JIM FUGLIE: View From The Prairie — Sorting Out The Good Guys And The Bad Guys: Pipeline Project In Limbo

Note: This story has been updated since it was originally posted Friday evening.

Late Friday, North Dakota’s governor, Jack Dalrymple, declared that a state of emergency existed in south-central North Dakota, due to a large gathering, in temporary campgrounds, of opponents of the placement of the Dakota Access Pipeline under the Missouri River on the edge of the Standing Rock Reservation. News reports say there may be as many as 2,000 Standing Rock Tribal members and sympathizers gathered near the banks of the Cannonball River. The very last sentence of the news story I read about this said, “The governor’s emergency order does not include activation of the National Guard.”

To which I would add one word: Yet.

Because he surely will.

And by the time Dalrymple is ready to call in the National Guard to clear out the protectors who have stopped work on the pipeline, he’ll likely have a significant amount of public sympathy leaning his way.

That will be the result of closure of North Dakota Highway 1806, preventing lots of people from gaining access to some state and local recreation areas over the last big weekend of the summer, Labor Day weekend.

In what seems like an over-the-top move, with just a tinge of racism, Dalrymple shut down the highway just six miles south of Mandan, and some 25 miles north of the pipeline construction site. Over the top because there’s no good reason to prevent people from using popular boat ramps and campgrounds at Schmidt Bottoms, Fort Rice and other areas along the shore of Lake Oahe. A bit racist because those campers and fishermen, mostly white, are being played against the Native Americans gathered many miles south.

“Now look, those damn Indians have kept me from having a Labor Day weekend with my family.”

A lonely deputy sheriff keeps watch at the Fort Rice Recreation Area Friday afternoon.
A lonely deputy sheriff keeps watch at the Fort Rice Recreation Area Friday afternoon.

That situation does not need to exist. There’s no good reason to stop travelers 25 miles north of the construction site. Their stated reason is to get travelers over to Highway 6 on County Road 138. Sorry, Governor, I call it bullshit.  There’s no good reason to keep boaters and campers from passing through the roadblock to their weekend destinations. They’re not interested in going down to the edge of the Reservation where the protectors are gathered. The recreation areas are all well north of there.

For that matter, it would be much simpler to simply set up a waypoint just south of the Sitting Bull Bridge — yes, ironically, that’s the name of the bridge over the Heart River that anyone wanting to go south out of Mandan on 1806 has to cross — and tell everyone heading out of town that 1806 is going to be closed south of Fort Rice, for example, so if they are going past there, say to Fort Yates or Mobridge or Prairie Knights Casino, they need to cross over to Highway 6 on 19th Street, right up there on the hill, and go that way. As opposed to the several miles of gravel road that is County Road 138 six miles south, 19th Street is about a mile of paved road.

Doing that lets everyone get to the recreation areas but covers the safety aspect near the construction site.

I drove to the construction site today (Friday), by the way. I’ve hunted pheasants out in that country for 40 years, and I know the back roads. When I got to the construction site, there were only five people there, and none of them were law enforcement. And work on the project has completely stopped, so there’s no chance of confrontation between tribal members and construction workers. Didn’t look like much of n “emergency” to me.

But it wasn’t long after I got there that I spotted a procession coming up the highway from the south. Two tribal officers in tribal vehicles with flashing lights were leading a procession of about 50 horse riders and a hundred or so people on foot, coming up the highway toward the construction site from the camp site down near the Cannonball River. It’s a long ways between the two sites, at least two miles, maybe more. It was raining pretty hard and only 57 degrees outside.

These weren’t yuppie campers in fleece shirts and Eddie Bauer rain suits, and by the time they got there, they were cold and wet. But their spirits weren’t dampened. They immediately began their mournful songs of prayer at the gate of the site. I left them to that. Gawkers weren’t needed there.

A prayer procession makes it way up Highway 1806.
A prayer procession makes it way up Highway 1806.

But here’s a suggestion for the protectors. If they would agree to stay off the road at all times, keeping it open for vehicles and safe for pedestrians, they’d have a good case to be made that there is no need for any road block at all, anywhere. That would be the best public relations move the tribe and its leaders could make. It is, after all, a state highway. And, more importantly, it is the road to Prairie Knights Casino, one of the most important economic engines of the reservation.

There’s a big concert at the casino Saturday night, the remnants of Credence Clearwater Revival. Concert-goers with tickets are going to have to take Highway 6 to get there, and there’s going to be a big traffic jam because there are going to be a couple of hundred cars going down that road to Suchyfest, Chuck Suchy’s annual music and Juneberry pie festival, at the Bohemian Hall on Highway 6 about suppertime Saturday as well.

I’m going to Suchyfest. I’m leaving early. I hope the road is safe. Generally lots of cars park on the side of the road down there each year. This whole thing could be a recipe for disaster.

And an economic disaster for the tribe if people decide just to stay home on a Saturday night — and for as long as the roadblock exists — instead of  taking a long detour on that road to the casino.

As for the whole pipeline protest, I’m not taking sides. I’ve generally been in favor of transporting crude oil by pipeline from the Bakken to refineries, as the safest means of moving oil long distances. Pipelines sometime spring leaks, and that can be disastrous, but they don’t generally blow up in the middle of residential neighborhoods, like trains can do.

Still, I’m sympathetic to the tribal members on the Standing Rock Reservation who are worried about the giant pipeline that is planned to run under the Missouri River on the northern border of their reservation. They’re worried about disruption of cultural resources and oil leaking into their river, which is not just sacred to them but also is the source of the water they need to live.

I’m also troubled by the fact that I don’t think U.S. Army Corps of Engineers, which issued the permit for the pipeline to be laid under the Missouri, has done its job here. Earlier this year, three federal agencies, including the EPA, called on the Corps to do more homework before issuing that permit.

EPA requested an Environmental Impact Statement to assess the possible impacts on drinking water for Fort Yates. The Department of Interior agreed, citing treaty language between the government and the tribe. And the National Advisory Council on Historic Preservation expressed concern about tribal cultural resources and burial sites. You can read more details on those things here. Those are all agencies of the same government as the Corps of Engineers. They should be in agreement, getting along. But the Corps didn’t pay attention to its sister agencies. And that’s what’s led to where we are today.

Perhaps the tribe could have been a little more proactive in the run-up to the permit process, but I imagine they felt they should be protected by their treaties with the U.S. government. Yeah, right. How’s that been working out for the last 150 years?

Of course, state permits had to be granted as well, and the North Dakota Public Service Commission did that. North Dakota State University Professor Tom Isern posted an essay on Facebook on Thursday finding fault with the State Historical Society of North Dakota for not pointing out to the PSC that the cultural resource study on the project was deficient and should have been redone. It’s that lack of a good cultural resource study that has set the tribe on its present course. You should read Professor Isern’s short critique. I’m not sure if non-Facebook users can connect with that link, so I’ll reprint it at the end of this article. Isern’s a credible historian — he needs to be paid attention to.

So there’s a lot of blame to go around for the situation we find ourselves in right now. I hope cool heads prevail, and bright minds resolve this. The tribe is serious. This is no idle bluff. There are more than 1,000 sympathizers — I didn’t use the word protectors, instead of protesters, by mistake earlier in this article — by some estimates 1,500 of them, gathered in a camp on the Cannonball River. That’s what they call themselves — protectors. I’m good with that. I don’t see them backing down. They want that pipeline rerouted. And we need this pipeline to be built. Certainly, between the state and federal governments and the pipeline company, they can find a way to do that.

Here’s Dr. Isern’s essay.


By Dr. Tom Isern

It’s all quiet on the Cannonball. For the moment. This is a good time to reflect on how we got to the point where an out-of-state energy transport company, here operating under the (rather ironic) name Dakota Access, manipulated our sworn officers of the law into confrontation with the native citizens of North Dakota.

Bear with me on this, because it requires some attention span. And there is required reading, too. Begin with this document: http://history.nd.gov/hp/PDFinfo/No…

Here’s why I think you should look at this obscure manual of practice. Issued by the Historic Preservation Department of the State Historical Society of North Dakota, it details the requirements for “Cultural Resource Invenory Projects.” Yeah, I know, I think they meant to say “Inventory,” but that’s not the point. The manual codifies the expectations of cultural resource contractors–usually archeologists–submitting work for review. This includes the studies required parcel to environmental assessments for construction projects, such as the Dakota Access pipeline.

All such work, like any reputable science, begins with a literature review. Now, archeologists like to do field work. They aren’t so keen about book work. So, the authors of the guidelines spelled out clearly what they expected every research entity to accomplish with the literature review. You can read for yourself in the manual, but I will summarize here the three essential points.

  1. Review the site files and other materials already of record in the historic preservation department
  2. Make use of the published, textual sources for history and archeology in the study area
  3. Interview persons with personal knowledge of the area

But, really, isn’t archeology about fieldwork? Why bother with this review-of-literature stuff?

Because, North Dakota is a huge place. Even a defined study area is too large to cover foot-by-foot with pedestrian survey. You need that boots-on-the-ground work, but if you’re just walking around out there, or even working the ground in systematic fashion, you’re going to miss a lot of stuff.

Think of it like this. If I start walking across a 5000-acre pasture looking for sharptail grouse, on my own, I may or may not be lucky enough to stumble across one. But if I start across guided by my trusty retriever, and follow where she leads me, I will find birds just about every time. You have to hunt where the birds are.

Historical sources tell you where to concentrate your survey efforts, so that you actually find stuff. Maybe that’s the problem here. If you want to find stuff, you consult the sources. If you don’t want to find stuff, don’t look at the sources.

Wait a minute, why would a researcher not want to find stuff? I’m a researcher, and I love to find stuff! The answer is, these cultural resource contractors work for the people, like Dakota Access, who want to build things, in ways that do violence to heritage resources, if you’re not careful. When cultural resource surveyors find things, that’s nothing but trouble for the people who pay them.

At this point, if you’re unfamiliar with the system of cultural resource management, you’re wondering how this makes sense. The point is, it does not. We set up a process ostensibly intended to safeguard our heritage resources. To do this, we require that before a party goes ahead with a big project, it has to submit a cultural resource survey and establish that the project will not do unreasonable amounts of damage to historic and archeological resources. Such a study is supposed to identify and locate the resources to be safeguarded. The study is conducted, however, by a contractor hired by the party desiring to do the project, such as the Dakota Access pipeline. Dakota Access pays the bills. Moreover, the companies who do such cultural resource work specialize in it and depend, for their existence and profit, on repeat business. The incentive, therefore, is not to find stuff, to go through the motions, but to bring in a report that satisfies the company which pays the bill.

You can read the environmental assessment for the Dakota Access project here: http://cdm16021.contentdm.oclc.org/…

I also have seen sections of the cultural resource study that is part of the EA. The cultural resource study is not included in the online posting. It is withheld because if people knew where to find archeological sites, they might loot them for artifacts. Such caution is standard practice, allowed by state statute–although it appears in this case to be redundant, because at least in the section dealing with Morton County, the researchers, surprise, didn’t find anything.

And why didn’t they find anything? Because, far as I can see, there is no evidence the cultural resource contractors even pretended to meet the minimum requirements for documentary research. And because of that failure, they missed known sites of profound significance and importance–some of them, in fact, visible in Google Earth, for pete’s sake.

It is time for concerned parties to examine the primary text on this matter, the cultural resource study on file in the historic preservation department of the state historical society, and to determine to what degree, if any, it meets requirements for such surveys. I have seen enough to know it is deficient. The only question is, how deficient. Now would be an excellent time for the Standing Rock Sioux Tribe to organize a qualified investigative team and dispatch it to the heritage center to determine the extent of deficiency. The findings would be important to legal proceedings currently in progress. It appears that all regulatory approvals of the Dakota Access project have been based on faulty intelligence.

There is a final issue I must address, although it pains me. I am a historian, and a sustaining member of the State Historical Society of North Dakota. The cultural resource study for the Dakota Access project came to the historic preservation department of the SHSND for review; the department accepted it, despite its failure to meet requirements; and thus it certified to the North Dakota Public Service Commission and other agencies that the Dakota Access project would do no harm to heritage resources. The statement of the SHSND, in its letter of 26 April 2016, was unequivocal: “No Historic Properties Affected.” That statement was based on demonstrably deficient studies.

How can this happen? There are three possible explanations.

  1. Time constraints – the SHSND simply lacked the staff to exercise due diligence.
  2. Lack of competence – the SHSND dropped the ball.
  3. Conflict of interest – the SHSND averted it gaze.

That third possibility, conflict of interest, is most disturbing. Energy firms are seven-figure donors to the SHSND. In fact, when the legislature only partially funded the new North Dakota Heritage Center, the SHSND made it known that it looked to energy companies as its main reliance for funding. And so it was done.

Let me make this plain: I am not accusing anyone, or any agency, of wrongdoing or bias. I am saying that so long as this conflict of interest exists, the public will view the pronouncements of the SHSND with suspicion.

It is long past time for the SHSND to deal with this problem. It is possible, through a transparent process of recusal by conflicted parties and involvement of unbiased reviewers, to solve it. As a member of the SHSND, I say, let this reform commence immediately.

Footnote: The story is finally hitting the national news. National Public Radio had  a pretty good summary of the situation today. Here’s a link. 

One more Footnote: Winona LaDuke has written a fascinating article about the money behind the pipeline. Read it here.

2 thoughts on “JIM FUGLIE: View From The Prairie — Sorting Out The Good Guys And The Bad Guys: Pipeline Project In Limbo”

  • Judge Thomas A. Davies (retired) August 19, 2016 at 9:27 pm

    Great read Captain Jim.

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