NEPA EVALUATION OF CULTURAL RESOURCES, TRIBAL VALUES, AND ENVIRONMENTAL JUSTICE: LESSONS FROM STANDING ROCK INDIAN TRIBE, ET AL. V U.S. ARMY CORPS OF ENGINEERS AND THE DAKOTA ACCESS PIPELINE CONTROVERSY

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 13A
NEPA EVALUATION OF CULTURAL RESOURCES, TRIBAL VALUES, AND ENVIRONMENTAL JUSTICE: LESSONS FROM STANDING ROCK INDIAN TRIBE, ET AL. V U.S. ARMY CORPS OF ENGINEERS AND THE DAKOTA ACCESS PIPELINE CONTROVERSY¹
Walter E. Stern
Modrall Sperling
Albuquerque, New Mexico

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WALTER E. STERN, a lawyer with Modrall Sperling in Albuquerque, New Mexico, represents businesses and people engaged in natural resources and energy development on Native American and federal public lands, helping them with their permitting, leasing, project development, transactions, and litigation matters around the west and across the country. Walter has been active in the Rocky Mountain Mineral Law Foundation, serving as President, as Annual Institute Program Chair, and as Chair and member of several committees. He has been listed in Best Lawyers in America since 1995 in Native American and Natural Resources Law, and in Chambers USA: America's Leading Lawyers for Business since 2004. A native Californian, Walter moved to New Mexico after receiving a B. S. in Forestry (with honors) from the University of California at Berkeley and a J.D. from Boston College Law School (cum laude). In addition to his legal practice, Walter is--among other things--a husband, father, hiker, mountain bike rider, President of Modrall Sperling, a past Chair of the Board of Trustees of Albuquerque Academy (an independent day school in Albuquerque), and a member of the Board of Trustees of the Albuquerque Community Foundation.

I. Introduction

The Dakota Access Pipeline ("DAPL"), which runs through the heart of the former Great Sioux Nation, has become the focal point for concerns over how federal agencies comply with the National Environmental Policy Act ("NEPA") and tribal consultation responsibilities for projects that require federal approvals, permits, or licenses. The swirling controversy around DAPL permitting and construction, particularly including the U.S. Army Corps of Engineers' ("Corps") efforts to consult with the Standing Rock Sioux Tribe, amply demonstrates the serious difficulties federal agencies, Native American groups, and project proponents face when seeking to comply with NEPA and myriad other consultation obligations. These consultation obligations arise not only under NEPA, but also under the National Historic Preservation Act ("NHPA"), the Native American Graves Protection and Repatriation Act ("NAGPRA"), the Archeological Resources Protection Act, executive orders, treaties, and agency or department regulations and policy statements. This paper examines the DAPL controversy and related events, including the Obama Administration's broad initiative to re-examine federal consultation obligations relating agency consideration of impacts on tribal interests, and considers, among other lessons learned, mechanisms to improve the tribal consultation process required under NEPA, the NHPA and other mandates.

II. Historical Background: The Great Sioux Nation

From time immemorial, the Great Sioux Nation inhabited an expansive part of the northern Great Plains, stretching from Montana and Wyoming in the west, through the Dakotas and Nebraska, and reaching as far east as Minnesota, Iowa, and Wisconsin.² Over time, the Great Sioux Nation's rights of use and occupancy over the area to which it held aboriginal title were dramatically reduced.

For example, the Great Sioux Nation ceded significant portions of its aboriginal territory to the United States in the Fort Laramie Treaties of 1851³ and 1858,⁴ while guaranteeing the

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Nation and its members certain off-reservation rights, such as "the privilege of hunting, fishing, or passing over any of the tracts of country" ceded to the United States.⁵ Following the Fort Laramie Treaties and after the Treaty Era ended in 1871,⁶ Congress enacted a number of statutes shrinking the Great Sioux Reservation. Most significantly, in 1889, Congress passed legislation to carve the Great Sioux Reservation into several small reservations for the Standing Rock Sioux, Cheyenne River Sioux and others.⁷ The legislation also "preserved all provisions of the Fort Laramie Treaties that were 'not in conflict' with the [1889 Act.]"⁸ The eastern boundaries of the Standing Rock and Cheyenne River Reservations were identified as "the center of the main channel of the Missouri River."⁹

In 1944, Congress enacted the Pick-Sloan Flood Control Act authorizing a comprehensive plan for the Missouri River.¹⁰ Congress also passed several statutes authorizing takings of certain tribal lands for specific projects like the construction of Oahe Dam and creation of Oahe Lake.¹¹

Despite these land cessions and federal takings, it is clear that the successors to the Great Sioux Nation retain long-standing cultural affiliations with wide swaths of the North Central United States, as well as the off-reservation rights reserved by treaty. DAPL runs right through this territory.

III. DAPL Federal Oversight and Initial Permitting

A. DAPL and the Lake Oahe Crossing

DAPL moves crude oil by pipelines up to 30 inches in diameter from the Bakken and Three Forks fields in North Dakota to facilities in Patoka, Illinois, a roughly 1200 mile route that traverses primarily private lands and does not cross any present-day Indian reservations. Little federal permitting was required.¹² The selected route follows, where possible, existing utility corridors and pipelines and sought to avoid previously identified cultural and historic sites. DAPL, however, crosses federally regulated waters of the United States under the Corps' jurisdiction at least 204 times, each of which the Corps evaluated, individually. Importantly, DAPL also crosses the Missouri River in two locations upstream of the Standing Rock Reservation. Particularly relevant to the ongoing controversy, according to the Honorable James

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E. Boasberg's¹³ opinion denying the Standing Rock Sioux Tribe's preliminary injunction application, "[o]ne place of particular significance to [Standing Rock] lies at the traditional confluence of the Missouri and Cannonball Rivers."¹⁴

B. The Corps' Clean Water Act Obligations and Compliance Efforts

The multiple water crossings triggered Corps' jurisdiction under Section 404 of the Clean Water Act,¹⁵ and required Corps analysis of whether the crossings fell within the Corps' Nationwide Permit 12 ("NWP 12"), which authorizes pipeline crossings of regulated waters where the activity will disturb no more than a half-acre of waters of the United States. Under NWP 12, a project developer must submit a pre-construction notification ("PCN") if the proposed water crossing "may have the potential to cause effects to any historic properties," including properties of cultural or religious importance to an Indian Tribe and the Corps must verify the applicability of NWP 12.

In addition to Section 404 and NWP 12 considerations, because DAPL crossed Corps-administered lands on the Missouri River near Oahe Lake, the project also triggered Corps' obligations under Section 14 of the Rivers and Harbors Act of 1899 ("Section 408"),¹⁶ which authorizes the Corps to "grant permission for the alteration or permanent occupation or use of any of [specified] public works when in the judgment of the Secretary such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work."¹⁷ And, as emerged later, the Corps was also obligated to grant an easement to DAPL under the Section 185 of the Mineral Leasing Act ("Section 185").

Given the required Corps approvals, the Corps was obligated to consult with affected tribes in accordance with consultation obligations, including those under NEPA and NHPA Section 106,¹⁸ even though the impacted areas were outside existing reservation boundaries.

NWP 12's General Condition 21 requires the Corps to consult with interested tribes and determine whether water crossings could impact historic properties. Here, following efforts by DAPL to communicate with stakeholders (including Standing Rock and other tribes), the Corps pursued its consultation responsibilities in parallel with its work on the Environmental Assessment required under NEPA, discussed infra. According to Judge Boasberg, during this Section 106 consultation process, the Corps and DAPL addressed and resolved concerns and objections of tribes who participated in the consultation process.¹⁹ Despite the Corps' repeated and good faith efforts to consult with Standing Rock, however, those efforts were hamstrung due

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to the Tribe's actions (or inaction).²⁰ Yet, when Standing Rock did engage in consultation on a limited basis, some of its concerns were addressed.²¹

1. The Corps' Environmental Assessment and FONSI

On December 8, 2015, the Corps published a 983-page Draft Environmental Assessment prepared by Dakota Access, LLC on the Corps' Omaha, Nebraska District website, followed by a public comment period. On or about July 25, 2016, the Corps released the final Environmental Assessment ("EA") and Mitigated Finding of No Significant Impact ("FONSI"), a 1261 page document.

2. NWP 12 Verifications, Section 408 Permissions and the Section 185 Mineral Leasing Act Easement

Based on the July 2016 EA and FONSI, the Corps verified 200 crossings of waters of the United States in accordance with NWP 12 and granted three Section 408 permissions, including the Section 408 permission for the Oahe Dam/Oahe Lake crossing as well as another crossing of the Missouri River upstream of Oahe Lake, at Lake Sakakawea, North Dakota.²²

The final piece of the regulatory puzzle for the Corps and DAPL involved Section 185, which authorizes the grant of rights-of-way across "any Federal lands . . . by the Secretary of the Interior or appropriate agency head for pipeline purposes for the transportation of oil, natural gas, synthetic...