SLAPP’d: An Indigenous Nation Fights for Its Water

Seven Years Later, an Environmental Impact Statement for the Dakota Access Pipeline

 [00:00:00] It is an unseasonably warm day in October, 2024. Rolling hills covered in golden grasses stretch on either side of Highway 1806 on the Standing Rock Sioux Reservation, and I'm riding in a truck with Doug Crow Ghost. He leads the Standing Rock Sioux Tribe's Department of Water Resources. Behind us is a truck pulling a pontoon boat.

We're with a crew of people heading to the Missouri River, about 10 miles downstream from the Dakota Access Pipeline, which Doug calls DAPL.

 We're documenting that if there's a pipeline break, DAPL is saying that they can get these big skimmer boats on the water to go up there, to start getting rid of the, uh oil. And we've been saying, hell no. There's no way. But we're gonna document it anyway. And we are gonna drive along, take pictures of, there's some certain they call 'em, uh...

 They're trying to find out if the Missouri River is high enough so that emergency [00:01:00] boats could clean up an oil spill. But the catch is for our plan today to work, we have to be able to get our boat on the river.

And as we arrive at the marina, it becomes clear that a pontoon ride might not be happening today. Doug starts chatting through the window with the local guy.

 Are you freaking kidding me? It's, you can't, it's unusable.

 Do you think you could get that, uh, pontoon in there? I know it.

No way it's soft there, but might get stuck. Yeah. He ain't gonna get no pontoon in there. Yeah. See this shit show

 To some degree, this proves Doug's point. He figures that if we can't even get the pontoon on the water, then Energy Transfer isn't gonna be able to launch big, heavy emergency boats to skim away oil.

 I, I drove out here last week to check it out and it was good.

 I don't want you guys fucking have a shit show over there.

 Doug's a big talker and he's got his hands in a lot of things. As the Standing Rock Tribe's Water guy, the Dakota Access Pipeline has been a big part of [00:02:00] his job. To the Standing Rock Nation, the pipeline is among the biggest threats to its primary drinking water source, the Missouri River. So Doug spent countless hours trying to make sense of Energy Transfer's emergency plans, what they intend to do if the oil leaks out. He's also helped with the tribe's ongoing legal fight against the pipeline.

In late 2024, standing Rock is getting ready to file a new lawsuit to stop the flow of oil. And the water level measurements they take today are meant to help prove that the pipeline is unsafe. We get out of the truck and inspect the water line.

 Look, look at how far it went down just for this not even to be dried yet.

 The Army Corps of Engineers. The mismanagement of the river.

 The Standing Rock Sioux Tribe's legal fight against the pipeline isn't against Energy Transfer. It's against the US Army Corps of Engineers. That's the federal agency that's in charge of [00:03:00] granting permission for the pipeline to pass through federal land, including under the Missouri River. It was the Army Corps that the tribe first sued back in July 2016, right before the Standing Rock protest really kicked off.

Back then, they were trying to get the federal government to require a deeper review of the pipeline route. Fast forward to today, the tribe's legal fight to stop the pipeline is still going on. It wasn't until Trump came into office in 2017, as the Standing Rock protests were already winding down, that the Army Corps did grant permission to drill under the river.

But after the pipeline was already installed, a judge took back that permission and said that the project 

 require a deeper environmental review. Eight years after the oil started flowing, that review, an environmental impact statement, still isn't finished. The pipeline operates with no official permission from the Army Corps and the Standing Rock Sioux tribe is sick of it.

The Army Corps of [00:04:00] Engineers also runs a series of dams along the river. Dams Standing Rock and other indigenous nations never wanted. So this new lawsuit Doug is helping prepare, it's not just gonna focus on the pipeline, but rather on multiple environmental justice issues that this nation has been putting up with for decades.

Pulling up behind us is a whole team of emergency managers from the tribal government as well as an elected member of the tribal council, and a reporter from a local newspaper.

 Doug briefs us on the plan. Since it's too shallow for the pontoon here, we're gonna head to the next closest option for launching a boat, which is 20 minutes away at Fort Rice.

 Two things are gonna happen there. One, we're gonna, it's gonna be up. The water's gonna be good. We're gonna get in the boat and we're gonna go to DAPL site, or we get down there and it's just like this. It's unusable, and we document that as [00:05:00] well. All right. Load up then you guys. Thank you.

 You know, in all these years covering the Standing Rock movement, I've never actually gotten out on the water. But I have no idea as we turn onto the highway that I'm about to get even more intimate with the Big Muddy than I'd bargained for. This season of Drilled, we bring you SLAPP'd, the story of an Indigenous nation fighting for its water, an environmental nonprofit facing extinction, and an energy giant using the courts to punish protestors. I'm Alleen Brown.

The draft of Energy Transfer's environmental impact statement for the Dakota Access Pipeline was released about a year and a half ago, and it describes the company's version of what would happen if the pipeline breaks. [00:06:00] It says that within 13 minutes of a leak, Energy Transfer would shut down the pipeline.

Their boats into the river from a dock like we just visited, and they'd isolate the spill with containment booms. Skimmers, absorbent material, and vacuum suction would collect the oil. If the water was too low to launch a boat, Energy Transfer would use cranes to lower watercraft into the Missouri, and they say they have airboats on hand. But Doug and other Standing Rock leaders don't buy it. For one, the report was written by a company with ties to the oil and gas industry, he tells me about it as we drive to the next closest boat dock.

 [scoffs] we told him that's a conflict of interest!

 Making matters worse, large sections of the emergency plans and the spill response report are blacked out. Redacted. Standing Rock leaders say they have no ability to check the work of Energy Transfer and the Army Corps.

 How can you really comment on something you can't see? And this is what we always said. [00:07:00] Where's the transparency?

 A final decision on the easement-- the permission to drill under the river-- is expected in the next year. The writing is on the wall with Donald Trump about to become president. The Army Corps will likely grant it.

The Standing Rock Sioux tribe decided they weren't gonna sit around and wait before filing a new lawsuit.

 As we drive. I'm noticing the way the sun is struggling to pierce through a kind of fog.

Uh, do you think this haze is, uh, from the wildfires?

 North Dakota Governor Doug Burgum declared a state of emergency a week ago. High temperatures, dry conditions, and wind are creating the perfect conditions for wildfires. Earlier in the week when I was visiting here, I'd driven by fields scorched by wildfire.

The fire had meandered through agricultural land and jumped the road. The blackened areas had the unsettling appearance of [00:08:00] an oil spill. The climate impacts of burning oil were a key issue in the fight against the Dakota Access Pipeline, and here in North Dakota, it isn't hard to see how the climate crisis is impacting everyday life.

Doug takes a turn on Boat Dock Road. His team didn't use to use this dock too often, but with the water levels being so low, that's changed.

 Oh, it's 10 years. At least. 10 years, every year. Usually around this time, and then springtime, it'll flood, and then wintertime, it'll, it'll go low. And it just depends on the runoff. A lot of times too, of Montana's, uh, headwaters. Mm. If they had a good winter and a and a nice runoff, would there have be more luck getting into the water here though? Oh my God, yes.

 The headwaters of the Missouri River are in Montana. In 2017, universities in the state did a study on [00:09:00] how climate change is impacting the river.

The researchers found that not only has Montana's snow pack in the mountains declined, the snow that does accumulate is melting earlier in the year. By late summer, there's less water than there used to be. That means more drought. Over the next century, what we're seeing today is expected to get worse. A deciding factor for how bad the droughts and fires will get is how many fossil fuels continue to be extracted, transported, and burned.

It's products like the oil carried by the Dakota Access Pipeline that are making the climate crisis worse.

 Let's go check it out, kids. Let's see if we're gonna go pick the big one today.

 Now, I don't know if I need this giant jacket

 I debate leaving my coat in the car. It's October in North Dakota, but the temperature is climbing above [00:10:00] 80 degrees.

Don Holmstrom climbs out of the backseat and heads down the ramp toward the dock. Don is the former director of the US Chemical Safety and Hazard Boards Western Regional Office. Now he works as a safety consultant for Standing Rock. He pulls out a sonar depth finder device and it says it's deep enough for us to launch.

While some of the crew sets up the pontoon, I chat with Harold Tiger and Erika Porter, who are emergency managers.

 I'm curious to hear more about the wildfire.

 From the reports I received, it was caused by a combiner that was combining in the field. It caught fire.

 It turns out, they responded to that fire I saw.

They tell me this is the time of the year when farmers harvest hay. All it took to spark the fire was a combiner hitting a rock.

 We closed down the road while that fire skipped over Highway 63. The smoke was so bad that it was [00:11:00] hard to see through the smoke going across that highway.

 I guess, how unusual is this? How unusual is a wildfire like that?

 Well, and and it has a drastic effect on our people. I mean, things are not happening normally at certain times of the year, so we need to start looking at that, looking outside of the box to get better prepared for those things.

 The climate crisis is often called a threat multiplier. The oil in the pipeline stands to make the climate crisis worse, and also the climate crisis stands to make the impact of any oil spill worse. And there's one more piece to this puzzle that we'll get to in a second: The Missouri River dams.

 We putter into the little bay that leads to the river. For a second, it seems like our journey might end before [00:12:00] it's begun.

 We aren't... yet. Erika cranks up the pontoon jams.

 Don drops the depth finder into the glassy water as we troll south through a basin that's wider than a football field. Doug drives carefully navigating the braided channels that cut pathways through muddy sand bars. The constant fluctuations of the river mean the curves of the channels are unpredictable.

The stretch of the river that borders Standing Rock is called Lake Oahe. It's a reservoir that was created in the early 1960s. The Upper Missouri River today is actually divided up by a series of dams. That's because in the 1940s, the U.S. created a program called the Pick Sloan Plan. That plan is the origin story of the Standing Rock Nation's poisoned [00:13:00] relationship with the Army Corps of Engineers.

The Corps wanted to build a series of dams to control the Missouri River. The dams were meant to ease flooding, provide power and irrigation, and also make it easier for boats to transport people and products. The thing is, the Indigenous nations along the river didn't want the dams. The US government built them anyway.

They flooded and destroyed entire communities, drowning grave sites, as well as sources of food and income. People from Standing Rock say they were never adequately compensated, though it's not clear that any price could have made the dams worth what was lost.

 And it wiped all that out. It wiped away out our cherry trees, our plum trees, our, you know, it was a hunting grounds. And so they, this, this Army Corps of Engineers, when they flooded our lands, they wiped out a way of life, you know?

 Avis Red Bear was born just after the dam flooded the land, [00:14:00] but she grew up hearing about what happened. And as far as Doug is concerned, the injustice of the dams is ongoing. The climate crisis may be helping create drought conditions, but it doesn't explain how quickly the water level is going up and down.

 Um, yeah. So what's the deal? So the.. obviously the dam, the water is low. Why would they, why would it be low right now? Why is it low right now?

 Because they're trying to keep the level of the, of the Missouri River, at average, at an average, uh, level down in Kansas and Missouri for, for navigation for barges,

 The Army Corps controls the release of water from reservoir to reservoir. They're attempting to balance a tangle of different needs as they do this, from preventing flooding to protecting endangered species, to letting people fish, to making sure companies can transport products. In Doug's view, the Army Corps [00:15:00] prioritizes the commercial needs of people outside the bounds of the reservation.

Lake Oahe ends up stuck in a constant state of flux.

 So I call our Lake Oahe the bastard reservoir of the, um, Pick Sloan Act. And it is, and you've seen it today. Today is a, you know what you guys, I am so glad you guys came today. Avis, uh, Don, because you guys are seeing firsthand what I have to go through almost on a weekly basis when we go out to do sampling on the river, we can't get out there.

 When Doug and the other Standing Rock members on the boat today, think about the threats to the water, it's about not just the pipeline, but also the dam.

 So, I mean, it's just, it's so unjust, but I just love this. It's so beautiful. I'm so glad we came out.

 The Army Corps denied my request for an interview. A spokesperson told me that the Army Corps operates the reservoir system according to the [00:16:00] law with guidance from a master water control manual. The spokesperson said water levels fluctuate seasonally based on precipitation, runoff, and multiple congressionally authorized purposes, including flood control, navigation, water supply, recreation, and fish and wildlife. These operations are system-wide and are not managed for any single user or economic interest.

There's another thing influencing Standing Rock's lawsuit strategy: The Greenpeace case. In its original conspiracy lawsuit, Energy Transfer claimed that Greenpeace committed defamation by saying that the pipeline would poison the Standing Rock Sioux Tribe's water.

They also said its defamation to say the pipeline would catastrophically alter the climate.

Threats to their water and to the climate are two of the Standing Rock Sioux Tribe's key arguments against the pipeline. Energy Transfer's suit was [00:17:00] suggesting these threats don't exist.

And if you're gonna make claims like that in a lawsuit, then you have to prove it. Energy Transfer would have to hand over internal documents proving how safe the pipeline really was.

But they argued that sharing so many documents was too much of a hassle. To avoid having to turn them over, they dropped the claims about water and climate safety. But Greenpeace did not drop their request for documents. And as they continued to fight about it, some documents ended up bubbling to the surface that weren't supposed to. A report that was supposed to remain confidential appeared on a court website for anyone to download. An engineering firm called Exponent had prepared this report. It was co-written by a former Exxon engineer. Greenpeace had commissioned it as part of its legal defense. And it described something the Standing Rock Sioux Tribe had never heard about before.

It said that there had been problems when Energy Transfer's drilling contractor Michels was drilling under Lake [00:18:00] Oahe.

 So basically we're at ground zero and where there would be a pipeline break,

 That means we're floating above the Dakota Access Pipeline. It's buried 95 feet below the lake bed.

Doug explains what the Exponent report revealed. He takes us back to January, 2017 when Energy Transfer set up two huge drills on either side of the river.

 At the same time, we had a camp on the other side of that cliff over there where people from around the world were protesting to stop it. And these guys over here were saying, gear it up, let's get it done.

Transcription

Energy Transfer has successfully kept a lot of stuff out of the court, including the tribe's concerns about the pipeline's impact on their water source and how very valid that concern turned out to be. We learn about the spills and water issues the pipeline has already caused. 

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