At this week’s White House Tribal Nations Conference in Washington DC, Secretary of the Interior Sally Jewell addressed a crowd of more than one hundred Native American tribal leaders and youth leaders. She referred to the legal challenge by EarthJustice and the Standing Rock Sioux Tribe against the U.S. Army Corps of Engineers regarding the Dakota Access project’s tribal consultation process as well as the federal permit reconsideration and the protests in North Dakota. Below are some points worth clarifying.
1. The tribal consultation process was deemed compliant by a federal judge.
Secretary Jewell noted that the tribe’s case hinged on “real concerns expressed about whether that consultation was genuine or a check-the-box exercise.” However, this is contrary to the findings of U.S. District Judge James Boasberg, who reviewed the case thoroughly and foundthat the U.S. Army Corps complied with its obligation to consult with the tribe.
2. Retroactive reconsideration of “previous decisions” by federal agencies is unprecedented and sets a bad precedent.
“I appreciate that the Army Corp., the Department of Justice, and the Interior Department have announced a pause while the Army thoroughly evaluates whether to reconsider the previous decisions made concerning that project and the Lake Oahe site near Standing Rock.” [Secretary Jewell, 5:07]
Secretary Jewell noted her appreciation for the reconsideration underway by the U.S. Army Corps and Departments of Interior and Justice of a federal permit authorizing construction issued in July by U.S. Army Corps of Engineers. But review of the “previous decisions” creates a troubling precedent for future infrastructure projects.
The Dakota Access pipeline is nearly 60% complete and fully met qualifications for all legal permits during its more than two-year review process. According to Judge Boasberg, “Lake Oahe is of undeniable importance to the Tribe…even here, though, the Tribe has not met its burden to show that DAPL-related work is likely to cause damage.” The action taken by the federal agencies is unwarranted and will have a chilling effect on infrastructure projects as a whole if continued.
3. Protests in North Dakota are not peaceful as some have claimed.
“I also want to acknowledge the unprecedented solidarity that so many of you across Indian country have shown to the Standing Rock Sioux through prayerful and peaceful assembly” [Secretary Jewell, 4:50]
The ongoing protests have not been peaceful and in many cases have been wholly unlawful. Law enforcement officials and pipeline workers fear for their lives, North Dakota community members have been threatened, and protestors have assaulted numerous security personnel. Just this past weekend, the Morton County Sheriff’s Department announced that approximately 200 protestors assaulted pipeline personnel, carrying one security guard more than 100 yards before he was treated by paramedics. In addition, the protests violate the law regarding trespassing on both federal land (previously without a permit) as well as private land. As of August, the project secured 100% of private land easements in North Dakota, South Dakota, and Illinois, with 99% obtained in Iowa.