A friend lamented that Minnesota Tribes ought to be able to successfully sue for protection from Enbridge…
My response:
Many Tribal Nations – and three U.S. states – all working to prevent a Multi-Billion $ Canadian Corp – Enbridge – from DESTROYING OUR LAND, AIR, and WATER… for some pennies. Seems a lawsuit makes sense…
Though we all have watched the legal cases over recent years – whether it’s Tim Walz NOT pursuing the DOC case into the MN Appeals Court… or Judges deferring (CAVING) to (already indoctrinated and corporately captured) agency decision-makers as “authorities”. 🙁 The system is stacked against us as colonizer man writes his rules and laws as if Nature must adhere… As if Nibi recognizes little lines drawn on a piece of paper.
It’s not until we get into the Court of Natural Law that we’ll find ourselves understood.
It’s not until we see even more devastation than we already have, it seems, until COLONIZED HUMANS will be capable of grasping that the planet is crumbling in its carrying capacity for humans (and threatening the existence of many other Relatives, sadly). And it will be even longer after that until they gather the wits and compassion to do something fruitful and reasonable about it.
We’re 1316 days from the IPCC 1.5° Report… Three and a half years since they gave us a dozen to ‘save our planet for human existence’. And we’re seeing only a SURGE in fossil fuel use, a LACK of any measurable and meaningful proposals for change, and a continuing of the war machine and consumer economy that are creating more damage by the day. And those scientists… they’re saying, Oops! We REALLY underestimated the effects that would be piling atop each other as our systems degrade and become overloaded… So that 12 years? It’s more like 1-2. 😔
I’m with you, Ogichidaa. 💙
Been thinking about you a lot over the last days as I process the Indigenous Communities Pipeline conference experience. Sorry I haven’t reached out more personally. It’s been a shit show of everything herein this corner of Enbridgeland… as you know better than me. 😔
Gizhawenimin. I love you. Gigawaabamin miinawaa wayiiba… apegish. I’ll see you again soon… I hope. Zwaangide’ed! Stay Brave! 🙏❤️🧡💛💚💙💜🙏
Facebook ramblings between Water Protectors 3-23-22
What a great weekend it’s been! So many blessings and gifts.
Life took me to Alexandria on Saturday so I was able to see Momma and give her a little handful of big pink roses that reminded me of her. So beautiful, elegant, simply wonderful. She liked them… as did the cats!!
Too many gifts to count here but some of the remarkable ones include:
A call from the Kids – such a good chat! Life is good and full of needed messages. Thanks, Celia for the insights. Tommy… You will always be my baby.
Mermaid Braid – I call it a Mermaid Twist.
Loads of ponderings from time with my sister.
Blessings from Scruffy and Gichi-bine. Miigwech. For your love, for your healing, for your lives.
Quiet in the woods… though some Sandhills calling.
My comments regarding the Wisconsin Line 5 Draft Environmental Impact Statement (DEIS). First, a peek at their announcement of this public hearing.
Enbridge proposes constructing approximately 41 miles of a new 30-inch-diameter crude oil pipeline to relocate its existing Line 5 pipeline outside of tribal lands of the Bad River Band of Lake Superior Chippewa. The company would also abandon approximately 20 miles of the existing 30-inch-diameter Line 5 Pipeline, including the section that currently crosses the Bad River Reservation.
In compliance with the Wisconsin Environmental Policy Act, the DNR and its consultants have completed a detailed analysis of the proposed project, various alternatives and the associated impacts.
Construction of the proposed relocation would affect approximately 135 acres of wetland, including the conversion of approximately 34 acres of wooded wetland to non-wooded wetland, and permanent fill of less than 0.03 acres of wetland.
The proposed route would cross approximately 185 waterways, including the Bad River, Brunsweiler River, Marengo River, Tyler Forks, and the White River, as well as a number of unnamed ditches, streams and tributaries.” [That all feed Lake Superior.]
DNR Notice of EIS [my addition]
My name is Jami Gaither and I live in 1855 Treaty Territory near Upper Rice Lake ten miles north of the Mississippi Headwaters.
Credit to the Wisconsin DNR for creating a DEIS that appears more considerate to the Tribes and the environment than what we saw in Minnesota for Enbridge’s Line 3 DEIS. Yet, the notice for public input, giving some clue of the risks to the Bad River Band of Lake Superior Chippewa, to the wetlands and waterways, had a striking miss of an easy add to highlight that all these lands drain into Lake Superior. I’m hopeful you hold a true desire for input, which we still do not see from Minnesota’s DNR as we work to navigate damages in the wake of Enbridge’s rushed build of their relocation and expansion pipeline billed as a replacement of their old Line 3. Please heed the voices of the people OF this land and region today, as well as those of us with recent Enbridge construction experience.
Bad River Band Prayer in Case 3:19-cv-00602-wmc 10/15/19
Listen to the concerned citizens and scientists, environmental advocates, and especially the voices of the Anishinaabeg calling out their concerns within this DEIS. While I have not read it all, I noticed also that 4 of 5 occurrences of the word “risk” in this DEIS happen in the title and paragraph at the top of page 255. That seems a few too few mentions of “risk”.
As an abutter to the project, I witnessed Enbridge’s destruction first hand, watching contractors cull swaths of forest creating an open wound in the wetlands where we normally would hear dozens of Sandhill Cranes. This past spring, only a single nesting pair in the forest. I saw no babies along the route in 2021, as we have had in the past.
This rushed project included a DNR allowance on June 4th, 2021 of a 10-fold increase in Enbridge’s dewatering permit to 5 billion gallons – during a year of historic drought no less – and ignoring the voices of the Tribes asking us to honor the rights of Manoomin.
As much of the review is contingent on the information provided by the applicant, I imagine the writers of this DEIS were guided by reporting from Enbridge and their engineers as we saw in Minnesota, where, in the aftermath, we can see that Enbridge and their advocates had NOT done their homework on our land.
Perhaps one single incident tells you all you need to know about how Enbridge does business, regardless of what they’ve agreed to on paper.
On January 21, 2021, Enbridge contractors punched through a natural artesian aquifer in rural Clearbrook – their company town – in a willful violation of their Low Risk Construction Permit which allowed digging to only 8′ to 10′. The operators dug an 18′ deep trench and pounded steel pilings into the earth to a depth of 28′, rupturing the rural aquifer. While unrelenting water flow was reported in the “independent” monitoring reports, the DNR failed to recognize the damage until it was discovered during a lunchtime conversation between monitors and DNR staff. While DNR began communications with Enbridge mid-June, it would be three more months before the public was informed of this disaster. And, in fact, the DNR reports at least two additional aquifer breach investigations, whose locations have yet to be made public.
While Enbridge completed building their pipeline, our aquifer bled out tens of millions of gallons of water as nearby fens suffered. It appears the agencies in Minnesota colluded with this Canadian multinational, meeting with Enbridge over and over, while doing almost nothing to meet with citizen scientists or environmental Justice advocates, or to heed the most important voice of the Sovereign Tribes within the legal boundaries of this state. In fact, we watched arrogant flippancy in response to those in opposition to this project. And what we’ve seen now is everything that the voices of opposition warned has come to pass on this project. We’ve had frac-out after frac-out after frac-out and thousands and thousands of gallons of drilling mud released into our Environment. We’ve seen swaths of trees culled in a matter of minutes and wetlands dredged through without regard. We’ve seen abuse, violence, and rapes, as well as, sex traffic busts of pipeline workers. Yet Water Protectors are the ones now awaiting trial in Minnesota.
We asked, over and over, for the agencies to come up and stand on this land, to meet her and know her as we do. It’s clear with all the collateral damage, that Enbridge had no understanding of this land. The Minnesota DNR and MPCA failed to listen to the public testimony on the risks from the people who had the needed expertise and who had done their homework. And now everyone is suffering.
I urge you to learn from our mistakes. Do NOT Trust Enbridge. Protect your land by heeding the voice of those speaking on her behalf.
Stop Enbridge destruction.
Deny this project a life… as you save those on whom your grandchildren will depend.
When we’re buried together in the rubble of the apartment building, does it matter what news sites we watch? Or is the hand you can reach a comfort regardless?
When we carry buckets in the fire brigade, does it matter if you are ‘red’ or ‘blue’? Or will I, regardless, take the bucket from you?
When we’re filing sandbags to prepare for rising waters, will I care if you read Marx or O’Reilly? Or will I be happy to fill your bag… nonetheless?
When we’re sharing the soup made by many hands, will I fill only the bowls of those who look like me? Or will I feed everyone regardless?
When we search for children’s bodies after the shooting at the high school, will I gather only the Republican or Democrat bodies? Or will I rescue any child I can… regardless?
When we recognize the humanity in each other, we find connection.
And when we don’t? Well, we see what we’re seeing in ‘Murica now. Continued division, collusion with corporations, and ignoring the voices of those suffering most… our children.
You can leave a comment here through January 21, 2022. Thank you for any input you can muster. FWIW. Below are the comments I submitted.
Now that the horse is out of the barn… y’all are seeking to monitor the damage? This seems par for the course for MPCA. Sad really.
While I understand processes take time and the development of this work is hopeful to understand the problems, my concern is the lack of proactive work in the past, which has led us to this place.
It seems the MPCA is – and HAS BEEN – FAILING to uphold their mission: to protect and improve the environment and human health.
We’ve been hearing for a while now about how impaired our waters are, yet what did MPCA do over recent years?
MPCA approved a 401 Permit for Enbridge’s tar sands pipeline to be installed across all of Northern Minnesota from the NE corner to Lake Superior. This pipeline was unnecessary – as shown by new usage rates, , currently on the decline, and showing Enbridge to be shipping less than they have in previous years.
So WHY DID WE NEED THIS NEW PIPELINE AGAIN? Why did we need to cut down swaths of forest (removing trees that help store and clean the water) and dredge a NEW CORRIDOR through pristine wetlands, risking them to the same degradation from construction that, again, was unnecessary (perhaps except for the applicant… about to lose leases for their pipelines as the Leech Lake Reservation refuses to extend their easements?).
Mainline System Imports vs. Capacity: Q1-2004 through Q3-2021 Still not shipping above the system capacity that existed pre-Line 93 (LR3) Construction
Now, all along the Enbridge corridor, we continue to see brown sludge in the rivers where the Horizontal Directional Drilling (HDD) was done to push the Enbridge pipeline under rivers and experienced frac-outs of their drilling mud. These frac-outs released thousands of gallons of drilling fluid into our environment at rivers like the Red River, Middle River, Snake River, Red Lake River, Clearwater River, Mississippi River – twice, with one crossing at the headwaters and one mid-state near Palisade, Pine River, Willow River, East Savanna River… yet where is MPCA?
No testing is being done to assure there aren’t spills affecting the river health. Except the testing done by citizens, who opposed the project from the start and continue to monitor the after-effects of construction.
MPCA FAILED to do their homework on that project – or heed those who had – and now we are to trust they are doing their homework on PFAS? I think not.
Will we, in another 5 years, see the MPCA looking at measuring river health as deteriorated by the process of installing an unnecessary tar sands pipeline across northern Minnesota? Far too late to prevent the ill-effects of contamination that was known to be likely? Ill-effects that opponents PREDICTED? As the MPCA ignored them?
This PFAS measurement program seems simply a game of accounting for all the damages the MPCA continues to allow to happen to Minnesota’s clean air, land, and water – as they collude with corporations to make as much green – as in money – that they can as everything becomes too poison for humans to survive.
Looking at the IWAV tool, it seems we have a varicose vein situation that is BEYOND REPAIR; RED RIVERS OF CONCERN RUN THROUGHOUT the State.
And where are the most impaired large lakes? Besides Lake Superior, our grandest of lakes, many are on Reservation: Mille Lacs, Leech Lake, Red Lake (Upper and Lower), Winnibigoshish, and Windigo. Ironically, that last one means “winter cannibal monster”. Appropos? Perhaps, as it seems the MPCA allows our state environmental health to continue to degrade, with continued allowances for water quality impairment, and an apparent inability to heed the tribal voices and those of environmental stewards and scientists.
[The meeting to approve the Minnesota 2020 Water Plan was a key example of the Tribal and Scientific voices going unheeded, as the vote following discussion included one lone dissent: from Ben Yawakie, 3rd Congressional District Representative, citizen of the Pueblo of Zuni, and a descendant from Turtle Mountain Band of Chippewa.]
These comments seem like just another process where the voice of the citizen is gathered… CHECK! And then the MPCA does as it wishes. 😖
I’ve endured many agency meetings where the people are condescended to and the agency does as it wishes… only to be proven wrong later, when the people who spoke up are, in the end, proven right. 😞
I don’t suppose you’ll truly be listening to us here, though I will continue to ask that Minnesota scientists – unassociated with corporate interests – be included, along with the legally important voice of the Tribal Nations within the bounds of Minnesota. This is not only the smart thing, but the legal thing to do. Though my short experience in the last seven years with Minnesota agencies tells me… they’ll do as they wish… as we continue to watch our state be sold off to the highest bidders… and nature and life are destroyed.
It seems all great ‘civilizations’ sacrifice their children.
* Some just think he’s a liar. Saying what is politically expedient. Not sure when Peggy was pulled onto the ticket, but perhaps this was his work to entice her? I’m one of those those who see Walz as a political animal with no conscience to prevent him from using any female who comes along when it’s convenient:
Peggy Flanagan – whose voice is being stifled by the administration?
Rebecca Otto – whose hand he grabbed, while holding his four-fingers in the air to assure Erin Murphy would not secure the DFL nomination – as she seemed about to do?
Hope – his own daughter who he used early on to pretend he GAF about our children?
Those are my top three though the list is longer.
I’ve witnessed him ignoring Native women – on their own land – giving them platitudes and dismissing their words. I’ve watched his entire administration seem beholden to a Canadian pipeline builder – as his citizens live in fear of what this drought is going to do to their manoomin (wild rice), their livelihoods, their livestock, their gardens, their children.
Not to mention all our other Relatives – the flyers, the swimmers, the forests, and most importantly, the nibi (water).
Today’s blog is my layman’s summary of my reading of the recent decision by Judge Boasberg denying the Standing Rock and Cheyenne River Sioux Tribes’ joint request for injunction to shut down the Dakota Access pipeline. It’s a complicated and interesting read and I’ve done my best to summarize what his Order says.
And it’s not exactly bad news!! Just, sadly, more evidence of how our Courts are not geared to make decisions that common sense would dictate. Boasberg seems to give damning testimony to the irresponsible actions of the US Army Corps of Engineers (USACE), which I found to salve the wounds of his lawful refusal for relief to the Tribes.
I start with his Opinion, which I recommend reading in full. This guy writes with a concise beauty that I enjoyed reading. [Note that the page numbers all reference the 5-21-21 Order, unless otherwise noted.]
MEMORANDUM OPINION Just like the Dakota Access Pipeline, which meanders over hill and dale before carrying its crude oil underneath Lake Oahe — a large reservoir on the Missouri River between North and South Dakota — the current litigation has wound its way through myriad twists and turns. Last year, in a hard-earned victory for the American Indian Tribe Plaintiffs whose reservations lie nearby, this Court found that Defendant U.S. Army Corps of Engineers [USACE] had violated federal law by failing to produce an Environmental Impact Statement before granting Defendant-Intervenor Dakota Access, LLP an easement to run the pipeline under Lake Oahe. The Court subsequently vacated that easement and ordered the pipeline emptied of oil until the Corps could complete the federally mandated EIS.
Wasting no time, both Dakota Access and the Government promptly appealed to the D.C. Circuit. In a partial win for the Tribes, the Court of Appeals affirmed the two central elements of this Court’s rulings — specifically, that the Corps should have prepared an EIS and that the easement was properly vacated in the interim. The Circuit thus confirmed that the pipeline was, in legal speak, an unlawful encroachment on federal land.
It was there, however, that the Tribes ran out of luck. Prior to the cessation of any oil flow, the Circuit stayed and eventually reversed the aspect of this Court’s order shutting down the pipeline, reasoning that it had not made the necessary findings for what was essentially injunctive relief. In other words, although vacatur of the easement rendered the pipeline an encroachment on federal property, vacatur could not itself bring about the stoppage of oil. For that to occur, the Court of Appeals clarified, this Court needed to conduct an additional, distinct inquiry, a component of which requires the Tribes to demonstrate that — among other things — they will likely suffer irreparable harm in the absence of an order closing the pipeline.
As a result, for all of the headlines and controversy that this litigation has spawned, its tangible consequences for the pipeline itself have been few. Even though this Court vacated the easement for DAPL to cross beneath Lake Oahe, and even though the D.C. Circuit affirmed such vacatur, the pipeline has maintained operations as if none of these developments had occurred. Those seeking an explanation for the persistence of this surprising state of affairs over the past ten-odd months need look no further than the Defendant in this case: the Corps.
Ever since this Court’s vacatur order in July 2020, and across two presidential administrations, the Corps has conspicuously declined to adopt a conclusive position regarding the pipeline’s continued operation, despite repeated prodding from this Court and the Court of Appeals to do so. On the one hand, the agency has refrained from exercising its enforcement powers to halt Dakota Access’s use of the pipeline, notwithstanding its status as an unlawful encroachment. At the same time, however, neither has the Corps affirmatively authorized the pipeline’s occupation of the area underneath Lake Oahe per the process contemplated in its internal procedures. Its chosen course has instead been — and continues to be — one of inaction. Such indecision, it is important to note, does not stem from a lack of time. Nor from a lack of attention. Whatever the reason, the practical consequences of the Corps’ stasis on this question of heightened political controversy are manifest: the continued flow of oil through a pipeline that lacks the necessary federal authorization to cross a key waterway of agricultural, industrial, and religious importance to several Indian Tribes.
Those Tribes thus find themselves forced to return to this Court to seek what they have so far been unable to obtain from the Government: an order halting pipeline operations until the Corps completes its new EIS. Before the Court may grant them such relief, however, binding caselaw requires that the Tribes make an evidentiary showing far beyond anything the Corps needs to itself shut down DAPL. As previously mentioned, they must demonstrate a likelihood of irreparable injury from the action they seek to enjoin — to wit, the pipeline’s operation. For the reasons articulated in this Opinion, Plaintiffs have not cleared that daunting hurdle.
The Court acknowledges the Tribes’ plight, as well as their understandable frustration with a political process in which they all too often seem to come up just short. If they are to win their desired relief, however, it must come from that process, as judges may travel only as far as the law takes them and no further. Here, the law is clear, and it instructs that the Court deny Plaintiffs’ request for an injunction.
The decision by the USACE, that an EIS was not necessary for this project, all the Courts agree was a violation of NEPA. The Courts also agree that the Dakota Access pipeline is currently operating upon an illegal easement. So what went wrong? The historical review of the case is laid out clearly.
Judge Boasberg ordered the pipeline to be vacated within 30 days while the issue was remanded:
“Although it acknowledged that “at least some immediate harm to the North Dakota oil industry should be expected from a DAPL shutdown,” the Court determined that the “seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates” collectively outweighed such negative economic effects.”
Acknowledging that the pipeline now constituted an encroachment, the agency (USACE) explained that its “general policy is to require removal of encroachments and restoration of the premises.” … That outcome was not inevitable, though, as another option available to the Corps — called an “outgrant” — would authorize Dakota Access to use the government-controlled property as it did prior to vacatur, thus effectively issuing it another easement. As the agency admitted, however, that process was subject to the strictures of NEPA, the very statute under which this Court had ordered the preparation of an EIS before any such easement could be granted.
The Corps additionally maintained — without citing any authority — that it was under no obligation “to take any particular action to cure an encroachment within a specified time period” or even “to ultimately cure the encroachment at all.” … It estimated that it would make an “initial decision” as to a potential enforcement action against the pipeline by early October 2020, though it emphasized that it retained the “enforcement discretion to adapt its enforcement recommendations based on new information” at any time.”
The judge goes on to discuss the absurdity of the USACE response to these concerns. His utter frustration and disbelief with this USACE situation seems to rage from the page. He cries out against the audacity of the USACE in their dereliction of duty. He notes, “October, meanwhile, came and went without any word from the Corps regarding its promised “initial decision” as to a potential enforcement action.” (Page 8)
On January 26, 2021, the DC Circuit Court “affirmed this Court’s top-line conclusions that: 1) the Corps’ decision not to prepare an EIS violated NEPA, and 2) the easement should be vacated pending such statement’s completion.” (Page 9)
The DC Circuit held that the Corps violated the National Environmental Policy Act (EPA) by issuing an easement allowing the Dakota Access Pipeline to transport crude oil through federally owned land at the Lake Oahe crossing site without preparing an environmental impact statement despite substantial criticisms from the Tribes.
The court rejected the Corps’ and Dakota Access’ contention that the district court applied the wrong standard by relying on National Parks Conservation Association v. Semonite, 916 F.3d at 1083, which emphasized the important role played by entities other than the federal government. The court explained that the Tribes’ unique role and their government-to-government relationship with the United States demand that their criticisms be treated with appropriate solicitude. The court concluded that several serious scientific disputes in this case means that the effects of the Corps’ easement decision are likely to be “highly controversial.” The court also noted that, although the risk of a pipeline leak may be low, that risk is sufficient that a person of ordinary prudence would take it into account in reaching a decision to approve the pipeline’s placement, and its potential consequences are therefore properly considered. The court affirmed the district court’s order vacating the easement while the Corps prepares an environmental impact statement. However, the court reversed the district court’s order to the extent it directed that the pipeline be shut down and emptied of oil.
Wow. I was with them until that last line… which I cannot seem to make sense. Their rationalization?
“With or without oil flowing,”accordingly, “the pipeline will remain an encroachment, leaving the precise consequences of vacatur uncertain.” (Page 9)
And, rather than making the simple and agreeable decision to shut down the flow of oil – you know, the stuff that risks a spill… as an empty pipeline does not risk a spill – the DC Circuit Court said, “(Judge Boasberg’s) Court “could not order the pipeline to be shut down without . . . required making the findings necessary for injunctive relief” under the traditional four-factor test.” (Page 9)
While the DC Circuit Court tossed this back to the USACE, they would soon submit a 60-day request for continuance, with the change, in January 2021, to a new administration…
When the long-awaited hearing finally arrived on April 9, 2021, however, the Corps — despite the instruction from both the Court of Appeals and this Court, as well as its own continuance request — had surprisingly little to say about the pipeline’s encroachment status. Indeed, far from issuing the contemplated “prompt[]” determination as to how it would “enforce its property rights,”… the Corps’ decision appeared to be that it would make no decision at all. According to Government counsel, “[T]he Corps is in a [sic] essentially continuous process of evaluating the status of the encroachment and what steps are best to take.” … While the agency would “continue[] monitor[ing]” the pipeline and could “take an enforcement action at any time,” it had “no . . . enforcement action to announce” at present nor any “timeline” for such potential action moving forward. … At one point, the Corps seemed to acknowledge the possibility that it might not even decide how to enforce its property rights prior to completion of the judicially mandated EIS (currently estimated for March 2022).”
Well, imagine that. The Army Corps can just lazily do nothing and it doesn’t seem a damn thing we can do?
Judge Boasberg notes that while he “ordered the Corps to clarify its position on whether an injunction should issue. … The agency’s response was less than decisive.” He closes the background section with what I felt was a telling statement: “With this long procedural history in tow, the Court is finally prepared to rule on the Tribes’ request for an injunction.” (Page 11)
Boasberg goes on to explain some of the legal details on a threshold argument and on what is required to prove an irreparable harm. In order to pass that test, a plaintiff must convince the Court:
that it has suffered an irreparable injury;
that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;
that the public interest would not be disserved by a permanent injunction.
Boasberg further clarifies:
The Supreme Court “has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” (Page 13)
“Because [plaintiff] has made no showing of irreparable injury here, that alone is sufficient for us to conclude that the district court did not abuse its discretion by rejecting [plaintiff’s] request.” (Id.)
“[T]he injury must be both certain and great; it must be actual and not theoretical.” (Id.)
A mere “possibility” of future harm is insufficient. (Page 14)
…a court, rather, requires affirmative “proof” of likelihood and imminence. (Id.)
Additionally, “the movant must show that the alleged harm will directly result from the action which [it] seeks to enjoin.” (Id.)
Three “kinds of injuries, each of which they claim independently qualifies as imminent irreparable harm and entitles them to permanent injunctive relief” were submitted by the Tribes. The Judge deals with the first at length and the others with greater “dispatch”. (Page 15)
Threat of Damaging Oil Spill
Plaintiffs’ principal claim of irreparable injury derives from the threat of an oil spill underneath Lake Oahe. … That reservoir, as previously mentioned, provides the Tribes with water for drinking, industry, and sacred practices. In order for them to realize any harm from a pipeline leak, however, a series of contingent events must occur: 1) a spill under Lake Oahe; 2) of sufficiently large size; 3) the oil from which rises 92 feet from the pipeline to the bottom of the lake; and 4) which cannot be sufficiently mitigated or contained either before or upon entering the lake. See DA Opp. at 11. Simply itemizing that causal chain suggests the fundamental problem with Plaintiffs’ irreparable-harm argument: they have not established, as they must, that any of the chain’s individual components — let alone the feared end result — is “likely,” as opposed to merely “possibl[e].” …Without such showing, of course, they cannot demonstrate the probability of a damaging DAPL spill at Lake Oahe sufficient to warrant injunctive relief.”
Boasberg goes on to review that previous court findings concur that the risk of a spill at this site is low and that, due to the age of the pipeline, the “Plaintiffs’ own experts” agree that the chances for spill were higher at start-up. He also notes that the suggestion of concern at the DAPL proposed expansion to double its throughput is not an imminent concern. (Page 17) Boasberg mentions a prior ruling on a case of similar circumstance: “Judge Ketanji Brown Jackson, however, found such assertions insufficient to establish irreparable harm because the plaintiffs ‘have not shown that a damaging oil spill is likely to occur.'” (Page 19) He concludes that, while the filing did “win the Tribes a remand for preparation of an EIS under NEPA on the ground that such issues made the easement approval “highly controversial,” … it does little to establish a likelihood that the Tribes will suffer imminent, irremediable harm at Lake Oahe from the pipeline’s continued operation.” (Page 20) As well, he notes the “Court of Appeals has since made clear that this Court may only order an oil stoppage upon finding that (among other things) the Tribes will likely experience irreparable harm absent such relief. The prior vacatur holding has little relevance to that question.” (Page 21) He notes also:
Although the potential injury may be significant, the Tribe must show that it is probable to occur in the absence of the preliminary injunction it now seeks. . . . This is the burden the law imposes for this form of relief. The Court must faithfully and fairly apply that standard in all cases, regardless of how high the stakes or how worthy the cause.”
Over the next few pages of the Order, Boasberg goes on to make clear that the Court is not able on the submitted evidence to determine or calculate the likelihood of an imminent or irreparable spill and that “the law requires the Tribes to make a “clear showing” that such harm is at least “likely” in the absence of an injunction. … All they have shown, rather, is a mere “possibility” of injury — and a fairly minimal one at that. This cannot get them over the hump. No matter the stakes and no matter the cause, courts may not grant the “extraordinary remedy” of an injunction “based only on a possibility of irreparable harm.” (Page 24)
Other Claimed Harms
Apart from the risk of a damaging oil spill, the Tribes assert two other harms that require somewhat less discussion. They maintain that they are irreparably injured by “the ongoing trauma of the government’s refusal to comply with the law,” as well as the “undermining [of] the Tribes’ sovereign governmental role to protect their members and respond to potential disasters.”
While Boasberg finds “Neither tack finds the wind,” it seems to me there could be ample argument for these harms. His case is based on the fact that “The problem with both is simple: they depend on the same remote threat of a pipeline spill that the Court has just found insufficient to constitute irreparable injury.” (Page 24)
While the Tribes arguments focused on arguments based on emotional distress that results from a fear of a spill – which, having a low probability of occurring, cannot justify a reasonable concern in this case. Even when the Tribe “claim that “allowing the pipeline to continue operating despite a serious NEPA violation is part of a pattern” of “‘historic trauma’” experienced by “‘every Tribal member,’” one deriving from the government’s “continued refusal to respect the rights of the Tribes throughout the nation’s history” and its “prioritizing non-Indians” at the expense of Tribal members,” Boasburg argues that this “does not qualify as irreparable harm within the context of this case. … [as it] cannot be meaningfully disentangled from the remote threat of an oil spill at Lake Oahe.” (Page 26-27)
The Court does not deny that shameful past. On the contrary, it fully acknowledges and appreciates the “tragic history of the Great Sioux Nation’s repeated dispossessions at the hands of a hungry and expanding early America,” along with the persistent “threat that new injury will compound old.”
Plaintiffs’ second claimed harm founders for similar reasons as the first. According to the Tribes, “[T]he Corps’ NEPA violations have undermined [their] sovereign governmental role to protect their citizens, respond to disasters, and mitigate harm.” … It soon becomes clear, however, that these governance-based harms are once again derivative of the same speculative spill-risk harms handled above.
One final aspect I find a bit confounding. On page 28, Boasberg notes: “Finally, DAPL itself does not implicate any “loss of sovereignty over Tribal land,” … as the Lake Oahe segment traverses only federal property.” Here I’d argue that ALL LANDS are Tribal lands, though I’m sure there is some legalese that refutes this as well, making my argument illegitimate. [With laws written by the colonizers, those same folks who brought to you deceptive and relentless treaty negotiations, it seems the Tribes are given no option save to declare war on a foreign nation?]
Boasberg redeems himself to me – and places the blame for this situation fully in the hands of the USACE – in this summary of his conclusion that he must deny the relief sought:
It does not reach that conclusion lightly. Fully aware of the unshakable indignities visited upon the Tribes across generations, the Court, as it has throughout this litigation, scrutinizes the record with care. It likewise acknowledges the quandary in which Plaintiffs find themselves and the undeniable frustration that comes with it — namely, having achieved (and successfully defended on appeal) the vacatur of a key pipeline easement, they must now turn around and make an even steeper showing to obtain the injunctive relief necessary to stop the flow of oil.
The Court closes this analysis where it began: with the Corps. Plaintiffs, no doubt, will wish that the Court’s Opinion today had come out differently. Simply by ruling, however, the Court has at least given them something the Corps has not: a decision. Notwithstanding repeated instruction from this Court and the D.C. Circuit to “decide promptly” and “in the first instance” how it “will enforce its property rights” vis-à-vis the pipeline’s encroaching on federal land at Lake Oahe, the Corps has not yet issued any determination on the matter at all — more than ten months since the invalidation of the underlying easement. … Much like the Circuit, this Court presently “ha[s] no occasion to consider” whether, by way of such inaction, the Corps has effectively granted “a de facto outgrant without engaging in the NEPA analysis that the Corps concedes such an action requires.” Id. For now, it suffices to note that by ducking the controversy surrounding the Oahe crossing, the Corps actively tolerates DAPL’s continued operation underneath a key federal waterway that it lacks the necessary authorization to traverse. That, of course, is a political decision outside this Court’s area of inquiry. Whether the Corps formally acknowledges such decision or not, this is the outcome it now owns.”
So we can all cross our fingers and hope for the best!
I should include also, the Judge’s mention of the Tribes’ request for clarification on the 408 Permit “(which the Tribes now maintain “indisputably relied on the invalidated environmental assessment” and thus cannot stand.”) (Page 30) In this instance, the Tribes failed “to explain why vacatur of the Section 408 permit would yield that result, as a “Section 408 permit, rather — much like the MLA easement — simply denotes the Corps’ approval of Dakota Access’s plans to site the pipeline on federal property,” and potential vacatur of said permit also would not bring a shutdown of operations. (Page 30-31)
It’s clear to me that the Judge seems to believe the US Army Corps of Engineers has violated NEPA, however, as the DC District Court ordered against the shut down of the line and that his court had no capacity to do so without proof of imminent and irreparable harms, which he could not do with the information provided, his hands are tied.
I truly believe it broke his heart to write this Order.
There is still a possible option. President Biden could ask the USACE to uphold their Treaty responsibilities and do what is right, honor the voices of the Native Peoples asking for relief. Give them relief, if only until the Corps can complete the EIS. It’s the right thing to do.
In Early February, 33 Democrats wrote to Biden, urging him to close down the pipeline, stopping it from transporting crude oil between North Dakota and Illinois.
“By shutting down this illegal pipeline, you can continue to show your administration values the environment and the rights of Indigenous communities more than the profits of outdated fossil fuel industries,” they wrote….
In a statement, the Indigenous Environmental Network (IEN) focused on Biden’s infrastructure proposal, claiming that it has a “major oversight: it neither acknowledges nor strengthens tribal sovereignty.”
“Congress and the Biden administration must know that recovery cannot take place until Tribal nations are the ones making the decisions about projects that impact their peoples and their lands,” IEN stated.
By that title, I refer both to the corruption associated with the pandemic as well as the possible eruption of disease we are potentially about to see in the U.S. You know, like India is seeing now?
Much of this blog is a consolidation of recent data and expressed ideas in my daily FB posted COVID updates. I’m simply trying to wrap my mind around what I’m reading and digest it into what it might mean going forward. It’s all just my speculation on the interpretation I have of the data I access, presented to you for comment, feedback, idea generation, something to share (or simply to laugh at…), as the case may be.
So what’s happening of late?
I’m noticing that while MN continues to push vaccinations, we seem to have peaked on folks getting them. What this means for disease spread is far from sure, as becomes clearer below.
While some may be surprised to see this trend of Minnesota vaccine figures waning, you can count me NOT shocked. With the complete failure by the government to be honest about the data and transparent about the backrooms deals, all while we see continued actions of white supremacy throughout agencies and in the legislatures and courts… I’m surprised as many people TRUST the vaccines as do.
Though I get the calculation of risks that lead many to secure them, I’m not sure these folks all have access to vaccine data (or personal experience) that might change their minds, were they only aware of it. I’m simply operating on the precautionary principle and I realize my privilege of being a hermit in the woods is a big part of what allows me to do so. I also realize it means that folks who choose to only associate in person with vaccinated people will be out of my life physically… for a while at least. Which was something I was pretty geared for since… well, really over a year ago, so… sad but not unexpected.
There are many with valid concerns regarding these “emergency use” vaccines. We have turned our entire global population into a human experiment… with unknown repercussions to come. Already coming, in fact.
No surprise, I guess, as humans have long decided about asbestos, farming with chemicals, PFAS, and other bows down to human science (without regard for natural repercussions), which have brought similar problems… Simply something I’d hope we can all consider as we each make our own decisions about whether or not to be vaccinated. Let’s be less judgmental and more compassionate perhaps? Not so all-knowingly confident… as we lack real data to hold such confidence?
While Minnesota seems to be banking on a downward trend in figures as they happily vaccinate more of their citizens, I’m afraid their planning figures for PPE may be a bit short, if instead we continue to see hospitalizations rise. As can be seen in the tables, Minnesota is banking on supplies lasting for at least another 52 days. However, I see a couple problems with their data that might indicate a less than fully prepared plan.
First, let’s talk about the basis of their plan. As of April 2nd (nice they didn’t use April Fool’s Day but…) our managers are banking on the PPE levels in this graphic. We’re looking at 114 days worth of face masks, 105 days of face shields, 124 days of gloves, 156 of gowns, and 290 of N95 respirators. Those figures are based on a baseline usage from August 2020. They even halve those figures – if we happen to get to 2X baseline usage, which is how we get to “at least” 52 days (with the limiting factor being face shields). Note that we have ZERO days on hand awaiting delivery for face masks, gowns and N95 respirators while we have 3 days of face shields and 12 days worth of gloves awaiting delivery.
On the whole, this seems a really great plan, eh? Well-thought out with a doubling of the baseline usage to – we assume – conservatively estimate the planning and, possibly facilitating ordering plans as well? Well, if August is a good baseline of usage, this makes sense. Let’s see if it does.
In August 2020, we were seeing an average of 10.2 ICU and 41.7 hospitalizations each day. So, if we were at even 20 ICUs and 83 hospitalizations, we’d be in good shape using this as a basis, right? However, if we get back up to November usage figures of 39.3 ICUs and 230.9 hospitalizations, we’d be at 3.9X and 5.5X the usage of August. So definitely underestimating our needs. Currently, we’re averaging ICUs of 1.7X and hospitalizations of 2.3X August 2020 figures (17.4 ICUs & 95.4 hospitalizations daily for April 2021). If trends continue for less hospitalizations, Minnesota will be ok.
However, if things take off – as we’ve seen in India – and if Minnesota returns to November levels of hospitalizations, we’d see a less rosy picture. If we halve the prepared supplies again, (to simulate an immediate uptick to a 4X rate of use), Minnesotans are looking at less than a month’s supply on face masks & shields, just about a month’s supply on gloves and gowns, and about a 2.5 month supply on N95 respirators. With almost nothing in the pipeline awaiting delivery. Yet, if we see that happen, perhaps there are no plans that might be sufficient.
And how are our Minnesota hospitals doing to remain prepared? Well, not as good as one might hope.
MN maintains 101 ICU beds and 702 hospital beds over May Day weekend.
Staffing capacities show more than 60% of hospitals are unable to maintain expected capacities for ICU or regular bed support.
With the many variants, I’m not sure that MN is taking a proper precautionary approach… especially with many vaccinated still finding themselves infected… and even in some cases dying. While some call it propaganda, this information on vaccine development, testing, and concerns has been enlightening. I find the “propaganda” of mainstream news, alt-media, and even late night hosts poo-pooing the use of Ivermectin to be just as concerning… though I’m guessing some (having been indoctrinated by the mainstream media narrative over long months) will simply think me “crazy” for it. Even the NIH is re-considering Ivermectin FFS.
I’m more into digesting the science, examining data, looking at how cells and viruses function than simply listening to talking heads (paid to please their sponsors) and believing what they have to say. Especially when the data is so readily saying the opposite of what those talking heads are implying? It’s not just 6 people with blood clots, folks.
As of April 20, the CDC had reported a total of 7,157 cases of COVID-19 among fully vaccinated people and 88 deaths. However, as of April 26th, that rose to 9,245 cases and 132 deaths – an increase of 29% in cases in less than a week and 50% increase in deaths. Additionally, the CDC figures on April 13th were 5800 cases with 74 dead – meaning we’ve seen a 59% increase in cases and 78% increase in deaths for vaccinated folks in less than two weeks. Not good trends…
Something to watch closely as it appears to affect women at a higher rate. I’m wondering what the stats are on people of color, though those are not broken out in the CDC reporting.
The data on vaccination by race is an interesting review for MN. [scroll down for the state-by-state table] From what I can tell in a quick review, Minnesota has vaccinated more whites proportionately than other races (perhaps to be expected in a white supremacy focused society), though Asians seem to get a fair swing at accessibility. Regardless, death counts appear best for Asians, worst for whites (my guess would be that this is due to complacency and obesity… regardless of accessibility to health care) and, of course, there is NO DATA for the Indigenous to this land. FFS.
Overall, things are tentative from my perspective. And if Tim Walz and his administration still plan to allow a bunch of pipeliners to return from out-of-state in coming weeks, I’d say we better prepare for the worst.
Retired at 45 