Did the Army Corps of Engineers realized that it was on shaky legal ground in granting a permit to Energy Partners to complete the last segment of the Dakota Access Pipeline? This legal memo, delivered to the Corps in early December, raises some deep questions.
The Department of the Interior was advised in December by its Solicitor Hilary Tomkins that the environmental assessment done by Dakota Access was inadequate, and that several significant questions needed better answers. The legal assessment was given to the Army Corps of Engineers on December 4, the same day the Corps said it would review the environmental context for their potential decision about granting permits.
A sample from the opinion:
“As noted, the Secretary of Interior requested that I issue this Memorandum analyzing federal environmental statutes and federal Indian law relevant to the Corps’ ongoing analysis of the DAPL project.
In brief, multiple federal court cases demonstrate that: (I) the statutes that created Lake Oahe did not diminish either the Cheyenne River or Standing Rock Sioux Reservations; (2) portions of the land taken to create Lake Oahe are within the boundaries of both reservations; and (3) Congress explicitly recognized and preserved Sioux treaty hunting and fishing rights in the Lake Oahe statutes.
In addition, the Tribes retain reserved water rights under federal law. Although these rights have not yet been adjudicated or quantified through a congressionally authorized settlement, on-reservation Lake Oahe is an obvious storage location for such rights. Since the Tribes retain rights associated with Lake Oahe, the Corps must consider the possible impacts of its DAPL permitting decisions on these reserved hunting, fishing, and water rights. In addition, federal laws like NEPA 14 contain separate safeguards through which agencies must evaluate impacts to tribal treaty rights and interests prior to authorizing projects like the DAPL.”
The new administration has “temporarily withdrawn” the opinion from the agency’s public website until new political appointees can decide whether it should be modified or revoked. The nominee for Secretary of the Interior has not yet been approved by the Senate, and the new Administration has not yet proposed a new Solicitor for the department.
