Army Corps seeks tribal cooperation on DAPL

STANDING ROCK RESERVATION — Energy Transfer Partners, the business behind the Dakota Access Pipeline (DAPL), and the Army Corps of Engineers (ACOE), had a problem. They were ordered to consult with tribes in preparing an Environmental Impact Statement (EIS), but they only wanted objections to be environmental, and not about the threat DAPL posed to sites sacred to the tribe. That was a can of worms the federal government wanted to remain unopened.

“There is no readily discernable reason for ACOE to be working on behalf of Energy Transfer, but they are. There is no readily discernable reason why ACOE can’t be focused on tribal interest, but they aren’t. This alliance of interest is so elementally pervasive that no news source, save this one, reports on it. The respective adversaries, Energy Transfer and ACOE on one side, tribes and environmental protection groups on the other, never bother to address the how and why of their conflict.”

“ACOE feigns cooperative departmental independence and detachment, and all their letters to tribes and official documents stress they are only interested in establishing an outcome that fairly incorporates the input of concerned and affected parties. But what they don’t say is they are intent on facilitating the interests of DAPL and that they fear any NHPA involvement in a consultation process. NHPA is the National Historic Preservation Act of 1966. Especially Section 106 of that Act requiring “each federal agency must consider public views and concerns about historic preservation issues when making final project decisions.”

Previous attempts to establish EIS favorable to DAPL interest have been shot down in court, but ACOE still desires to use these previous studies as foundation for their present development of an EIS. 

NHPA Section 106 consultation is distinct from the government-to-government consultation addressed in President Clinton’s Executive Order 13175. Concerns over environment, impact on water and economy, are topics ACOE are willing to discuss, and include in the scoping process for future EIS. In the introduction of their April, 2021 scoping report draft, the ACOE stated: “The National Environmental Policy Act of 1969 provides for an early and open public process for determining the scope of issues, resources, impacts and alternatives to be addressed in an EIS, referred to as scoping.”

This scoping could include concerns about sacred sites, but only scoping contributor Peter Capposela consistently attempted to address NHPA related issues. The ACOE has good reason for avoiding this issue. While it can’t be argued, even by DAPL supporters that at some point in the pipeline process historical sites will be threatened on a sacred and scientific basis where would this threat begin and end? Certainly, it applies to treaty specified areas, and reservation related interests, but every square inch of the USA proper could potentially qualify as sacred, historically and scientifically significant. Logically, the amount of destruction of sacred sites by the European occupation to this point, is incalculable.

 Not a day passes where some construction or engineering project somewhere in the country doesn’t destroy more. Tribes focus on specific types of threats, to specific areas of concern, but the federal government looks at the larger precedent setting picture. There is not a tribal treaty the United States has not broken, often without even applying the plenary power of a Congressional Act. The inexorable historical imperative, the purpose behind these treaty violations is to take tribal land and resources, to whatever extent the needs and circumstances of the moment dictate. Tribes must be considered adversaries in this dynamic, and federal agencies like ACOE and private companies like Energy Transfer, cannot but be allies in the ongoing exploitation.

On February 21, 2021 ACOE sent a letter to Standing Rock Tribal Chairman Mike Faith, regarding the court ordered DAPL EIS. The letter invited Standing Rock to be a cooperative partner in developing an EIS, but the wording used is telltale: “The Corps invites the Tribe to serve as a cooperating agency based on the specialized expertise the Tribe may possess in the areas of religious and culturally significant practices, hunting and fishing practices, socioeconomics, and environmental justice. This invitation is not a determination that there will be any effect on the Standing Rock Sioux reservation from the proposed action. The potential effects will be assessed during the EIS process. Under the Corps’ Tribal Consultation Policy, the Tribe may seek government to government consultation on issues or effects that are beyond the scope of this invitation. The Tribe may also submit public comments on 

issues or effects outside its designated specialized expertise.” 

Logically, NHPA Section 106 consultation must be within the scope of inquiry since the ACOE chooses to mention “religious and culturally significant practices.” But by limiting the wording to “practices” and not “sites,” they limit the scoping to same. 

Faith responded to the ACOE invitation in a letter dated March, 15, 2021: “The Standing Rock Sioux Tribe will participate as a cooperating agency with the Corps of Engineers’ in the preparation of the EIS for the Dakota Access Pipeline.”

Faith stresses that ACOE has a “limited understanding” of the tribe’s expertise, particularly when it comes to pipeline protection. He also stresses AOCE has not consulted with tribes as policy mandated by Clinton’s EO 13175. He concludes: “The Standing Rock Sioux Tribe takes the NEPA review process for DAPL very seriously, which is why we accept the offer to be a cooperating agency.” But by not mentioning NHPA, he plays right into Energy Transfer’s hand.

No person is more knowledgeable about tribal sacred sites and NHPA and NEPA regulations as they pertain to tribal interest than Standing Rock’s Tim Mentz. He was instrumental in getting sacred tribal sites and burial grounds protected back in the 1990’s, and helped established Tribal Preservation Officers (THPOs), and was the first THPO in the nation. Representing the Elders Preservation Council, Mentz sent out a memo on March 18, 2021. He warned that the tribe carefully consider the language of the ACOE February 17 letter that “the paper trail that already exists on the EIS” demonstrated that cooperating with ACOE was not in the best interests of the tribe.

“On Sept. 10, 2020, the Corps published a Notice of Intent in the Federal Register to prepare the DAPL EIS,” Mentz wrote in the memo. “The Notice stated that in preparing the EIS, the Corps will utilize (1) the 2016 Environmental Assessment, which was struck down by the federal judge; (2) the back-up documents to the Environmental Assessment, used to justify the ‘low risk’ and ‘no significant impact’ findings for DAPL; and (3) the Corps’ Oct. 2019 remand report, which the judge ruled was inadequate. The use of these documents pre-determines the outcome of the EIS – they are using the same analyses that were prepared by Energy Transfer and which supported the findings of low risk and no environmental impact.  By pre-judging the outcome, the Corps is violating NEPA, again.”

The problem facing the Oceti Sakowin at present is this: AOCE, working with the interests of Energy Partners in mind, intends to base the court-ordered EIS concerning DAPL on previous assessments a federal judge ruled inadequate. In addition, ACOE wants to limit the scope of the EIS so that it does not include NHPA considerations, specifically a Section 106 mandated consultation, which they have intentionally conflated with the EO 13175 consultation process. 

Whether tribes can respect and utilize the skill and knowledge of the Elders Preservation Council in addressing this issue remains to be seen. Ideally, the Oceti Sakowin should get on the same page, and work to establish an EIS that addresses every aspect of the DAPL threat to the environment, and to historic preservation, the ultimate goal being an EIS that halts DAPL and sets precedent to stop future DAPL operations from threatening tribal interest.

 

(Contact James Giago Davies at skindiesel@msn.com) 

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