By Brian Turner, Will Cook, and Elizabeth Merritt
On Tuesday, October 25, as part of the Preservation Leadership Forum’s webinar series, we hosted a webinar about some of the legal issues involved in the ongoing Dakota Access Pipeline controversy, including Section 106 of the National Historic Preservation Act. You can listen to a recording of the webinar and download the slides as well as a resource document packet. During the webinar we ran out of time before all attendee questions could be addressed. Here is a selection of the remaining questions, edited for clarity.
Is there an alternative downriver where the pipeline could go?
In July 2016 the Army Corps issued a Final Environmental Assessment/Finding of No Significant Effect (EA/FONSI) for the Dakota Access Pipeline. It concluded that the project would not have adverse environmental impacts that would have warranted an environmental impact statement (EIS). However, the scope of the EA was extremely narrow: of the total 1,100 miles of the pipeline, the EA was limited to only the 2.83 miles where the pipeline would cross federally managed flowage easements in the northwestern part of North Dakota and the 0.21 miles where the pipeline would cross federal lands adjacent to Lake Oahe, just north of the Standing Rock Sioux Reservation.
The EA did describe an alternative route that would cross Lake Oahe upriver (approximately 10 miles north of Bismarck) but did not evaluate an alternative route downriver (south of the Standing Rock Sioux Reservation). The northern alternative alignment was rejected, in part because it would have additional impacts on wetlands and wildlife habitat. A downriver alternative would be in closer proximity to other tribal reservations.
How does the U.S. Army Corps of Engineers address the "cumulative impacts" portion of 33 U.S.C. § 1344(e)(1) if they don't look at the whole project?
The citation in the question refers to the federal law which is the basis for the Army Corps’ general permitting authority. The law specifies that the Army Corps may only issue general permits for activities that “will have only minimal cumulative adverse effect on the environment.”
The EA issued in July 2016 does purport to address cumulative impacts, but (1) only within the “project area,” which is very narrowly defined and (2) only with respect to the crossings of federal easements, not Nationwide Permits. For example, the discussion of cumulative impacts on cultural and historic resources is limited to six sentences. In general, the EA concludes that the pipeline would not increase the amount of oil and gas production activity in North Dakota because production is already maximized based on available equipment and crews and therefore no cumulative impacts would occur.
The issue of whether the Army Corps properly analyzed the cumulative impacts of the Dakota Access Pipeline prior to authorizing permits under Nationwide Permit 12 is a central point of contention in the Standing Rock Sioux Tribe’s legal challenge. The 1,100-mile pipeline includes 202 crossings of wetlands or waters under the Army Corps’ jurisdiction, which were not addressed in the EA. The Army Corps argues that Nationwide Permit 12 has sufficient protections to assure that adverse cumulative impacts are mitigated. The Tribe and others argue that, given the size and scale of the pipeline as a whole, individual mitigation measures for the myriad river crossings are insufficient.
Traditional Cultural Properties (TCPs) associated with non-tribal communities have been better protected than TCPs associated only with tribes. How can cultural resource managers overcome these biases?
It is helpful for us to hear these comments from those working in the field because, in our experience, an agency bias in support of non-tribal communities is unusual. That said, the National Trust recognizes the significant threats to landscapes that have religious and cultural significance to Indian tribes and Native Hawaiian organizations. We must now convince federal agencies to improve their sensitivity to these resources and their consultation with tribes.
One process we are watching closely is the Advisory Council on Historic Preservation’s (ACHP) Traditional Cultural Landscapes initiative. As a result of that initiative, the ACHP’s Office of Native American Affairs has prepared a new information paper on cultural landscapes. In addition, the National Park Service is currently developing an update to Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties. Another positive example is the Bureau of Land Management’s recent efforts to promote landscape-level planning.
So is the "fix" just getting the president to issue a different memo about how the permitting process should proceed?
Any “fix” would be more complicated than a presidential memo. As an agency of the executive branch, the Army Corps has the authority to suspend its approvals under Nationwide Permit 12 or to determine that the “standard” permit is required, rather than the nationwide permit. Although Congress provided the Army Corps the authority to issue nationwide permits, the agency has the discretion to decide whether those are appropriate on a case-by-case basis. For example, the Army Corps could make a determination that oil shale pipelines are not entitled to expedited review because, by their nature, they do not meet the eligibility criteria of having a “minimal cumulative adverse effect.” It is also important to keep in mind that the federal court may rule that some aspect of the permit authorization was unlawful and remand the decision back to the Army Corps for further review.
Do you expect that the increased pressure to install pipelines in the Eastern United States (such as the Pilgrim or Algonquin pipeline projects) will raise similar concerns about impacts on TCPs and traditional cultural landscapes?
Many of the Eastern pipelines are regulated by the Federal Energy Regulatory Commission (FERC), which has direct jurisdiction over pipelines as a whole when they would carry natural gas (e.g., the Algonquin, Mountain Valley, Atlantic Coast, and Penn East pipelines). Unfortunately, FERC has a poor record of compliance with Section 106 with a tendency to undervalue landscape-level resources, focusing instead on individual structures and architectural resources.
Is there any additional legal recourse that is being or could be pursued regarding the permits that have already been issued by the Army Corps?
The Standing Rock Sioux Tribe, later joined by the Cheyenne River Sioux Tribe, brought the first legal challenge to federal approvals, but it is not the last or only legal challenge to the Dakota Access Pipeline. The Yankton Sioux Tribe has filed a separate federal lawsuit that raises many of the same claims. Affected property owners have also filed a lawsuit, scheduled for trial in Iowa District Court in December, regarding the use of eminent domain authority by the Iowa Utilities Board to facilitate pipeline construction. Iowa Representative David Young has publicly raised concerns about this as an infringement on private property rights.
This is not a Dakota Access Pipeline question, but is Arizona 202 Loop and South Mountain on the radar for TCP conversation? I'm from the Navajo Reservation, so it was nice to hear Escalade and sacred Mount Taylor mentioned.
The Arizona Department of Transportation and the Federal Highway Administration did consider South Mountain (Muhadagi Doag) a National Register–eligible TCP in its Section 4(f) evaluation for the South Mountain Freeway project. Recently, a federal court judge sided with the agencies, finding that impacts to this and other culturally important properties had been appropriately mitigated. We understand that plaintiffs—including the Gila River Indian Community and Colorado River Indian Tribes—are appealing that ruling to the 9th Circuit Court of Appeals.
Do we know how many properties that are listed on or eligible for the National Register are within the area of the Dakota Access Pipeline but have not been assessed because of the limited scope of area that the Army Corps is evaluating?
The answer differs by state because some state laws require survey along the entire corridor regardless of the applicability of federal review. In North Dakota, for example, the sufficiency of identification efforts remains a point of contention between the tribes and the North Dakota State Historic Preservation Office (SHPO). Page 19 of our resource document packet provides the North Dakota SHPO’s perspective. It states that, in accordance with state law requirements, a full 357-mile pedestrian survey was completed, 149 potentially eligible sites were identified, and all but nine were avoided. It is not clear from this document, however, whether any tribal representatives were included in the survey.
The tribes argue that tribal participation in the survey process is essential and did not occur in the North Dakota surveys. This is reflected in the declaration of Standing Rock Sioux Tribal Historic Preservation Officer Jon Eagle, Sr. (also in the resource document), which states that the archaeologists hired by the pipeline company did not have the training necessary to identify significant properties. The tribes have also raised questions as to whether it was proper to rely on older survey data.
How can we, as individual preservationists and as members of the Trust, support the water protectors beyond signing the letters from the Society of American Archaeologists and Natural History Museum?
For those who are interested, the Standing Rock Sioux Tribe’s website has links to a fund and to a petition asking President Obama to permanently stop construction of the Dakota Access Pipeline.
Brian Turner is the senior field officer and attorney in the San Francisco Field Office of the National Trust for Historic Preservation. Will Cook is an associate general counsel at the National Trust. Elizabeth Merritt is deputy general counsel for the National Trust.#Diversity #NHPA #NativeAmerican #Section106 #Legal #ForumWebinar