February 03, 2017

Dakota Access Pipeline, Florida’s opioid crisis among hot topics discussed at Midyear

Spotlighting two issues frequently in the news, the Section of State and Local Government Law held a program on “hot topics” at the ABA Midyear Meeting in Miami on Feb. 2. The legal issues surrounding the Dakota pipeline and the opioid epidemic were discussed.

Experts discuss legal hot topics at a program sponsored by the Section of State and Local Government Law during the ABA Midyear Meeting in Miami.

Ellen Rosenblum, Oregon attorney general and chair of the section, moderated the panel. Robert Saunooke, a Florida attorney, professor of tribal law at Emory University in Atlanta and chair of the section’s Tribal Law Committee, spoke about the issues surrounding pipeline.

Historically, Saunooke said, the U.S. government has felt free to take Native American land and leave the tribes with the worst land. Indeed, he said, “The history of Native American tribes is based on an undercurrent of racism.”

But unfortunately for the government, one-fifth of U.S. natural oil reserves are under Indian land, Saunooke said, and some 60 to 70 percent of the natural gas and coal are on Indian reservations.

In 1974, he said, President Richard Nixon, under the Indian Self-Determination Act, issued an executive order that said government agencies were to consult with tribes if they entered into any project that might have an impact on them. Every president since has signed the same executive order (although so far, President Donald Trump has not). Still, it was never something that happened routinely.

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The heart of the furor over the Dakota pipeline is its impact on the Native American community. The original design for the pipeline was to go through Bismarck, farther north, but the city objected and the new route through the Standing Rock Sioux reservation was planned. The tribe was never consulted. A history of treaties with the Standing Sioux were ignored, along with any environmental concerns.

Although putting in a pipeline might not seem like an environmental hazard, Saunooke said that 250 times a year a pipe breaks and leeches oil and natural gas into the ground.

Of the 562 Indian tribes in the United States, he said, less than 10 percent have money or resources for legal battles. But the protest against the Dakota pipeline was the first time in Saunooke’s memory that so many tribes have come together and brought their money and resources to file lawsuits against it.

Native Americans believed in the sanctity of the treaties they signed and the word as bond, he said, but non-native communities did not believe in them.

The relationship between the Native Americans and the land is “blood, it’s breath,” Saunooke said.

In November, the Army Corps of Engineers declined to issue the permit to build the pipeline, and it was hoped that was the end of it. But Trump has signed an executive order “removing impediments” to the permits for the Keystone pipeline and the Dakota Access pipeline.

It is unclear what will happen next, Saunooke says. The Army Corps of Engineers wants to see an environmental impact study and review the project. But the companies set to build the pipeline are moving forward, hassling the protesters still trying to prevent the project.

For Saunooke, the key question underlying all this is, “What is our policy on energy going to be?” That is, do we want to take our natural resources at all costs, or is it time to take a different approach, and take into account the environmental impact?

Then Julie Hogan, deputy statewide prosecutor for the Florida attorney general’s office, spoke about the multifaceted approach the state is taking to tackle its opioid problem.

Said the prosecutor of 27 years, “Prescription drugs are the No. 1 safety threat to Florida.”

In 2009, seven Floridians a day were dying from prescription drug overdoses, and in 2010 a total of 2,700 Floridians died from them. But by 2011, those numbers were declining.

Hogan credits the strategic, multifaceted approach that Florida Attorney General Pam Bondi took to go after the “pill mills” that were so prevalent throughout the state.

Pill mills are “clinics” that prescribe and supply painkillers; their owners frequently don’t have a medical background.

Pill mills usually have these characteristics:

  • Often in nontraditional medical office locations (i.e., in a strip mall next to a gun shop or tattoo parlor)
  • do not accept insurance
  • are all-cash businesses
  • often have security at the front door
  • often see loitering in the parking lot (patients shooting up)
  • feature long lines inside and outside the “clinic”
  • usually lack medical equipment in the office
  • the treatment options are limited to pills only (such as oxycodone and benzodiazepine) and they’re the same cocktail of pills is prescribed
  • frequently change their name to avoid detection
  • frequently have guard dogs behind the front counter for security.

The strategy had several components:

  • Criminal: there was a 42 percent increase in prescription drug prosecutions, and the state took over cases from the feds and started using racketeering and trafficking charges.
  • Civil/Administrative: the attorney general and the Department of Health made an agreement to aid each other’s investigations.
  • Legislative: the state passed HB 7095, which among other things made the clinics register as pain clinics with the Department of Health; it also banned physicians dispensing pills from the clinics.

The results from the multi-pronged approach were rapid: from January to June 2010, the number of pill mills dropped from 800 to 300.

In 2011, the state also began the Prescription Drug Monitoring Program, in which all clinics have to report patient demographics, the drugs prescribed and list physicians and pharmacies they use.

“The reason this works is that for investigative purposes it’s fantastic,” Hogan said, saying investigators can look up the history of what a doctor is prescribing or see if a patient is doctor shopping, among other things.

The state continues to address the opioid crisis. In 2012, the Good Samaritan Act gave immunity to anyone reporting a drug overdose. In 2015, Florida authorized the emergency use of naloxone for treatment of overdoses.

Although much progress has been made, Hogan reported that those who once enjoyed the lavish all-cash profits of the pill mills have started moving into the treatment arena, buying “sober homes” and abusing insurance plans and keeping residents in recovery on drugs to make their money. The state is now working on a plan to crack down on them, she said.