Tom Shepstone
Shepstone Management Company, Inc.

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The Dakota Access Pipeline debate is far from what the press makes it seem. A Federal judge has laid bare the great fraud taking place.

I didn’t expect to be writing another post on the Dakota Access Pipeline controversy. It’s hard to improve on Jessica Sena’s post or the additional background from one of our readers, a North Dakotan fed up with “the distortion, the one-sided empathetic media coverage and the political correctness” surrounding the issue. Yesterday, though, another reader brought my attention to an article in Forbes citing a Federal judge’s decision on the matter. The decision denied an injunction sought by EarthJustice on the part the Sioux tribe fighting the project. Although it seems the decision is being ignored by the lawless Obama Justice Department, it lays bare the complete fraud this entire ginned-up issue really is.

The Dakota Access Pipeline isn’t about natural gas—the focus of this blog—but it is about fracking and rural development; two subjects close to our heart. We are following the debate for those reasons and because it illustrates, so vividly, the nature of the battles we fight over pipelines here in the Northeast. We are fighting also the same rich special interest foundations. EarthJustice, for example, is funded by the Park Foundation, the Energy Foundation, Google and the same cast of elitist characters after all. It was the lead in the battle over fracking in the New York courts. It’s always the same tiny group of well-funded extremists.

EarthJustice, together with its partners in the media, have made this a case about how a greedy pipeline company and co-opted Army Corps of Engineers have taken advantage of  Native Americans and want to run rampant through their burial grounds. It is a completely false narrative any reporter could have learned from Federal Judge James E. Boasberg’s decision, issued one week ago today. The fact almost none bother to check and continue to perpetuate a gigantic lie speaks to the utter and complete collapse of journalism in this country.

Lake Oahe Dam

Judge’s Boasberg’s 58-page decision denying an injunction (highlighted version here) to stop the completion of a pipeline already most built leaves no doubt about who is to blame, even though he begins and ends his narrative by acknowledging “the tragic history of the Great Sioux Nation’s repeated dispossessions at the hands of a hungry and expanding early America” and even cites Bury My Heart at Wounded Knee. Here’s some of what reporters are simply not telling us (emphasis added):

…the Standing Rock Sioux Tribe has sued the United States Army Corps of Engineers to block the operation of Corps permitting for the Dakota Access Pipeline (DAPL). The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur…

Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land…

Despite this broad lawsuit, however, the Standing Rock Sioux now seek a preliminary injunction only on the alleged violation of the NHPA. That statute encompasses sites of cultural or religious significance to Indian tribes and requires that federal agencies consult with tribes prior to issuing permits that might affect these historic resources. The Tribe claims that the Corps did not fulfill this obligation before permitting the DAPL activities…

To sum up, the NHPA requires that the Corps, prior to issuing a permit under the CWA or the RHA, consider the potential effect of that permitted activity on places of cultural or religious significance to Indian tribes…

In the summer of 2014, Dakota Access crafted the route that brought DAPL to Standing Rock’s doorstep… The plotted course almost exclusively tracked privately held lands and, in sensitive places like Lake Oahe, already-existing utility lines. As only 3% of the work needed to build the pipeline would ever require federal approval of any kind and only 1% of the pipeline was set to affect U.S. waterways, the pipeline could proceed largely on the company’s timeline.

Dakota Access nevertheless also prominently considered another factor in crafting its route: the potential presence of historic properties… Using past cultural surveys, the company devised DAPL’s route to account for and avoid sites that had already been identified as potentially eligible for or listed on the National Register of Historic Places…

Where this surveying revealed previously unidentified historic or cultural resources that might be affected, the company mostly chose to reroute… In North Dakota, for example, the cultural surveys found 149 potentially eligible sites, 91 of which had stone features… The pipeline workspace and route was modified to avoid all 91 of these stone features and all but 9 of the other potentially eligible sites… By the time the company finally settled on a construction path, then, the pipeline route had been modified 140 times in North Dakota alone to avoid potential cultural resources… Plans had also been put in place to mitigate any effects on the other 9 sites through coordination with the North Dakota SHPO [State Historic Preservation Office]… All told, the company surveyed nearly twice as many miles in North Dakota as the 357 miles that would eventually be used for the pipeline…

The company also opted to build its new pipeline along well-trodden ground wherever feasible… In fact, where it crosses Lake Oahe, DAPL is 100% adjacent to, and within 22 to 300 feet from, the existing pipeline… Dakota Access chose this route because these locations had “been disturbed in the past – both above and below ground level – making it a ‘brownfield crossing location.’” …This made it less likely, then, that new ground disturbances would harm intact cultural or tribal features…

Around the time the cultural survey work began, Dakota Access took its plan public… On September 30, 2014, it met with the Standing Rock Sioux Tribal Council to present the pipeline project as part of a larger community-outreach effort… Personnel from Dakota Access also spoke with the Tribe’s Historic Preservation Officer (THPO), Waste’ Win Young, several times over the course of the next month… At one related meeting, a DAPL archaeologist answered questions about the proposed survey work and invited input from Young on any areas that might be of particular tribal interest… The company agreed as well to send the centerline files from its cultural survey to her for review, and did so on November 13… It never received any response from Young…

The Corps’ Tribal Liaison, Joel Ames [also] tried to set up a meeting with THPO Young beginning around September 17, 2014, without success. [There were, in fact,] five attempts by Ames to coordinate a meeting with Young in September 2014). On October 2, other Corps personnel also sought to hold an arranged meeting with the Tribal Council and Dakota Access on the Standing Rock reservation… But when the Corps timely arrived for the meeting, Tribal Chairman David Archambault told them that the conclave had started earlier than planned and had already ended… Ames nevertheless continued to reach out to Young to try to schedule another meeting throughout the month of October… When the new meeting was finally held at the reservation on November 6, though, DAPL was taken off the agenda because Young did not attend…

Then, on October 24, the Corps sent out a letter to tribes, including the Standing Rock Sioux, with information about the proposed work and maps documenting the known cultural sites that the Corps had already identified… These included sites that the Corps considered to be outside the projected area of effect… In addition, the letter requested that any party interested in consulting on the matter reply within thirty days… No response was received from the Tribe… The Corps did receive responses from other tribes and the North Dakota SHPO, which it considered… After granting an extra three weeks for additional responses, on December 18 the Corps made an initial determination of “No Historic Properties Affected” for the soil-bore testing…

The Corps mailed out this decision in a Determination of Effect letter to the North Dakota SHPO and all affected tribes on the same day… The letter explained that the Corps had concluded that no historic properties would be affected by the tests and clarified that a previous “not eligible” determination had already been made for a nearby site that would also not be affected by the work… The Corps also emailed Young again the next day to seek possible dates for a January 2015 meeting with the Tribe to discuss DAPL… No response is in the record…

On February 12, 2015, having still heard nothing from the Tribe, Corps Senior Field Archaeologist Richard Harnois emailed Young again to solicit comments on the narrow issue of the soil-bore testing… several weeks later, on March 2, 2015, the Corps finally received a letter from Young expressing concerns over sites that might be affected by the bore testing… The letter was dated on the same day that the Corps had green-lighted the work.

And, so it went, with one documented attempt after another by the Corps to secure the input of the Sioux, only to be rebuffed or ignored, as if the intent was to set up a future conflict such as now occurring and secure some sort of settlement. Read the highlighted decision to get a sense of just how far above and beyond duty the Corps went to solicit Sioux input. It is litany of unanswered communications, cancelled meetings and failures to offer anything of substance to substantiate the latter’s concerns. Other Native Americans, meanwhile, raised some issues that were easily addressed.

Standing Rock took a different tack. The Tribe declined to participate in the surveys because of their limited scope… Instead, it urged the Corps to redefine the area of potential effect to include the entire pipeline and asserted that it would send no experts to help identify cultural resources until this occurred… In a responsive email, the Corps expressed its regret that the Tribe would not participate and welcomed any knowledge or information regarding historic properties that it was still willing to provide…

It became obvious, in fact, the Sioux wanted to stop the entire pipeline project, not address any real concerns with cultural impacts.

In summary, the Corps has documented dozens of attempts it made to consult with the Standing Rock Sioux from the fall of 2014 through the spring of 2016 on the permitted DAPL activities. These included at least three site visits to the Lake Oahe crossing to assess any potential effects on historic properties and four meetings with Colonel Henderson…

At no point has the Tribe clearly pointed this Court to a specific non-PCN activity – i.e., crossings the Corps permitted – where there is evidence that might indicate that cultural resources would be damaged. The Tribe instead focuses on the potential impact to cultural resources elsewhere along the pipeline. But to show the Corps’ determination was unreasonable, Standing Rock needs to offer more than vague assertions that some places in the Midwest around some bodies of water may contain some sacred sites that could be affected…

The record contains abundant evidence that the Corps also repeatedly sought other input on known cultural sites at these locations, and, in many cases, other tribes conducted site visits to search for any resources likely to be affected by the DAPL work… The Tribe cannot now ask the Court to speculate that there would be a likely injury at these places by claiming that it was prevented from assessing these sites.

That’s pretty clear, isn’t it? If Judge Boasberg, obviously sympathetic to the tragic history of the Sioux can figure it out, why can’t reporters? Yet, we continue to be treated to a completely phony narrative of these events in the press. That is the real story and it’s a huge one.