“Black Snakes” or Infrastructure? The Dakota Access Pipeline Litigation and the Federal Government’s Tribal Consultation Obligations

8:50 a.m. – 9:40 a.m. Santa Fe, New Mexico Modrall Sperling Shareholder and President Walter Stern, along with University of New Mexico’s School of Law Professor Jeannette Wolfley, will discuss the controversial Dakota Access Pipeline project and permitting activities of the U. S. Army Corps of Engineers as part of the 63rd Annual Rocky Mountain Mineral Law Institute.

The controversial Dakota Access Pipeline (DAPL) project and the permitting activities of the U.S. Army Corps of Engineers (Corps) have become the focal point for important discourse concerning federal agencies’ tribal consultation obligations for infrastructure projects requiring federal approvals, permits, or licenses. Tribal nations play a key role in infrastructure development because they, like state governments, are the permitting officials for projects within their jurisdictions, and the federal government must consider impacts to tribal rights, whether on or off the reservation, when permitting pipeline projects. In the wake of DAPL, the federal government sought national tribal input on its consultation obligations arising under government-to-government policies and its duties under various environmental, historical, and cultural protection statutes. The presenters will discuss the Standing Rock Sioux Tribe’s lawsuit challenging the Corps’ permitting and compliance process involving DAPL and the numerous federal laws requiring consultation. They will explore the federal government’s obligations to consult effectively with tribal governments, and what tribal consultation may mean for future national infrastructure development.