Standing Rock part I

The drama we saw play out at Standing Rock, North Dakota, fascinating, frightening and triumphant. There are so many lessons and take away from it and maybe even some cautionary signs about our energy policy. Where we begin is in trying to define the issues.

The combination of hydraulic fracturing (fracking) and horizontal drilling technologies, coupled with sky-high gas prices, has resulted in oil fields, previously untapped and beyond reach, becoming economically viable. This has been a boom to our economy and even impacted our foreign policy as a country; we went from a net oil importer to an exporter. This was big.

There are ecological consequences from these novel drilling techniques. Oklahoma, where fracking has become common, is suffering from unsettled earth plates and unusual tremors. There is a side-effect cost from breaking through rock substructures to tap into trapped oil reserves. There are also concerns about drilling contamination of underground water aquifers and potential oil spills into above surface water ways from the ground transport of oil. In other words, this modern day oil boom needs to be monitored.

These oil formations deep below the surface exist in parts of this country (and Canada) previously not known as “oil country.” This has created a transportation conundrum in how to get these new oil reserves to refineries and, ultimately, the market. Because production costs are so expensive, and profit margins can be small, it is critical that transportation costs be kept as low as possible.

Thus has been born a pipeline mania, which we had previously seen play out politically over the Keystone XL Pipeline. Standing Rock is its “cousin.”

While the rest of this country suffered after the Great Recession, North Dakota’s economy was churning forward at a record pace, thanks to the “Bakken Formation,” so named after the discoverer of a vast rock-capped oil reserves in North Dakota. Now that drilling has become viable, there was a need to develop a cheap method to move oil recovered to the closest refinery located in southern Illinois. A consortium, Energy Transfer Partners (ETP) came up with a solution to build a pipeline that would need to cross the Missouri River near Bimarck, North Dakota, on its way to Illinois. And, it has invested $3 billion to bring this project to its conclusion.

In constructing this project, ETP has needed permits from the U.S. Army Corps of Engineers (Corps), a federal permitting agency that takes into factors like environmental impacts in issuing one. Until the Oglala Sioux, from the Standing Rock Sioux Reservation, took action in August, ETP had its pipeline 90 percent complete on target to opening the pipeline early next year (2017).

Originally, ETP wanted to cross the Missouri River north of Bismarck. However, this route was rejected because of the potential danger posed to the drinking supply of approximately 130,000 residents of the metropolitan area in the event of an oil spill. As we learned recently from what happened in Alabama, pipelines do have spills, so this is not just an imaginary concern. In light of this risk, the Corps changed the permit and had this Dakota Access pipeline re-routed to cross the Missouri south of Bismarck and abutting the Standing Rock Reservation.

The land through with this pipeline would traverse was the subject of an 1851 Treaty of Fort Laramie, between our government and nine tribal entities, including the Oglala Sioux. In addition to what eventually became Standing Rock, our government relinquished any claim to traditional tribal grounds in “Unceded Sioux Territory” as defined by the Treaty. That’s exactly where this pipeline was headed, land that did not belong to the state of North Dakota, land to which the United States had no claim and recognized tribal lands of the Sioux, including sacred burial grounds.

We have a long despicable history of making and breaking treaties made with Native Americans. Dakota Access was destined to just one more legal and moral broken promise to this country’s first inhabitants. The Corps had no right to authorize the permit, including going through sacred burial grounds and potentially threatening Standing Rock’s drinking supply from the Missouri, and ETP had no right to build its pipeline without Sioux permission.

This time, Standing Rock resisted and the Sioux were joined by activists from around the country, including military veterans, in protesting this violation of Native Americans rights. This protest has ultimately proved successful, although not without some scary and “un-American” moments, which we will discuss in greater detail next week.

Warner Robins attorney Jim Rockefeller is the former chief assistant district attorney for Houston County and a former assistant state attorney in Miami. Owner of Rockefeller Law Center, he has been in private practice since 2000. Email your comments or confidential legal questions to jim@rockefellerlawcenter.com.

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