Dakota Access PipelineLessons Learned from the Standing Rock Sioux Protests for Future Pipeline InstallationPresented to the 2017 Annual Conference of the Texas Water Conservation Association (March 3, 2017)

by Mason D. Miller, M.A.Archaeological Principal Investigator

AmaTerra Environmental, Inc., 4009 Banister Lane, Suite 300

Austin, TX 78750(Dallas and Las Cruces, NM Offices)

Disclaimer Alert!The Dakota Access Pipeline is the subject of ongoing legal proceedings.

What I am presenting here is the result of my own research into the topic from publicly available sources (published environmental documents, agency statements, newspaper reports, social media, informal survey).

Neither I, nor my company - AmaTerra Environmental, Inc., have worked on the project nor do we have any indirect involvement in it in any way.

The summary presented here is my interpretation of my findings and not intended to be any official statement.

We’ve all seen the headlines...

What is the Dakota Access Pipeline?

The Dakota Access Pipeline• Product of Energy Transfer

Partners out of Texas• 1,100 mile long crude oil pipeline• 12-20-24-30-inch pipeline

(increasing in size downstream)• 50-foot permanent easement and

100-foot temporary easement• 470,000-570,000 barrels per day

• Equivalent of 15-24 MGD Water Project

• Permitted through the USACE• Nationwide #12 for 202

Jurisdictional crossings• Section 409 for easement for

directional drilling beneath Lake Oahe.

Stanley, ND

Patoka, IL

The Standing Rock Sioux Tribe

Originally from the Great Lakes RegionDakota and Lakota nations

Part of the Great Sioux Reservation from the Treaty of Fort Laramie (1851, 1868)

Act of 1889 opened tribal lands to private ownership.

Act as a sovereign in dealings with State and Federal governments.

Dave Archambault, II is the active SRST Chairman

Archeology

Prehistoric Catahoula Arrow Point

Paleoindian Site at Zilker Park, Austin

World War I Cargo Vessel Wreck

Texas Governor’s Mansion, Austin

Trinity Parkway Bridge, Dallas

Spirit Mountain, Nevada: Center of Creation for Yuman Cultures

HistoryTraditional Cultural Property

What are “Cultural Resources”?

What Cultural Resource Laws

Apply?

Federal CR Law

● Section 106 of the National Historic Preservation Act of 1966

● National Environmental Policy Act (NEPA)

● Others…○ Native American Graves Protection

and Repatriation Act (NAGPRA)○ Archaeological Resource Protection

Act (ARPA)

Section 106 of the National Historic Preservation Act

Funding

Permitting

● Bureau of Reclamation grant for water infrastructure improvements.

● Bank stabilization grant issued through the US Fish and Wildlife Service

Direct Action● Construction of new runway at Randolph

Air Force Base● Construction of a reservoir facility on

BLM-managed land.

● 404 Permit for pipeline issued through the US Army Corps of Engineers

● Endangered Species Incidental Take Permit issued through US Fish and Wildlife Service

● Decision document issued through NEPA

Federal Agency

“If I do this, what is this going to do to significant resources?” - Federal Agency

Through Section 106, agencies ONLY account for impacts to significant resources.● Significant = “Historic Property” = Resources

considered eligible for listing on the National Register of Historic Places.

● Determine significance through consultation with local parties○ State Historic Preservation Offices○ Tribal Historic Preservation Officers

For Section 106 Compliance

Cultural resource survey was conducted within USACE jurisdiction.

● High-Density GIS probability model for route selection

● Background studies● Archeological Survey

with Shovel Testing● Cultural Monitoring

where needed.

Timeline of Events

-- June 2014: Project

Announced-- August 2014: Public

Meetings-- Septem

ber 2014: DAPL meets SRST at

tribal meeting.

-- November 2015: Multiple Draft EAs

for DAPL published (20 comments

received on N. Dakota EA)

-- December 2014: ETP applies for

state pipeline permits

-- January 2016: ND Public Service

Commission approves pipeline

-- March 2016: EPA and ACHP request full EIS

from USACE -- April 2016: SRST requests full EIS from

USACE -- Sum

mer 2016: SRST and other tribes’

youth organizations set up camp outside

Cannon Ball

-- August 2016: Tribal communities run 2,000

miles to USACE HQ in Washington D.C.

-- October 2016: Cannon Ball camp grows as

does tension. DAPL construction makes

inadvertent discovery of possible burials during

construction.

-- November 2016: ETP has built to edge

of USACE property. Protesters ordered to

vacate.

-- December 2016: USACE denies ETP

easement pending full EIS-- February 2017: USACE

issues FONSI, ETP

easement approved

What happened? The Standing Rock Sioux’s POV● Legal complaints

○ This is their land by 1851 treaty but that land was illegally ceded in subsequent actions

● Environmental complaints○ Water intake downstream at

Lake Oahe● Economic complaints

○ They will see nearly no benefit from the project

● Cultural○ Crossing is beneath a known

village site○ It is the site of a historic

escape crossing following the “Massacre” of White Stone Hill (1863)

○ THPO discovery of burial and prayer sites on 9/3/16

What happened?

USACE only manages 3 % of the pipeline

Energy Transfer Partners provided a full assessment of environmental impacts to jurisdictional crossings.

Energy Transfer Partners avoided impacts to significant cultural resources within their jurisdiction.

The Federal Point of View

What happened?• 99% of the pipeline was

subject to N.D. Century Code oversight

• 500 Sites Recorded and 140 Reroutes Developed

• Standing Rock Sioux were invited to attend any of the 30 hours of public meetings but did not.

• Inadvertent discovery was handled properly*

• Bones observed were not human

• Rumors of other burials disturbed are inaccurate (USACE removed them in 1962)

The North Dakota Point of View

What was the result?

A Demonstration of the Power Cultural Resources in Social Media

● Social Media was cited by the protesters as their primary means of getting their message out to the public.

● Energy Transfer Partners was practically non-existent

● Social media is unfiltered and unverified

● It spreads RAPIDLY

How do the events at DAPL affect water projects here?What aspects are relevant for water infrastructure projects?

1.Environmental?

2.Eminent domain?

3.Cultural resource finds?

4.Tribal?

Some key take-aways to try to avoid this in the future...

• Energy Transfer Partners followed the ‘letter’ of the law.

• Remember the ‘spirit’ of the law’s intent as well. On potentially controversial projects, lean on the side of the intent.

• Did the tribes follow the ‘spirit’?• Be actively engaged early with

interested parties on cultural resource issues.

• Tribes are sovereign and are afforded the dignity of government to government consultation.

• Realize that there is a bigger picture at play and a longer story unfolding.

• This is a contentious time with access to millions of voices at our fingertips.

• Social media can dictate the story. • Be as transparent and accessible as

social media with issues like this.• But don’t disclose cultural

resource location information

Thank You!

Contact me, Mason Miller, atmmiller (at) amaterra.com

or 512-329-0031This will also be available online. Copy

down the URL.

Thank You!

https://goo.gl/6zV14C