Dakota Pipeline Will Proceed As Feds Undertake Smoke and Mirrors Policy Reconsideration

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in India and other parts of Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as writes occasional travel pieces for The National.

The Department of Justice, the Department of the Army, and the Department of the Interior waded into the controversy over construction of the Dakota Access oil pipeline (DAPL) yesterday, shortly after U.S. federal court judge James E. Boasberg denied a request for a preliminary injunction to halt its construction in his Standing Rock Sioux Tribe v U.S. Army Corps of Engineers ruling.

DAPL is designed to transport light sweet crude oil from the Bakken Shield in North Dakota — an area not served by existing pipelines — through South Dakota, Iowa, and Illinois. Oil from this source is currently largely shipped by train. Energy Partners L.P. is building the pipeline, alongside an affiliate company, and the refiner, Phillips 66, owns 25% of the DAPL project, according to the Wall Street Journal. Those behind the project emphasize that it represents a $3.78 billion investment and will create 8,000-12,000 jobs.

From the joint statement by the three federal agencies:

We appreciate the District Court’s opinion [denying the injunction]. . . . However, important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain. Therefore, the Department of the Army, the Department of Justice, and the Department of the Interior will take the following steps.

The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution. In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahu.”

Federal Agencies Anticipated District Court Ruling

The three agencies clearly anticipated that Judge Boasberg’s decision would not grant the tribe the injunctive relief it asked for and thereby halt the pipeline’s construction. So, they almost certainly prepared this statement to deflect protests that have arisen over construction of the pipeline, spearheaded by the Standing Rock Sioux tribe and that have drawn participants from more than 250 tribes and various environmental organisations. Between 3000 and 4000 “protectors” as they’ve chosen to call themselves (as opposed to being described as protestors) have congregated at the protest camp.

The statement has been well-received by the tribal leadership. “A public policy win is a lot stronger than a judicial win,” said Standing Rock Sioux Tribal Chairman Dave Archambault II. “It’s a win for all Indians. It’s a win for indigenous people,” as reported by the West Central Tribune.

The key question is, how much of a win does the agency statement actually represent?

Well, as with so many other aspects of policy during the Obama administration, the devil is truly in the details. So, while headlines are declaring the pipeline blocked — and it certainly looks like construction in a small portion of it will be delayed, for the time being — but please be aware of the following points.

First, the three agency decision only halts construction in a limited area, and only if the pipeline company elects to “voluntarily” comply. From the three agency statement:

The Army will not authorize constructing the Dakota Access pipeline on [Army Corps of Engineers] land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution. In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

Note that the pipeline’s route extends over 1172 miles, but the agencies only ask for construction to be halted within a forty mile span — e.g., 20 miles east and west of Lake Oahe. At the moment, construction on more than 48% of the pipeline is already completed. Now, to be sure, the pipeline cannot proceed until the bottleneck over Lake Oahu is resolved. But in the interim while this is being discussed, the pipeline company can continue construction on the remainder of the DAPL — which it must do to meet its January 2017 completion deadline and honor supply contracts. And, it is not even clear, according to DeSmogBlog, that the pipeline company will agree to stop construction even on the limited Lake Oahu section of DAPL.

Second, federal regulatory authority over construction of the DAPL is limited– and much more so than you might expect. This is in part due to the project’s design. Only 1% of the pipeline will traverse federal lands, and the rest is built solely on private land. It would not be unreasonable to expect the federal government to have greater regulatory control over what gets built on federal lands, as compared to private property. But even if that is surely the case, you might say, surely the necessary regulatory process that proceeded DAPL’s construction would require extensive appraisal and permitting, especially since the pipeline crosses under the Missouri River and once completed, according to Energy Transfer’s own estimates, approximately 470,000 gallons of oil will flow through the pipeline per day, with an overall capacity of 550,000 barrel per day or more. That, by my calculation could make for one hell of an oil spill if anything were to go wrong.

Well, if you thought that the federal government was looking out for the public interest here, you would be wrong. To quote from Judge Boasberg’s ruling (p.2):

A project of this magnitude often necessitates an extensive federal appraisal and permitting process. Not so here. Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land.

Let’s just pause here to take that statement in. And remember, this comes directly from Judge Boasberg’s ruling. It’s stunning that this is true, given the potential environmental consequences of a DAPL failure. So please indulge me while I repeat the judge’s language: “Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land.”

Why is there no comprehensive federal oversight of DAPL? The answer, no doubt, is that the industry managed to slip in an exemption for itself from comprehensive upfront federal regulation in this area (although I will concede I have yet to delve further into what is undoubtedly a murky area to report on how such an exemption came to be in place).

The Army Corps of Engineers does have authority to regulate a domestic oil pipeline such as DAPL where it crosses a waterway. Again I quote from Boasberg’s ruling (p. 2):

One significant exception, however [e.g., to this lack of an extensive federal appraisal and permitting process] concerns construction activities in federally regulated waters at hundreds of discrete places along the pipeline route. The Corps needed to permit this activity under the Clean Water Act or the Rivers and Harbors Act – and sometimes both. For DAPL, accordingly, it permitted these activities under a general permit known as Nationwide Permit 12.

Although only 1% of the pipeline traverses public lands, the requirement to permit activity under the Clean Water Act or the Rivers and Harbors Act gives the Corps of Engineers authority over 3% of the length of the DAPL. Yet the authority to regulate the DAPL where it crosses a waterway does not extend to allow the Corps of Engineers to regulate the entire pipeline.

Back to the three agency statement and a third major point to bear in mind. That statement only announces a pause in the DAPL’s construction, in the limited area around Lake Oahe. The agencies retain complete discretion to decide when and under what terms to go back to the status quo and allow building the controversial Lake Oahu section go forward. There is thus plenty of time for yesterday’s announcement to be walked back after protestors break camp and go home. It’s likely that won’t occur until after the election — perhaps as a lame duck decision in the rump-end of the Obama administration. Or it may be deferred until after Hillary Clinton or Donald Trump is inaugurated. But I predict that walked back it indeed will be.

More “Conversations”: Is this Just Another Listening Tour?

I can’t neglect to mention that three agency statement also announces what some might regard as a much wider concession to the concerns of the Sioux and other tribes. Again, I quote from that statement:

Furthermore, this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects. Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: (1) within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and (2) should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

Now, will these upcoming discussions, conducted no doubt initially with much fanfare during the run-up to the election, amount to anything substantive? To put the question another way, does this pledge represent a sincere desire to reconsider policy? Or is this just another conversation, yet another listening tour?

Sioux Tribal Chairman Archimbault has clearly decided, at minimum, to spin this in the best possible way. “Our voices have been heard,” Archambault said, according to Indian Country Today Media Network. “The Obama administration has asked tribes to the table to make sure that we have meaningful consultation on infrastructure projects. Native peoples have suffered generations of broken promises and today the federal government said that national reform is needed to better ensure that tribes have a voice on infrastructure projects like this pipeline.”

We’ll just have to wait and see.

What Happens When The Agencies Eventually Act and This Issue Gets Tossed Back To The Courts

I should pause for a moment to address the substance of Judge Boasberg’s ruling because the Sioux legal action is still ongoing in his court. The denial of the preliminary injunction is by no means the last step in the process. Let’s begin with the judge’s own summary of his ruling (as cited above, p. 2):

This case also features what an American Indian tribe believes is an unlawful encroachment on its heritage. More specifically, the Standing Rock Sioux Tribe has sued the United States Army Corps of Engineers to block the operation of Corps permitting for the [DAPL]. The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue. The [motion for a preliminary injunction] will thus be denied.

Judge Boasberg disposes of several arguments in his 58 page option and I will only quote briefly from a few sections (and thus not address all arguments systematically and comprehensively; for readers so interested, it is necessary to read the full opinion). What I will quote, however, suggests that the Judge does not think the plaintiff will prevail on the merits of its claims, and this does not augur well for the Sioux’s position as litigation proceeds.

In particular, Judge Boasberg notes (pp. 47-48):

The limited nature of the [Army Corps of Engineers’] jurisdiction, in fact, reinforces the reasonableness of the its decision not to consider the effects of the entire pipeline on historic properties before issuing the DAPL permitting…. The Corps here ultimately determined that the route taken by the pipeline through private lands, up to a certain point approaching a federally regulated waterway, is driven by factors that have little to do with the discrete activities that the Corps needs to permit.[emphasis added] The Court cannot conclude otherwise on this record. As such, it cannot hold the Corps’ decision arbitrary, capricious, or otherwise unlawful.

And in a further section, Boasberg writes (p. 52):

… The Tribe has not sued the [pipeline company] here for any transgressions; instead, this [motion for a preliminary injunction] seeks to enjoin Corps permitting of construction activities in discrete U.S. waterways along the pipeline route. Such relief sought cannot stop the construction of DAPL on private lands, which are not subject to any federal law. Indeed, Standing Rock does not point the Court to any law violated by the private contracts that allow for this construction or any federal regulation or oversight of these activities. From the outset, consequently, no federal agency had the ability to prevent DAPL’s construction from proceeding on these private lands. At most, the Corps could only have stopped these activities at the banks of a navigable U.S. waterway. An injunction of any unlawful permitting now can, at most, do the same.

In fact, the judge appears to regard the DAPL as a fait accompli (p. 51-53):

[The pipeline company], as has been explained, began its construction work on private lands long before it had even secured the Corps permitting that the Tribe now seeks to enjoin…. In many places, this work is already complete…. There is, moreover, no sign that [the pipeline company] will pull back from this construction on private land if this Court enjoins the [permitting necessary] for the 3% of DAPL’s route subject to federal jurisdiction. Quite the contrary; the company has indicated that it has little choice but to push ahead in the hopes of meeting contract obligations to deliver oil by January 2017. . . .

…. Powerless to prevent these harms given the current posture of the case, the Court cannot consider them likely to occur in the absence of the relief sought here. Put simply, any such harms are destined to ensue whether or not the Court grants the injunction the Tribe desires. As Standing Rock acknowledges, [the pipeline company] has demonstrated that it is determined to build its pipeline right up to the water’s edge regardless of whether it has secured a permit to then build across. . . . Like the Corps, this Court is unable to stop it from doing so.

To cut to the chase, after reviewing Judge Boasberg’s reasoning for denying the preliminary injunction, it looks extremely unlikely that the judge believes as matter of law that the plaintiffs– the Standing Rock Sioux– would prevail on proving the merits of their underlying case.

Cui Bono: Who Is Backing the Pipeline?

Given my cynicism over the significance of what the three agencies announced, I am now going to address another anti-DAPL approach activists have taken by targeting the banks that have financed its construction. Might this be an avenue through which construction of DAPL could be addressed? Amy Goodman of Democracy Now has reported on this money trail and I will here quote at length from a September 9 interview that she conducted with Hugh MacMillan, a a senior researcher with Food & Water Watch, who traced these financial connections. The transcript from the full program can be found here.

As just one example of this separate tack, Goodman reports that on Wednesday in Minneapolis, dozens protested at U.S. Bank Plaza, against U.S. Bank’s stop funding of the pipeline. Goodman reports that U.S. Bank has extended a $175 million credit line to Energy Transfer Partners, the company behind the pipeline (citing a LittleSis investigation).

AMY GOODMAN: Meanwhile, Saturday was the first day of a two-week call for actions against the financial institutions that are bankrolling the Dakota Access pipeline project.

We turn to Part 2 of our conversation with Hugh MacMillan, a senior researcher with Food & Water Watch whose new investigation reveals the dozens of financial institutions that are bankrolling what’s called DAPL, the Dakota Access pipeline. I began by asking Hugh what’s most important to understand about the corporate structure of the pipeline company.

HUGH MACMILLAN: Dakota Access, LLC, is a joint venture of Phillips 66 and a joint venture of two members of the Energy Transfer family—Energy Transfer Partners and Sunoco Logistics. Enbridge and Marathon Oil have bought into this, this joint venture. Together, they now have about a 37 percent stake in the pipeline, in the Dakota Access pipeline.

AMY GOODMAN: How are the banks involved?

HUGH MACMILLAN: Well, that’s—they are banking on this company and banking on being able to drill and frack for the oil to send through the pipeline over the coming decades. So they’re providing the capital for the construction of this pipeline.

AMY GOODMAN: And explain what the banks are. Which banks are they? And how are they involved?

HUGH MACMILLAN: Well, I’ve got a list of the 17 banks that are specifically providing financing for this project. And it’s also coupled together with a Energy Transfer—Energy Transfer Partner project to convert an existing pipeline that would connect to the south end of the Dakota Access pipeline and run oil all the way down to the Gulf Coast, where there are refineries and also export infrastructure.

AMY GOODMAN: Can you tell us that list of 17 banks?

HUGH MACMILLAN: I can. Citibank is the bank that’s been running the books on the project, and that’s the bank that beat the bushes and got other banks to join in. So, we have Wells Fargo, BNP Paribas, SunTrust, Royal Bank of Scotland, Bank of Tokyo-Mitsubishi, Mizuho Bank, TD Securities, ABN AMRO Capital, DNB First Bank—and that’s actually a bank based in Philly; it’s not the DNB Bank based in Norway, which is actually provided several hundred million to the Energy Transfer family separately—and ICBC London, SMBC Nikko Securities and Société Générale.

AMY GOODMAN: Now, it’s Citibank—is that right?—that’s running the books, as the report points out, for Energy Transfer and Sunoco Logistics, which own the Dakota Access pipeline?

HUGH MACMILLAN: That’s right, by and large. So they have the largest share, and they’ve spearheaded the effort. So, what we published in LittleSis was the 30-plus banks that have provided general financing for Sunoco Logistics and Energy Transfer Partners. Through working with Rainforest Action Network, we were able to—who has access to Bloomberg Terminal, we were able to determine these 17 banks that I just listed, who are providing the direct financing for the Dakota Access project and, in addition, for an Energy Transfer Partners project to extend this pipeline on down to Texas. So, collectively, this pipeline would run from near the Canadian border on down to the Gulf Coast of Texas over 1,800 miles.

AMY GOODMAN: So, Hugh MacMillan, as we wrap up, what do you think is most important for people to understand about the corporate structure of the company, Dakota Access pipeline, that is building the Dakota Access pipeline?

HUGH MACMILLAN: Well, I think it’s important to see the forces behind this particular pipeline as the same forces behind numerous other pipelines across the country, both for—both to support fracking for tight oil as well as fracking for shale gas, all toward maximizing production of oil and gas, when the science is clear that we need to maximize what we keep in the ground. Our current policy has not made that switch. And if you look at the Department of Energy’s Quadrennial Technology Review published a year ago, you’ll see, under clean energy technologies, permeability manipulation is included, along with improved understanding of well integrity and improved understanding of injections and how they’re causing earthquakes, such as occurred over the weekend. The Quadrennial—

AMY GOODMAN: In Oklahoma.

HUGH MACMILLAN: That’s right, in Oklahoma. The Quadrennial Technology Review speaks of a future mastery of the subsurface toward maximizing production.

Bottom Line

While much of the reporting on the three agency statement overstates its significance, some of the protectors harbor no illusions as to what the announced federal policy shift actually represents. After all, Native Americans in general and the Sioux in particular have suffered through a long history of the US government saying one thing, even signing on some seemingly binding dotted line– and then doing another.

“This is a momentary victory. It does not kill the pipeline. It does not stop the entire pipeline, but at least we are protecting the river for the time being and so that’s something to celebrate,” said Dallas Goldtooth, Indigenous Environmental Network, as reported by the West Dakota Fox affiliate

Whether this means that the protectors will pack up their tents and go home while conversations with the federal agencies continue remains to be seen. The New York Times reported:

It was unclear on Friday how long the government-ordered pause in construction around Lake Oahe might last, or whether the move had given the Standing Rock Sioux any greater odds of prevailing. But on Friday morning, tribal members said they had lived on the land for generation upon generation, and were prepared to stay through the fall, the winter and beyond.

“They’ll be here for years,” said Jana Gipp, a member of the Standing Rock Sioux, as she surveyed the camp’s tents and teepees from a grassy bluff. “They won’t give this up.”

Again I say, we can only wait and see.

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  1. charlie

    The real money trail here is Warren Buffet, who does not want to interrupt his very profitable business shipping oil out a North Dakota by train.

    That oil is going to be refined; just a question of who makes the money shipping it; pipeline companies or train companies.

    1. Chris Darling

      Actually, train is considerably more expensive, so every time a pipeline is stopped, it raises the price of the oil and therefore leads to less usage. So, no, less will be refined if there is no pipeline.

  2. Eclair

    Although most of the DAPL runs through ‘private’ lands, the current ‘owners’ of these lands are not always happy. Many will take the money, but others have to be forced, often through intimidation both physical and legal and ultimately, through the process of eminent domain, to allow construction of the pipeline through their property. There is much muttering about how the process of eminent domain came to be interpreted so as to allow a for-profit corporation the right to have access to supposedly ‘private’ property. Guess that property is ‘private’ only until someone with more money/power wants a piece of it; a concept that both the Lakota and Diné nations have been forced to live with over the past couple of centuries.

    1. grayslady

      Your point about the eminent domain issue is an important one. IMHO, the farmers in Iowa who are filing suit have the best case on this issue, since I can’t see how destroying valuable farm land constitutes a public good, since I doubt that there is any revenue sharing on the oil transit with local municipalities.
      The lawyer who is representing the Iowa farmers was interviewed on Democrary Now and made an interesting observation that, with decreasing domestic oil demand, it was likely that the oil was going to be shipped abroad anyway. Just another reason to question whether the use of eminent domain was proper in this case.

      1. Nelson Lowhim

        Here in Spokane we’re having issues with oil trains coming through town. Stopping them is a violation of national security laws, don’t you know? (surprised that hasn’t been used in Dakotas yet). Funny thing is if there’s a spill of any sort you won’t have much recourse. The company shipping won’t pay. Good work if you can get it.

        1. PhilU

          In Minneapolis I hear about one of those Bomb Trains every few months. I’ll take the public nuisance of bomb trains, which make the cost of oil very visible, over the safer out of sight and out of mind pipelines.

  3. Jake

    This is a well-researched and thorough examination of the DAPL situation. I appreciate particularly the perspective the the author brings, understanding legal, business and political facts. However, the last line disturbs me a bit because I think that it is overly passive in a venue which has at least some history of advocacy.

    The reality is that this “thing” willl take time, effort, and a lot of energy to turn. The basis of our Industrial economy has to change, and that change may be painful. But it will happen whether we like it or not and it will be either really painful and destructive or, done in an organized manner and with forethought, les so.

    I would like to see, I even challenge, readers to make suggestions, recognize current efforts and even take a leadership role to make that turn. It may be trite to say that a journey of a thousand miles begins with a single step, but it is still true. some actually are taking steps. I think that here we can at least recognize those.

    Again, I very much appreciate seeing this treatise here. I will share with concerned friends. It is but one of many things that makes this venue a very important one.

  4. Alex morfesis

    The most powerful tool for the 1st nations is to throw the community reinvestment act at the financing sources for the pipeline…by financing across or near tribal lands, the lenders and finance sources are now subject to writing checks for “any and all” required and necessary economic functions to stabilize and grow the economic life of the 1st nations….

    And as long as they dont allow the “photo op 459 krews” to step in front of them as “negotiation” partners, this could lead to long term capital needs funding even after the pipeline is rerouted away from certain areas or the environmental protections are enhanced by multiple threat reduction systems “negotiated” into any legal settlements…

  5. TedWa

    They always overestimate the number of jobs created. Like the KXL which was once touted as creating 100’s of thousands of jobs, the only permanent jobs created would have been about 35. It’ll be the same here, and my guess is it will take about 100 outside hires as those workers already working in the industry will be getting the majority of the jobs – temporary jobs at that – no working stiff will get a job there.

  6. oh

    This is one more head fake by the current admin. This is one more item that will be “resolved” during the forthcoming lame duck session and the admin will say “we tried…”

    As long as people are complacent and are busy with watching TV while the corporations are busy getting their legislation passed in every state (e.g. to allow fracking, no public WiFi, etc) the public will not have any say in matters such as these which will end up affecting them drastically.

    1. Nelson Lowhim

      This is one point on which I have to agree, even if I may like Obama to some extent (relatively speaking, of course). I also buy the tripe that he’s facing an obstructionist Congress, but when he puts so much effort into things like this or the TTIP, (and not as much into things like Green energies etc), I tend to see his biases as a Reaganite Democrat. Sad stuff,

  7. VietnamVet

    “Let the market decide” is a great way to avoid accountability. Pipelines don’t kill as many people as bomb trains. A properly designed pipeline to assure that it won’t repeat the 2015 oil spill into the Yellowstone River and doesn’t desecrate burial sites costs extra. It also requires constant safety regulation. If a gas pipeline was built, it would stop the flaring in North Dakota which wastes energy and contributes to climate change:

    Instead, oil is now being sold below the cost of production and this sure doesn’t include the external costs from the environmental damage from its extraction, transport and use. If this “anything goes” attitude doesn’t change, mankind’s Armageddon is assured.

    1. Nelson Lowhim

      Simply impressive how this kind of thing keeps going. Will mainstream journos say anything? I know the answer to that…

    2. Katharine

      Somebody is likely to regret that warrant, and I doubt it will be Amy. North Dakota government is not showing up well in this affair at all.

  8. Katharine

    Jerri-Lynn, thank you for this information! I am amazed at how little authority the government appears to have, or to be willing to find–and given the inevitable complexities of the law, I am not yet quite convinced it could not do more if it chose to consider its available powers.

    The judge noted the tribe had not yet sued for an actual wrong. Perhaps after the events of the past ten days it should.

    1. Jerri-Lynn Scofield Post author

      I was actually amazed myself. I couldn’t believe what the judge’s decision said, but if you flipped through that– which I linked to– you will see that he indeed wrote what I said he wrote. I was so stunned by that, actually, that I quoted at more length than I normally would have done b/c I really didn’t want to risk mistaking anything or losing something by including a shortened passage.

      1. Katharine

        …The agency must further consult with, inter alia, tribes “that attach religious or cultural significance to [affected] property.” Id. § 302706(b). Once this is done, Section 106 is satisfied. In other words, the provision does not mandate that the permitting agency take any particular preservation measures to protect these resources.

        I find his conclusion here specious. If the purpose of the act was to “foster conditions under which our modern society and our historic property can exist in productive harmony” it seems nonsensical to suggest that a mere form of consultation without preservation measures can satisfy the agency’s obligations.

        There is of course much more to his decision, and I have not read as much as I shall, but this point this early leads me to hope there will be an appeal. Due process is not supposed to be a charade.

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