Things may begin to quiet down now in North Dakota with regard to the protests against the Dakota Access Pipeline (DAPL). On Tuesday, a judge granted a temporary order requiring the company building the pipeline to halt construction on the portion of the pipeline that traverses underneath the Missouri River.
The Standing Rock Sioux Tribe brought a lawsuit against the Army Corps of Engineers, the federal entity who granted the permits for the multi-state pipeline, for allegedly not sufficiently consulting with the tribe before granting the permits to Dakota Access. As a result of the lack of proper consultation, the pipeline threatens to violate sacred sites that are located outside of the tribe’s reservation on private land belonging to others. It may also pose a health hazard by crossing the river, as the Missouri River is the main water source for everyone living on the reservation.
While the tribe is seeking to ultimately gain a permanent injunction against the pipeline as a whole, the judge is currently only focusing on the portion of the pipeline affecting the river and the tribe’s riparian rights. Anyone who possesses land that contains access to a navigable body of water, such as a large lake or a river, has the right to use water from that body of water. Other people cannot significantly interfere with a landowner’s preexisting use of water, especially if that use of water is for domestic purposes. This means that another person cannot negatively impact the quantity and, perhaps more importantly, the quality of water to which a landowner is accustomed.
The Standing Rock Sioux Tribe has been using the Missouri River, which runs along the border of its reservation, as a source of water since the tribe was relocated to a reservation there in the 1860s. Eventually, the river became the tribe’s only source of water for both commercial and domestic purposes. As a result, the Standing Rock Sioux Tribe has a right to access the water in the river at the same quantity and quality in the future as it does now.
The construction for the pipeline and even the pipeline itself may interfere with the quantity and the quality of the water due to its location upstream from the reservation. If the construction can be done in a manner that will not significantly impact the tribe’s access to water from the Missouri River, then the construction will not interfere with the tribe’s riparian rights to the river.
A Looming Threat
However, DAPL’s existence under the riverbed itself may also pose an unacceptable threat to the tribe’s riparian rights. As previously mentioned, a landowner with riparian rights has the right to water that is of the same quality in the future as it is now without that quality being significantly changed by another person. If the placement of the pipeline creates a threat to the quality of the water present in the river, then the pipeline is impermissible. Oil pipelines have been known to burst and cause irreparable damage to the environment, such as the Exxon Mobil pipeline burst that happened near Mayflower, Arkansas in 2013. For weeks following the Mayflower oil spill, the residents of Mayflower showed signs of exposure to harmful chemicals that were a result of the pipeline burst.
If the proposed DAPL were to burst and cause an oil spill in the Missouri River, then it would significantly harm the quality of the water that the Standing Rock Sioux Tribe depends upon for domestic purposes. If the court finds that the Army Corps of Engineers failed to properly consult with the tribe over its use of and dependency on the water of the Missouri River in light of the potential risk, then the court may side with the tribe and issue a permanent injunction against the construction against the pipeline.
The court may also halt the construction of the Dakota Access pipeline if it determines that the Army Corps of Engineers did not properly evaluate the risk posed by the pipeline before issuing the permits that the company needs in order to lay the pipeline under the riverbed. Alternatively, the court may find that the Army Corps of Engineers did all that was required of it to ensure that the pipeline did not pose an unacceptable risk to the tribe’s riparian rights and that there is nothing wrong with the issuance of the permits.
Any major construction project and the resulting product can impact the rights of nearby landowners to access of clean air and clean water. Thus, it is important for governments to ensure that these rights are not severely impacted through only issuing permits when they have made sure that riparian and air rights are not going to be seriously impacted. If you are concerned that your access to clean air or clean water is being put at risk by a new construction project, contact a real estate lawyer right now.
Authored by Kristen Johnson, LegalMatch Legal Writer