Court rules to cancel energy lease on land sacred to Blackfeet
The Associated Press
‘The Badger-Two Medicine is more than just land; it’s an entire way of life’Associated Press
HELENA, Mont. — A federal appeals court ruled Tuesday to cancel a long-disputed oil and gas lease on land in northwestern Montana considered sacred to tribes in the U.S. and Canada.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overruled a judge’s 2018 decision that had allowed a Louisiana company to keep its lease within the Badger Two-Medicine area of Lewis and Clark National Forest.
That area near Glacier National Park is the site of the creation story of the Blackfoot tribes of southern Canada and Montana’s Blackfeet Nation.
John Murray, the Blackfeet’s tribal historic preservation officer, said the court’s decision will close a “long and painful chapter in the history of our people.”
“These leases should never have been issued in the first place,” Murray said. “Today’s ruling shows that these companies and their lawyers were not just on the wrong side of history but were also on the wrong side of the law when they waged their 40-year crusade to drill our ancestral land.”
“Our traditional practices and traditional lands are the firm ground underfoot that we need to push off into the future,” said Tyson Running Wolf. Running Wolf is a Montana state legislator, former Blackfeet Tribal Business Council member, hunting outfitter and leader among Blackfeet traditionalists. “This is how we heal ourselves, how we heal our communities, how we move forward into success. The Badger-Two Medicine is more than just land; it’s an entire way of life.”
Tim Preso, Earthjustice attorney, argued the case on behalf of intervenors including Blackfeet Headwaters Alliance, Pikuni Traditionalist Association, Glacier-Two Medicine Alliance, Montana Wilderness Association, National Parks Conservation Association and The Wilderness Society. These organizations have since joined the Blackfeet Nation in calling for permanent protection of the Badger-Two Medicine.
The lease owned by Solenex LLC was the last active exploratory lease of about 45 issued in the Badger-Two Medicine area since the 1980s.
“We’re obviously very disappointed in the panel’s decision today, particularly their refusal to engage with any of the arguments we raised on appeal,” said David McDonald, attorney for Solenex, which is owned by Sidney Longwell. “We fully intend on continuing to fight for Solenex and the Longwell family, and we’re currently considering all available avenues to do so.”
The company has held the lease for more than 30 years. It had not yet drilled because of bureaucratic delays within the U.S. departments of Interior and Agriculture, prompting the company to sue in 2013.
The U.S. government canceled the lease in 2016, saying a proper environmental analysis had not been conducted, a decision Solenex challenged. A federal judge sided with the company in 2018, saying the long amount of time between the lease being issued and canceled violated federal law.
The three-judge appellate panel ruled the judge’s findings were wrong and that the the government had considered Solenex’s interests.
“Delay by itself is not enough to render the lease cancellation arbitrary or capricious,” the ruling said.
A federal judge on Monday denied the U.S. Army Corps of Engineers’ request to amend his earlier ruling regarding TC Energy’s Keystone XL pipeline, reaffirming that a permit issued by the Army Corps was invalid.
Chief U.S. District Judge Brian Morris ruled again that the U.S. Army Corps of Engineers (USACE) violated the Endangered Species Act when it issued Nationwide Permit 12, which allows companies to construct energy projects at water crossings.
“The court rightly ruled that the Trump administration can’t continue to ignore the catastrophic effects of fossil fuel pipelines like Keystone XL.”
—Jared Margolis, Center for Biological Diversity
Climate action and Indigenous rights campaigners have for years fought the construction of the Keystone XL pipeline, which if built would cross bodies of water hundreds of times along its nearly 1,200-mile route from Alberta to Nebraska. TC Energy plans to send tar sands oil along the route, which opponents say would put Indigenous communities as well as wildlife at risk for dangerous leaks and exposure to toxic waste.
“The court rightly ruled that the Trump administration can’t continue to ignore the catastrophic effects of fossil fuel pipelines like Keystone XL,” said Jared Margolis, senior attorney with the Center for Biological Diversity, in a statement. “Constructing pipelines through rivers, streams, and wetlands without analyzing the impacts on imperiled species is unconscionable.”
The USACE had asked Morris to narrow his April 15 ruling, but the judge only changed his decision on Nationwide Permit 12 to allow non-pipeline construction, such as electrical transmission lines, to move forward.
“Our courts have shown time and time again that the law matters,” said Cecilia Segal, Natural Resources Defense Council (NRDC) attorney. “Today’s ruling makes clear that climate-busting pipelines like Keystone XL cannot be built until the federal government does its job and properly analyzes these projects’ devastating effects on their surrounding communities and wildlife. If that analysis is based on science and facts, pipelines like Keystone XL will never see the light of day because they remain, and always will be, a dire threat to our water, wildlife, and climate.”
John Chao created this beautiful photography book and has a chapter about Standing Rock. Check it out. People who were there have their names listed. I am listed there and am very proud to say that I was there, I was a witness, I contributed, and I tried to help in any way I could by waking up my school community on Sacramento to what was going on in North Dakota.
The struggle continues as we battle through a rogue government and a pandemic.
It will always be the artist, writers, and educators who will document and tell the tale.
It’s more important now than ever to unite and support each other. That’s why, on the 50th anniversary of Earth Day, we’re launching a massive livestream from April 22-24 where you can join activists, celebrities, musicians, and more in an epic moment of community and hope for our future. Together, we’ll:
Drive donations to benefit the COVID-19 relief effort
Call on world leaders to take emergency action to build a more sustainable and just world
Inspire millions to pledge to vote for our future.
For 50 years, we’ve been losing the fight for our planet. But we can make this the century we saved the world — starting on Earth Day. Here’s how you can spread the word and make this as big as possible.
As the COVID-19 pandemic continues to spread throughout the nation, we’re aware that it could have an outsized impact on Indian Country. Relief programs may not provide needed tests and medical supplies for us — or anyone — on an appropriate scale. Please know we are monitoring this, and as my colleague Chase Iron Eyes mentioned a few days ago, we’ll keep you updated on developments. May we all stay safe and healthy.
In the meantime, I write with some wonderful news. Just yesterday, Standing Rock won a big victory in the ongoing legal battle against the Dakota Access pipeline when a federal judge granted the tribe’s request to strike down DAPL’s federal permits!
The judge ruled that Trump’s Army Corps of Engineers must complete a full Environmental Impact Statement (EIS) — the much more comprehensive review we’ve all been demanding since the beginning of this movement (and that President Obama required, only to be reversed by Trump). The Corps fell short in three specific ways, according to the judge.
First, the Corps failed to respond adequately to claims by the tribe’s experts that DAPL’s leak detection system is wholly inadequate. Second, the company’s dreadful history of oil spills wasn’t properly addressed. Finally, the oil company failed to account for the adverse repercussions a “worst case discharge” might have on our treaty rights — our ability to hunt, fish, and perform traditional religious ceremonies near Lake Oahe, which the pipeline crosses under.
I was asked by the tribal chairman to represent Standing Rock’s interests at the hearing in Washington, D.C., but I couldn’t go because of Coronavirus travel restrictions. I’m gratified that, despite our troubles, we have been victorious, at least for now.
The logic of the judge’s ruling suggests the pipeline should not remain operational without a federal permit. The ruling actually references both the Titanic and Chernobyl concerning the possibility of human error, and I’m hopeful shutting down the flow will be the judge’s next step. He has now requested legal briefs on that issue.
Please stay tuned, as we hope to share more good news soon. In the meantime, stay safe and please listen to the medical professionals with knowledge about the requirements of this pandemic. We’re all in this together.
Wopila tanka — as always, we’re so grateful to you for standing with Standing Rock and Mother Earth.
Standing Rock Organizer
The Lakota People’s Law Project
Lakota People’s Law Project
547 South 7th Street #149
Bismarck, ND 58504-5859
The Lakota People’s Law Project is part of the Romero Institute, a nonprofit 501(c)(3) law and policy center. All donations are tax-deductible.
Thousands of water protectors and allies spent weeks at the Oceti Sakowin camp in North Dakota in 2016 to protest the construction of the Dakota Access Pipeline. (Photo: Reuters)
A federal judge handed down a major victory for the Standing Rock Sioux tribe of North Dakota on Wednesday, ruling that the U.S. Army Corps of Engineers violated the National Environmental Policy Act by approving federal permits for the Dakota Access Pipeline.
The USACE must complete a full environmental impact study of the pipeline, including full consideration of concerns presented by the Standing Rock Tribe, the judge ruled. The tribe has asked the court to ultimately shut the pipeline down.
The court chastised the USACE for moving ahead with affirming the permits in 2016 and allowing the construction of the Dakota Access Pipeline (DAPL) crossing the Missouri River after President Donald Trump assumed office in 2017, without considering the expert analysis put forward by the tribe.
“After years of commitment to defending our water and earth, we welcome this news of a significant legal win. It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet.”
—Mike Faith, Standing Rock Sioux Tribe
The Standing Rock Sioux had raised concerns regarding the likelihood and danger of potential oil spills, DAPL’s leak-detection system, and the safety record of Sunoco Logistics, the company behind the pipeline. Sunoco “has experienced 276 incidents resulting in over $53 million in property damage from 2006 to 2016” and has “one of the lowest performing safety records of any operator in the industry,” the tribe’s experts found.
The federal ruling “validates everything the Tribe has been saying all along about the risk of oil spills to the people of Standing Rock,” said Earthjustice attorney Jan Hasselman in a statement. “The Obama administration had it right when it moved to deny the permits in 2016, and this is the second time the court has ruled that the government ran afoul of environmental laws when it permitted this pipeline. We will continue to see this through until DAPL has finally been shut down.”
DAPL and the fight against the pipeline was the subject of international attention in 2016 when thousands of water defenders gathered at camps in North Dakota, facing a highly militarized police force armed with tanks, riot gear, rubber bullets, and other weapons.
Since Trump reversed former President Barack Obama’s December 2016 order denying the permits and allowed the construction to be completed in June 2017, the tribe has challenged the permits and demanded the USACE conduct a full environmental analysis.
Wednesday’s ruling represented a “huge victory” for the tribe, 350.org co-founder Bill McKibben tweeted.
“Such thanks to all who fight!” he wrote.
“After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” said Standing Rock Sioux Tribe Chairman Mike Faith. “It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet. Perhaps in the wake of this court ruling the federal government will begin to catch on, too, starting by actually listening to us when we voice our concerns.”
Others on social media celebrated the victory and applauded the “tireless efforts” of the campaigners, with the East Bay Democratic Socialists of America calling the decision the “absolute best possible outcome” of the court battle.
“This is why we never stop fighting,” Earthjustice president Abbie Dillen said.
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One hundred miles to the west of the proposed mine site is Bristol Bay, home to the largest sockeye salmon fishery
Governmental agencies and tribes are reviewing a proposal to develop a huge mine in Alaska. The Pebble project would be the largest mine in North America and one of largest in the world. The open pit mine would be 2,500 feet, or 7.5 city blocks, long, and 13,000 feet, or 229 stories, deep. The project would include a transportation corridor, a port, a natural gas pipeline, and a heap of waste rock, or tailings, that reach 700 feet, or 64 stories, high.
It will take a large mine to dig up and process massive amounts of rock containing small amounts of valuable minerals. To get at the precious metals, which are valued at $345 to $500 billion, more than a billion tons of ore would be processed at the rate of 180,000 tons per day for 20 years. The Pebble Limited Partnership estimates the proposed site holds 67 million ounces of gold, 50 billion pounds of copper, and 3.3 billion pounds of molybdenum.
One hundred miles to the west of the proposed mine site is Bristol Bay, home to the largest sockeye salmon fishery. The fish return annually to the region’s multitude of rivers, lakes, streams and estuaries to spawn then die.
Alaska Natives have relied on salmon for thousands of years. It’s a major source of protein, and the mainstay of a way of life. The Yup’ik culture in the area has long revolved around fishing and sharing and preserving the harvest. The fishery is now also important to the thousands of people involved in the commercial harvest of salmon. In 2019, commercial fishermen harvested 43 million sockeye salmon valued at $306.7 million, the most in the history of the Bristol Bay fishery.
Seventeen miles from the proposed Pebble mine site is the village of Iliamna, with a population of 109. Leaders there want a seat at the table but remain neutral on the Pebble project itself. Fishermen, tribes, and other villages have come out in opposition. Among other issues, they’re concerned contaminated wastewater will seep through porous soils to the rivers that support salmon.
The prospect of the Pebble mine going forward worries Iliamna villager Louise Anelon, Yup’ik. “There’s a lot of things to worry about for me, as somebody that’s just so used to how it’s going, to how it is right now versus this project and all this noise and people and moving a lot of ground,” Anelon said. “Water could be affected and it’s just lots to worry about for me.”
Plus she said Pebble is coming on top of the effects of climate change: hotter, windier weather; fewer caribou; and late salmon runs. Analon said, “There’s a lot of stuff happening that we can’t see to the eye.
“Then we have this Pebble thing that’s potentially going to happen and that’s a two-time whammy,” Analon said. “I just am afraid for that to happen with so many changes already happening …. we know it’s going to be giving jobs to folks but it’s going to change our land, water, everything, forever. So that’s just my concern right there.
Still, Analon understands the position of many mine supporters. “No job opportunities, I think that’s what most of the folks out here are seeing,” Analon said.
On Feb. 6, the U.S. Army Corps of Engineers, which is coordinating review of the permit applications, issued a preliminary final Environmental Impact Statement for a 45-day review period. This impact statement builds on and responds to comments made on a draft issued by the Corps last year. The preliminary final environmental impact statement was sent to regulatory agencies and tribes; it is not available to the public or the media.
Public interest in the Pebble project is high, and the amount of public input is enormous. Some 105,000 comments on the draft environmental impact statement were submitted. The list of agencies with oversight is long. And criticism of the draft environmental impact statement was widespread.
Some of the phrases about the draft environmental impact statement that cropped up in agency comments include: “lacks certain critical information,” or “substantial deficiencies and data gaps,” “provides inadequate support for several assumptions,” “underestimates impacts,” “would benefit from being corrected, strengthened or revised.”
One even calls the draft environmental impact statement “so inadequate as to preclude meaningful analysis.”
Under the Alaska Native Claims Settlement Act of 1971, title to land was transferred to Native corporations to make money and issue dividends to shareholders. It’s unusual for a Native corporation to oppose resource development. Yet, the Alaska Native for-profit Bristol Bay Native Corporation came out in opposition to the proposed Pebble mine.
It said the proposal is flawed and deficient, but “… enough is known about the potential impacts of the proposed Pebble Mine project to conclude that it cannot be constructed in a way that would not cause significant adverse effects to Bristol bay and its fisheries.” Moreover, the project would “pose too great a risk to our Native way of life and the cultural, subsistence, economic, and ecological resources of the Bristol Bay Region.”
The Native corporation went on to say that it will “not extend to the Pebble Limited Partnership any permission to occupy or trespass our lands or make use of our subsurface resources.”
The rider said adverse impacts to Alaska’s world-class salmon fishery and to the ecosystem of Bristol Bay, Alaska, are unacceptable. The rider stated all the gaps and deficiencies in the draft environmental statement must be addressed. Otherwise, it encouraged agencies to “exercise their discretionary authorities, which include EPA’s enforcement authority under the Clean Water Act, at an appropriate time in the permitting process to ensure the full protection of the region.”
U.S. Senator Lisa Murkowski, R-Alaska, speaking during a Bristol Bay Salmon Week celebration in Washington on Sept. 18, 2019 said if the agencies are unable to address the concerns, then a permit should not be issued. “What we all need to be able to believe is that the science that drives the process can be trusted,” she said, “whether it is this for this project or any other project that is out there.”
Alannah Hurley, Yup’ik, is executive director of United Tribes of Bristol Bay, a consortium of 15 tribes in the area of the mine. She said the preliminary final environmental impact statement doesn’t meet the standard set by Congress. She said it continues to have significant data gaps, and the analysis and studies that agencies identified as problematic have not been addressed.
“The reality is we’re facing a process that is ignoring the concerns of Bristol Bay, ignoring the concerns of other scientists across these federal agencies,” Hurley said. “And now we’re dealing with a Corps who is ignoring Congress as well, and they need to be held accountable.”
She said the root of the problems is that the U.S. Army Corps of Engineers is determined to get permits issued as soon as possible, no matter what the consequences.
“The big take home is that this process has been rushed from the get go,” Hurley said. “If the Corps remains on its published calendar, we will have a permit in two and a half years for the largest mine in North America, and at the headwaters of the last great sockeye salmon fishery left on the face of the planet.”
Hurley compared the Corps handling of the Pebble proposal to review of permit applications for another proposed gold mine in Alaska. Donlin “was much more of a regular process,” Hurley said. “And that took almost seven years to complete. Yet it’s a fraction of the size of what Pebble is proposing here.” (The average review period is 4.5 years according to the White House Council on Environmental Quality.)
Pebble Limited Partnership CEO Tom Collier, in a prepared statement said, “Comments that the Corps ignored comments submitted on the draft [environmental impact statement] were incorrect and irresponsible. Just because some of the groups opposed to Pebble do not like the conclusions … does not mean that the is not valid. Rather, the work on this issue is sound. It is defensible and it should be commended for its completeness.”
Collier said the preliminary final environmental impact statement supports the Pebble Partnership’s views. “The information in the near final report was positive and demonstrates the project can be done without harming the Bristol Bay fishery and would be beneficial to communities closest to the project.”
The state of Alaska favors the Pebble project. In Dec. 2019, CNN reported that Governor Mike Dunleavy used materials, sometimes verbatim, provided to him by the Pebble Partnership in comments to the Corps. A Pebble spokesperson told the Juneau Empire that such collaboration is common.
The final environmental impact statement is due for release in mid-2020. The Corps’ options are to issue a permit, issue one with conditions, or deny the application. A Record of Decision will come at least 30 days after the Final Environmental Impact Statement is released, probably in the Fall.
Joaqlin Estus, Tlingit, is a national correspondent for Indian Country Today, and a long-time Alaska journalist.
‘Indigenous people all over the world were especially vulnerable; some were not just decimated but sometimes annihilated’In the past few hundred years more than half of the Alaska Native population was decimated by wave after wave of diseases such as the measles, smallpox, diphtheria, whooping cough, and tuberculosis. Then a devastating worldwide influenza epidemic forever changed Alaska’s demographics, making Natives a minority in their homeland.
The spectre of a new epidemic triggers painful memories for Native Americans and others who heard first hand about the 1918 influenza pandemic. After all, it killed 50 to 100 million people, as much as a quarter of the world population. The 1918 influenza was highly contagious with a 2.5 percent mortality rate. (Estimates indicate the COVID-19 virus has a 2.3 percent mortality rate, although that figure may change as researchers learn more about how many people were infected.)
The 1918 influenza spread worldwide in less than a year, and struck and killed people quickly. It attacked people in their 20s and 30s, when immune systems are usually at their strongest. People would come down with a headache, nausea and a fever then die as soon as three days later. They would turn blue and suffocate as lungs filled with fluid. Some experienced hemorrhaging from the nose, stomach, ears and even the eyes.
“Indigenous people all over the world were especially vulnerable; some were not just decimated but sometimes annihilated,” stated Benjamin R. Brady of University of Arizona and Howard M. Bahr of Brigham Young University in a 2014 American Indian Quarterly article. “Native Americans ‘suffered hideously,’ with mortality rates four times higher than in the wider population.”
It is with a heavy heart that I write to you with some unfortunate news: on Wednesday, the North Dakota Public Service Commission (PSC) approved the expansion of the Dakota Access pipeline (DAPL) in a 3-0 vote. If the pipeline’s operators get the same approval in Iowa and Illinois, DAPL’s capacity will double to carry over a million barrels of oil per day.
The North Dakota Public Service Commission has allowed an expansion doubling the oil flow through the Dakota Access pipeline. In our video from the original hearing, you can watch oil industry engineers dissembling about the impacts.
Once again, my people and homelands are intentionally ignored in the interest of increasing profits for the fossil fuel industry. As Standing Rock citizens, my relatives and I will be forced to bear the threat DAPL poses to our water and land. And every human being will now face the danger of increased oil production as our climate warms.
We were at the hearing on DAPL expansion in Linton, North Dakota last November. We helped the tribe muster opposition. And we watched as gas and oil employees and their attorneys lied about the risks. You can watch our video showing those lies here. We know the truth: more oil = more risk.
North Dakota’s PSC claimed in its announcement yesterday that expansion was in the best interest of the state’s citizens, but this of course ignores the valid concerns raised by the Standing Rock Sioux Tribe about the increased threat of surging. And when the Tribe requested more information from Dakota Access about the risks that doubling oil flow could hold for tribal water supplies, the PSC denied the request, citing bureaucratic procedure.
All pipelines leak. In the 15 years before DAPL began operations, 60 leaks spilled more than 42,000 barrels of toxic crude oil in North Dakota alone. This was the reason we stood in prayerful resistance to stop DAPL. It is why we faced rubber bullets, attack dogs, and water cannons. We are facing down a threat to our water, and now that threat is heightened.
We will, however, press on. With Keystone XL on the horizon, we’re readying for another battle for our water, and this time we intend to win. We’re also planning major initiatives on voting in Indian Country during this critical election cycle, and we’re breaking ground on a major festival and teach-in later this year at Standing Rock that will bring musicians, activists, and scientists together to confront the climate crisis.
We hope you stay with us in the fight against the madness of continued dependence on fossil fuels. Time is short. To protect all life on earth we need to act immediately.
Standing Rock Organizer
The Lakota People’s Law Project