The increasingly tense standoff over the Dakota Access Pipeline in North Dakota boils down to a clash between economic and cultural interests.
For North Dakota and the oil industry, the 1,172-mile pipeline is critical to bringing a prized resource to Gulf Coast and Midwest markets in a way that is less expensive and safer than rail.
“It’s the interstate highway for Bakken oil,” said Ron Ness, president of the North Dakota Petroleum Council, a trade group.
For the Standing Rock Sioux Tribe and tribes across the country, the $3.7 billion pipeline is an affront to native water rights and cultural heritage, the latest in a long history of assaults on tribal sovereignty.
“At some point, you have to take a stand,” said Laura Waterman Wittstock of Minneapolis, a Seneca Indian who hosts a weekly American Indian news show on KFAI radio.
The pipeline, which crosses four states, is 92 percent complete — a key exception being the contested water crossing near the Standing Rock reservation in North Dakota. Protests there by American Indians and climate change activists are at a crescendo.
Law enforcement has used water hoses, tear gas and rubber bullets to disperse crowds in the past 10 days. North Dakota’s governor and the Army Corps of Engineers have ordered the evacuation of some 5,000 protesters.
The dispute is rooted in the fracking revolution that transformed North Dakota into the nation’s second largest petroleum producer after Texas. It’s been a boon for North Dakota’s economy, despite the slump in oil prices.
But North Dakota’s oil supply grew faster than its transportation network. So producers mostly moved the oil by train.
Shipping oil by pipeline costs one-half to one-third as much as it does by rail car. And pipelines — though they can break and cause massive spills — are considered safer than tank cars, which have derailed and blown up in recent years, causing worry in Minnesota and nationwide.
Dakota Access, the brainchild of Dallas-based Energy Transfer Partners, would pump up to 570,000 barrels per day of oil through a pipeline up to 30 inches in diameter to Patoka in south-central Illinois.
From Patoka, Bakken oil would flow to prime refinery hubs, particularly in Louisiana and Texas. “What the Dakota Access Pipeline does is create a more direct route to the Gulf Coast,” said Sandy Fielden, director of oil research at Morningstar Inc.
The pipeline, which runs 99 percent on private land, was proposed in 2014 and got the green light for construction earlier this year.
Energy Transfer Partners originally planned to route the Dakota Access across the Missouri River about 10 miles north of Bismarck. But during an environmental review with the Corps of Engineers, that route was rejected.
It would have added 11 miles of pipeline and crossed 165 additional acres with multiple roads and wetlands involved, according to the Army Corps. In addition, due to its proximity to Bismarck, the pipeline would have crossed near wells that contribute to the city’s drinking water. And it would have run up against a state residential buffer requirement.
By the time Energy Transfer brought its proposal to North Dakota regulators, the preferred route no longer crossed above Bismarck. It crossed Lake Oahe, near Cannon Ball, N.D., and the confluence of the Cannonball River — home to the Standing Rock Sioux.
When North Dakota approved the plan in January — after 13 months in the regulatory process — it was the last of four states in the pipeline’s path to do so. Unlike the proposed $2.6 billion Sandpiper project through Minnesota, which Enbridge has now abandoned, the tribes and environmental groups did not object during the state process.
Had the tribe filed an objection, “they would have had a seat at the table,” said Julie Fedorchak, chairwoman of the North Dakota Public Service Commission. From the regulators’ view, because the Dakota Access largely parallels an existing natural gas pipeline in North Dakota, it is sited on “previously disturbed land,” Fedorchak said.
In July, the pipeline company cleared another hurdle when the Corps approved its environmental review.
That’s when the Standing Rock protests began intensifying. Standing Rock Sioux Chairman David Archambault declined to be interviewed for this report, but the dispute centers around the lake, a dammed reservoir of the Missouri River that is a sacred area for the tribe and a source of its drinking water.
The tribe sued the Corps in federal court, asking for an injunction to halt the Corps’ permit. The Corps, the tribe argued, violated the federal Clean Water Act and the National Historic Preservation Act, shirking its legal duty to consult the tribe.
Standing Rock said it “repeatedly conveyed” to the Corps its concerns about the Dakota Access. Yet “the tribe has never been able to participate meaningfully in assessing the significance of the sites that are potentially affected by the project,” court filings say.
In September, James E. Boasberg, a federal judge for the District of Columbia, denied the injunction, saying the tribe “largely refused to engage in consultations.”
As protests grew in size and intensity, the Corps decided in September that further analysis was warranted. In November, the agency called for even more study and tribal input.
Waiting for Trump
Today, the pipeline is in limbo, while protesters vow to fight into the winter. Energy Transfer Partners can’t finish the pipeline under Lake Oahe without a formal easement from the Corps.
The company is betting on the new Trump administration to pave the pipeline’s way. Kelcy Warren, its CEO, recently told the Wall Street Journal that in the “worst case,” the easement from the Corps would come Jan. 20 — the day of the inauguration.
Warren declined to be interviewed for this story. Trump disclosed this year that he owns $15,000-$50,000 of stock in Energy Transfer Partners, though he previously held a stake of up to $1 million.
While the Dakota Access Pipeline does not cross the Standing Rock reservation, it runs within a half-mile of it.
The pipeline, buried 95 feet below the lake’s bottom, would be within 20 miles of the tribe’s current drinking water source. But when a new tribal water filtration station opens next year, drinking water will be tapped about 70 miles from the pipeline, according to a recent Reuters report.
Standing Rock argues in court documents that it has a strong historical and cultural connection to the land the pipeline crosses, even if the tribe doesn’t own it. The tribe says it’s the successor to the Great Sioux Nation, which once covered parts of the Dakotas and Minnesota.
Despite promises made in the 1851 Fort Laramie Treaty with the Sioux Nation, the federal government betrayed the tribes by stripping away vast tracts of Indian land over the next 40 years, Standing Rock argues in court filings.
The government’s transgressions weren’t confined to the 19th century, the tribe says. In 1958, the Corps — without consent — took 56,000 acres of tribal land for the dam project that would create Lake Oahe.
A living issue
More than a century of government backtracking on treaties is a living issue among American Indians, and it guides some protesters.
“The treaties are seminal to the relationship between the American Indian people and the United States, ”said Wittstock, the radio host.
Wittstock said the protests have created a unity among American Indians not seen in at least 40 years. Indians from all over the country have flocked to Standing Rock, including Wittstock’s two daughters and granddaughter.
Tribes have been giving Standing Rock financial support, too. The Shakopee Mdewakanton Sioux Community, which owns Mystic Lake Casino in Prior Lake, has donated to help Standing Rock respond to “challenging legal, sanitary and emergency needs,” the tribe said in a statement.
The Red Lake Band of Chippewa gave $5,000, and Red Lake Chairman Darrell Seki visited North Dakota in September to present it. He said Standing Rock has galvanized Indians because the pipeline is another attempt to destroy tribal land and water resources.
“These lands that you call the United States, these were tribal lands. You guys are foreigners. You guys are trespassing.”