are not a matter of mere semantics. The government-to-government relationship between the United States and the Tribes calls for enhanced engagement and sensitivity to the Tribes’ concerns. The Corps is accordingly justified should it choose to deny the proposed easement, suspend or revoke the existing … permit, or both. (page 5)

The reasons for rerouting the pipeline near the Standing Rock Nation do not hold up. Recall the original DAPL route crossed the Missouri River near Bismarck. That route was rejected because we were told it was less safe than the crossing under Lake Oahe near Standing Rock. The solicitor’s memo undermines that argument:

[T]he Corps’ reasons for rejecting the Bismarck route also largely apply to concerns regarding tribal treaty rights associated with the Lake Oahe route. As such, if the Bismarck route is impermissible, the Lake Oahe route should be equally impermissible. This merits consideration of a reasonable alternative to both routes. (pages 25-26)

The government failed to live up to its own policies. (Note: The memo undercuts a key criticism of tribal opposition. Pipeline backers have criticized Standing Rock leaders for not showing up to public hearings on the DAPL routing process. The solicitor said it was the government’s responsibility to proactively include Standing Rock.) According to the memo:

[I]t appears from the record that the Corps did not specifically consult with the Tribes when it changed the proposed pipeline location from the original Bismarck route to the Lake Oahe route, which, as discussed above, could potentially impact tribal treaty and water rights. This abrupt shift did not comply with either the Corps’ own tribal  consultation policy or that of the United States Department of Defense. (page 33)

The solicitor highlights a unique challenge to Native nations in these situations:

The Standing Rock and Cheyenne River Sioux Reservations are the permanent and irreplaceable homelands for the Tribes. Their core identity and livelihood depend upon their relationship to the land and environment – unlike a resident of Bismarck, who could simply relocate if the DAPL pipeline fouled the municipal water supply, Tribal members do not have the luxury of moving away from an environmental disaster without also leaving their ancestral territory.

Let’s hope that these arguments prove persuasive in court. And thanks again to Peter d’Errico.

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