The NHPA is designed to protect historic sites and archeological areas throughout the United States. The law created the National Register of Historic Places and, through section 106, set up a process for federal agencies to evaluate the impact of federally funded or permitted projects on historic properties. Under section 106’s regulations, the federal agency involved with the project in question oversees the multi-step process of performing the evaluation. The process includes determining whether the project is subject to the NHPA; determining and documenting the area of potential effects, or the area where the undertaking could potentially affect a historic property; assessing whether there is an adverse effect on the area in consultation with historic preservation officers; and resolving any potential adverse effects by developing and evaluating modifications that can mitigate or avoid any adverse effects on the area. The law was first passed in 1966 during a time period when historical preservation was a major issue in many urban areas. The law is now frequently invoked on large infrastructure projects such as pipelines and highways where construction crews may find themselves in contact with areas like Native American burial grounds and archeological sites.
The Dakota Access Pipeline is subject to section 106 review because of its location near an Indian reservation and because it is an infrastructure project requiring permits from the Corps. The completed pipeline will stretch from the Bakken and Three Forks productions areas in northwestern North Dakota to Patoka, Illinois. The pipeline is set to cross the Missouri River in North Dakota just north of the Standing Rock Sioux Reservation. In its lawsuit against the Corps—which issued a permit allowing construction for portions of the pipeline—the tribe alleged that the pipeline traverses over or near important historical and sacred grounds. The confluence of the Missouri and Cannonball Rivers in North Dakota was a traditional trading outpost for the Sioux and is thus considered an area of historical importance for the tribe. In an effort to avoid encroaching on historical lands and these sorts of permitting battles generally, Energy Transfer Partners is building 99 percent of the pipeline’s route over private property. But because the pipeline crosses federally protected waters, including the Missouri River, the Corps had to issue permits under various federal environmental laws, including the NHPA.
In its original suit seeking injunctive relief, the tribe claimed that the Corps defined the area of potential effects too narrowly and that its consultation with the tribal historic-preservation officer was inadequate. But the district court disagreed, finding no threat of imminent harm necessary to issue an injunction. Because the vast majority of the pipeline was being constructed on private land, the district court concluded that the tribe could not show that the work in the permitting area that it was seeking to enjoin would also cause harm to that private land that did not require a permit. It also noted that many of the tribe’s arguments were moot because nearly half of the pipeline has already been completed. Finally, the district court noted that the tribe never defined the boundaries of its ancestral lands, making it difficult for the tribe to meet its burden of proving that the pipeline caused irreparable harm to its lands.
Historical-preservation issues involving Native American tribal lands are not an uncommon roadblock for energy projects. For the last three years, the Department of the Interior has been in litigation with Solenex, a small Louisiana natural-gas company, over an oil and gas lease in Montana that the company has held for over 30 years. The lease has never been operational due to permitting battles, and earlier this year, the Obama administration cancelled the lease altogether because it is situated on land considered sacred by the local Blackfeet tribe. Solenex’s lawsuit originally concerned the unreasonable delay in permitting but now focuses on the department’s cancellation. Recently, Native American groups have been protesting the 2011 reauthorization by the Texas Railroad Commission of the permit for the Dos Republicans coal mine in Eagle Pass, which serves both the U.S. and Mexico. The protestors claim that the mine threatens sacred Native American land, and the city of Eagle Pass and Maverick County sued the mine over environmental concerns. In the litigation against Maverick County, the mine company claims it followed all of the necessary protocols under the NHPA. The case is currently on appeal at the Texas Supreme Court.
Before the Obama administration shut down the project, Native American groups in Nebraska also protested the Keystone XL pipeline, complaining that the government failed to include area tribes in the evaluation process for the pipeline. Finally, the Williams Companies’ Atlantic Sunrise pipeline project in eastern Pennsylvania, involving the expansion of an existing natural-gas pipeline, has drawn protests from Native American groups in Lancaster County. The native groups claim that the project traverses land filled with Native American artifacts and burial sites. While not all of these protests have directly invoked the NHPA, section 106 review and historic-preservation issues generally are always going to be at stake if an energy project encroaches on or near traditional tribal lands. A company developing such a project should always consider it will need to work closely with tribal leaders and historic-preservation officers.
Keywords: environmental litigation, energy litigation, Dakota Access Pipeline, Energy Transfer Partners, North Dakota, Standing Rock Sioux, National Historic Preservation Act
Courtney Scobie is an associate at Ajamie LLP in Houston, Texas.