Robert Wayne Flying Hawk, chairman, Ihanktonwan Nation (Yankton Sioux Tribe). Photo courtesy of the Yankton Sioux Tribe.
Published January 26, 2017
WASHINGTON – On Tuesday, President Trump issued two memoranda directing his Administration to reverse course on the federal government’s stance towards the Dakota Access and Keystone XL pipelines. From these memoranda, it is plain that Trump intends to push both projects through the federal permit and easement process as quickly as possible, with no regard for tribal rights and interests.
In December 2016, following nearly a year of protest at the Standing Rock Camps and around the world, the U.S. Army Corps of Engineers (“Corps”) announced its commendable decision to not approve an easement that would allow the Dakota Access Pipeline (“DAPL”) to cross the Missouri River at Lake Oahe in North Dakota. The Corps also declared that it would require an Environmental Impact Statement (“EIS”) to analyze alternate routes for the pipeline and to conduct a more rigorous environmental review. The Corps published its Notice of Intent to prepare an EIS in the Federal Register last Wednesday, January 18.
Tuesday, however, President Trump issued a memorandum directing the Corps to reverse course. Specifically, the memorandum directs the Secretary of the Army to instruct the Corps to consider withdrawing the Notice of Intent to prepare an EIS for the DAPL Lake Oahe crossing. The memorandum also directs the Secretary of the Army to instruct the Corps to “review and approve in an expedited manner, to the extent permitted by law and as warranted . . . requests for approvals to construct and operate the DAPL, including easements.”
The about-face the President has called upon the Corps to make would evince a clearly arbitrary and capricious agency action in violation of the Administrative Procedures Act. Should the Corps heed the President’s call and withdraw its Notice of Intent to prepare the EIS, the Tribe fully intends to challenge the unlawful action to the fullest extent permitted by law.
The language of the memorandum makes clear that the President is pushing – if not crossing – the boundaries of his authority. President Trump has known ties to the industry partners behind the pipeline project.
Shoving the project through, as his memorandum attempts to do, would avoid necessary environmental review, including consideration of alternative routes. DAPL was originally routed closer to Bismarck, but has since been relocated towards the Standing Rock Sioux Tribe’s reservation lands. As the Yankton Sioux Tribe’s pending lawsuit against the Corps makes clear, and as the Corps ultimately agreed when it published the Notice of Intent for the EIS, the requisite environmental review has not yet been completed. The Environmental Assessment (“EA”) that was prepared fell short of legal requirements. Neither the President nor the Corps has authority to rely on an EA when an EIS has been deemed necessary.
The Lake Oahe crossing was the primary focus of DAPL opposition last year because granting the easement would allow construction of DAPL under Lake Oahe, destroying sacred sites and threatening the sacred waters of the Missouri River. The easement is the last federal approval Dakota Access needs – without the easement, the pipeline cannot be completed.
Trump also revived the Keystone XL pipeline Tuesday, a project that has languished since 2015 when President Obama’s Secretary of State denied it the necessary Presidential permit. Trump’s memorandum concerning the Keystone XL pipeline invites TransCanada Keystone Pipeline, L.P. to re-submit its application for a Presidential permit and instructs the Secretary of State to “take all actions necessary and appropriate to facilitate its expeditious review.”
Both Executive Memoranda urge the respective federal agencies to treat the previously conducted, inadequate environmental reviews as satisfying the consultation duties imposed on the agencies by law. The Yankton Sioux Tribe, however, has never been properly consulted to ensure that its treaty lands and sacred sites are not harmed in President Trump’s haste to complete the pipelines.
As Yankton Sioux Tribal Chairman Robert Flying Hawk explained, “the Executive Memoranda are blatant attempts to violate our rights as Native people. Our right to consultation is meant to protect our treaty rights, our culture, and our spirituality. This attempt to shortcut through the legal process shows disrespect for the law and for Indian tribes. President Trump is setting a poor tone for tribal relations over the next four years.”
The Tribe remains undaunted by President Trump’s actions, whether they are irresponsible overreaching of power or simply arrogant, self-interested moves. The Tribe has battled the Dakota Access pipeline by peacefully protesting at the Standing Rock Camps, filing a lawsuit against two federal agencies that have given approval for the project, challenging the issuance of a state permit in South Dakota, and testifying before the Inter-American Commission on Human Rights. Likewise, the Tribe has been fending off the Keystone XL pipeline through state agency proceedings, a pending appeal in South Dakota court, and countless protests and direct actions over the past several years.
Following Tuesday’s Executive Memoranda, the Tribe will persist in working to protect its aboriginal lands and resources and looks forward to the inevitable defeat of these threats