Case Study: Tribal Outreach Key Part of Corps’ Exhaustive Review of DAPL

By nearly all accounts, the Army Corps of Engineers’ review and subsequent approvals of permits related to the Dakota Access Pipeline was thorough.  In many cases, the Corps went above and beyond what was required by the law.  GAIN Fact Checker is starting a new series looking into the decisions that led to the approval of, construction of, and subsequent safe operation of the Dakota Access Pipeline.  In this post, we look at the Army Corps of Engineers and its focus on tribal outreach.

As we’ve discussed before, the U.S. Army Corps of Engineers engaged in a multi-year scientific analysis of the Dakota Access Pipeline prior to approving permits to allow the project to move to construction. This voluminous review included consultations with 63 federally recognized Native American tribes, including the Cheyenne River Sioux Tribe (CRST) and the Standing Rock Sioux Tribe (SRST). These consultations amounted to at least 389 tribal meetings and communications to address potential concerns regarding the project. This outreach resulted in dozens of route changes, added mitigation measures, and design modifications in order to alleviate concerns.

As U.S. District Judge James E. Boasberg noted in a 2016 ruling:

In fact, on this record, it appears that the Corps exceeded its NHPA obligations at many of the PCN sites. For example, in response to the Tribe’s concerns about burial sites at the James River crossing, the Corps verified that cultural resources indeed were present and instructed Dakota Access to move the pipeline to avoid them. Dakota Access did so.

In accordance with the National Historic Preservation Act (NHPA), the Corps initiated the Section 106 consultation process for the Dakota Access Pipeline’s proposed Lake Oahe crossing in the fall of 2014. On October 24, 2014, the Corps sent an informational letter detailing the crossing to more than 60 tribal leaders and representatives, including the Standing Rock Sioux Tribe’s then-chairman, David Archambault II, and historic preservation officer, Waste’ Win Young. The letter provided tribes the opportunity to submit comments regarding the project and if desired, request further consultation on the matter.

While many tribes provided a timely response, the SRST’s lack of acknowledgement was a cause for concern within the Corps’ Omaha office. Despite the fact that the formal comment period had closed more than 90 days prior, the Corps’ sent a follow up email to Young on February 12, 2015 to make sure the tribe had no comments regarding the project. Young finally responded the following week, outlining for the Corps some areas of concern but stopping well short of expressing any fundamental objection to the proposed river crossing.

Prior to submitting her comments, Young, during a chance encounter with Joel Ames, a tribal liaison for the Corps’ Omaha District, had said “she was currently working directly with the applicant and did not need to consult with the Corps at that time.”

In the months to come, the SRST’s seeming lack of interest in the Corps’ outreach only intensified. Time and time again the SRST ignored or declined invitations from the Corps to engage in the consultation process. The SRST “repeatedly obstructed the process by failing to respond to calls and emails, cancelling meetings, and refusing to acknowledge the authority of anyone to consult except the President or Secretary of Interior,” the Corps later wrote in a legal filing.

Ames, who initiated many of the attempts to meet with the SRST, recounted how Kelly Morgan, the tribe’s archeologist, had contacted him on more than one occasion to cancel previously scheduled meetings between the SRST and the Corps “because nobody from the tribe was available to attend.”

In one instance, Morgan scheduled, and then withdrew from, a site visit of the proposed Lake Oahe crossing, telling the Corps in an email that her office had “determined that it is in the best interest of the [Tribal Historic Preservation Office] to decline participation in the site visits and walking the project corridor.”

Even David Archambault, the tribe’s chairman, exhibited indifference to the project. On one occasion, Archambault rebuffed an invitation from Ames “to participate in a larger meeting with representatives from several tribes to be held on December 8, 2015 in Sioux Falls, South Dakota.”

In May the following year, Jon Eagle, Sr., who succeeded Young as the tribe’s historic preservation officer, acknowledged that the SRST  “did receive a letter from Martha Chieply, Regulatory Chief, Omaha District inviting tribes to participate in tribal surveys…associated with the proposed Dakota Access Pipeline,” but had “respectfully decline[d] this offer to participate.”

The Corps’ repeated efforts to engage the SRST should serve as a testament to scrupulousness nature of their consultation process.

In our next post, GAIN Fact Checker will examine the lengthy review process the Dakota Access Pipeline underwent in North Dakota.