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Dakota Access ready to start transporting oil sooner than expected

Filed Under: Environment | Law | National | Politics
More on: cheyenne river sioux, dakota access pipeline, dc, doj, donald trump, eis, gptca, harold frazier, james boasberg, narf, north dakota, oglala sioux, religion, sacred sites, scott weston, standing rock sioux, treaties, usace, water, yankton sioux

A Dakota Access Pipeline construction site can be seen next to Lake Oahe along the Missouri River. Photo: Indigenous Rising Media

The much-feared Black Snake is getting closer and closer to reality as the wealthy backers of the Dakota Access Pipeline are ready to move oil sooner than anticipated.

During a hearing in federal court on Monday afternoon, an attorney for the firm said crude oil could be placed in the pipeline in 30 days, or even sooner. That's much quicker than the 60- to 90-day schedule that had been offered barely a week ago.

"The company is moving as quickly as it can," attorney David Debold said in Washington, D.C. "It could go faster than what we said last week."

Despite the fast-moving action, the federal judge handling the #NoDAPL lawsuit declined to halt construction activities in North Dakota. The Cheyenne River Sioux Tribe asked for a temporary restraining order, arguing that the presence of the pipeline in the sacred waters of the Missouri River would prevent them from carrying out ceremonies and exercising their religious beliefs.

If the pipeline is installed, "how long will it take them to heal from that?" said attorney Nicole Ducheneaux, herself a Cheyenne River citizen.

"This is a very real and serious prophecy and religious belief of the Lakota people," Ducheneaux said of the repeated comparisons of the pipeline to the Black Snake.

An aerial view of the same Dakota Access Pipeline construction site near Lake Oahe, as seen in early November 2016. Photo: Digital Smoke Signals

But Judge James E. Boasberg didn't close the door entirely on the tribe. He said he would hear arguments on February 27 before he determines whether to issue a preliminary injunction regarding construction.

"There is not imminent harm here," Boasberg said, because oil is not yet flowing along the 1,172-mile pipeline. "There is no immediate, irreparable harm," he added as Chairman Harold Frazier and other Cheyenne River leaders sat in the crowded courtroom.

At the same time, the judge indicated that the tribe's claims under the Religious Freedom Restoration Act (RFRA) face some serious challenges though not because he is doubting the sincerity of Lakota beliefs. At the onset of the hearing, which lasted a little over an hour, he read passages from tribe's motion regarding the Black Snake prophecy and asked for the correct pronunciation for inipi, or the purification and sweat lodge ceremony.

But Boasberg noted that the Trump administration, through the Department of Justice, is opposing the tribe's efforts. A brief filed before the hearing argues that Cheyenne River leaders never brought up religious issues while the Army Corps was reviewing the pipeline.

"The government has a strong policy of accommodating Native American religious practices and protecting religious cultural sites," the submission stated. "But as demonstrated above, Cheyenne River was not diligent in asserting its RFRA claims."

Dakota Access is also strongly resisting attempts to slow down the pace of construction. During the hearing, the firm's attorney said work is moving quicker than expected because significant progress has been made at Lake Oahe, where the pipeline will go underneath the water.

"The Cheyenne River Sioux Tribe had ample opportunity to raise all concerns about the Dakota Access pipeline," the firm said in a filing on Monday. "The lengthy administrative record contains no fewer than half a dozen letters and other communications from Cheyenne River expressing multiple concerns about the proposed pipeline."

It’s not a matter of IF pipelines break, it’s a matter of WHEN. We all have a role to play, in doing whatever it takes...

Posted by Standing Rock Sioux Tribe on Monday, February 13, 2017

Standing Rock Sioux Tribe on Facebook: Pipeline Incidents Since 1986

But the tribe is pushing back on those assertions. During the hearing, Ducheneaux pointed to the arrival of President Donald Trump in Washington on January 20 as a major factor in the tribe's new legal strategy.

Up until January, she said said the tribe believed it would have an opportunity to present its concerns about the pipeline as part of an environmental impact statement, or EIS. That changed when Trump opened the door for his administration to approve the pipeline without conducting the review.

"On February 8, that process was abruptly taken away from the tribe," Ducheneaux said of the day when the Army Corps officially granted the easement to Dakota Access to work on federally-managed land at Lake Oahe.

The Standing Rock Sioux Tribe is also fighting the Trump administration's actions and is planning to submit additional papers as soon as Monday or Tuesday in an attempt to resolve some issues in its favor. The tribe had pushed for the EIS in order to address concerns about treaty rights, sacred sites and water resources in North Dakota.

"We think we can get these resolved on an expedite basis before the turning on of the spigots," attorney Jan Hasselman told the judge.

"We don't want the pipeline turned on," he added.

Separately, the Yankton Sioux Tribe on Monday indicated it was going to seek an injunction against the Army Corps for approving the pipeline. The tribe had essentially put a lawsuit on hold while Standing Rock and Cheyenne River pursued their case but is ready to assert its own claims.

Additionally, the Oglala Sioux Tribe filed its own complaint against the Army Corps on Friday. The new lawsuit asserts that the agency never considered how the pipeline affects the Mni Wiconi Project, a federally approved water delivery system in South Dakota.

The granting of the easement for Dakota Access is "illegal," President Scott Weston said. "The Corps failed to analyze impacts to our rights and our Mni Wiconi Project in its environmental review, and the review it did was otherwise faulty and inefficient," he added.

The Oglala Sioux lawsuit has been assigned to Judge Boasberg, who is handling the Yankton Sioux case as well. In court on Monday, he also accepted a brief from the Great Plains Tribal Chairman’s Association, which represents the 16 tribes of North Dakota, South Dakota and Nebraska.

"History matters," the 22-page brief, which was written by attorneys from the Native American Rights Fund, stated. "The battlefield for Indian tribes of the Great Plains against the United States in their long struggle to uphold the promises secured in the treaties – as the 'supreme law of the land' – has now moved into this federal courthouse."

The submission, which Boasberg said he read before the hearing, is notable for its inclusion of an 1948 Associated Press photo that depicts another dark chapter in Army Corps history. George Gillette, who was the chairman of the Mandan, Hidatsa and Arikara Nation at the time, can be seen crying as his people's lands were taken by the federal government for a massive dam along the Missouri River in North Dakota.

"DAPL is simply the latest example of Native peoples of the Great Plains being subjected to varying legal standards and shifting political winds to justify the subordination of Indian treaty rights to non-Indian pecuniary interests," the brief states.

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)

Federal Register Notice:
Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (January 18, 2017)

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