Fort Peck chairman wants tribes to join lawsuit against Keystone XL pipeline

(Montana Free Press) Fort Peck Indian Reservation tribal chairman Floyd Azure said he plans to urge the tribes’ executive board to join a lawsuit that accuses the federal government of failing to address the threat a foreign-owned oil pipeline poses to the tribes’ drinking water.

According to Azure, officials for Canadian oil giant TransCanada met with leaders of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation last year to discuss the pipeline route.

“But it wasn’t a negotiation,” Azure said in his Poplar office, “they just told us what they were going to do.”

Opponents of the pipeline’s current route hoped the company would consider rerouting the pipeline so it would cross the Missouri River downstream of the reservation’s $300 million drinking water network intake plant. Congress mandated construction of the new drinking water system after past oil development contaminated the region’s groundwater with carcinogens and turned it saline.

The current pipeline route proposal has the pipeline crossing the Missouri River upstream of the tribes’ water system intake plant, and less than two miles downstream of the Fort Peck Dam spillway, which suffered significant damage during massive flooding in 2011.

Montana has a history of pipelines bursting at river crossings. In 2011 flooding damaged the Exxon Silvertip Pipeline upstream of Billings in a disaster that spilled an estimated 63,000 gallons of oil into the Yellowstone River. In January 2015, the Bridger Pipeline burst near Glendive, spilling an estimated 40,000 gallons of crude oil into the Yellowstone and contaminating the city’s water supply. The cleanup of that spill was made even more difficult by the fact that the river was partially frozen at the time the pipeline ruptured.

Great Falls District Judge Brian Morris in May listened to oral arguments in a lawsuit brought by environmental groups, who argued the government permits to build the Keystone XL pipeline should be revoked because they were issued on the basis of faulty and outdated data.

The Fort Peck tribes are not currently a party to the lawsuit, but Azure wants to see if that can change.

Azure said the last straw was a long-sought-after risk assessment TransCanada submitted to the Army Corps of Engineers as part of the permitting process for KXL to cross the Missouri River. Despite years of public comment, court testimony, letters to state and federal governments, protests and news reporting, the risk assessment analysis makes no mention of the new water network, the reservation, or the tribes.

“It’s like we’re out in a desert screaming our lungs out and no one can hear us,” Azure said.

Though the risk assessment is dated July 31, 2017, Azure said the tribes for more than a year had been asking TransCanada to see it. Azure said the pipeline company refused to provide the document, saying that doing so would be a violation of federal law.

Azure said the tribes finally received a copy on July 27 from Gov. Steve Bullock’s office.

“I don’t think this is worth the paper it’s written on,” Azure said, of the 111-page risk assessment.

The risk assessment’s failure to address the potential threat to the water network echoes claims made in the ongoing lawsuit against the federal government. The plaintiffs, including Northern Plains Resource Council and Indigenous Environmental Network, say various government agencies approved Keystone XL’s construction despite a faulty environmental impact statement that ignored the threat the pipeline posed to drinking water, endangered species and the climate.

“It’s just upsetting to me. They just really don’t give a shit about the Indians,” Azure said.

The lead attorney for the plaintiffs, Sierra Club lawyer Doug Hayes, said he couldn’t comment on the Fort Peck tribes’ intent to sue. Hayes said he had not yet received a copy of the Missouri River risk assessment.

The risk assessment is dated July 31, 2017, with an update in November 2017, but it only recently appeared on TransCanada’s Keystone XL website. Ronja Abel, a spokeswoman for Gov. Bullock’s office, said she downloaded the risk assessment from TransCanada’s Keystone XL website. The risk assessment was referenced, but not attached, to an environmental assessment for the pipeline’s new Nebraskan route, which was published on July 30 in the Federal Register and on the State Department’s Keystone XL website.

When environmental groups sued last year to halt the pipeline’s construction, the Fort Peck tribes weren’t a part of the lawsuit, despite passing a resolution in 2015 opposing the pipeline. Tribal attorney Majel Russell said in May that the tribes were waiting to see what happened with the Army Corps of Engineers and other permits.

An Army Corps of Engineers public affairs officer said the Corps couldn’t comment on the current lawsuit, but did say that “the risk assessment is being considered among many other documents” for TransCanada’s permit to cross the Missouri, which is under the purview of the Corps.

Oral arguments in the federal lawsuit concluded in May, but Morris has yet to rule on the case. It’s unclear whether the Fort Peck tribes could join the lawsuit at this time. Azure said he would like to file a separate lawsuit against TransCanada for negligence.

“I think it’d be great if that would be legally possible to do,” said Joye Braun, a Cheyenne River Sioux member of one of the plaintiff organizations, the Indigenous Environmental Network. Braun was among those who protested the pipeline ahead of hearing in Great Falls in May.

The water network, known as the Assiniboine & Sioux Rural Water Supply System, supplies water to 30,000 people in remote northeast Montana, and is governed independently of the tribal government by the Fort Peck Water Board. Water Board Chairman Bill Whitehead is a plaintiff in the lawsuit against the federal government, and has been on the opposite side of Azure on some tribal issues. Whitehead lost a 2017 election to Azure’s current vice-chairman.

“We may have differences of opinion politically, but on this water project we have a consensus,” Whitehead said.

Whitehead also expressed concern over whether the tribe could join the lawsuit this late in the process, but said it would be good if they did.

TransCanada’s lead attorney in the case, Peter Steenland, said counsel for the pipeline company would not comment on Azure’s desire for the tribes to sue the federal government. Representatives from TransCanada’s media relations, indigenous relations, and general Keystone XL departments did not respond to requests for comment. Calls to the U.S. Justice Department, the agency representing the federal government in the lawsuit, were also not returned as of press time.