Jan Hasselman, lawyer for the Standing Rock Sioux Tribe, filed a motion on February 14 in D.C. District Court for an expedited summary judgment that would overturn the United States Army Corps of Engineers’ (USACE) approval of the permit for the Lake Oahe easement that allowed the resumption of the work on the Dakota Access Pipeline (DAPL).
He called the Lake Oahe easement permit’s approval “hasty…arbitrary, capricious, and contrary to law,” and meant to line the pockets of President Donald Trump and his associates who have investments in the pipeline, and accused USACE of approving the permit without completing an Environmental Impact Statement (EIS) and without consideration of tribal treaty rights. The Standing Rock Sioux Tribe seek to effectively block the pipeline from going into operation, which could be within as few as 30 days.
Characterizing a potential spill of oil from the proposed 1,172-mile pipeline as “an existential threat to the tribe’s rights, culture, and welfare…” the filing argues that completion of the pipeline, would “fundamentally undermine its treaty-protected rights to the integrity of its homelands and the waters that sustain the tribe.”
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In his motion, Hasselman cited “a long and troubling history of the United States government failing to honor the tribe’s treaty rights” going back to the Fort Laramie Treaty of 1851. In that treaty, the United States recognized the “expansive territory” that comprised the Great Sioux Nation in exchange for the tribes, the Sioux included, establishing peace and recognizing each other’s distinct territory. That promise lasted until gold was discovered in the region, and it was overrun by immigrants. The Fort Laramie Treaty of 1868 was an intended fix, but in spite of assurances of “absolute and undisturbed use and occupation” for the Standing Rock Sioux Tribe, along with additional land, and a prohibition of white settlement within Sioux territory unless permitted by the tribe, gold miners were allowed to trespass without impunity onto Sioux land. To add injury to insult, the United States government destroyed their buffalo and ordered the Sioux to abandon the hunting grounds. Subsequent treaties – in 1877 and 1889 – reduced the reserved area for the tribe to a fraction of its original size.
In 1944, the Army Corps of Engineers built five dams along the Missouri River when the Flood Control Act was implemented. Another 56,000 acres – land that supplied some 90 percent of reservation timber as well as plants, animals, and land essential to tribal dietary and religious practice was stripped from the tribe along the Missouri River in 1958.
This ultimately left the Standing Rock Sioux Tribe with about 3,500 square-miles of territory, with Lake Oahe running its course on its eastern border. Winters v. United States (1908) gave the tribe “paramount water rights to the Missouri River.”
Today, the Standing Rock Sioux Tribe relies on Lake Oahe and its rivers for both physical and spiritual nourishment, so any fouling of its waters takes away from their ability to provide not only for their families, but to feed their faith.
Trust lies at the heart of the case, and there is precious little left between the Standing Rock Sioux Tribe and the United States government, even more so with the Lake Oahe easement announcement.
According to the motion, the Standing Rock Sioux Tribe had expressed concerns about the pipeline routing to DAPL before it applied for permits. By December 2015, USACE had released “a deeply flawed draft environmental assessment (“EA”), according to the motion, prepared by DAPL. There was no mention of the impacts on tribal treaty rights or other concerns raised by the tribe, nor any assessment of the risks of oil spills. Worse, the draft EA didn’t even identify the tribal reservation on its maps.
Hasselman’s argument has four parts, all which claim that previous USACE actions were arbitrary, capricious, and illegal:
- The Corps Failed to Provide a Reasoned Justification for Disregarding the Findings and Circumstances Underlying the December 4 Decision.
- The Lake Oahe Easement Decision and Other Authorizations Violate the Corps’ Trust Responsibility to Fully Understand and Protect The Tribes’ Treaty Rights.
- The Oahe Crossing Does Not Qualify for Streamlined Nationwide Permit Status.
- The Court Should Vacate the Lake Oahe Easement and Permit Decisions.
Hasselman is arguing essentially that, “[Trump’s] Presidential Memorandum [of January 24] did nothing to change the legal standards applicable to the Corps’ NEPA [National Environmental Policy Act] review of the pipeline, nor could it. “Under NEPA, federal agencies are required to prepare an EIS for ‘major Federal actions significantly affecting the quality of the human environment,’” which they did not do. This, he charged, “deprived the tribe and the public of [opportunities provided by the EIS process], and made a critical decision based on the applicant’s untested assurances that the risks and impacts were low.” And it never addressed the United States’ trust and treaty obligations to the tribe, which an EIS would have ferreted out.
USACE lawyers have three weeks to respond to the motion.