Join ICT and IndiJ Public Media’s 2024 End of Year Campaign in honor of Mark Trahant’s 50-year legacy in Indigenous journalism. Help us reach our goal of $75,000 by Dec. 31 to celebrate and amplify Indigenous voices. Donate here!
Amelia Schafer
ICT + Rapid City Journal
FORT YATES, N.D. – Eight years since the Standing Rock Sioux Tribe stood against the Dakota Access Pipeline, the fight is far from over. Years after historic protests at the Missouri River crossing just one-half of a mile north of the reservation border, the tribe continues to fight the pipeline, now in court.
Protests erupted in 2016 with Indigenous people fearing the impacts of a spill on the tribe along with threats to cultural resources and sacred sites along the river.
However, earlier this year the tribe found out a spill did occur mere feet away from the protestors who had set up camp on Corps of Engineers land.
Court documents from an ongoing lawsuit between Energy Transfers, which controls the Dakota Access Pipeline, and Greenpeace, an international environmental campaign, revealed over 1.4 million gallons of drilling mud was released into the environment during the initial drilling.
Drilling mud is considered hazardous waste in California, with the state claiming it can contain carcinogens. The substance is used as a type of lubricant to aid in the drilling process.
Tribal officials also cited concerns over past criminal charges against Energy Transfers in Pennsylvania relating to a similar incident.
On Aug. 22, 2022, Energy Transfers pleaded no contest and was convicted of 23 violations of the Pennsylvania Clean Streams Act.
The charges were made regarding the Mariner East 2 Pipeline in Pennsylvania, where the company allowed thousands of gallons of drilling fluid to be released into the groundwater supply, eventually contaminating drinking water. Prosecuted by now Pennsylvania Gov. Josh Shapiro, Energy Transfers took a plea deal in the Pennsylvania case agreeing to a permanent criminal record and routine clean water-testing at the site.
Drilling fluid is another name for drilling mud.
But drilling mud isn’t always a reason for concern, said South Dakota School of Mines Professor of Geological Engineering Larry D. Stetler.
Stetler has experience in oil well mining but said he suspects in this situation the mud used would be very simple.
“Drilling mud is just that, water and dirt to make mud,” Stetler said. “In the case of drilling the dirt is bentonite clay, which is mined along Highway 212 at Colony, Wyo.”
Bentonite clay swells when wet and is very fine, almost like flour, Stetler said. When mixed with water, it swells creating a pudding-like consistency needed to carry out drilled solids and clean drill holes.
“There is no other component to the bentonite. It is clay and a common constituent of the surface geology of much of western South Dakota. Bentonite has been used in toothpaste, gravy, ice cream, etc.,” Stetler said. “The makeup of drilling mud is not harmful, it is simply water and clay.”
Hazardous or not, the tribe was not informed of the spill, which the tribe says it should be. Tribal leaders said in the case of any spill the tribe should be alerted as Standing Rock will be the first responding entity.
There are few public documents outlining the protocol for a spill such as how it would be detected, when the tribe would be notified or how long the response time would take.
On Oct. 14, the tribe filed a lawsuit against the U.S. Army Corps of Engineers in the U.S. District Court District of Washington D.C., arguing the pipeline is operating illegally and must be shut down. The tribe is suing the Corps as it allowed for Energy Transfers to continue operating the Dakota Access Pipeline.
A Corps of Engineers representative said the agency is unable to comment due to the ongoing litigation.
“We got to this point because we learned that there was information withheld from us in regards to this spill,” Standing Rock Chairwoman Janet Alkire said in an interview.
The tribe has repeatedly sent Freedom of Information Act requests to the Army Corps, which the tribe received, though those documents were heavily redacted. The entire emergency response plan was redacted.
“What we’ve been asking for is for the Corps to be transparent,” Alkire said. “If there’s any kind of emergency, how would we respond to that? Standing Rock would be the first on the site.”
Following the criminal charges in Pennsylvania, Energy Transfers was debarred by the Environmental Protection Agency on Oct. 22, 2023, according to the tribe’s lawsuit against the Corps of Engineers.
A debarment is a legal action that prevents a person or entity from participating in certain activities or receiving certain privileges. This debarment prevents Energy Transfers from being granted federal assistance, including easements.
Tribal leaders said because of the criminal charges in Pennsylvania the pipeline should no longer be operating. Tribal leaders cited concerns over planning deficiencies and the inability to obtain an easement due to the debarment.
The tribe also alleges Energy Transfers knowingly destroyed an ancient burial site along the Missouri River during the pipeline’s construction, court documents state.
Both GreenPeace and Energy Transfers did not respond to requests for comment.
As of Nov. 22, no date has been set yet for a hearing in the case Standing Rock Sioux Tribe vs. United States Army Corps of Engineers.
The state of North Dakota has asked to intervene in the case.
This story is co-published by the Rapid City Journal and ICT, a news partnership that covers Indigenous communities in the South Dakota area.
Our stories are worth telling. Our stories are worth sharing. Our stories are worth your support. Contribute today to help ICT carry out its critical mission. Sign up for ICT’s free newsletter.