Event #5: Earthjustice files an Injunction, citing “Illegal Consultation Process” used by Army Corps.
On August 4th, 2016, an injunction was filed on behalf of the Standing Rock Sioux Tribe (Plaintiff) against the Army Corps of Engineers (Defendant) by Jan Hasselman & Stephanie Tsosie on behalf of EarthJustice wherein the following is claimed on pages 10 & 11:
“The § 106 process requires consultation between agencies and Indian Tribes on federally funded or authorized “undertakings” that could affect sites that are on, or could be eligible for, listing in the National Register, including sites that are culturally significant to Indian Tribes. 54 U.S.C. § 302706 (properties “of traditional religious and cultural importance to” a Tribe may be included on the National Register, and federal agencies “shall consult with any Indian Tribe…that attaches religious or cultural significance” to such properties); 36 C.F.R. § 800.2(c)(2). “Consultation is the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process.” Id. § 800.16(f). Consultation must occur regarding sites with “religious and cultural significance” to Indians even if they occur on ancestral or ceded land. Id. § 800.2(c)(2)(ii)(D). An agency official must “ensure” that the process provides Tribes with “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties….articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. § 800.2(c)(ii)(A). This requirement imposes on agencies a “reasonable and good faith effort” by agencies to consult with Tribes in a “manner respectful of tribal sovereignty.” Id. 36 C.F.R. § 800.2(c)(2)(ii)(B); see also id. § 800.3(f) (any Tribe that “requests in writing to be a consulting party shall be one”)…
The ACHP authorizes agencies to adopt their own regulations for implementing its § 106 obligations. Such regulations must be reviewed and approved by the ACHP in order to be valid. Id. § 800.14. The Corps has adopted procedures intended to satisfy its § 106 obligations. See App. C to 33 C.F.R. Part 325. However, those procedures have never been approved by the ACHP, and several courts and the ACHP have concluded that the Corps’ NHPA procedures are legally invalid. See infra at 30...
Tribal leaders first became aware of the proposal to construct DAPL near the reservation in late 2014. The (Standing Rock Sioux of The Great Sioux Nation) Tribe was immediately concerned because of the risk of harm to the Missouri River, which is central to the culture, religion, and economy of the Tribe, and because of the sacredness of the landscapes across which DAPL would traverse. Id.; see Declaration of Tribal Historic Preservation Officer Jon Eagle, Sr.. In particular, the confluence of the Cannonball and Missouri Rivers, the site chosen by DAPL for the pipeline’s crossing of the Missouri at Lake Oahe, is sacred ground to the Standing Rock Sioux. Id.; Archambault Decl., ¶ It is rich in history, and it is rich in cultural and religious significance. Industrial development of that site for the crude oil pipeline has a high potential to destroy sites eligible for listing in the National Register. Eagle Decl., ¶ 40. Water is sacred to the Standing Rock people Eagle Decl., ¶ 25; Archambault Decl., ¶ 8-12. Cognizant of multiple major spills from crude oil pipelines in (No. 1:16-cv-1534-JEB) recent years, the Tribe feared that an oil spill on the Missouri could pose an existential threat to the Tribe. Their concerns were heightened when they learned that the original configuration of the pipeline took it just upstream of Bismarck, North Dakota, but that it was later moved just outside their reservation, thus placing the burden of a potential spill squarely on the Tribe.“
This page is in the making.
On page 17, the document claims:
At various times during the process around DAPL, the Corps has stated that it was proceeding with tribal consultation pursuant to the 2004 “Programmatic Agreement” governing management of the Missouri River mainstem system (“Missouri PA”). Ex. 4. That document acknowledges the sacredness of the river corridor to tribal people: There is a direct relationship between the environment, traditional worship practices, and the continued survival of diverse indigenous groups…. For indigenous Tribal Peoples, the Missouri River is characterized as “The Water of Life” and the very water that created the corridor is considered sacred. When the Army Corps of Engineers built the six mainstem dams on the Missouri River, life for the Indigenous Peoples who called the River home changed immediately and dramatically.”
Page 17, icontinued:
“II. THE CORPS’ FLAWED § 106 CONSULTATION PROCESS
On February 17, 2015, the Corps sent the Standing Rock Tribal Historic Preservation Office (“THPO”) a generic form letter seeking to initiate consultation under § 106 on the Lake Oahe crossing component of DAPL. 6 Ex. 5. The THPO responded immediately and forcefully. Ex. 6. The THPO’s response highlighted the significance of the site to the Tribe and observed
Page 18 of injunction:
“that previous cultural surveys of the area, on which the Corps was relying, were conducted without tribal involvement. The THPO committed the Tribe to full participation in the § 106 process, and “recommend[ed] a full TCP (Traditional Cultural Property) and archaeological Class III cultural Resource Survey to be completed prior to any mitigation that would take place,” using tribal monitors. The Corps did not immediately respond, and in the months that followed, both the THPO and the Tribal Chairman followed up with numerous additional letters to the Corps outlining concerns about cultural impacts, and seeking to engage the Corps in the good-faith consultation process required by § 106. See, e.g., Ex. 7 at 1 (April 8, 2015 letter from THPO) (“To date we have not received any specific communications or correspondence in reference to any of our concerns addressed” in previous letters); Ex. 8 at 1 (August 19, 2015 letter from Tribal Chairman) (“The Standing Rock Sioux Tribe expects the required government-to-government consultation and environmental and cultural resource review processes to be followed with respect to Dakota Access. However, as of the present time, I have not been contacted by your office on this matter.”); Ex. 9 at 2 (August 21, 2015 letter from THPO) (“The SRST THPO is extremely concerned that the exclusion of tribal participation in the § 106 process will result in an incorrect type placement as well as an incorrect National Register status.”). The Corps failed to respond to any of this correspondence until September of 2015, when a second form letter was sent to the Tribal Chairman that, somewhat bizarrely, inquired “if you would like to consult” on the pipeline project. Ex. 10 at 2. The letter asked for any “knowledge or concerns regarding historic properties” that the Tribe wanted the Corps to consider. A deadline of less than a month later was provided. Id. Again, the THPO responded promptly, “
Page 19 of injunction:
“outlining the Tribe’s concerns with significant and unevaluated properties on the site, and its ongoing exclusion from the § 106 process. Ex. 11. The THPO emphasized: Section 106 of the National Historic Preservation Act requires full consultation with the requesting THPO offices at the earliest stages. Our office was not afforded the opportunity to participate in identification efforts. The SRST THPO has not been able to determine the significance of known sites because of exclusion thus far in the Section 106 process, i.e., consultation, identification, and resolution of adverse effects. We remain concerned about the irreparable damage to these known sites that will occur if the ancillary facilities, staging areas, and roads are built without adequate buffers. Id. (emphasis added). The THPO concluded that “it has become clear that the Corps is attempting to circumvent the Section 106 process” and urged the Corps to broaden its review to include affected areas outside the Corps’ jurisdiction as required by governing regulations. After several more months went by without a response, the THPO wrote again, highlighting the lack of response to its repeated concerns. Ex. 12 (“The THPO office is opposed to any work unless a full TCP survey is conducted on the area of potential effect. Our tribe has never surveyed this land and it has specific historical and cultural resources of relevance to our tribe.”). The letter concluded that “We are still waiting to see when this consultation begins in earnest.” The Corps did not respond to this letter either. Instead, its next step was to publish a draft environmental assessment (“EA”) for the Lake Oahe crossing that, remarkably, did not identify the potential impacts of the pipeline project on the Tribe, or refer to any of the extensive correspondence demonstrating the Tribe’s concern for areas of historic and cultural significance to the Tribe. Ex. 13. 7 The Tribe, deeply offended by its exclusion from the draft EA, submitted extensive technical and legal comments on the it, highlighting both the flaws in the § 106 consultation process as well as the significant cultural resources that could be harmed by the “
Page 20 of the injunction:
project. See Archambault Decl., ¶ 16; Ex. 14 at 4 (The NHPA “requires full tribal consultation from the earliest stages of project planning. The Corps should have consulted with the Tribe prior to the start of archeological surveys, and before soil bore testing at the proposed Missouri River crossing – but that did not happen.”); Ex. 15 at 23 (“the proposed Dakota Access pipeline route would pass through an area adjacent to Lake Oahe that is rich in historic and archeological resources, traditional cultural properties, and burial remains.”); Ex. 16 at 4 (“the Corps has mishandled virtually every one of the steps required by § 106”). Another key focus of the Tribe’s EA comments was its failure to address the risk of oil spills in the Missouri on the Tribe. Ex. 14 at 8-16; Ex. 15, 16. The Corps also received critical letters on the EA from the U.S. Environmental Protection Agency, the U.S. Department of Interior, and the ACHP. Ex. 17 at 1 (first EPA letter) (“the scope of the document is limited to small portions of the completed project and does not identify the related effects from the entire project segment”); Ex. 18 (second EPA letter); Ex.19 at 2 (Department of Interior comment) (“[O]ur understanding is that although formal consultation was requested by multiple tribes, tribal consultation has not yet occurred”). In its comment on the EA, the ACHP observed that it had “not been provided evidence that the Corps has met” the requirements of § 106, observing that “there is likely to be significant tribal interest” and that “[t]he Corps’ approach to meeting its government-to-government consultation is extremely important.” Ex. 20 at 2. The ACHP subsequently asked to be made a party to consultation on the project. Around the time the draft EA was released, in mid-December 2015, the pipeline’s proponent sent the Tribe the results of private archaeological surveys conducted by DAPL’s non-
“tribal consultants along the pipeline route during 2014 and 2015. Ex. 21 at 2. 8 Neither the proponent nor the Corps had ever consulted with the Tribe about the protocols for those assessments or the area of potential affects, or had invited their timely participation as the Tribe had repeatedly requested. Instead, the proponent provided the Tribe (and other affected tribes) with a massive quantity of completed survey data, after it was complete, and stated that if there were “questions or concerns” about the material, DAPL representatives could be contacted. Id. Other Tribes whose ancestral lands were crossed by the pipeline’s route were making their concerns known as well. For example, the Iowa Tribe THPO wrote the ACHP to decry a “rushed, chaotic and segmented” approach to consultation and noted that “We have not been consulted in an appropriate manner about the presence of traditional cultural properties, sites, or landscapes vital to our identity and spiritual well-being.” Ex. 22; Ex. 23 at 1 (Iowa Commission on Native American Affairs) (“The route of the proposed pipeline would cut through and damage ancestral lands of religious and cultural significance….”). The THPO for the Osage Nation sent an email to the Commander of the Omaha District stating: “It is quite apparent that there has been a major oversight as the Corps is not in compliance with the NHPA nor the Nationwide Agreement in terms of the tribal consultation on the DAP project.” Ex. 24 at 2; Ex. 43. On March 15, 2016 the ACHP wrote to the Corps again, noting that the agency “remained perplexed” by the Corps’ difficulties in consulting with the Tribe, pointing out that there was no tribal participation in identification surveys and urging the Corps to look at alternative pipeline alignments as required by ACHP regulations. Ex. 25 at 2. The ACHP sent another letter responding to previous correspondence between the Corps and ACHP a few”
“months later. Ex. 26. That letter laid out a number of significant criticisms of the Corps’ compliance with § 106 and made recommendations for additional steps that Corps should take. A third letter, sent to the Assistant Secretary of the Army for Civil Works, discussed a meeting with DAPL proponents, who had described for the ACHP their efforts to conduct cultural resource surveys. Ex. 27. The ACHP informed the Assistant Secretary that the information provided by DAPL “does not change the conclusions outlined in our letters regarding shortcomings in the Section 106 review carried by the Corps and FWS. We continue to disagree with the Corps’ findings regarding effects on historic properties and believe a comprehensive Programmatic Agreement…. be developed.” Id. After numerous requests by the Tribe, Omaha District Commander Col. John Henderson visited the Tribe’s reservation and toured the Lake Oahe crossing site on Feb. 29, 2016. Archambault Decl., ¶ 19. A follow up visit between Corps and Tribal archaeologists occurred on March 7, 2016, during which Tribal staff pointed out places where moles had pushed dirt to the surface, carrying prehistoric pottery shards, pieces of bone, flint, and tools. Eagle Decl., ¶ 13-15; Ex. 28 at 2. Tribal participants in this meeting emphasized the cultural importance of the site, and demonstrated it with specific evidence. As Mr. Eagle described in notes written up shortly after the visit, the Tribe’s Ph.D. archaeologist (Dr. Kelly Morgan) and § 106 coordinator (LaDonna Brave Bull Allard) pointed out that the sites shown to the Corps staff had never been previously assessed or recorded, consistent with the Tribe’s repeatedly expressed belief that the site generally was rich in unassessed sites of historic and cultural significance. Ex. 28 at 2. During this visit Corps archaeologists stated that they were unaware of many of the sites that they were witnessing and agreed with Tribal staff that additional study was required. Eagle Decl., ¶ 14; Ex. 15 at 25 (“Throughout the site visit, the Corps archeologists commented that “
“they had not been aware of many of these sites, and many of the sites did not appear on any of the site maps that were being used by the Corps for the Section 106 analysis. The Corps archaeologists expressed the view that these should be studied and documented.”). However, no such additional study ever occurred. Despite a rich record of correspondence from Tribes and the ACHP concerning major problems in the § 106 process, the Corps concluded the process on April 22, 2016 with a finding that no historic properties were affected by the Lake Oahe decision. Ex. 29 at 9. The letter made it clear that the “area of potential effects” included only the bore pits for the subsurface drilling at the Lake Oahe site, along with staging areas and access routes: “The APE for this project will not include construction for any portion of the pipeline alignment that extends past the bore pit locations.” Id. at 2 (emphasis in original). The letter acknowledged 41 recorded sites within a one mile radius of the bore pit site, some of which lay directly in the path of the pipeline’s construction, or were very close to it. Id.; see also infra at 35-36. It did not acknowledge the Tribal evidence that there were many more unevaluated sites at the location. Both Chairman Archambault and the THPO formally objected to the “no historic properties affected,” again laying out the litany of procedural flaws and legal misinterpretations that infected the process from the start. Ex. 30 at 2 (“To date, none of our requests for consultation or Class III Cultural Surveys have been honored.”); Ex. 31. The ACHP also formally objected to the effects determinations made by the Corps for DAPL. Ex. 32. The ACHP outlined several fundamental flaws with the Corps’ § 106 compliance, including a failure to properly define the undertaking and area of potential effects, inadequate Tribal consultation and incomplete identification efforts, and numerous procedural flaws. The ACHP summarized the flaws in the process: “
“Based on the inadequacies of the tribal consultation and the limited scope for identification of historic properties that may be affected, the ACHP questions the sufficiency of the Corps’ identification effort, its determinations of eligibility, and assessments of effect. The Corps’ effect determinations, thus far, fail to consider the potential for effects from the larger undertaking on historic properties, including those of religious and cultural significance to Indian Tribes. The Corps’ identification effort did not adequately facilitate the use of tribal expertise to assist in the identification of historic properties and assessment of effects. The Tribes have had extremely limited access to some PCN areas…. Id at 4. 9 III. THE CORPS’ JULY 25, 2016 VERIFICATION DECISIONS On July 25, 2016, the Corps issued the final NWP 12 verification required at the roughly 204 sites in the four states for which verification has been requested, including at the Lake Oahe site. Ex. 33, 34, 35, 36. Although none of the verifications mentioned § 106 compliance, they did include a “Tribal Monitoring Plan” that required DAPL to allow tribal monitors at PCN sites when construction was occurring. The Corps also issued a final environmental assessment (“final EA”) and finding of no significant impact (“FONSI”) for the Lake Oahe crossing § 408 permit. Ex. 37 and 38. The Final EA, unlike the draft, acknowledged the risks of oil spills in Lake Oahe, and included some spill response and notification measures as mitigation. The EA also acknowledged that the project area “has a moderate to high probability for archaeological deposits based on proximity to permanent water sources, topography, lack of significant ground disturbances, and depositional processes.” Ex. 37 at 76. Surprisingly, even though the pipeline would pass underneath the Missouri just half a mile upstream of the reservation boundary, in proximity to”
“the Tribe’s public water intake systems, the EA concluded that there will be “no direct or indirect impacts to the Standing Rock Sioux Tribe.” Id. at 86. As required by § 106 regulations, the Assistant Secretary of the Army also formally responded to the ACHP’s objection to its § 106 process. Ex. 39. The Corps disagreed with the ACHP that it needed to consider the impacts of the pipeline outside of the immediate area of its jurisdiction, asserting that under its regulations each of the 204 individual crossings of regulated waters was a separate undertaking. Id., Enclosure at 1. The Assistant Secretary also rejected the ACHP’s conclusion that § 106 consultation was inadequate, observing that “Tribes were notified and invited to participate in the Section 106 process and provide information.” Id. at 2. The letter failed to mention the Tribe’s formal objection to the no effects determination (and the Tribe never received a response to it), and continued to focus exclusively on harm to cultural sites only within the Corps’ interpretation of the exceedingly narrow APE. Id. at 4. For example, even though the Tribe had provided evidence of multiple significant cultural sites around the Lake Oahe crossing, the Assistant Secretary misleadingly concluded that “Field visits conducted with SRST representatives provided no additional information to indicate the presence of TCPs in areas of planned disturbance within the area of potential effects.” Id. (emphasis added).”
The aforementioned injunction may be accessed here: