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.

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Tubes, Tunnels, Pipelines And Progress

The Dakota Access Pipeline that triggered the resistance of the Indians, or Native Americans as some of them want to be called, is nearly complete and ready to take oil to the refineries. The Keystone XL Pipeline project, which endured an on-again, off-again status during the Obama years, is on again. It’s a new day for energy in America.

Soot-stained skies are largely a thing of the past, with tubes and tunnels transporting more and more oil beneath the surface of the land, and barely imagined wonders are soon on the way. Elon Musk, the visionary founder of SpaceX and the Tesla electric automobile, is experimenting with a transportation system that would send a bulletlike passenger pod speeding through a vacuum tube called a hyperloop at speeds of 600 miles an hour. A model is being tested now in the Nevada desert.

Mr. Musk is currently boring an enormous tunnel beneath the streets of Los Angeles, near his Space X headquarters, as part of a hyperloop system and a roadway to enable cars to escape traffic-choked streets above. But all that is in the future. Energy for the present lies in the pipelines.

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New Ranking Finds North Dakota Has No. 2 State Economy in the U.S.

North Dakota has the No. 2 best economy of any U.S. state and is No. 1 for job growth according to U.S. News & World Report’s 2017 Best States rankings. The annual survey, which ranked North Dakota No. 4 overall, said growing energy production and robust infrastructure were key to the state’s strong performance.

The Peace Garden State has benefited greatly from being at the epicenter of the U.S. shale oil boom. In 2004, oil and gas production accounted for just 2 percent of state’s economy, but by 2014 it was almost 16 percent. Several years ago, while much of the nation was suffering from hard economic times, North Dakota was attracting billions of dollars in investments and workers from around the country.

While falling oil prices have weakened production, North Dakota is still producing over a million barrels a day and has one of the lowest employment rates in the nation. The Bakken boon may have hit slow patch in the road, but the promising opportunities and benefits derived from this remote region are far from over.

Most recently, an analysis by the Associated Press found that cost savings provided by the Dakota Access Pipeline will not only benefit producers, but also amount to a more than $110 million gain in annual tax revenue.

This staggering increase has already lead the state’s budget director to begin crafting spending plans that take the added revenue into account and perhaps leading the state to become the No. 1 economy in the years to come.

Dakota Access Sponsors ISU Study On Pipeline Installation Effects

Mehari Tekeste, left, and Mark Hanna at the experimental site. | Photo: Iowa State University

A team of researchers at Iowa State University’s College of Agriculture and Life Sciences will conduct a five-year study that will examine the impact of pipeline construction on crop production and soil compaction. The project, which is funded by Dakota Access Pipeline LLC, will collect data through 2021 on section of university-owned farmland traversed by the Dakota Access Pipeline.

“The overall goal of the project is to quantify the impact of construction utilities equipment, field traffic and deep tillage on crop yield and soil compaction,” according to a university news release.

Mehari Tekeste, an assistant professor of agricultural and biosystems engineering, and Mark Hanna, an extension agricultural engineer, will lead the multiyear project.

“We hope our research will develop data to support future recommendations on the restoration of agricultural soil and crop productivity to pre-construction conditions,” Tekeste said. “This will be of benefit to industry and governmental institutions, as well as other researchers and extension specialists.

Dakota Access has long been committed to minimizing potential impacts from pipeline installation and continues to work with landowners across Iowa to ensure land is restored to preconstruction conditions. Specifically, these efforts included the development of a comprehensive Agricultural Mitigation Plan and the enlistment of two independent contractors to advise and monitor the acquisition, construction and reclamation processes.

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.

MAIN Coalition Statement on Court’s Rejection of Latest Attempt to Block DAPL

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 for a preliminary injunction, which was sought by the Cheyenne River Sioux tribe and would have stopped construction of the Dakota Access Pipeline:

“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.

“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.  This was demonstrated in the more than 140 modifications the company made to the pipeline’s path – in North Dakota alone – to avoid potential cultural resources, including at the James River crossing.

“Going forward, we continue to appreciate Judge Boasberg’s careful consideration of this case and remain hopeful that the construction and operation of this pipeline will be completed in a safe and timely manner.”  

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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.”