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Dakota Access trying to keep oil spill documents from tribes and public

Thursday, March 2, 2017

Authorities are seen evicting the last remaining residents of the #NoDAPL encampment in North Dakota on February 24, 2017. Photo: Rob Wilson [GoFundMe]

With oil set to flow through the Dakota Access Pipeline within a matter of weeks, the project's wealthy backers are still trying to keep key documents away from tribes and the public.

According to the firm, "terrorists" or people with "malicious intent" could use the information to try to damage the costly and controversial pipeline once it becomes operational. But the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and even the Trump administration are calling the concerns vastly overblown.

"Dakota Access has not provided any facts or evidence establishing that it will be harmed by the release of the designated material," attorneys for the U.S. Army Corps of Engineers wrote in a filing on Wednesday.

At issue are 11 documents that have been withheld from the record as part of the ongoing #NoDAPL lawsuit. The tribes have long been calling for the release of the information, which could help them bolster their case against the pipeline and aid them in efforts to protect their communities and the water supply from oil spills.

"DAPL seeks to shield these documents not to keep the public safe from terrorists, but because the documents are embarrassingly inadequate and undermine DAPL’s primary narrative in this case — that oil spill risk can be dismissed without further analysis or independent expert review," attorneys for Standing Rock and Cheyenne River wrote on Wednesday.

The 11 documents are being kept under seal so it's not entirely clear what they contain but Dakota Access has admitted that some of them do in fact address oil spills. A spill would impact the tribes, their treaty territory and their treaty-protected water rights to the Missouri River.

"Certain of the documents — geographic response plans, spill models, and related emergency operations and maintenance documents — contain spill response information," attorneys for Dakota Access wrote in February when they asked for a "protective order" to keep the documents from being seen by others. "That spill response information was developed for purposes of meeting and exceeding the requirements and regulations of the Pipeline and Hazardous Materials Safety Administration," the filing stated.

"Indeed, these documents merit additional protection because they contain information that could assist potential terrorist activity in circumventing pipeline security and response procedures designed to protect public health and the environment," it continued. "The documents containing geographic information likewise contain information which would assist potential terrorists in selecting targets, i.e., potentially vulnerable route locations."

The sparring over the secret documents comes as Dakota Access completes the final portion of the pipeline at a site in North Dakota less than a half-mile from the Standing Rock Sioux Reservation. According to a status update filed on Monday, the firm has already drilled a "pilot hole" under the Missouri and is "reaming" it, or making it larger, in order to place a pipe below the waters.

Oil could be flowing anywhere between March 6 and April 1, although an attorney indicated during a court hearing on Tuesday that the earlier date is unlikely. However, there is a "very high likelihood" that work will be finished by the end of the month, David Debold said.

The uncertainty prompted Judge James E. Boasberg to order Dakota Access to provide 48-hours advance notice before placing crude in the pipeline. The firm is already submitting weekly status updates on its progress, with the next one due on Monday.

That update will be a crucial one, as Boasberg is planning to issue a decision sometime next week on Cheyenne River's request for an injunction to stop oil from flowing through the pipeline. The tribe says the mere presence of the pipe in the Missouri renders the water impure and unsafe for religious ceremonies like sweat lodges and coming of age rites.

"This is their territory," attorney Nicole Ducheneaux, herself a Cheyenne River citizen, said in outlining the tribe's opposition to the pipeline.

Separately, both Cheyenne River and Standing Rock are asking the judge to set aside an easement that was granted to Dakota Access last month by the Army Corps. The easement allowed the firm to resume construction activities on federally-managed land in North Dakota.

The Army Corps took action after President Donald Trump basically ordered his administration to approve the pipeline without further reviews. He did so without consulting either tribe on a government-to-government basis.

The tribes were hoping to address their concerns about oil spills, treaties and water rights through an environmental impact statement, or EIS, of the final portion of the pipeline. The Trump administration terminated the EIS, again without consulting the tribes.

In addition to the court fight, Standing Rock leaders are hoping to galvanize public support with Native Nations Rise in Washington. The event includes a symbolic camp near the Washington Monument starting on March 7 and concludes with a march to the White House on March 10.

Indian Country #NoDAPL Briefs:
Oglala Sioux Tribe (February 21, 2017)
Pueblo of Pojoaque / Association on American Indian Affairs / University of New Mexico School of Law Natural Resources and Environmental Law Clinic (February 21, 2017)
National Indigenous Women's Resource Center / 13 Tribes / 105 Non-Profit Organizations (February 21, 2017)
National Congress of American Indians / 34 Tribes / 11 Tribal Organizations / 2 Civil Rights Organizations (February 22, 2017)

Federal Register Notice:
Notice of Termination of the Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (February 17, 2017)

Prior 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)

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)