By Julie Santella, DRA Black Hills Chapter & Individual Intervenor in the Contested Case Hearing 

Julie Santella cross examines a witness at the December series of permit hearings before the DENR Water Management Board

Two weeks ago, South Dakota’s Water Management Board approved five water permits related to construction of the proposed Keystone XL Pipeline. TransCanada applied for three permits for surface water from the Bad, Cheyenne, and White Rivers for dust control, horizontal directional drilling, and other construction purposes, and two landowners – Wink Cattle Company and Tom and Lori Wilson – applied for amendments to their existing permits to supply well water (drawing from the Inyan Kara and Hell Creek aquifers) to six workforce man camps across Montana and South Dakota.

These permits were contested by a number of tribes, organizations, and individuals, including myself. South Dakota’s Water Rights Program, within the state’s Department of Environment and Natural Resources (DENR), provides for organizations and individuals to intervene in opposition to a water permit application within a short timeframe after the Chief Engineer recommends the application’s approval. The DENR needs to consider the following in relation to proposed water appropriations:

  1. Is there available water?
  2. Does the proposed use impair existing water rights?
  3. Is the proposed use a beneficial one? and,
  4. Is the proposed use in the public interest?

In July 2019, the Water Management Board made a series of pre-hearing rulings that appeared to work in our favor: the overall merits of the Keystone XL Pipeline, tribal water rights, specifically related to the Winters doctrine, and tribal land and treaty issues would all be considered relevant and within the scope of the hearings. These rulings were made over and above assertions by attorneys for TransCanada and Wink/Wilson that such matters should not enter into the Board’s consideration.

Attorneys for Cheyenne River Sioux Tribe, Rosebud Sioux Tribe, Yankton Sioux Tribe, the Great Plains Tribal Water Alliance, and Dakota Rural Action worked together and with individual intervenors to share strategies, question witnesses effectively, and help along the non-lawyers among us. Collectively, throughout eleven days of hearings over four months, we called witnesses and brought evidence to support the following arguments:

  • Tribes across the state have not given consent for this project, which violates the Fort Laramie treaties of 1851 and 1868 by crossing and threatening to adversely affect ancestral homelands and treaty territory;
  • Non-Indigenous cultural surveys are inadequate to protect against likely adverse effects to cultural resources and sacred sites along the route;
  • Tribal water rights in accordance with the Winters doctrine remain in place and are relevant to these proposed water appropriations by TransCanada;
  • Indigenous people retain treaty-protected and sovereign inherent rights to both ground and surface water across treaty territory;
  • Workforce man camps are very likely to increase violence in rural, remote communities, including communities very near present-day reservation boundaries, and inadequate law enforcement resources combined with jurisdictional challenges will almost certainly mean that Indigenous women and children in particular will face increased trauma and violence, including sexual violence;
  • TransCanada has proven itself an untrustworthy operator, with a long history of permit violations and spills, including the November 2019 spill on the Keystone main line in North Dakota;
  • If a spill occurred, Indigenous spiritual and ceremonial practices would certainly be negatively impacted;
  • If a spill occurred, agricultural operations would certainly be negatively impacted;
  • Water is a precious resource in South Dakota and it is not at all clear, especially accounting for seasonal variation, that there is enough water to accommodate TransCanada’s requests for water, particularly from the Bad and White Rivers;
  • And, instances of harassment and disruption along the pipeline route have been reported as pre-construction activities have begun, demonstrating that even without a spill, pipeline construction and operation would negatively impact communities.

Unfortunately, the actual process and outcome of the hearings did not reflect the basic common sense of the Board’s pre-hearing rulings. Intervenors’ attempts to bring extremely relevant testimony and evidence were met with bullying, attempted blocking, and blatant condescension from TransCanada and Wink/Wilson attorneys, and the Board often sided with the applicants.

Though the applicants are responsible for demonstrating that their proposed use of water is in the public interest, TransCanada, Wink Cattle Company, and Tom and Lori Wilson presented almost no evidence to that effect. Matt Naasz, who represented Wink Cattle Company and Tom and Lori Wilson, maintained that in considering the request to supply water to workforce man camps, the Board only needed to decide if providing water for teeth-brushing was in the public interest.

TransCanada objected to the introduction of various documents as evidence, including, for example, the Fourth National Climate Assessment, arguing that such documents were hearsay and irrelevant; the Board often upheld these objections, and the documents were not allowed into evidence. The Board made a number of conflicting rulings that allowed TransCanada certain privileges relating to introducing evidence which intervenors were not permitted. The Board also violated the due process rights of several youth intervenors.

As an individual intervenor with no legal training, I had a hard time tracking what was allowed, when, and how. The rules governing these hearings were not intuitive and did not align with common sense or everyday understandings of what might be important for the Board members to consider in making their decision.

There were several of us individual intervenors who clumsily learned the rules of civil procedure on the fly and prepared and presented our cases, including questioning and cross-examining witnesses and introducing evidence. We did this because we have concerns that we felt were relevant for the Board to consider, and we felt responsible to bring those concerns before the Board, on behalf of ourselves and importantly, on behalf of many others.

The DENR behaved irresponsibly in their assessment of these permit applications, and the Water Management Board behaved irresponsibly in their decision to approve them. When asked if they had considered the merits of the Keystone XL Pipeline in making their recommendations, if they had contacted tribes to ask about tribal water rights, impacts to cultural resources, or anything else as they considered these applications, and if they take water quality into account when considering questions of water quantity, DENR staff responded: no, no, and no.

The DENR displayed consistent ignorance of and disregard for tribal rights, enshrined in federal law, and the concerns of tribal leaders and Indigenous people across the state. The DENR’s firm position was that TransCanada was requesting water for construction and domestic purposes – it didn’t matter for what, despite the Board’s responsibility to consider public interest. It only mattered if the engineers could argue that there was enough water to give away. In the end, the Board added a few requirements for monitoring and reporting but approved all five permits, despite the strength and complexity of the case against doing so.

In December, after a morning of powerful testimony tracing the connections between infrastructure development projects, man camps, and violence against Indigenous women, one of the Board members asked, given the problems with man camps, what other arrangement can be set in place “so that the workforce can do the work they need to do”? In other words: if man camps are so bad, how do we build the pipeline without the man camps?

The Keystone XL Pipeline and other projects that violate Indigenous sovereignty and threaten life throughout and beyond this continent are not inevitable. Part of our collective work ahead must be to insist upon this and to raise up those among us with the wisdom and courage to stand in this truth, in order to continue building and defending a different world.