Lawful development in the crosshairs

Recent developments in nearby North Dakota have begun to look alarmingly similar to a conflict in the Badger Two Medicine area of northwest Montana. In short, lawful development is being hijacked

In North Dakota, construction of the $3.7 billion dollar Dakota Access Pipeline has been delayed in spite of receiving approval from the Army Corps of Engineers in July, as well as every operational permit required by law, following a rigorous public comment period wherein current protesters were nowhere to be found. Additionally, 100% of voluntary easement agreements have been secured with privately owned properties along the route in North Dakota.

Earthjustice filed a lawsuit against the Army Corps on behalf of the Standing Rock Sioux Tribe of South Dakota, alleging they had not engaged in “meaningful consultation” with the tribe as required by law, and that federal regulations governing environmental standards and historic preservation had been ignored. The Corps confirmed, however, that the pipeline did not cross tribal lands, and on September 9th, Judge James Boasberg of the D.C. District Court, who denied the Tribe’s lawsuit, stated that the Corps had sufficiently followed federal law in approving the pipeline, and that because the majority of the pipeline sites were on private land, claims of harm to tribal archaeological sites were unsubstantiated.

The same day that the federal judge denied the Tribe’s lawsuit, however, three federal administrative agencies, including the Army Corps, stepped in to halt construction of the pipeline by requesting Energy Transfer Partners, owner of the Dakota Access Pipeline, to voluntarily pause all construction activity within the contested area near Lake Oahe. Now, the Army Corps will move to “reconsider any of its previous decisions”.

Bear in mind that the pipeline operator has already undergone a rigorous permitting process, including consultation with a subcontractor, GeoEngineers, which assessed impacts of the project to natural features, cultural resource features or above ground structures, and found none.

Chairman and CEO of Energy Transfer, Kelcy Warren, wrote in an internal memo, "concerns about the pipeline’s impact on the local water supply are unfounded," and "multiple archaeological studies conducted with state historic preservation offices found no sacred items along the route."

In Montana, Earthjustice has also been working on the behalf of the Blackfeet Tribe to see all leases in the Badger Two Medicine area cancelled, citing irreparable harm to lands which hold cultural and religious significance to the Tribe. These are leases which, like the Dakota Access Pipeline, received previous approval to operate.

In the most recent development, the Obama Administration’s Justice Department has asked a federal judge throw out a lawsuit seeking to overturn a Department of Interior decision to cancel leases in the Badger Two Medicine area, some of which were issued during the Reagan era. The leases are located off the reservation on a tract of public land relinquished by the Tribe in the late 1800’s.

Solenex LLC, has been actively pursuing development of a lease for more than three decades, and continues to push for the right to drill following an unsuccessful consultation process between interested parties including Earthjustice, the Blackfeet Tribe, and the leaseholder among others.

The contested lease area was not included in the original boundaries of the cultural district that was established after the lease was granted. It was added only after a fourth ethnographic study of the area's cultural significance to the Blackfeet Tribe.

Most crucial to point out is that key cultural and religious information on the area, as determined by four separate studies, has been kept confidential. Redacted information from the studies is legally protected, giving neither the public or project applicant (operator/leaseholder) access to the very findings which justify stripping the property rights away from the leaseholder and/or stopping permitted activities.

Tribes in both cases, in Montana and concerning the Dakota Access Pipeline, are calling for consultation to determine impacts. However, this is consultation separate from public comment periods like those which already take place ahead of permitting.

The fear that developers should have now, however, is that consultation which takes place between federal agencies and the tribes exclusively, as in the case with the Badger Two Medicine lease, cannot be expected to be public.

Current actions, along with talks of reform from the intervening federal agencies on the Dakota Access Pipeline and the Badger Two Medicine lease, point to a complete overhaul in laws pertaining to development on both private and multiple use lands.

Furthermore, calls for additional consultation should worry developers and the public alike because of laws protecting confidential material as it relates to culturally sensitive areas. Again, remember that studies which found the Badger Two Medicine area culturally significant were redacted beyond the point of comprehension, though they justified the lease area’s incorporation into what is now a 165,000 acre cultural district.

The country cannot afford for lawful projects to be retroactively cancelled, tied up in court or prevented from completion unnecessarily. Nor can multiple use or private lands be kept off limits to law abiding citizens for lawful access or development. The federal government has a fiduciary responsibility to the public to keep its word. Unfortunately, the current administration has failed to do so.