Army Corps Treads Fuzzy Legal Line in Evaluating DAPL Permits

Mary Annette Pember / Major General Donald “Ed” Jackson, Commander General of the U.S. Army Corps of Engineers, gives an overview of the Corps role in infrastructure projects at the National Congress of American Indians annual conference earlier this month.

Appendix C, a set of regulations, puts Army Corps at odds with Native nations

As with most issues between Indian country and the federal government, the important bits are steeped in legalese and long numerical references to laws and regulations. The very stuff of life and its protection, however, is referenced and hidden within these dryly-worded documents.

A set of regulations created by the U.S. Army Corps of Engineers (USACE) called Appendix C is one such example, and it may determine the future of the Dakota Access Pipeline project as well as other projects for which the Army Corps is responsible for issuing federal permits.

It turns out that tribes have been complaining about the legality of Appendix C for a very long time, and with good reason. Appendix C spells out how the Corps will meet its obligation to fulfill Section 106 of the National Historic Preservation Act (NHPA), created to protect places of historic, architectural and/or cultural significance.

Part of the NPHA’s Section 106 requires that agencies carry out the process in consultation with Tribal Historic Preservation Officers (THPO) and identify and assess impacts to properties of traditional religious and cultural significance to tribes. Although all federal agencies are allowed to create their own means by which they fulfill the requirements of Section 106, the Army Corps chose to streamline the process by creating its own regulations that tribes and other federal agencies argue not only fail to meet the requirement of the NHPA’s Section 106, but are also in direct conflict with the law.

The Advisory Council on Historic Preservation (ACHP) is an independent federal agency charged by Congress with overseeing implementation of the NHPA. The Corps contradicts several of ACHP’s regulations through use of its own process spelled out under Appendix C.

The differences between Section 106 regulations and Appendix C are substantial. Chief among these differences includes the Corps’ decision in the Standing Rock case to review each river crossing of the Dakota Access pipeline as a separate project rather than consider the entire pipeline as one project.

“This allows the Corps to dismiss the potential for effects to historic properties that may be located within the broader project area of an undertaking,” according to an August 2, 2016 letter from the ACHP to the Corps.

The final sentence of the October 9 court ruling denying the Standing Rock Sioux Tribe’s appeal to halt work on the Dakota Access pipeline alludes to the enormity of the Corps actions under Appendix C.

“We can only hope the spirit of Section 106 may yet prevail,” wrote judges Janice Rogers Brown, Thomas B. Griffith and Cornelia T.L. Pillard in their October 9 ruling.

There’s a world of meaning, history and possibility in those few words. The overall ways in which the Corps Appendix C regulations fail to protect historic properties and traditional cultural properties (for tribes) as intended by the NHPA are significant, according to a paper written by Suquamish Tribal Chairman Leonard Forsman. They include:

Significant decrease in the Area of Potential Effect (APE). The Corps regulations, unlike the ACPA, limit the APE to the permit area rather than the geographic area within which a project may directly or indirectly cause alterations in the character or use of historic properties.

Narrow definition of adverse effects. The Corps’ Appendix C limits the agency’s responsibilities by narrowing the definition of adverse effects thus ignoring ACPA regulations that consider the direct and indirect effects of projects.

No requirement for tribal consultation. Appendix C states that tribes may be consulted as part of the district engineer’s investigations, unlike the ACPA’s regulations, which require tribal consultation. The Corps also grants itself the sole right to terminate consultation.

Failure to fully protect confidentiality. Unlike the NHPA and ACHP regulations, the Corps only protects information from disclosure when there is a substantial risk of harm, theft or destruction.

“Congress did not explicitly or implicitly delegate regulatory authority to the USACE to promulgate is own Section 106 regulations under an authorizing statute: a federal agency does not have independent legislative power,” Forsman wrote in his paper.

“What do you do when a federal agency violates its own rules?” said Standing Rock THPO Jon Eagle in regard to the Corps’ permitting process for the Dakota Access Pipeline project.

Some of the problems may lie with the Corps’ mission, which includes an emphasis on economic development, tribal leaders interviewed for this article said. Forsman opined that this emphasis may be the underlying basis for the Corps’ stated regulatory policy to avoid unnecessary regulatory controls when permitting infrastructure projects.

Forsman, however, lauded the Corps for its May 2016 denial of a permit for what would have been the nation’s largest coal terminal, Gateway Pacific Terminal, in Washington State. The Lummi Nation said the terminal would have threatened the tribe’s fishing rights, protected by treaties; the Corps agreed.

“If the Corps would be more transparent and do more outreach they could avoid a lot of these problems. Unfortunately, they get insular and get their blinders on,” said one tribal leader during last week’s annual National Congress of the American Indians (NCAI) meeting in Phoenix.

Although the Corps now considers the Section 106 process to be closed, it is far from over for the Standing Rock Sioux Tribe. Several points, including the Corps’ dependence upon Appendix C to complete its Permit 6 responsibilities, will be argued in lawsuits, Eagle promised, saying there may be something approaching a legal precedent: “We have heard that the Corps has consistently lost lawsuits in which the legality of Appendix C has been questioned.”

The use of Appendix C has indeed been challenged successfully in court a number of times, according to Javier Marques, associate general council of the ACHP.

In 2001, a court held that the Corps could not issue a Clean Water Act permit for a wastewater treatment plant without first considering other issues under Section 106, even though some of those issues fell outside the permit’s scope, he said.

Also in 2001, a court rejected the Corps’ narrow interpretation of the area within which to consider impacts and effects on historic properties as contrary to the ACHP’s Section 106.

In 1985, a court ruled in favor of the Colorado River Indian Tribes’ claim that the Corps’ practice of limiting its historic preservation review to Appendix C’s narrowly defined “permit area”—as opposed to the broader area in the ACHP’s Section 106 implementing regulations—was a breach of its responsibilities under Section 106.

The Army Corps did not respond to questions about its use of Appendix C in its permitting process.

Marques couldn’t comment about the DAPL case because it is currently in litigation, but he discussed the overall situation relating to the Army Corps’ use of Appendix C.

“Our position has always been that the Corps does not have the authority to issue regulations implementing Section 106 of the NHPA,” Marques said. “The only agency in the federal government with this authority is the ACHP. Although Appendix C has been on the books for many years, we have never seen the authority that the Corps claims to have to issue these regulations.”

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