As the winds of misinformation and confusion blow strong again, we offer this legal, regulatory, and frontline update on the fight against the Dakota Access pipeline.
Permits, Delays and Re-routes
Our understanding is that the Obama administration did indeed indicate on Friday, November 11, that they intended to issue the final easement for the Missouri River crossing on Monday, November 14, with additional safety measures meant to slightly improve a project the Trump administration will inevitably push forward. A full day of frantic advocacy later, the administration seems to have changed their tune and by Friday afternoon was insisting that no decisions had been made. We expect some kind of decision very soon. We have seen no indication that the administration plans to do the right thing – conduct a full Environmental Impact Statement and a full survey of cultural resources, through formal nation-to-nation consultation with impacted tribal governments, as required by federal law and as demanded by the tribes and their allies for months. Recently, the Sierra Club, Honor the Earth, and the Indigenous Environmental Network submitted a letter to the Army Corps spelling out the requirements of the National Environmental Policy Act and the National Historical Preservation Act in this situation. In addition to the Army Corps’s grossly inadequate initial review, DAPL’s intentional and anticipatory destruction of sacred sites on September 3, in order to circumvent their protection, triggers a clause in the NHPA that explicitly prohibits the Army Corps from issuing any more permits.
photo by Rob Wilson Photography
The Obama administration did not re-route the pipeline and aside from his casual comment in a TV interview, there is no material evidence that the administration is considering doing so. The only re-route of this pipeline was in 2015, when the predominantly white city of Bismarck, ND decided that the risk of contamination to their water source was too great, so they moved the pipeline to just outside the Standing Rock Sioux Reservation, where it is now poised to cross the Missouri River less than a mile upstream of the tribe’s water intake valves. Although it is significant that Obama may be starting to acknowledge the environmental racism in that decision, the administration has never fully stopped construction, countless sacred sites have already been desecrated, and the project is essentially complete except for the river crossing. This historic movement and unprecedented display of intertribal solidarity has never once called for a re-route. The possibility of a re-route is meaningful primarily to the extent that it could open up the project to potentially more stringent environmental review than the absurd rubber stamp job the Army Corps did originally.
On November 1, the very same day Obama made that re-route comment, the US Army Corps of Engineers sent a letter to Morton County Sheriff’s Department asking them to arrest people for camping on (what they claim is) Army Corps land outside the main encampments, north of the Cannonball River. On Thursday, November 3, water protectors were attacked with rubber bullets and pepper spray while standing unarmed in the water, as they tried to cross Cantapeta Creek to access the sacred burial grounds of the Indigenous women who once owned that land. On Friday, November 4, USACE Colonel John Henderson visited Standing Rock and made some casual comments implying that he would rescind that request to Morton County, but to our knowledge, this has not happened. So USACE’s authorization of violence to forcibly remove people from the sacred burial grounds near the construction sites is still in place. The Army Corps did not order Morton County to stop attacking and arresting us. On Sunday, November 6, a group of people attempted to climb the hill containing the burial grounds again, and were met with tear gas.
Apparently, during his visit Colonel Henderson also made various confusing remarks about a 30-day delay before issuing the permit for the river crossing, and then a 45 day comment period, but it is unclear what he meant by any of this. There is currently no 30 or 45 day delay in the works, and there has been no order to stop construction. We repeat: there has never been a full stop to construction. The Army Corps and has repeatedly asked DAPL to voluntarily cease construction and the company has consistently ignored these requests. The promise of delay and further review is one of the most common State tactics for pacifying a strong social movement with concrete demands.
DAPL does not have the permit they need to bore under the river, but on November 8, they issued a strong statement indicating that they are now mobilizing the drilling equipment and intend to start drilling as soon as it is ready, even without the permit. It is not clear what the consequences of that would be, but for a project of this size it is hard to imagine a financial penalty large enough to matter much, or a sudden reversal of law enforcement’s loyalties.
On November 11, DAPL issued a second statement explaining that they had repeatedly offered to temporarily suspend construction if the Corps would promise them a concrete date for completion of the project, and that “the Corps has steadfastly and repeatedly rejected that offer.” The statement also said that the administration’s grounds for delaying and reviewing the final outstanding easement “are unclear and reek of political interference” and that the company is “left with no choice” but to proceed.
Tribal Legal Update
Meanwhile, the Standing Rock Sioux Tribe's lawsuit against the US Army Corps of Engineers is slowly creeping along, without much likelihood of a meaningful impact on the completion of the project. The primary lawsuit is pending in District Court. Simultaneously, Standing Rock is asking the Court of Appeals to temporarily halt construction of certain portions of the pipeline until the district court issues its final decision. That decision is also pending. This month, the Standing Rock Sioux Tribe is hosting its own series of public hearings on the reservation to gather public comment and expert witness testimony on the environmental and cultural impacts of the project.
In the primary lawsuit, Standing Rock argues that the Army Corps violated federal environmental and historic preservation laws when it granted DAPL permits to cross the Missouri River, and is asking for the permits to be permanently revoked. This lawsuit is still in its discovery phase. The Corps filed the administrative record on November 10th and a status conference is scheduled for December 9, but the trial has not yet been scheduled.
In addition to its lawsuit, Standing Rock asked for a preliminary injunction, to require the Corps to temporarily withdraw the DAPL permits until the District Court issues its final decision. This move was based purely on violations of historic preservation law, not violations of environmental law, because Standing Rock was trying to protect its sacred sites from being destroyed before the District Court could make its decision.
The District Court denied this motion in early September, and Standing Rock appealed that decision to the D.C. Circuit Court of Appeals. While the appeal was being heard, Standing Rock also asked for an “emergency injunction pending appeal,” which would stop construction in certain areas until the D.C. Circuit Court of Appeals decided whether the District Court was wrong to deny the preliminary injunction. The D.C. Circuit Court of Appeals denied the motion for an emergency injunction, but has not yet decided whether the District Court should have granted a preliminary injunction – that appeal is still pending. Oral argument has not been scheduled yet, but dispositive motions are due to the court by November 25, 2016.
The Cheyenne River Sioux Tribe intervened as a plaintiff in the District Court lawsuit, raising additional environmental and historic preservation claims. The Army Corps must respond to Cheyenne River’s filing by December 19, 2016. The Yankton Sioux Tribe filed its own lawsuit against the Army Corps, raising issues of treaty rights, federal trust responsibilities, and international law. The Army Corps response is expected in mid-November.
Direct Action Legal Update
Direct actions to stop the pipeline continue. Approximately 500 people from this encampment have been arrested so far, and law enforcement continues to escalate their tactics. Almost all of the 142 people arrested on October 27 faced bonds of $1,500 each, and have been charged with ludicrous felony charges.
Arrestees have had a huge range of experiences, and it keeps getting worse. Some have been bonded out for a reasonable amount of money in just a few hours. Others have stayed in for days and been tortured and abused. Many have been told their personal property was “lost.” Many have faced trumped up charges and inflated bonds. This is partly an intimidation tactic by Morton County and partly an attempt to seize as many of our financial resources as possible.
Arrestees have reported numerous experiences of abuse and torture while in police custody. Folks have been strip-searched for misdemeanor charges, and there are reports of women left naked in their cells and harassed by male guards. Others have had hoods placed over their heads, been incarcerated in dog kennels due to lack of cell space, or marked with numbers on their skin. Amnesty International classifies these practices as “cruel, inhuman, and degrading treatment (CID),” which is illegal under international and U.S. law. Water protectors who locked themselves to construction equipment have also reported the use of waterboarding and pain compliance techniques such as zip-tying people in contorted positions for hours at a time. These are internationally recognized as methods of torture.
Tipis and sweat lodges have been destroyed, elders and children have been dragged out of ceremonies, bitten by DAPL private security attack dogs, and beaten by police. Law enforcement claims they are stopping violent riots. But the truth is, these are military-style assaults on peaceful, unarmed people. Water protectors are attacked with chemical mace, rubber bullets, beanbag rounds, concussion grenades, a long-range acoustic device (LRAD), and tasers. Snipers aim rifles with silencers from the tops of armored vehicles, and federal soldiers in the hills point assault rifles. Horseback riders have been shot with rubber bullets while in full gallop, and one horse was hit with live rounds and killed. This has become a war zone, but one side has all the weapons. You can see examples of video footage here and here documenting the brutal October 27 crackdown to clear the “1851 Treaty Camp,” established in the direct path of the pipeline as a reclamation of unceded land affirmed in the 1851 Treaty of Ft. Laramie as sovereign territory of the Great Sioux Nation.
Law enforcement from at least eight other states have been sent here to assist with the violent crackdowns on peaceful demonstrations. They are sent through the Emergency Management Assistance Compact, which was designed for natural disaster situations. In 20 years of operation, EMAC has only been used twice for protest purposes – in the Baltimore rebellion after Freddie Gray’s murder and here at Standing Rock. Its use here was made possible by Gov. Jack Dalrymple’s declaration of a State of Emergency, which was itself a gross misuse of funding and powers intended for natural disaster relief. DeSmogBlog did an excellent piece on this. We encourage people in other jurisdictions sending troops to demand their elected officials put an end to this violence. According to Morton County, they have received assistance from 24 counties, 16 cities, and 9 states.
Direct Action Legal Defense
The Water Protector Legal Collective is the dedicated legal team on the ground at the encampment providing legal support for all water protectors arrested resisting the pipeline, with support from the National Lawyers Guild. Dozens of attorneys, firms, and civil and human rights groups across the country are assisting. Many other groups on the ground here support this effort, as expressed in this solidarity statement. The Sacred Stone Legal Defense Fund is used for direct support of those arrested – bail, fines, court costs, vehicle impoundment, defendant travel, attorney fees, etc. Remaining funds may be used in civil cases against industry, law enforcement, private security firms, or other parties responsible for human and civil rights violations. Direct contributions can be made to this fund via PayPal to firstname.lastname@example.org to reduce processing fees or via paper check to “The Freshet Collective” at PO Box 6521, Minneapolis MN 55406.
The Water Protectors Legal Collective maintains a legal support tent at the camp, consults with people while in custody, and posts bonds. They also help defendants secure legal counsel and coordinate the preparation of a long list of civil lawsuits. So far, we have spent about $400,000 of grassroots money just to get people out of jail. No one donated $2.5 million to the legal defense fund. We suspect that the false reports of that donation were part of a State and industry strategy to dampen fundraising efforts and stifle the movement.
Where do we go from here?
As the brutal, militarized response and judicial crisis continues to escalate, and as the violations of civil, constitutional, and human rights continue, the Obama administration’s lack of intervention is indefensible. It is unclear what is going to happen. All we can tell you is that we will be here until the end, and we will do everything in our power to protect this land, this water, and all the beings who depend on it. Please continue to stand with us.