WASHINGTON, D.C. – On May 13, the U.S. Circuit Court here denied Dakota Access Pipeline’s request for approval to keep its permit while the oil company appeals a ruling that tribes secured cancelling it. Meanwhile, other pipeline operators also faced permit challenges.

The DAPL ruling, handed down January 26, reaffirms a lower court finding that the U.S. Army Corps of Engineers permit for the pipeline to cross the Missouri River was illegal and must be vacated, at least until the conclusion of an environmental impact statement to determine viability.

The Standing Rock, Cheyenne River, Oglala, and Yankton Sioux tribes — in litigation for five years – obtained the court mandate for the environmental review only after the pipeline construction finished and operation commenced. Throughout the legal battle, the courts have rejected or overturned tribal pleas for injunctions to prevent deliveries of crude across the river until the review is done. So the oil still flows.

The route cuts across unceded treaty rights territory and through the Oahe Reservoir, just upstream from the tribes’ drinking water intakes.

“We are gravely concerned about the continued operation of this pipeline, which poses an unacceptable risk to our sovereign nation,” Standing Rock Sioux Tribe Chair Mike Faith reiterated to media in April.

Permit cancellation means DAPL is operating illegally, according to the tribe’s attorneys at EarthJustice.

In that light, the pipeline company told the Court of Appeals for the District of Columbia on April 29 that it intends to seek a Supreme Court review of the ruling. The judges’ May response was to deny the company’s request for a stay of the decision to cancel.

Another oil pipeline that is operating illegally across a major public water body is Enbridge Energy Inc.’s Line 5 beneath the Great Lakes’ Straits of Mackinac, according to Michigan Gov. Gretchen Whitmer. In November, she revoked its state easement there and ordered Enbridge to cease operations by May 12.

The company did not comply. It maintains the State of Michigan lacks the authority to make the call. The dispute remains in federal court, where the Bay Mills Indian Community has filed a friend-of-the-court brief supporting remand to state court.

On May 10, Bay Mills Indian Community’s Executive Council passed a resolution that banishes Line 5 from its reservation, as well as from the lands and waters of its ceded 1836 Treaty territory — including the Straits of Mackinac. The treaty acknowledged community’s infinite right to fish, hunt, and gather in the ceded territory the covering channel between Lake Michigan and Lake Huron.

Banishment is a traditional, historical, and customary form of tribal law that has existed since time immemorial and is only exercised by the tribe when egregious acts and misconduct have harmed tribal citizens, treaty rights, territories, and resources, according to the Native American Rights Fund, NARF.

“Enbridge’s continued harm to our treaty rights, our environment, our history, our citizens, and our culture, is a prime example of how banishment should be used,” Bay Mills Executive Council President Whitney Gravelle told NARF. “Banishment is a permanent and final action that is used to protect all that we hold dear.”

As part of the banishment resolution, the council requested any regulatory bodies with oversight authority to enforce it. The agencies involved include the Chippewa Ottawa Resource Authority, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Sault Ste. Marie Tribe of Chippewa Indians, the State of Michigan, and the United States.

“The pipeline segment beneath the straits has thankfully not burst,” Gravelle observed.

However, in 1999, the pipeline leaked 226,000 gallons of crude and natural gas liquid, forcing 500 residents to evacuate, she recalled. Line 5 has spilled 33 times since 1968, leaking over 1.1 million gallons of oil, according to records. Gravelle hinted that some additional spills may not have been documented.

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Contact Talli Nauman at talli.nauman@gmail.net

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