To Understand Dakota Access Pipeline, Understand ‘Laches’

You could choose “Monday,” the day that oil could start to flow through the Dakota Access Pipeline.

You could choose “protest.” Or “Trump.”

But if we had to choose the one word that best sums up the conflict over the pipeline, it would be this one:

“Lache.”

Never heard of it? Neither had we—until we read U.S. District Judge James Boasberg’s opinion last week, in which the Obama appointee denied the Standing Rock and Cheyenne River Sioux tribes’ request to stop construction of the pipeline’s last link.

And Boasberg’s opinion centers on that word, “lache.” So let’s take a look at this word, which is little-known outside of legal circles but hugely useful in its descriptive power.

A lache is the doctrine that “a legal right or claim will not be enforced if a long delay in asserting the right or claim has hurt the opponent as a sort of ‘legal ambush,'” Law.com explains.

Continue Reading >>


Court Rejects Bid to Halt Construction of the Dakota Access Pipeline

A federal court denied Tuesday the latest attempt by opponents to stop construction of the Dakota Access Pipeline, which is now over 99 percent built and expected to be operational very soon.

In a 38-page opinion, U.S. District Court Judge James Boasberg offered a thorough rebuke of the tribe’s claim that the presence mere presence of the pipeline would desecrate the waters of Lake Oahe. Boasberg said the Cheyenne River Sioux Tribe’s Religious Freedom Restoration Act was unlikely to succeed because the tribe had not demonstrated a “significant burden” resulting from the easement granted by the U.S. Army Corps of Engineers.

Boasberg also noted that the Lake Oahe crossing was disclosed by the Army Corps of Engineers in October 2014, but it wasn’t until after the project was fully permitted almost fully built that the tribes raised religious concerns. In fact, the failure to raise this claim sooner in it of itself barred the issuance of a preliminary injunction according to the ruling.

“For more than two years after becoming aware of DAPL’s proposed route, construction, and operation, then, Cheyenne River remained silent as to the Black Snake prophecy and its concerns about the presence of oil in the pipeline under Lake Oahe absent any issue of rupture, as well as about the possible applicability of RFRA. … The Court, accordingly, concludes that Defendants have shown that the Tribe inexcusably delayed in voicing its RFRA objection.”

Furthermore, Boasberg said further delay of the project based on the eleventh hour argument would “impose significant costs on a private third party” and underscored that the company did make route adjustments to accommodate tribal concerns during the permitting process.

“Indeed, Defendants previously modified the pipeline workspace and route more than a hundred times in response to cultural surveys and Tribes’ concerns regarding historic and cultural resources. The Corps also imposed additional construction conditions on DAPL in response to tribal positions regarding environmental safety.”

MAIN Coalition spokesperson Craig Stevens applauded the ruling and the company’s commitment to the protection of cultural and historical resources.

“Judge Boasberg’s thoughtful decision further demonstrates that both the Army Corps of Engineers and Dakota Access have fully complied with all established laws and regulations governing the permitting, installation, and operation of the Dakota Access Pipeline,” said Stevens in a statement. “Both Dakota Access and its parent company, Energy Transfer Partners, have continued to show a strong desire to accommodate landowner concerns and respect for culturally sensitive areas.”

All parties will be back in court next month to address two motions for summary judgement filed by the Cheyenne River Sioux Tribe and the Standing Rock Sioux Tribe. However, by then, it is more than likely that construction will have been completed and the pipeline put into operation.


Agweek: Pipeline Protesters Hurt Ordinary North Dakotans

In a new editorial, Agweek Magazine, a leading agricultural publication in the upper Midwest, captured many of the frustrations shared by farmers and ranchers affected by the month’s long protest against the Dakota Access Pipeline. The thoughtful commentary is careful not to dismiss those who have peacefully opposed the project, but notes that many actions have been anything but peaceful.

We understand many Americans disapprove of the project. We support their legal and moral right to oppose it through peaceful, legal protest. We live, thank goodness, in a free country. But many of the protests were neither peaceful nor legal.

The editorial goes on to highlight that farmers and ranchers in Morton County have been on the frontlines of the unlawful activity and have suffered financially as a result.

The Morton County Sheriff’s Department and North Dakota Department of Agriculture say 544 Morton County households were affected by the protests. They say farmers and ranchers lost as much as $20,000 each due to delays in or inability to harvest crops, inability to haul to market, inability to get custom harvesters to the area, lost or missing livestock, cattle brought off pasture earlier than usual, vandalized equipment and farmsteads and other issues. There also are continuing problems with possible pest-infested firewood, as well as hundreds of loads of garbage left behind when the camp was cleared out.

Out-of-state protesters who descended on this rural community often did so with a complete lack of respect for area residents who wanted nothing but to continue about their normal lives.

This much is clear: Protestors, even sincere ones, often went too far, hurting “ordinary” North Dakotans who had done absolutely nothing wrong. That alienated and angered many people who had been neutral or lukewarm on the project.

In closing, the editorial board said environmental protesters would be wise to respect agriculturalists in the future before offering an optimistic outlook for the coming change of season.


Kauzlarich: Invest in American Energy, Enforce the Rule Of Law

A new op-ed by former U.S. Ambassador Richard Kauzlarich was published today in The Hill. Kauzlarich discussed how last week’s House Energy and Commerce hearing emphasizes the need to complete the Dakota Access Pipeline and invest in America’s infrastructure.

Kauzlarich says, “Regulatory oversight of such projects is important, and the United States maintains a strong tradition of enforcing the rule of law. We also have a tradition of ensuring that the voices of local communities affected by such projects are heard. Government at all levels has a responsibility to ensure the rule of law is followed to the letter of the law.”

Throughout the DAPL permitting process the concerns of local communities were addressed by both the state and federal governments and upon the issuance of permits by both entities, the permits carry the force of law and should remain enforced as such. According to Kauzlarich, “Private investment is critical for the production and distribution of U.S. energy resources. The integrity our legal and regulatory structure is critical to ensuring this investment.”

Without the government’s willingness to enforce the rule of law – America’s energy revolution could come to a halt. Thankfully, with construction proceeding on DAPL following action by the Trump Administration to adhere to Corps of Engineers’ recommendation for completion, the rule of law has been established and will ensure America sees this  important project through to completion.


A Financial Vanishing Act: The Search For Missing Donations For The Standing Rock Sioux Tribe

A post from the Center for Individual Freedom highlights a question surrounding the Dakota Access Pipeline protest: Where has all the money gone?

After millions of dollars poured into crowdfunding accounts online, a significant portion of that money remains unaccounted for.

According to the post, “through February 14, over $13.5 million has reportedly been raised for the protesters through at least 350 different online accounts setup on sites like GoFundMe and FundRazr.  While the list represents some of the more serious fundraising efforts, it’s estimated that upwards of 20,000 individual campaigns exist, likely equating to millions in additional income.”

With little transparency throughout the fundraising process, and no answers following an exhaustive search of charitable organizations, it remains unclear how the funds were allocated.

But after the protests cost North Dakota taxpayers more than $33 million dollars, the disappearance of the funds have raised eyebrows in Bismarck. The North Dakota Tax Authority now plans to launch an investigation if income tax forms reflective of the donations are not submitted.


North Dakota Governor Issues Emergency Evacuation Order for Protest Camps

According to a report from the Dickinson Press, North Dakota Gov. Doug Burgum ordered the mandatory evacuation of Dakota Access Pipeline protesters stressing the dangers of spring flooding and the need to avoid environmental damage. The report followed an official release from the Governor’s Office, and a release from Sen. John Hoeven which stated that the U.S. Army Corps of Engineers will have a crew on site by the end of the week to assist in cleaning up the area.

The order requires the evacuation of everyone currently occupying the Corps of Engineers land along the Cannonball Rivers in Morton and Sioux Counties citing the threat from human and inorganic waste left behind by protesters who have gathered at the site for over half a year.

The waste “pose[s] a significant and increasing environmental threat to the waters of Missouri River if cleanup and removal efforts are not quickly accelerated and completed before flooding begins.”

The order follows an earlier statement from the Governor’s office which said “It is paramount for public safety, and to prevent an environmental disaster, that the camps be cleared prior to a potential spring flood. Once the floodwaters recede, the land will need to be cleaned and eventually restored to pre-protest conditions.”


Energy Subcommittee Hears Testimony from Pipeline Stakeholders and Dakota Access

Today, the Energy Subcommittee of the House Energy and Commerce Committee held a hearing in Washington, DC to gather information from a number of stakeholders on various energy infrastructure projects. The hearing was entitled “Modernizing Energy and Electricity Delivery Systems: Challenges and Opportunities to Promote Infrastructure Improvement and Expansion.” The committee heard from various stakeholders with vested interest in energy infrastructure projects, including members of the labor and construction community, Native American Community, electrical grid builders and operators, and pipeline builders and operators.

Pipeline projects across America were a key focus of testimony from many of the individuals on the panel and during many of the questions from the Committee. Notably, many of the half-truths, misrepresentation, and partisan politics that have pervaded pipeline projects over the past six months were addressed.

During the hearing Joey Mahmoud, Project Manager for the Dakota Access Pipeline spoke on the impact of these half-truths and misrepresentations on the Dakota Access Pipeline specifically.

Mr. Mahmoud noted that the letter of the law was followed closely throughout the approval process, including extensive Native American consultations by both the company constructing Dakota Access and the U.S. Army Corps of Engineers. Despite following a clearly delineated legal process, a political decision was made to stall the final easement necessary to complete construction at the 11th hour in spite of the efforts of four state regulators, the work of the U.S. Army Corps of Engineers in conjunction with other federal agencies.

Mr. Mahmoud’s testimony concluded with an emphasis on the importance of the role of the federal government to enforce the rule of law:

“Mr. Chairman, we came to realize that even a company as large as Energy Transfer is helpless in the face of a government which will neither obey nor enforce the law. We came to realize that playing by the rules can count for little. And we came to realize that good faith efforts to reach accommodation with the many different stakeholders can be a fool’s errand when political motivation overrides the rule of law.”

Now that the government has given final easement, construction continues toward the completion of Dakota Access.


Statement Regarding Court’s Refusal to Block Work on the Dakota Access Pipeline

MAIN Coalition spokesman Craig Stevens issued the following statement in response to U.S. District Court Judge James Boasberg’s decision to deny a request to issue a temporary restraining order filed on behalf of Native American tribes that would have stopped construction of the Dakota Access Pipeline.

“We are pleased that Judge Boasberg continues his thoughtful and judicious approach towards the Dakota Access pipeline. The company and the government have worked tirelessly for more than two years to ensure all applicable laws and regulations were obeyed and the pipeline’s path followed the most culturally and environmentally sensitive course possible. It is frustrating, however, that the opposition continues to throw lawsuits against the wall in a flailing attempt to scuttle the project. Even while the proceeding was underway this afternoon, another suit hit the docket. There is no doubt that parties deserve their day in court, but how many days are warranted and at what point does this activity become unmasked for what it is: an attack on America’s energy development and the jobs that go along with it.”

-###-


Dakota Access Memo Cheers Pipeline Supporters

A pair of agency-directed memos signed Tuesday by President Donald Trump could force completion of the controversial Dakota Access pipeline in North Dakota as well as breathe new life into the Canadian-based Keystone XL pipeline.

Trump’s memo did not grant a drilling easement for the $3.8 billion Dakota Access project to cross U.S. Army Corps of Engineers land on the Missouri River/Lake Oahe but directs the agency to expedite review with the idea that prior reviews already satisfy federal law.

Congressman Kevin Cramer said he believes the memo will force the agency to rescind the decision it made last week to begin a full-blown environmental impact statement on the crossing and issue an easement in short order.

Cramer said he made contact Tuesday with federal law enforcement agencies, including the CIA and the U.S. Marshal service, in anticipation of pushback from hundreds of pipeline protesters camped near the water crossing just north of the Standing Rock Sioux Reservation when construction resumes.

Continue Reading >>


Protesters Repeatedly Violate Agreement Between Police and Standing Rock Tribe

The rhetoric used by protesters on Facebook and other social media profiles shows the divides between not only the protesters and police, but also between the protest camp and the Standing Rock Tribe itself. In the past several weeks, Standing Rock Chairman Dave Archambault has taken steps to repair relationships with state officials. That goal is not shared by protesters at the camp, who continue to violate a de-escalation agreement between police and the tribe.

Altercations continued throughout the week on Backwater Bridge, just outside of the protest camp. The bridge has been closed since October, when police pushed protesters off of private land. In January, the tribe reached an agreement with area law enforcement. Both sides agreed to withdraw from the bridge and law enforcement agreed not to continually staff the barricade, hoping that the agreement would reduce the number of altercations between police and protesters, a necessary step to the reopening of the bridge. However, many at the protest camp have been uncooperative.

Wednesday marked the third consecutive night of provocative protest activity. Twenty-one people were arrested. From Monday through Tuesday night, an additional 14 people were arrested near the drill site and on the bridge, making the week one of the most contentious of the new year.

Continue Reading >>