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Trump's DAPL Memorandum: The End of Rule of Law?

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First they came for the Indians and I did nothing"..

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"Rule of law" assumes that law should govern a nation rather than the personal desire of a government official. Rachel Klienfeld Belton, a legal scholar and Director of the Truman National Security Project writes that rule of law in a democracy is identified by "the efficient and predictable application of justice and the protection of human rights." On January 24th, 2017, Trump signed an executive order that seems to violate such a "predictable application." Between now and February 20thwe have an window of opportunity to help determine if history will consider this "Presidential Memorandum Regarding Construction of the Dakota Access Pipeline" and its outcomes as abiding by rule of law or not. If it is actually successful in countering the existing order for an Environmental Impact Study (EIS) as directed in the December 4th memorandum by the Army's Assistant Secretary of its Office of Civil Works, I propose that the United States is at serious risk of moving in essene from the mirage of democracy we still have to a blatant dictatorship. To help prevent this many citizens must accept the invitation to " help identify potential issues, concerns, and reasonable alternatives." The public comment period began on Jan. 18; comments can be submitted until Feb. 20.)(See below for details about how to do this* and also about the government register's website for it not working, requiring emails that might not be made public.)

If enough of us do submit comments that tell the the Army Corps of Engineers (ACE) and the Office of Civil Works about legitimate concerns regarding the risks to the Missouri River and the life surrounding it, there is the possibility of giving hired functionaries, even those selected by the Trump administration, the courage to defy Trump's "official" claim that the pipeline is for the public good. And be sure to mention the impact on climate change. If we also say that the project will seriously impact climate change via the burning of the oil the pipeline will deliver, we could place an unpredented factor into ACE's future decision-making about pipelines across the country. According to Jake Tracy getting the Corps to include climate change impacts in an EIS "would be a major coup and make it all the more difficult for it to find that the pipline is not injurious to the public interest." We have to keep the pressure on and not give up. Bruce Huber, an associate professor of law at the University of Notre Dame who specializes in environmental, natural resources and energy law, says it is far from over and legal suits suits are likely. Such public comments can motivate and support such suits. If we can persuade ACE to consider DAPL's impact on climate change this could also be a victory for other battles against pipelines.

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In light of the stacked deck we are facing, with so many people in the new administration supporting the oil industry, all of this may seem a long shot. However, we must hope that rule of law has not yet been "trumped" by Trump and his appointees. After all, the opening language of the executive order clearly states that the Army Secretary is to "consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota), and whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement in Connection with Dakota Access, LLC's Request for an Easement to Cross Lake Oahe, North Dakota, dated January 18, 2017, and published at 82 Fed. Reg. 5543." Remember that an executive order, although legally binding, cannot according to prededent override laws passed by Congress. The requirement for determining the risk to the public regarding a project's environmental impact via the EIS does not come from an executive order or memorandum. It stems from the National Environmental Policy Act (NEPA) of 1970. It is federal law that requires federal agencies to assess possible environmental impacts of ACE projects like DAPL. Remember also that DAPL managed to avoid the EIS requirement initially, an oversight that was corrected by the December 4th victory. By unethical and illegal skulldugery typical of Energy Transfer Partners, they avoided the requirement for an EIS. Instead, by registering permits for small sections of the pipeline at a time, they received a "Finding of No Significant Impact." Thanks to the Standing Rock Water Protection Movement and many of those reading these words the Army corrected its original decision. Now if ACE follows the rule of law via Section 408 of the U.S. Code, it must approve the DAPL project only if it it is "not injurious to the public interest." Thus, although the "executive order" Trump signed on January 24th is legally binding to a degree, it cannot reverse law passed by Congress.

I view Trump's DAPL memorandum and a number of others he signed his first week in office as a less than democratic action taken like many others that have been taken against the peaceful efforts to stop an oil pipeline that is not in the public interest. This is also how Trip Van Noppen, the president of Earth Justice, views it. What are the other actions to which I refer? I include the militarization of state and national militia and their weaponry; the physical assaults on peaceful protestors; the illegal, dangerous, unnessary and intentionally punishing closing of Backwater Bridge on Highway 1806; the mean unwarranted arrests, etc. None of this could stop courageous movement that honored the spiritual beliefs of its Indigenous leaders. So now the new president is using his new powers to reject even a hint of the people's will.

At the same time his mandate is encouraging equally hostile "legislation" that a brutal dictatorship more than a democracy. In North Dakota House Bill 1203 intends to legalize the unintentional running down and killing of individuals obstructing vehicular traffic on public roads. House Bill 1151 would exempt oil companies from reporting spills less than 420 gallons. House Bill 1304, wants to make illegal the wearing of ski masks on public roads in North Dakota, and Senate Bill 2315 proposes the legalization of killing a violent intruder even if escape was possible or when trying to escape arrest after committing a violent felony. Considering how many of the peaceful, prayerful water protectors were accused of violent felonies, that many of us wore masks to protect ourselves from the cold and from personal harassment, and that more than one Native protestor has been run over by a motor vehicle driven by a police officer or an anti-Indian citizen, the purpose of these bills is obvious. Such laws cannot meet the conditions for rule of law that Belton (above) puts forth.

There is still hope in the people and we have an authorized window of opportunity up until February 20th. **(See important footnote re a challenge to such hope) There is hope because there are still honest, ethical people who honor the rule of law and the science of climate change. Some of them have the courage to stand against their new boss. Consider how on December 9, Judge James E. Boasberg of the D.C. District Court rejected the Dakota Access Pipeline's request to expedite approval of the easement in spite of their complaint that the delay has been costing them millions of dollars in losses an that they stand to lose crucial contracts if the pipeline is not finished by January. Such public servants, however, require bolstering from the public they serve. If we get enough responses we might just get the Army to honor the requirement for an EIS and not be guided by the pro-oil slant in Trumps executive order that reads: "I believe that construction and operation of lawfully permitted pipeline infrastructure serve the national interest." If so, the EIS could take up to two years to complete, enough time to possibly cause the diminishing number of investors to actually kill the project.

There are still other things we can do up till and after February 20th. We must demand that the Highway 1806 barriers on Backwater Bridge be removed. The psychological warfare that has divided members of Morton County and even the Standing Rock tribe has been effective and it is past time that people demand that it be opened. I have also suggested in a previous article there are a number of reasons to demand an invesigation by an appropriate team of people to determine if DAPL already violated the December 4th Memorandum, and may even have already laid pipe under the river. I also think it is important to make more specific alliances with the other oil and gas pipelines people are fighting around the world. For now however, let's honor the possibility that the EIS is still part of a democratic process and do our best to influence decision makers to follow through with it. If they do, it is unlikely that a legitimate analysis of it will allow the pipeline to continue.

This is an important moment in human history. We do not want to lose the momentum. We want to sustain the courage Standing Rock burned into the psyche of people around the world. It is past time for us to realize and reclaim the heart of our Indigenous worldview, one we have as a dominant culture spent hundreds of years trying to destroy and one that guided us for most of human history before hierarchy, materialism and a separation from Nature le us to destroy our life systems on Earth. This heart is in all of us and can be the catalyst for a global transformation toward renewable energy and the kind of Peacefulness that comes when we recognize we are all relate. The Dakota Access Pipeline is far from built. Although the stock of Energy Transfer Partners just went up 3 percent, we can make it go back down again.

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*You may mail or hand deliver written comments to Mr. Gib Owen, Office of the Assistant Secretary of the Army for Civil Works, 108 Army Pentagon, Washington, DC 20310-0108. Advance arrangements will need to be made to hand deliver comments. Please include your name, return address, and "NOI Comments, Dakota Access Pipeline Crossing" on the first page of your written comments. Comments may also be submitted via email to Mr. Gib Owen, at gib.a.owen.civ@mail.mil . If emailing comments, please use "NOI Comments, Dakota Access Pipeline Crossing" as the subject of your email.

The location of all public scoping meetings will be announced at least 15 days in advance through a notice to be published in the local North Dakota newspaper (The Bismarck Tribune) and online at https://www.army.mil/ asacw .

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Wahinkpe Topa (Four Arrows) is faculty at Fielding Graduate University and was formerly Dean of Education at Oglala Lakota College and a tenured professor at Northern Arizona University. Named by AERO as one of 27 educational visionaries, he is the author of 20 acclaimed books on wellness, critical education and Indigenous worldview such as his most recent (more...)

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