Another North Dakota tribe battles pipeline company in court

Friday, September 23, 2016  

Lake Sakakawea in North Dakota. Photo by North Dakota Parks and Recreation Department

Another pipeline battle with some familiar players and a familiar setting continues to simmer in North Dakota.

This one involves the Mandan, Hidatsa and Arikara Nation. Tribal leaders are questioning whether the Sacagawea Pipeline should be allowed to run beneath Lake Sakakawea.

Lake Sakakawea, which is part of the Missouri River basin, is located within the boundaries of the Fort Berthold Reservation and the tribe owns the mineral estate under the lake. But the tribe's consent was never obtained.

Despite the questions, Paradigm Energy Partners, the parent company of the pipeline, is winning the battle. An injunction against Chairman Mark Fox and Police Chief Nelson Heart bars them from "unlawfully interfering in any way" with the project.

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Furthermore, Judge Daniel L. Hovland ruled that the tribe lacks authority over the pipeline. He noted that the U.S. Army Corps of Engineers, as the owner of the surface land at the lake, already approved the project.

"To require the surface owner (the Corps of Engineers) or their grantee (Paradigm Energy) to obtain the formal consent of the mineral estate owner (the tribe) before a pipeline is drilled under the lake – which is land within the surface owner’s estate – would contravene decades of oil and gas law," Hovland wrote in the 30-page decision.

The tribe is now asking the 8th Circuit Court of Appeals to hear the case. A motion for expedited review was filed on Wednesday.

"Here, the mineral estate under Lake Sakakawea is undoubtedly held in trust for the MHA Nation by the United States," tribal attorneys wrote. "Thus, [Paradigm Energy] needed tribal consent for any right-of-way or encumbrance upon the tribe’s trust land before [Paradigm Energy] could proceed with the pipeline construction."

A response from Paradigm Energy is due September 28, according to an order issued by the court on Thursday. The Army Corps is not part of the dispute.

According to the tribe, an expedited appeal is crucial because Paradigm Energy needs to complete work before a November 1 deadline. The project is all but complete except for a crucial portion at Lake Sakakawea.

The pipeline is a partnership among different companies -- including Grey Wolf Midstream, which is owned by the tribe.

Separately, the Pipeline and Hazardous Materials Safety Administration, a federal agency, is investigating allegations of shoddy construction underneath Lake Sakakawea, the Associated Press reported.

Read More on the Story:
North Dakota tribes seek review of pipelines under reservoir (AP 9/22)
Federal regulators will visit North Dakota to investigate Sacagawea Pipeline (Forum News Service 9/19)

Judge hears arguments in another pipeline battle in North Dakota (09/01)