Dakota Access Pipeline – Page 9

Enbridge pipeline litigation, and its (potential) impact on tribal treaty rights in the Great Lakes

September 19, 2016September 19, 2016bryannewland

In 2010, Enbridge Energy Partners’ Line 6 Oil Pipeline burst near the Kalamazoo River in southern Michigan, spilling 1.1 million gallons of crude oil into the Kalamazoo River system. At the time, it was the worst inland oil spill in the history of the United States. Later that same year, another Enbridge pipeline burst in Illinois, spilling crude oil into a tributary of the Des Plaines River.

On July 20^th of this year, the U.S. Department of Justice and the Environmental Protection Agency filed a lawsuit against Enbridge the U.S. District Court for the Western District of Michigan relating to those spills under various federal statutes – along with a proposed Consent Decree. A Consent Decree is a negotiated court order; and, once entered by the Court, has the force of law.

That Consent Decree addresses a number of issues, and requires Enbridge to take steps to improve the safety of its pipelines – a worthy objective. But, the Consent Decree also addresses Enbridge’s Line 5 Pipeline in northern Michigan in a manner that potentially impacts tribal treaty rights.

The Line 5 Pipeline carries oil through Michigan’s Upper and Lower Peninsulas. To do so, it crosses the bottom of the Straits of Mackinac, which is a narrow stretch of water between Michigan’s two peninsulas, and it links Lake Michigan to Lake Huron. In normal winters, the Straits of Mackinac are completely covered in ice for three months.

This pipeline has been in operation since 1953, and has become increasingly controversial due to its age, Enbridge’s safety record, and the fact that Enbridge has not complied with its requirements to maintain structural supports for the pipeline on the bottom of the Straits. The State of Michigan has been reviewing the pipeline for the past several years, as a number of citizens and groups have called for it to be shut down. A number of Indian tribes have expressed concern about the pipeline, and its potential impact on the Great Lakes and the tribal fishery. NCAI has adopted a resolution in opposition to the Line 5 Pipeline.

A rupture of Line 5 at any time could result an a catastrophic oil spill in the Straits of Mackinac that would impact both Lake Michigan, Lake Huron, and other connected waters. A rupture in the winter would be even more devastating, because containment and cleanup efforts would be made harder by the ice covering the Straits. A spill would also have an unknown impact on the fishery in Lake Michigan and Lake Huron.

Five of the twelve federally-recognized Indian tribes in Michigan are parties to the 1836 Treaty of Washington, which reserved off-reservation hunting and fishing rights throughout the ceded territory, which comprises approximately 40 percent of present-day Michigan – including in Lake Michigan and Lake Huron. The Straits of Mackinac are located in the center of that ceded territory.

In 1973, the United States Department of Justice filed a lawsuit against the State of Michigan on behalf of the Bay Mills Indian Community to enforce the 1836 Treaty. In 1979, Judge Fox of the United States District Court for Western District of Michigan issued the “Fox Decision,” which upheld the continued existence of tribal fishing rights in the Great Lakes under the Treaty of 1836.

In 1985, the Department of Justice, the 1836 Treaty Tribes, and the State of Michigan negotiated a consent decree to govern how tribes would exercise those rights. The parties negotiated a new consent decree in 2000, which expires in 2020. The parties – the United States Department of Justice, the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little River Band of Ottawa Indians, the Little Traverse Bay Bands of Odawa Indians, the Sault Ste. Marie Tribe of Chippewa Indians, and the State of Michigan – are set to begin negotiations soon on a new consent decree in United States v. Michigan to replace the decree that expires in 2020.

Enbridge’s Line 5 Pipeline was/is certain to be a topic of discussion during those negotiations. There are many members of the five treaty tribes who are commercial fishermen, and depend upon the Great Lakes fishery for their livelihood. Many of those tribes have tourism-based economies that depend on the Great Lakes. The cultural importance of the Great Lakes to the Tribes does not require explanation. Leaders of the Tribes have been vocal about their concerns with the Line 5 Pipeline, and its potential to harm tribal cultural and economic resources.

The Department of Justice serves as the law firm for the 1836 Treaty Tribes during the consent decree negotiations (after all, the case is captioned United States v. Michigan). The same lawyers within the United States Attorney’s Office in the Western Michigan District who participated in the United States v. Enbridge negotiations are also representing the 1836 Treaty Tribes in negotiations under United States v. Michigan.

Those tribes were caught off-guard by the Department of Justice’s proposed consent decree with Enbridge Energy Partners, and its provisions related to the Line 5 Pipeline crossing. The Department of Justice and the EPA did not consult with the 1836 Treaty Tribes about how their negotiations would affect their treaty fishing rights.

The oil spill that gave rise to the Department of Justice’s lawsuit against Enbridge occurred near Marshall, Michigan – 275 miles south of the Straits of Mackinac. There was no indication to the 1836 Treaty Tribes that the Department of Justice’s and the EPA’s negotiations with Enbridge would address the Line 5 Pipeline. In fact, the proposed consent decree in United States v. Enbridge does not mention the words, “tribe,” “tribes,” or “treaty.”

Last month, the Grand Traverse Band of Ottawa and Chippewa Indians filed a pleading in that case objecting to the proposed Consent Decree and demanding that the federal agencies consult with the 1836 Treaty Tribes on the provisions related to the Line 5 Pipeline. That pleading is here: tribe-objects

Without further action or amendment, the proposed Consent Decree in United States v. Enbridge could take effect. In practical terms, that could limit the ability of the Department of Justice to seek additional protections on behalf of its tribal clients in upcoming consent decree negotiations in United States v. Michigan.

The Department of Justice has published notice that it will accept public comments on the proposed consent decree in United States v. Enbridge until October 21, 2016. The Federal Register Notice is here.

That notice was published on the very same day that the Department of Justice published a separate statement announcing a temporary halt to the construction of the Dakota Access Pipeline.

Court of Appeals for District of Columbia Grants Administrative Injunction In Standing Rock Sioux v. Army Corps

September 16, 2016September 17, 2016Kate Fort

Here.

ORDERED that Dakota Access LLC be enjoined pending further order of the court from construction of the Dakota Access Pipeline for 20 miles on both sides of the Missouri River at Lake Oahe. The purpose of this administrative injunction is to give the court sufficient opportunity to consider the emergency motion for injunction pending appeal and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2016).

Pleadings here.

Map here.

Standing Rock v. Army Corps Update: Emergency Motion for Injunction Pending Appeal

September 16, 2016September 16, 2016Sarah M Donnelly1 Comment

Download(PDF):

Plaintiff’s Emergency Motion for Injunction Pending Appeal

Federal Defendants’ Opposition to Plaintiff-Appellant’s Emergency Motion for Injunction Pending Appeal

Intervenor-Defendant’s Opposition to Emergency Motion for Injunction Pending Appeal

Link: Previous coverage

Gabe Galanda’s Interview on Pipeline Protest with Seattle Public Radio

September 13, 2016Sarah M Donnelly

Links:

Seattle lawyer explains why the North Dakota pipeline protests mark a historic moment

A RESOLUTION proclaiming the City of Seattle’s Support for the Standing Rock Sioux Tribe’s Opposition to the Construction of the Dakota Access Pipeline

Fletcher Law360 Commentary: “The Right Side Of History: Obama’s Administration And DAPL”

September 12, 2016Matthew L.M. Fletcher1 Comment

Here:

The Standing Rock Sioux Tribe, hundreds of Indian tribes that support its position, and the thousands of Indians that stand by its side in Cannonball lost an important ruling by a federal court on the Dakota Access Pipeline fight (DAPL), only to learn minutes later that the Obama administration, the defendant in Standing Rock Sioux Tribe v. United States Army Corps of Engineers, would dramatically reverse its position and grant most of the relief requested by the tribe.

Indian tribes and their people often speak about taking history into consideration in making important decisions. Tribal advocates are well known for delving into the history of their tribal communities in briefings and in testimony before trial judges, sometimes to the other parties’ consternation or confusion. It makes sense though, because many tribal claims are rooted in treaty language negotiated 150 years ago or more. Federal and tribal laws on membership or trust land acquisitions, for example, sometimes make little sense unless one knows, say, the history of removal or allotment or termination.

Tribes look to the future, too. We know this because those same treaties of the 18th and 19th centuries are evidence that those tribal leaders were thinking about the future, and even the ultimate fate of Indian people. Those treaties are the source of the federal government’s obligation to protect Indian lands and resources, and to provide government services such as education and health care.

The tribal leaders of today are also looking to the future in a series of federal court cases that derive from tribal treaty rights, the DAPL case just one of many. In the culverts subproceeding ofUnited States v. Washington, Pacific Northwest tribes who are signatories to the so-called Stevens treaties of 1855-1856 are litigating a massive treaty rights suit to protect the habitat of the anadromous fish from the culverts that cut off streams in which the fish migrate and spawn. The Penobscot Nation is litigating for the right to enforce and regulate its hunting and fishing rights on the Penobscot River in Penobscot Nation v. Mills. The Oklahoma Chickasaw and Choctaw Nations just reached a water rights deal with the state of Oklahoma. The next big treaty rights fight may be ever the Enbridge Line 5 pipeline, a practically ancient pipeline that runs under water at the Straits of Mackinac and is an environmental catastrophe in the making.

These are forward-looking suits that tend to complicate the notion of the adversary system. In these suits — and frankly nearly all Indian treaty rights suits — Indian tribes are acting both as self-interested plaintiffs and as legal actors seeking to preserve the public trust in our environment. All of the treaty claims noted above are about water — the Oglalla Acquifer under the DAPL, for example. These claims benefit everyone.

The Standing Rock suit is just the opening salvo in what will become a much larger suit, especially as other tribes join in asserting treaty rights. So far, the suit is only about the U.S. Army Corps of Engineers’ alleged failure to engage in tribal consultations tribes affected by the pipeline as its crosses federal lands (and possibly tribal lands) under the National Historic Preservation Act (54 U.S.C. § 300101 et seq.). Now, the legal fight is focused on the impact the pipeline construction is having on historic and cultural sites, and the fight on the ground has turned ugly as pipeline construction workers began tearing into these sites, allegedly, to destroy them before they could be entered into evidence. Pipeline employees have also attacked protesters with dogs and pepper spray. It is perhaps these actions by a ham-fisted energy company that has spurred on the federal government’s decision to slow down the DAPL construction, the same week President Obama called climate change trends “terrifying.”

Pepper spray and even Indian gravesites, relatively speaking, are small potatoes, given that the ultimate goal of the tribe and its supporters is to protect its water supply for the indefinite future, and possibly push back against climate change, too. The precedent here is the Obama administration’s rejection of the Keystone XL pipeline in 2015.

We may see these issues play out as tribal interests, perhaps with federal backing, make the case to federal courts for injunctive relief against DAPL and other pipelines, attempting to prove that the tribal interests and the public interests are the same. All too often, adversaries to tribal interests attempt to paint tribal interests as foreign to American public interests. Ironic as it may sound, federal courts tend to side with tribal adversaries. It would appear that the lame-duck Obama administration is joining Indian tribes on the right side of history. We shall see if the courts follow.

—By Matthew L.M. Fletcher, Michigan State University College of Law

Great Plains Tribal Chairmen’s Assn. Letter re: Civil Rights Violations against DAPL Protesters

September 12, 2016Matthew L.M. Fletcher

Here:

9816-gptca-lettertousag

Feds Deny Approval of Construction of the DAPL on Lands that Border Lake Oahe [corrected headline]

September 9, 2016September 9, 2016Matthew L.M. Fletcher6 Comments

Here is the United States’ press release:

JOINT STATEMENT FROM THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT OF THE INTERIOR REGARDING STANDING ROCK SIOUX TRIBE V. U.S. ARMY CORPS OF ENGINEERS

WASHINGTON – The Department of Justice, the Department of the Army and the Department of the Interior issued the following statement regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers:

“We appreciate the District Court’s opinion on the U.S. Army Corps of Engineers’ compliance with the National Historic Preservation Act. However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain. Therefore, the Department of the Army, the Department of Justice, and the Department of the Interior will take the following steps.

“The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution. In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

“Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

“Finally, we fully support the rights of all Americans to assemble and speak freely. We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence. Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities. The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety.

“In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites. It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”

Standing Rock’s Request for an Injunction Denied

September 9, 2016September 16, 2016Matthew L.M. Fletcher2 Comments

Here:

memorandum-opinion-09_09_2016

Atlantic: “The Legal Case for Blocking the Dakota Access Pipeline”

September 9, 2016Matthew L.M. Fletcher

Here.

Subtitled: “Did the U.S. government help destroy a major Sioux archeological site?”

An excerot:

“These are valid claims and, as alleged, they are strong claims,” says Sarah Krakoff, a professor of environmental resource and Indian law at the University of Colorado Boulder. “These [federal provisions] are intended to slow this process down, so that they can make sure the right environmental decision is being made.”

She added, “the Clean Water Act has substantive provisions that prefer good environmental outcomes to bad. And the proximity of this pipeline to their main water source does make their legal case stronger than some I’ve seen.”