Could the Dakota Access Pipeline protests have been avoided?

By Staff | March 22, 2017

Troy Eid, a Denver attorney specializing in Native American law, spoke with North American Shale magazine to provide a legal perspective on the Dakota Access Pipeline controversy. A former U.S. attorney for Colorado, he co-chairs the Greenberg Traurig law firm’s American Indian law practice group. Eid represents multi-national companies, state governments and Indian tribes and nations to mediate high-profile disputes, including energy pipelines and other sensitive infrastructure projects. He served as the mediator on the Ruby natural gas pipeline from Wyoming to Oregon. Working with 43 tribes, Eid said the pipeline was rerouted 900 times at a cost of $11 million. But it was estimated the rerouting ultimately saved the pipeline company $250 million in avoided construction costs.

One of the major points of contention with the Standing Rock Sioux Tribe is consultation. In your view, what constitutes proper consultation? Is there work that needs to be done on this?

The consultation process is spelled out in a 1966 statute—the National Historic Preservation Act—for off-reservation projects. There have been some regulations over the years to clarify what that statute means. But keep in mind what the world was like for tribes in 1966. It was a very different environment. It was a very hostile time from the federal government in terms of its treatment toward tribes.

Since President (Richard) Nixon, we’ve had a different legal environment between the federal government on one hand and tribes on the other hand. Since Nixon, every president has recognized that the tribes are more than states in our constitutional system, that they are governments that have rights of self-determination and that the federal government needs to work with them and consult with them about anything that affects them. Whether that occurs on their reservations or off reservation, the right is still the same. It’s one government talking to another government. Granted, the federal government is still in the driver’s seat, but you still must consult with tribes.

The tribes felt that they were not adequately consulted when the (Dakota Access Pipeline) route was changed. That’s a good example of had there been more consultation on the front end, it’s possible that this wouldn’t have taken as long; and it’s possible that there could have been some variations in the route. This is a good opportunity for Congress to learn some lessons from Standing Rock and to begin to discuss possible changes in the legislation that goes back to that 1966 law.

In the first ruling U.S. District Judge James Boasberg issued, it seemed he took great pains to go through all the attempts and efforts made to work with the tribe. Do the tribes have something to learn from this about being a full participant in the process?

I think he did too. I don’t question what the judge did based on existing law. The statutes say what they say and the judge’s interpretations have been reasonable throughout the process. But it seems to me that both sides have a concern—not just tribes, but also proponents of energy projects—about the current statutory environment. It takes too long to do projects. If they’re too expensive in terms of lawyers and legal consultants and other kinds of consultants—we do well when there are delays in these projects—but everybody else loses. In my opinion, that’s not in anybody’s interest.

In recent years, President Obama drove this idea deep into the agencies on how each one has its own consultation policy with the tribes. Courts have recognized those as enforceable judicially. If the agency doesn’t take all the steps to talk with the tribe and really communicate and listen to what the tribe has to say, the tribe might be able to sue. You look at the change between what the presidents have said since 1970 and then you look at the law, which was written before all this happened. All the law says is that if there’s an undertaking that the federal government is involved in, you’ve got to talk to everybody affected—including the tribes—but that’s really all the law says.

Could the Dakota Access Pipeline protests have been avoided?

I’ve known (Standing Rock Sioux Tribal Chairman) Dave Archambault for years and have a lot of respect for him. I served on a federal advisory board with him. There was a different administration in place that was more receptive to their arguments on policy grounds. Also, remember President Obama visited Standing Rock and he has a direct connection to Chairman Archambault and members of that tribe—he really did. That was unusual. When there was a change of administration, the policy shifted and all you’re left with is a statute that—from the tribe’s standpoint—wasn’t very helpful. I think that the protests could have been avoided. I continue to believe that—at least the scale of what happened—they could have been avoided had there been more discussion early on between the project proponents, the states and the tribes. They could have done some rerouting. It would have been more expensive in the shorter term, but in the longer term, it would have saved a lot of money.

I’ve been involved in many pipeline projects where you do reroutes based on tribal concerns. So it’s possible that there could have been some compromises made that would have prevented the whole protest. There was very little interaction with the tribes. The consultation was done primarily with the state of North Dakota and the tribes. The federal government’s role was really limited. They only had a jurisdictional role under that statute all they had to do was send out material to the tribes and then they had to deal with the water crossing.

What can the energy industry do to avoid future conflicts on infrastructure projects?

You’re not going to win in a religious argument with somebody, no matter what the religion is. You’re not going to tell a tribal person that their spiritual view is invalid. That’s not the kind of country we are. You have to accept that there are current cultural relationships, spiritual relationships that tribal people have to these areas. It’s aggravated in the Dakota’s because of the Great Sioux Reservation and the fact that there was a treaty that meant something to the tribes and a lot less to the federal government. They’re still sore about it and I can completely understand why.

We have these realities and, at the same time, we all need energy infrastructure. There’s no question everybody benefits, especially in a state like North Dakota. Is it better to have more trains and trucks on the roads in western North Dakota or is it safer to have pipeline systems? The facts are that the safest mode of transport is going to be in a pipeline. We need to look at the process. I think Congress ought to take a look at it, and this is a great time to do it. I don’t think these protests are going to end. I see it in other projects all around the country, including on the East Coast—places you never saw tribal protests. You’re seeing tribal protests in places like North Carolina where it never happened before. The environmental groups are teaming up sometimes. It’s a different landscape for policy. It would make sense for Congress to revisit this issue. It’s been a long time since 1966.