It’s been another whirlwind of a week in Enbridgeland.
As most find themselves accepting a future Enbridge wishes – and promotes daily on the radio still… and with large ads in the paper too? [I wouldn’t know as we don’t get a paper. Perhaps for the best to not have to see Enbridge lies…] Their favorite, in these end days, is the one about how well Enbridge works with the Tribes. [FFS. They’ve done all they can to DIVIDE Tribes!]
This weekend, we discovered a new tagline – financed by Enbridge I’m guessing, based on the large billboards and signs being for the companies who have long supported the Line 3 project …for what recompense, I know not, though perhaps some foolishly support them without compensation? These new signs are perhaps the scariest yet… so I’ll save them for the end of the blog.
Yet regardless of all their advertising, Enbridge could not be in a much bigger mess at this point in the game.
As we saw with Dakota Access Pipeline on their final river crossing, Standing Rock Sioux Tribe brought out tremendous support AGAINST a pipeline running through [not the white neighborhoods of Bismark… but] the Native lands of the Sioux People. All along the Line 3 process in Minnesota, we’ve seen the strong and vocal opposition, based in science and standing on the treaty rights of the Anishinaabeg.
Yet these citizens were stymied again and again by state agencies in apparent collusion with Enbridge as commissioners were nearly completely unwilling to meet with citizens or scientists, state representatives literally campaigned for the oil transport company to be paid millions of dollars in back taxes, and even the MN Court of Appeals seemed to find that, even though there was no demand forecast provided… deferring to the Public Utilities Commission was A-OK anyway!
Nevertheless, Enbridge is finding its project also falling apart at their last crossing… of the Clearwater River, no less. Ironic, no? As they are trying to wrap up construction, there is evidence of a frac-out once again.
To this DAY, STILL the Mississippi Headwaters continues to show evidence of frac-out drilling mud seeping up through the wetlands and rising to the water surfaces, and into Misi-ziibi. All coming downstream to a drinking water source near you?
That was just the beginning of their HDD (Horizontally Directional Drilled) water crossings and their luck has continued to be poor as we now see the frac-outs at the Clearwater River, as well as the larger problem of Enbridge’s VIOLATION of their Construction Permit which resulted in their BREACH OF AN AQUIFER in Clearbrook – WAY BACK IN JANUARY… which the DNR claims to not have known about until June 15, 2021, and for which the public was not informed until just this month. This aquifer CONTINUES to leak as Enbridge finds no way to remedy their rupture. NINE MONTHS LATER… [FFS, I could make an entire HUMAN in that time!]
Keep in mind that June 15th was just ELEVEN (11) DAYS after the DNR approved an almost 10-fold increase in dewatering allowance for Enbridge. DID NO ONE CONNECT THE FUCKING DOTS ON THIS SHIT??? FFS How thoughtless ARE the DNR agency representatives???
Separately, the DNR has also referred this matter to the Clearwater County Attorney for criminal prosecution. The DNR has determined that Enbridge Energy violated Minnesota Statute 103G.141, subdivision 1, which makes it a crime to appropriate “waters of the state without previously obtaining a permit from the commissioner.”
The criminal referral and civil enforcement orders resulted from an investigation of Line 3 construction activities near Enbridge’s Clearbrook Terminal. Should the company violate the DNR’s restoration order, it would be subject to additional misdemeanor charges under state law.”
On Saturday, we discovered a large Enbridge holding tank farm in SE Bagley, just between the golf course and the nursing home facility in a small cul-de-sac neighborhood of quiet homes. On discovery, I wasn’t sure what this holding tank facility was all about, though on review of the footage at home that evening, I determined these were likely settling tanks for the large amounts of water Enbridge was removing from our landscape as they try to finish their work.
What are the contents of these tanks?
It seems two things, based on aerial and on the ground footage… and NO INPUT FROM THE DNR OR MPCA to Citizens of the dangers entailed.
First, they appear to be tanks for the frac-out contaminated waters vaccuumed from their HDD locations to be placed for settling – as their designed dewatering systems were FAR TOO INSUBSTANTIAL to accommodate the LARGE QUANTITIES OF FRAC-OUT CONTAMINATED WATER.
Enbridge dumps water in here and hope the bales filter out any sediments as the liquid – water with any contaminants from the trench – flows back into the environment. Or so I hear… never saw one in use here in Clearwater County.
Second, with the aquifer breach near Enbridge’s Clearbrook Terminal, it seems clear there could also be water coming from that location as well. AND at least one truck leaving this job site was marked not as “Non-Potable Water” but with HazMat Code 1993 – FLAMMABLE LIQUID.
We saw multiple trucks leaving an area on Fairgrounds Road directly east of the Bagley dump. Not only did we see dump trucks (one that dumped its load in the dump) and “Non-Potable Water” trucks, but also another with HazMat Code 1993 – FLAMMABLE LIQUID, following that one directly to the tank farm facility SE of Bagley.
The Administrative Penalty Order issued to Enbridge found Enbridge far exceeded plans presented to the state of Minnesota for only an 8′ deep trench in the area:
Beginning on about January 21, 2021, and continuing through the date of this APO, Enbridge has violated Minn. Stat. § 103G.223 by causing reductions in groundwater resources available to the Leon 33 calcareous fen (Steenerson and Deep Lake Fens) (calcareous fens) without an approved calcareous fen management plan. In 2020, Enbridge informed DNR, in its request for a no effect concurrence, that its construction activities were unlikely to negatively impact the nearby calcareous fens because Enbridge intended to excavate about an eight foot deep trench. Instead, when Enbridge constructed the pipeline at or near the Clearbrook Terminal, Enbridge excavated an eighteen foot deep trench and installed sheet piling to a depth of 28 feet. Because Enbridge deviated from its plans, Enbridge breached an artesian aquifer, causing uncontrolled flow of groundwater. The uncontrolled flow affects the same aquifer that upwells into the Leon 33 calcareous fen (Steenerson and Deep Lake Fens) and is located approximately 4,800 feet northwest of the calcareous fens. Enbridge failed to submit a calcareous fen management plan for DNR approval prior conducting an activity that may drain, or otherwise degrade, wholly or partially, a calcareous fen.”
This situation is also noted in the Restoration and Replacement Order:
In an email to Randall Doneen dated July 7, 2021, Kristen Lenz of Merjent, Enbridge’s consultant, stated that as of March 19, 2021, the quantity of water pumped was estimated at 3.8 million gallons. Enbridge had not taken any flow or volume measurements since March 18. Attachments to the email showed that the depth of the bore pit was 18 feet deep by 45 feet long by 12 feet wide. The sheet piling was 30 feet long with 28 feet installed into the ground. This email contained maps, boring logs and other information about the area.”
That many still support Enbridge is a sign of a poor media capacity to shine the light on the egregious way Enbridge is already damaging our state, including for the last nine months, by bleeding water from our landscape – itself experiencing severe drought – as the pipeline company begged the DNR for a HUGE increase in their use of water from the state, all while not revealing their company’s BREACH of an Aquifer because they FAILED to CONFORM to their Construction Permit Requirements!!!
The media has failed – always seeming to drink the Enbridge kool-aid… perhaps because of all those big ads… that generated much-needed revenues during a pandemic? From scarcely reporting on the death and near-death of two Enbridge employees early on in the project work… to barely noting the inclusion of Enbridge pipeliners involved in sex crimes across the north… to not reporting on the police brutality by DNR Officers, State Troopers, and local law enforcement – with much exception here in Clearwater County where we’ve seen Sheriff Halverson honestly, fairly, and transparently enforcing the law. And while they are not covering those very serious and traumatic events, we watch them give the same short shrift to explaining to the public how the state agencies and local citizens have been duped by Enbridge money and propaganda. The media seem just another paid promoter for Enbridge.
Which brings me back to those scary new banners.
For those who cannot easily name their product, they choose another word in their star-spangled banner ads:
I’m hoping this time, the public sees the already atrocious concerns being raised simply by Enbridge’s CONSTRUCTION process, and that they will certainly be rising to assure Minnesota is protected from this foreign corporation destroying even MORE of Minnesota than we’ve seen to date.
We surely have seen that no one in the State Agencies are coming to our rescue.
Bad news: PUC apparently giving Enbridge the Green Light… even though there is SO MUCH MESS STILL REMAINING! Exposed and incomplete wiring not done at many crossings along the RA-05 portion of the route – even at the Clearbrook Terminal.
Note the VERY WIDE CORRIDOR which Enbridge seemingly hopes to be able to move all their pipelines into – as their easements for their pipelines thru Leech Lake Reservation end in 2029. Wishing more had understood the critical reasons we have worked so hard to #StopLine3.
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.
I was in disbelief on hearing about what is being reported by Sheriff Kyle Kirchmeier about “reports of uh, weapons, of uh, pipebombs, of some shots fired, of vandalism happening in that area, and uh, assaults on private security”… and you should be in disbelief too. The focus of this endeavor has been repeated time and again by leaders at the protest:
This is a non-violent, peaceful action. No weapons, drugs or alcohol are allowed. We are here to peacefully Protect the Earth and Defend the Water.
Our trip to Cannon Ball, ND was quite an experience. Since we were on a short trip, we agreed getting arrested was not advisable. I was expecting a bail of $100-150 but bail was set at $250. I didn’t bring quite that much cash and did not want to be a burden on the tribal funds supporting the bail efforts. If you’d like to donate, you can contribute to the fundrazr here: https://fundrazr.com/d19fAf
The arrival began with a roadblock as concrete barriers were being put in place to “protect the construction workers”. While the Water Defenders are participating in a non-violent resistance where no weapons are permitted, the security workers and police are heavily armed with automatic weapons and tasers. https://youtu.be/K_FKlo9VhLc
Once we passed the block, we pulled over to park and join the Resistance. It was inspiring. There was praying and singing and dancing as I cried and stood awestruck by the peaceful power. https://youtu.be/AvYycioWjBc
I was quite excited to meet Kevin (K-Love) almost immediately on our arrival. I’d seen video of him on FB prior to our departure from Alexandria where he was fulfilling one of the items I have on my bucket list, getting arrested as an activist. He gave me a
long and warm hug which was a big welcome. I also spoke to one of the Sheriffs to thank him for his service and to let him know we appreciated that they didn’t really want to be here either. He said he understood our stance and if I could spread a good word about them, that would be good. I told him we’re not the ones they should worry about, we’re not the ones with the guns. The security from the pipeline are the ones to fear I told him. They’re carrying the big guns. (No hug from the Sheriff…) 🙂
We found Joye and she gave directed us to first set camp at the Sacred Stone campground (on land provided by LaDonna Brave Bull Allard, the historic preservation officer for SRST). Once we set camp and delivered the food and supplies we’d brought, we were to work to set up a charging station for cell phones and laptops. In the end, the equipment was not capable to provide what we needed. Prior to leaving for town on a fruitless search to find needed equipment, we witnessed the arrest of Heather Belgarde. She stood on the barricade with a flag. Others had been walking and standing on the barricade all day but for some reason, the law enforcement could not abide her standing in place with her flag. They asked her to stand down and then pulled her from the barricade to arrest her. There were no female officers attending to her arrest. Here is video of the event: https://www.youtube.com/watch?v=T4mAT1L5KBg
Following this arrest, invited leader Mekasi Horinek, stood on the barrier admonishing the officers. What they were doing was wrong. Yet he humbly reminded everyone that we are standing in peace. We will not resort to violence. I couldn’t help but wonder how they do it. With such unfair treatment, over and over again, they continued to stand together peaceably.
We arrived back at the protest area to find that there had been a major change in events. The Oglala Spirit Riders had risen up, pushing law enforcement back. And, an unplanned youth action where several young women jumped the fence to run toward the equipment in the construction area had resulted in a shutdown of activity for the day. They approached the men asking if they had children, admonishing them to find alternative work. When asked what they were doing, they said, “taking a stroll”. One crew member informed them this was private land and Black Shawl Woman replied that this was why the construction crew needed to leave. The men were bewildered and did not know what to do. The girls ran for the river and swam over to the camp at Sacred Stone. (Later you will get a better idea of how long a journey this was.)
Our efforts soon after focused on helping prepare the evening meal. Sylvia is a wonderful cook and she created an amazing goulash from random donated food we dug up in the supply tents. I was helpful in keeping the mini “rocket” stove stoked to heat her pot. Meanwhile, Rita worked on finalizing the salad she’d brought partially prepared. These dishes were both delish additions to the other dishes that were provided to serve the over 200 people. Our numbers increased greatly today with about 250 arriving from Cheyenne River and more on the way. A second overflow camp was started closer to the Protest Site with lovely teepees sprouting up one after another.
We enjoyed getting to know people from all across the nation who have gathered together here to stand for the water. Met Adam from Up to Us – he’s from Dayton, Ohio and was amazed to meet a girl from Fairborn. Met Phil from Colorado – he and his buddy have been travelling, most recently to the DNC, protesting. Billy and her kids who were hanging around after dinner – they are local and, like many, made us feel so welcome. Bess, from Washington State, who is free as a bird with no debt and few possessions and who cracked us up with her hilarious statements. Sylvia and Rita shared that during lunch prep the next day, she noted that they were slapping together sandwiches so efficiently that they “could start a church”.
The first night had been spent in a hotel after arriving at 1 AM to the Bismark area and this second night in our tent would be quite different. While it was comfortable with only a blanket initially, it soon became clear that the sleeping bags would be necessary. I can’t imagine how cold it’s been camping here since April! It is the height of summer for crying out loud! And I’m bundled in a sleeping bag! Since we’d staked our tent on a bit of a hill, we had to keep re-positioning throughout the night. At one point, I awoke, half off my mat, and as I pushed up to regain the lost ground, I looked over to find Rita curled up with her head on the sleeping mat and the rest of her body in a ball at the door to the tent. I had to laugh out loud.
The next morning we were aroused with a loudspeaker playing drums and chants and a guy yelling to “Get up, Get Up” and get to the site. We dressed quickly, hoping to be present at the prayer circle held every morning prior to the arrival of the construction crew. We were there in plenty of time and were able to receive purification smudge and listen as the leaders reminded us of the primary criteria we needed to keep in mind:
This is a peaceful protest. No guns or weapons of any kind are allowed. We are not violent in any way. We are simply standing together for our water.
We are a unified gathering. While we may have different practices and ways, we are all together here for one reason, to protect our river. Native people have gathered in these lands for centuries with no bloodshed because of respect for each other’s rights. We ask to be included, to be welcomed, and we respect each other’s ways. And we do not act as individuals but as a tribe with a single purpose, peacefully resisting the potential destruction a pipeline would bring.
Our leader, Mekasi, asked his sister to do the prayer, after we heard from Dana of Standing Rock Sioux Tribe, and she gave a wonderful prayer while Mekasi sang. Shortly after, we received word that the construction crew that normally awaits the Sheriff escort, a ways north up the road, was nowhere to be seen. No construction crew, no law enforcement, no one was coming!! Phyllis gave us a history and legal review and then Mekasi took a moment to recognize Heather Belgarde from the day before. While her action was not planned, it was driven by her heart and she was recognized as a Warrior. She was walked around the circle so we could all see her and thank her. I felt blessed to be standing so near to Mekasi’s sister (I’d moved up earlier to be able to hear Phyllis speak) who stopped Mekasi after this presentation and asked to speak about Heather’s dad. She told Heather, and us all, that she knew Heather’s Father. She had been one of the few women on the first Dakota 38 ride and he’d been instrumental in that ride, working with the horses and making sure all went well. He was a Warrior and she too was a Warrior. It was
a beautiful recognition, honoring both Heather and her Father. Heather teared up as she spoke and then came over to give her a hug in thanks. Heather is young. I kept thinking she was too young to have lost her father already. But I will remember her name. And I will remember that she is a Warrior.
Rita and Sylvia went back to camp for coffee and to cook while I stayed at the Protest Site. There were songs, stories and gatherings as we kept watch. From atop the hill to the north, there continued to be a single vehicle, parked watching the site. We were under surveillance. But we were going nowhere.
Several people spoke or sang songs, like Tyrell from Pine Ridge, a “common man” who sang beautifully. One girl, Black Shawl Woman, had jumped the fence to run the previous day and she recounted her feelings as she ran. She spoke of feeling her ancestors with her and the drumbeat of her heart as their feet pounding the earth beside her. As I had sat with these young women recounting their story of running the previous day, Chuck, a Cheyenne River member, noted that, in olden days, they would be singing their stories. One of the most beautiful things I heard this morning was from Chuck.
Here are security men in body armor holding tasers and automatic weapons faced by Women and Children with Sage in their Hands
Chuck was one of the most hospitable people I met in these two days. He was a bright light for me. I met many others too. Waldo who shared the story of losing his wife and how it affected his daughters, and him. Nicholas who’d been a Super volunteer for Bernie’s campaign – we had a lot to share together. Donna who’d brought Johnny from Stevens Point, WI. Shunka and his humans who’d come from Philly. Frank Martin, a teacher on the Rez. Richard Gray Day who encouraged us with stories on arrival of the pending masses. Ryan from Aloha Ke Akua Healing Center.
Later Rita and Sylvia brought peach oatmeal and sandwiches for the hungry people. And we ate some of the cabbage and peanut butter I’d brought. I noticed that the gates were open and Water Defenders were streaming through into the construction site. I wondered aloud what was happening. We headed to the gate and though we asked several what was happening, all we heard was, “They’re walking to the river.” We didn’t know if this was sanctioned but I knew I wanted to see over the hill. We could see very little from the Protest Site, just the beginning of a road. So we headed inside. https://youtu.be/xOtskgHG9Rw
It was amazing to me that the distance to the river was quite far. Each time we’d think we would be there, there was another distance to cross. I don’t know how they are going to make it to the river from 1806 – it’s a long way. We walked for about an hour to get to the Missouri River. And the river itself is a massive expanse. It’s edges ever-changing. Why on Earth would we think it’s a good idea to put a pipeline carrying dirty oil under this source of life?
Along the way, we were blessed by a young girl handing us stems of sage. Her name was Delilah and she was a delight. We met up again with her at the river where we dipped our sage. I was not willing to let this sacred memento go into the river but instead offered tobacco. I will burn this sage some special time to come. Perhaps when we have won this battle. Delilah’s aunt Dominique also gave us a blessing from the Creator, bringing us to tears. The loving kindness of these people we have met is palpable. We swallow it whole and carry it with us from here onward.
It was often the case that we felt completely welcome and involved. It was very rare to feel any distrust or negativity. But I would like to review one experience as it was a big realization for me on this journey. Two young women were talking near me. After they’d been talking for some time, I’d asked politely if I could join them and Black Shawl Woman welcomed me but the other woman seemed nonplussed by my arrival. I listened to their stories and thanked them for their bravery but the one woman never seemed to warm to me, directing all her commentary to only Black Shawl Woman and turning away from me. My friend Rita educated me on the fact that, in Native culture, it is common that eyes don’t meet until there is trust and knowledge of each other. There are so many subtle layers of culture and this was one of many aspects not firmly ingrained in my wheelhouse. And, while I know there was no reason for any of these people to trust me, it was simply one instance that felt different after so many open and friendly welcomes. Later, when we arrived at home in Alexandria, while telling Danny and Jon about our journey, Danny noted that there were probably many who were wary of us. We were strangers coming into their space and surely it would be easy to pose as a protester while truly working for the pipeline people. WOW! This just didn’t even cross my mind. With these new pieces of information, I could let go of any hard feeling I had felt toward the quiet woman. I have a deeper kind of understanding, a new perspective to consider. That husband of mine is quite thoughtful. And this is why I keep him around… or so he sometimes jokes.
There is so little on this in the media but many videographers and bloggers keeping the messages coming. Here are some things you might want to review for more information.