Department of the Interior Tribal - Part 2 [HTML]

ROSEBUD SIOUX TRIBE

Cyril Scott, President

PO Box 430 Willie Kindle, VicePresident

Rosebud, so 57570 Julia M. Peneaux, Secretary

phone: 605.747.2381 Byron Wright, Treasurer

Fax: 605.747.2243 Glen Yellow Eagle, Sergeant-at-Arms

Website: rosebudsiouxtribe-nsn.aov

February 19,2014

Hon. Sally Jewel, Secretary

United States Department of Interior

1849 C Street NW

Washington, DC 29240

Dear Hon. Secretary Jewel,

SUBJECT: THE POSITION OF THE ROSEBUD SIOUX TRIBE ON ENVIRONMENTAL

IMPACT STATEMENT, TRANSCANADA KEYSTONE XL PIPELINE AND THE FEDERAL

TRUST RESPONSIBILITY OF THE BUREAU OF INDIAN AFFAIRS

I write this letter to state the position of the Rosebud Sioux Tribe on the Environmental Impact Statement for the proposed construction of the TransCanada Keystone XL Pipeline. The Bureau of Indian Affairs, in signing off on the amended Programmatic Agreement, failed in its trust responsibility to the Rosebud Sioux Tribe, for the following reasons: 1) by failing to review the amended Programmatic Agreement and Tribal Monitoring Plan before signing off on the PA; 2) by failing to comment or take action to correct the wrongful designation of Tripp County as an area within the jurisdiction of the Yankton Sioux Tribe; 3) failing to identify those allotted and tribal trust tracts in Tripp County lying within the original treaty boundaries of the Rosebud Sioux Tribe and recognized by the United States Supreme Court: 4) by failing to comment or take corrective action to identify the Rosebud Sioux Tribe as the "Consulting Indian Tribe" in the Tribal Monitoring Plan, amended Programmatic Agreement.

The Rosebud Sioux Tribe is a federally recognized sovereign Indian tribe organized pursuant to the Act of June 18, 1934, 48 Stat. 984, as amended, and is governed by a Constitution and By-laws ratified on November 23, 1935, and approved by the Secretary of the Interior, Harold L. Ickes, on December 16, 1935, and as amended. The Rosebud Sioux Tribe Reservation includes tribally-owned trust lands and allotted lands owned by enrolled tribal members within Todd, Tripp, Mellette, Gregory, and Lyman Counties, South Dakota.

The Rosebud Sioux Tribe has jurisdiction of all trust and restricted lands located in the counties of Lyman, Todd, Tripp, Mellette, and Gregory counties of South Dakota, of the Rosebud Sioux Tribe established by the 1851 and 1868 Treaty of Fort Laramie and the Act of March 2, 1889, 25 Stat. 888.

The United States Supreme Court in Rosebud Sioux Tribe v. Kniep, 430 U.S. 584, 615 (1977), held that the legislative history of acts opening up Todd, Mellette, Tripp, and Lyman Counties to settlement demonstrated a legislative intent to diminish the boundaries of the Rosebud Reservation to remove certain lands in South Dakota from the jurisdiction of the Rosebud Sioux Tribe, but also stated, with regard to lands held in trust in those counties, Footnote 48, as follows: "To the extent the members of the Rosebud Sioux Tribe are living on allotted land outside the Reservation, they, too, are on "Indian Country" within the definition of 18 U.S.C s 1151, and hence subject to federal provisions and protections." 430 U.S. at 615, Footnote No. 48.

Appendix A of the Tribal Monitoring Plan, Programmatic Agreement, containing a map of the proposed construction route of the Keystone XL Pipeline, mistakenly identifies Tripp County as an area of tribal consultation with the Yankton Sioux Tribe. Tripp County is an area that lies within the original boundaries of the Rosebud Sioux Tribe as established by the 1851 and 1868 Treaty of Fort Laramie and Act of March 2, 1889 25 Stat.888, and contains tracts of tribally owned and allotted lands within the jurisdiction of the Rosebud Sioux Tribe.

The construction corridor of the KXL Pipeline would run through areas adjacent to and in close proximity to the Rosebud Sioux Tribe Reservation and cross lands within and adjacent to the lands within the Treaty boundaries of 1851 Treaty of Fort Laramie and the 1868 Treaty of Fort Laramie.

The amended PA mistakenly identifies the Yankton Sioux Tribe as the consulting Tribe for tribal lands within the jurisdiction of the Rosebud Sioux Tribe located in Tripp County, Rosebud Sioux Tribe Reservation, South Dakota. The misidentification of "Tribal lands" in the amended Programmatic Agreement results in errors in fact, and errors in law resulting in substantial non-compliance of the amended Programmatic Agreement with applicable federal law and federal regulations governing the proposed construction of the TransCanada Keystone XL Pipeline.

The PA does not meet the goal of consultation required by Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 et. seq., with the proper Indian Tribe, to identify historic properties potentially affected by construction of the Keystone XL Pipeline, assess its affects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.

It is the statutory obligation of the Federal agency to fulfill the requirements of section 106 and to ensure that the agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106compliance in accordance with subpart B of this part. Title 36, Part 800, 36 C.F.R. §800.2 (a). The agency official shall involve the consulting parties described in paragraph (c) of this section in findings and determinations made during the section 106process, and should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation. 36 C.F.R. §800. 2 (a)(4). When an Indian tribe has not assumed the responsibilities of the SHPO ("State Historic Preservation Officer") the agency official shall consult with a representative designated by such Indian tribe in additional to the SHPO regarding undertakings occurring on or affecting historic properties on its tribal lands. 36 C.F.R. § 800.2 (c)(2)(B)(ii). Section 101 (d)(6)(B) of the act requires the agency official to consult with any Indian tribe or Native Hawaiian organization that attaches religious or cultural significance to historic properties that may be affected by an undertaking, regardless of the location of the historic property. 36 C.F.R. §800.2(c)(2)(B)(ii). It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the section 106 process. 36 C.F.R. § 800.2(c)(2XB)(n)(A). The Federal Government has a unique legal relationship with Indian tribes set for the in the Constitution of the United States, treaties, statutes, and court decisions, and consultations with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. 36C.F.R. § 800.2(c)(2)(BXii)(B). Consultations with an Indian tribe must recognize the government-to-government relationship between the Federal government and tribes. 36 C.F.R. §800.2(c)(2)(B)(ii)(C). When Indian tribes and Hawaiian organizations attach religious and cultural significance to historic properties off tribal lands, section 101(d)(6)(B) of the act requires federal agencies to consult with Indian tribes in the section 106 process, and federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes and Native Hawaiian organizations and should consider that when complying with the procedures in this part 36 C.F.R. §800.2(c)(2)(B)(ii)(D).

The Environmental Impact Statement, finding no significant impact on cultural resources, is based upon incorrect factual and legal assumptions, was prepared without proper consultation with the Rosebud Sioux Tribe, the Indian Tribe with jurisdiction of allotted lands adjacent to the KXL Pipeline construction corridor. The EIS is therefore improperly prepared, and its findings based upon erroneous factual and legal assumptions under federal law.

For the reasons above, the BIA should rescind its signature on the amended Programmatic Agreement, and require the EIS to be rejected for failure to comply with federal law and federal trust responsibility.

Cyril Scott, President

Rosebud Sioux Tribe

cc: Rosebud Sioux Tribal Council

Rosebud Sioux Tribe Treaty Commission

RST Legal Department


Rosebud Sioux Tribe

Sicangu Oyate Land Office

P.O. Box 658

Rosebud, South Dakota 57570

Phone: 605-747-4225 Fax: 605-747-4227

January 27, 2015

U.S. Department of State Bureau of Energy Resources

Room 4843

Attn. Keystone XL Public Comments

Washington, DC 20520

Comments regarding the national interest determination for TransCanada Keystone Pipeline and objections to the construction of the TransCanada XL Pipeline adjacent to tribal and allotted lands within the regulatory jurisdiction of the Rosebud Sioux Tribe and within the 1851 Treaty of Fort Laramie and 1868Treaty of Fort Laramie Boundaries.

Dear Sir/Madam,

On behalf of the Rosebud Sioux Tribe-Sicangu Oyate Land Office, I humbly ask you to reject the application for the Keystone XL pipeline proposal, which is not in the best interest of the United States of American, the Indigenous People of North American, nor the Lakota. Our opposition is based on the negative impact the pipeline will have on our cultural, historical and burial sites; and on the many major environmental, public health hazards and safety possibilities it creates.

Our people were not given the courtesy of tribal consultation on the project. The costs and risks to our people, land and natural resources in building the pipeline across our 1868 Fort Laramie Treaty lands which holds the Oglala Aquifer, waterways, and wetlands is far too great at this or any other time. Our culturally and historically significant areas are in danger of being destroyed.

In the Lakota way of life, we are always reminded to look Seven Generations ahead in making our decisions for the people. The Sicangu Oyate Land Office considers ourselves to be Caretakers of the Rosebud People's Land, in Lakota, we say "Sicangu Oyate Tamakoce Okawanyakapi". We stand in unity with the other bands of the Lakota Nation, in protection of the land and importantly in our opposition to the Keystone XL pipeline project.

Please consider this letter on behalf of the RST-Sicangu Oyate Land Office to comment on the

National Interest Determination for the approval of the Presidential Permit for the construction of the TransCanada Keystone XL Pipeline. The Rosebud Sioux Tribe objects to the construction of the TransCanada Keystone XL Pipeline and recommends the President Barak Obama find that it is not in the best national interest of the United States to approve the construction of the TransCanada Keystone XL Pipeline and deny the application for Presidential Permit for the following reasons.

FACTUAL BACKGROUND

The Rosebud Sioux Tribe is a federally recognized sovereign Indian tribe organized pursuant to the Act of June 18, 1934, 48 Stat. 984, as amended, (Indian Reorganization Act), and governed pursuant to a Constitution and Bylaws ratified on November 23,1935, and approved by the Secretary of the Interior, Harold L. Ikes, on December 16,1935.

The Rosebud Sioux Tribe Reservation includes tribally-owned trust lands and allotted lands owned by enrolled tribal members within Todd, Tripp, Mellette, Gregory, and Lyman Counties, South Dakota, established by the 1851 and 1868 Treaty of Fort Laramie and the Act of March 2, 1889,25 Stat. 888.

The United States Supreme Court in Rosebud Sioux Tribe v. Kniep, 430 U.S. 584,615 (1977), held that the legislative history of acts opening up Todd, Mellette, Tripp, and Lyman Counties to settlement demonstrated a legislative intent to diminish the boundaries of the Rosebud Reservation to remove certain lands in South Dakota from the jurisdiction of the Rosebud Sioux Tribe, but also stated, with regard to lands held in trust in those counties, Footnote 48, as follows: "To the extent the members of the Rosebud Sioux Tribe are living on allotted land outside the Reservation, they, too, are on "Indian Country" within the definition of 18U.S.C s 1151, and hence subject to federal provisions and protections." 430U.S. at 615,Footnote No.48.

THE FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE KEYSTONE XL PIPELINE CONCLUDING THERE ARE NO SIGNIFICANT IMPACT ON CULTURAL RESOURCESIS BASED UPON ERRORS IN FACTANDERRORS IN LAW CONTAINED IN THE AMENDED PROGRAMMATIC AGREEMENT.

The Final Supplemental Environmental Impact Statement, Keystone XL Project, Chapter 1, Section 1.6.1, Tribal and SHPO Consultation, Tribal Consultation, provides;

"Following Keystone's 2012, Presidential permit application, the Department began additional government-to government consultation consistent with Section 106 of the NHPA for the current Supplemental EIS process for the proposed Project. As the lead federal agency for the proposed Project, the Department is continuing throughout the Supplemental EIS process to engage in consultation on the Supplemental EIS, the proposed Project generally, and on cultural resources consistent with Section 106 of the NHPA with identified consulting parties, including federal agencies, state agencies, State Historic Preservation Offices (SHPOs), the Advisory Council on Historic Preservation, and interested federally recognized Indian tribes (70 Federal Register 71194) in the vicinity of the proposed project. Starting in September 2012, the Department notified Indian tribes of its intent to amend the Programmatic Agreement to reflect changes to the proposed Project route since 2011 and comments received from consulting parties. Tribal meetings were held in October 2012 in Montana, South Dakota, and Nebraska, and May 2013 in South Dakota. Discussion of the consultation efforts and a complete list, to date are included in Section 3.11.4.3, Tribal Consultation, and the amended Programmatic Agreement (see Appendix E, Amended Programmatic Agreement and Record of Consultation." Final Supplemental Environmental Impact Statement, Keystone XL Project, pg. 1.6-1.

Appendix A of the Tribal Monitoring Plan, Programmatic Agreement, (Exhibit No. 1), containing a map of the proposed construction route of the Keystone XL Pipeline, mistakenly identifies Tripp County as an area of tribal consultation with the Yankton Sioux Tribe. Tripp County is an area that lies within the original boundaries of the Rosebud Sioux Tribe as established by the 1851 and 1868 Treaty of Fort Laramie and Act of March 2, 1889 25 Stat.888, and contains tracts of tribally-owned and allotted lands within the jurisdiction of the Rosebud Sioux Tribe.

It is the statutory obligation of the Federal agency to fulfill the requirements of section 106 and to ensure that the agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106compliance in accordance with subpart B of this part. Title 36, Part 800,36 C.F.R. §800.2 (a). The agency official shall involve the consulting parties described in paragraph (c) of this section in findings and determinations made during the section 106process, and should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation. 36 C.F.R. §800.2 (a)(4).When an Indian tribe has not assumed the responsibilities of the SHPO ("State Historic Preservation Officer") the agency official shall consult with a representative designated by such Indian tribe in additional to the SHPO regarding undertakings occurring on or affecting historic properties on its tribal lands. 36 C.F.R § 800.2 (c)(2)(B)(ii). Section 101 (d)(6)(B) of the act requires the agency official to consult with any Indian tribe or Native Hawaiian organization that attaches religious or cultural significance to historic properties that may be affected by an undertaking, regardless of the location of the historic property. 36 C.F.R. §800.2(c)(2)(B)(ii). It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the section 106 process. 36C.F.R. § 800.2(c)(2)(B)(ii)(A). The Federal Government has a unique legal relationship with Indian tribes set for the in the Constitution of the United States, treaties, statutes, and court decisions, and consultations with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. 36 C.F.R. § 800.2(c)(2)(B)(ii)(B). Consultations with an Indian tribe must recognize the government-to government relationship between the Federal government and tribes. 36C.F.R. §800.2(c)(2)(B)(ii)(C). When Indian tribes and Hawaiian organizations attach religious and cultural significance to historic properties off tribal lands, section 101(d)(6)(B) of the act requires federal agencies to consult with Indian tribes in the section 106 process, and federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes and Native Hawaiian organizations and should consider that when complying with the procedures in this part. 36 C.F.R §800.2(c)(2)(B)(ii)(D).

The incorrect designation of "Tribal lands", in Tripp County, Rosebud Sioux Tribe Reservation, as lands within the Yankton Sioux Tribe Reservation in the amended Programmatic Agreement results in the following mistakes, errors in fact and errors in law, that create substantial non-compliance of the amended Programmatic Agreement with applicable federal law and federal regulations governing the proposed construction of the TransCanada Keystone XL Pipeline:

1. The seventh WHEREAS, page 2, states, "WHEREAS, the DOS... has consulted with...Indian tribes who may ascribe religious and cultural significance to historic properties that may be affected by the undertaking... consistent with 36 Part 800..."

a. Misidentifying Tripp County as part of the area under the jurisdiction and control of the "Yankton Sioux Tribe" instead of the "Rosebud Sioux Tribe", adjacent to the route of the proposed pipeline construction zone, and the resulting lack of consultation with the Rosebud Sioux Tribe regarding those "tribal lands" threatens, jeopardizes, and fails to identify and protect any historic properties that the Rosebud Sioux Tribe ascribes religious and cultural significance.

2. The ninth WHEREAS, page 5, "the DOS provided Indian tribes the opportunity to provide information about historic properties of concern to Indian tribes and conduct Traditional Cultural Property ("TCP") studies within the proposed Project APE, as summarized in Attachment I,"

a. Misidentifying Tripp County as part of the area under the jurisdiction and control of the "Yankton Sioux Tribe" instead of the Rosebud Sioux Tribe, adjacent to the proposed pipeline construction corridor, and the resulting lack of consultation with the Rosebud Sioux Tribe has prevented the Rosebud Sioux Tribe from planning and taking part in Traditional Cultural Properties("TCP") studies.

3. Part 1 C, Standards and Definitions.

a. "Coordination Plan: A plan that, pursuant to Stipulations V.B and V.D, describes the coordination of construction with identification and evaluation of cultural resources, treatment of adverse effects, and protection of unanticipated discoveries." The "Coordination Plan" that contains "tribal lands" in Tripp County and lists the wrong tribe, the Yankton Sioux Tribe, in the place of the proper consulting Tribe, the Rosebud Sioux Tribe, jeopardizes historic and cultural properties, and does not properly plan for identification and evaluation of cultural resources, treatment of adverse effects, and protection of unanticipated discoveries.

b. "Consulting Indian Tribes: Indian tribes that have consultative roles in the Section 106 process consistent with 36 C.F.R. § 800.2(c)." DOS has misidentified the "Yankton Sioux Tribe" as the "consulting Indian tribe", rather than the Rosebud Sioux Tribe, as having "Tribal Lands" within Tripp County. DOS has therefore failed to identify "tribal lands" of the Rosebud Sioux Tribe located in Tripp County adjacent to the pipeline corridor or misidentified areas containing "tribal lands" of the Rosebud Sioux Tribe. The PA either has not identified or misidentified the Rosebud Sioux Tribe as the "Consulting Indian Tribe" for "tribal lands" Tripp County, South Dakota.

c. "Determination of Effect: A determination made by a Federal agency in regards to a Project's effect upon a historic property consistent with 36 C.F.R. Part 800." Department of State cannot make a proper determination of effect upon historic properties without proper and meaningful consultation with the Rosebud Sioux Tribe regarding the areas not identified as tribal lands within Tripp County, South Dakota.

d. "Tribal Monitoring Plan: A plan that, pursuant to Stipulation V.E and

Attachment E, identifies appropriate areas for monitoring construction by tribal members appointed by their respective tribes. These tribal members shall meet the qualifications as noted by Stipulation V.E.3. The plan's principal goal is to reduce the potential for impacts to previously unidentified historic properties that may also be properties of historic and religious and cultural significance to Indian tribes that meet the National Register criteria (see 36 C.F.R. §800.16(l)(a)." The Tribal Monitoring Plan that misidentifies Tripp County as "tribal lands" of the Yankton Sioux Tribe fails in its principle goal to reduce the potential for impacts to previously unidentified historic properties that also may be properties of religious and cultural significance to Indian tribes by failing to consult with the proper Indian Tribe with lands in the construction corridor, the Rosebud Sioux Tribe.

4. "KEYSTONE XL PROJECT-PIPELINE CONSTRUCTION B. (1). Page 10, 11. "In consultation with the SHPOs, designated representatives of consulting Indian tribes, and other consulting parties, the DOS will make a reasonable and good faith effort to complete the identification and evaluation of historic properties within the APE for each construction spread, including in areas yet to be surveyed outlined in Attachment A, prior to the initiation of construction of that spread, consistent with 36 C.F.R. §§800.4 (a),(b), and (c)." A reasonable and good faith effort to complete the identification and evaluation of historic properties cannot be accomplished without proper consultation and participation of the Rosebud Sioux Tribe in Tripp County, South Dakota, prior to initiation of construction of that Spread.

B. 2. (a). "In the identification and evaluation of historic properties to which Indian tribes may attach religious and cultural significance, the DOS will take into consideration information through consultations and through the protocols for the TCP studies, post-review discovery, and the Tribal Monitoring Plan, as set forth in this PA." The Department of State should consult with the Rosebud Sioux Tribe on "tribal lands" located in Tripp County, to avoid the risk of failing to properly identify and evaluate historic properties Indian tribes may attach religious and cultural significance. The Rosebud Sioux Tribe should be the consulting Indian Tribe for Tripp County, rather than the Yankton Sioux Tribe.

B.2.(b). "In the event identification of historic properties cannot be completed for any Construction Spreads prior to construction, Keystone will develop and submit a Coordination Plan for die DOS to review and approval pursuant to Stipulation V.D. The Coordination Plan must describe the measures Keystone will use to implement and complete the identification and evaluation of cultural resources and appropriate consultation before any historic property are adversely affected by vegetation clearing and construction activities related to that spread." The proposed pipeline has not received final approval for construction, therefore, there is sufficient time and opportunity for the DOS to consult with the Rosebud Sioux Tribe for identifying and evaluating historic properties in Tripp County, South Dakota.

C. 1. "Treatment of Historic Properties. Whenever feasible, avoidance of adverse effects to historic properties will be the preferred treatment. In consultation with the DOS, ACHP, SHPOs, designated representatives of consulting Indian tribes, and other consulting parties, Keystone may elect to consider and implement avoidance measures prior to completing the evaluation of historic properties." The areas of proposed pipeline construction in Tripp County, South Dakota, should be properly identified as areas within the original boundaries of the Rosebud Sioux Tribe defined by the 1851 and 1868 Treaties of Fort Laramie and the Act of March 2,1889,25 Stat. 888. The PA should identify the Rosebud Sioux Tribe as the consulting Tribe in Tripp County, not the Yankton Sioux Tribe, for the construction corridor in Tripp County, South Dakota.

C.4., page 12. "If, after consultation, the DOS determines that the adverse effect cannot be avoided, Keystone will draft a comprehensive Treatment Plan for each adversely effected historic property." The areas of proposed pipeline construction in Mellette and Tripp Counties, South Dakota, should be properly identified as areas within the original boundaries of the Rosebud Sioux Tribe defined by the 1851 and 1868 Treaties of Fort Laramie and the Act of March 2, 1889, 25 Stat. 888. The PA should identify the Rosebud Sioux Tribe as the consulting Tribe in Tripp County, not the Yankton Sioux Tribe, for the construction corridor in Tripp County, South Dakota.

D.2. (a), page 13. "A Coordination Plan will be prepared for each state and will include those measures developed by Keystone pursuant to Stipulations V.B and V.C to complete the identification and evaluation of historic properties, and* as appropriate, mitigation of adverse effects to them during and coordinated with vegetation clearing and construction activities." The areas of proposed pipeline construction in Tripp County, South Dakota, should be properly identified as areas within the original boundaries of the Rosebud Sioux Tribe defined by the 1851 and 1868 Treaties of Fort Laramie and Act of March 2, 1889, 25 Stat. 888. The PA should identify the Rosebud Sioux Tribe as the consulting in Tripp County, not the Yankton Sioux Tribe, for the construction corridor in Tripp County, South Dakota.

E.l.(b). page 14. " Historical Trail and Archaeological Monitoring Plan ("HTAM Plan") and Tribal Monitoring Plan.

b. "The Tribal Monitoring Plan outlines areas that have been previously identified by Indian tribes, either through the preparation of Traditional Cultural Property reports or through consultation, that warrant monitoring during clearing and trenching for potential effects to previously unidentified historic properties that may include properties of religious and cultural significance to an Indian tribe and that meet the National Historic criteria. (See 36 C.F.R. § 800.16(1)(1)." The areas of proposed pipeline construction in Tripp County, South Dakota, should be properly identified as areas within the original boundaries of the Rosebud SiouxTribe defined by the 1851 and 1868 Treaties of Fort Laramie and Act of March 2, 1889, 25 Stat. 888. The PA should identify the Rosebud Sioux Tribe as the consulting Tribe in Tripp County, not the Yankton Sioux Tribe, for the construction corridor in Tripp County, South Dakota.

The PA does not meet the goal of consultation required by Section 106of the National Historic Preservation Act, 16 U.S.C. § 470 et. seq., with the proper Indian Tribe, to identify historic properties potentially affected by construction of the Keystone XL Pipeline, assess its affects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.

The Environmental Impact Statement, finding no significant impact on cultural resources, is based upon incorrect factual and legal assumptions, was prepared without proper consultation with the Rosebud Sioux Tribe, the Indian Tribe with jurisdiction of allotted lands adjacent to the KXL Pipeline construction corridor. The EIS is therefore improperly prepared, and its findings based upon erroneous factual and legal assumptions under federal law.

THE DEPARTMENT OF STATE WILL CONSULT WITH THE DEPARTMENT OF INTERIOR IN FOCUSING ON WHETHER THE PROPOSED PROJECT SERVES THE NATIONAL INTEREST. THE UNITED STATES DEPARTMENT OF INTERIOR, BUREAU OF INDIN AFFAIRS, IN SIGNING OFF ON THE AMENDEDPROGRAMMATIC AGREEMENT, KEYSTONE XL PIPELINE, FAILED TO PERFORM ITS TRUST RESPONSIBILITY TO THE ROSEBUD SIOUX TRIBE, AND THEREFORE APPROVAL OF THE PROJECT IS NOT IN THE NATIONAL INTEREST.

The Bureau of Indian Affairs, in signing off on the amended Programmatic Agreement, (Exhibit No. 2), failed in its trust responsibility to the Rosebud Sioux Tribe, for the following reasons: 1) by failing to review the amended Programmatic Agreement and Tribal Monitoring Plan before signing off on the PA; 2) by failing to comment or take action to correct the wrongful designation of Tripp County as an area within the jurisdiction of the Yankton Sioux Tribe; 3) failing to identify those allotted and tribal trust tracts in Tripp County lying within the original treaty boundaries of the Rosebud Sioux Tribe and recognized by the United States Supreme Court as being part of "Indian Country": 4) by failing to comment or take corrective action to identify the Rosebud Sioux Tribe as the "Consulting Indian Tribe" in the Tribal Monitoring Plan, amended Programmatic Agreement.

APPROVAL OF THE PRESIDENTIAL PERMIT FOR THE CONSTRUCTION OF THE PROPOSED KEYSTONE XL PROJECT IS INCONSISTENT WITH PRESIDENTIAL EXECUTIVE ORDERS NOS. 13084 AND 12898, AND THEREFORE IS NOT IN THE NATIONAL INTEREST.

Executive Order 13084, signed by President William Clinton on May 14, 1998, provides that the United States work with Indian Tribes on a government-to-government basis to address Indian tribal self-government, trust resources, and Indian tribal treaty and other rights. Furthermore, Executive Order 13084 orders the establishment of regular and meaningful consultation and collaboration with Indian tribal governments in the development of regulatory practices on Federal matters that significantly or uniquely affect their communities.

The construction of the TransCanada XL Pipeline crosses lands within and adjacent to the lands within the Treaty boundaries of 1851 Treaty of Fort Laramie and the 1868 Treaty of Fort Laramie. The Rosebud Sioux Tribe is a successor to the signatory Great Sioux Nation Tribes to the 1851 Treaty of Fort Laramie and the 1868 Treaty of Fort Laramie. The tribal nations of the Great Sioux Nation have retained aboriginal and treaty rights to those lands, including protection of gravesites and sacred sites, (Native American Graves Protection and Repatriation Act, 25 U.S.C. Section 3001 et. seq., Pub. L. 101-601), protection of cultural, religious and historical sites, (National Historic Preservation Act of 1966,16 U.S.C. Section 470 et. seq., Pub. L. 89-665), and protection of the Oglala Aquifer from contamination of potential catastrophic levels protection of Tribally reserved waters rights under the Winters Doctrine, and protection of our lands and waters on the tribal aboriginal treaty lands from desecration from tar sands sludge spills. The portion of the Oglala Aquifer located within the tribal lands in South Dakota, and the Rosebud Sioux Tribe Indian Reservation, are adjacent to and threatened by the construction of the TransCanada XL Pipeline.

The Rosebud Sioux Tribe has regulatory jurisdiction to regulate land use and potential harmful discharges into Reservation waters on tribally-owned trust lands and allotted trust lands owned by enrolled members of the Rosebud Sioux Tribe within Todd, Tripp, Mellette, Gregory, and Lyman Counties of South Dakota. The construction of the TransCanada XL Pipeline does not cross any tribal or allotted trust lands, but the proposed route lies adjacent to tracts of tribally owned trust and allotted trust parcels of land in Tripp County, South Dakota. Rights-of-way, including the TransCanada Keystone XL Pipeline, are defined by federal statute as "Indian Country." 18U.S.C. § 1151 (a). The construction of the Pipeline, and a possible spill or release of tar sands sludge from the Pipeline, poses a direct threat to two of the most important assets of the Rosebud Sioux Tribe, its lands and its water resources.

The damage caused by a release of tar sands sludge to Tribal trust and allotted lands could destroy and result in the loss of the essential character and beauty of the Rosebud Reservation, result in the destruction of the historical and cultural values and traditions of the Tribe, increase air, water, and solid waste pollution, and increase the possibility of contamination from the Oglala Aquifer and surface water supplies, and result in the deterioration of the standards of living, quality of life, welfare and well-being of all Reservation residents.

Executive Order 12898, signed by President William Clinton on February 11, 1994, directs federal agencies to make achieving environmental justice as part of the mission by identifying and addressing, as appropriate, disproportionately high adverse human health or environmental effects of its activities on minority and low-income populations. The United States and its federal agencies must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human heath, environmental, and social effects of its programs, policies, and activities on minority and low-income populations.

Todd County, South Dakota, also an area encompassing the Rosebud Sioux Tribe Indian Reservation, is the second poorest County in the United States. A spill of the tar sands sludge from the TransCanada Pipeline in Tripp County, South Dakota, would have a direct impact on the economic security, health, welfare and general well-being of the Tribe and its members residing in both Tripp and Todd Counties.

CONCLUSION

The Final Environmental Impact Statement for the Keystone XL Pipeline project is based upon legal and factual errors, omissions, and does not comply with applicable federal statutes, regulations, and court decisions. The proposed project does not serve the national interest, and the application for the Presidential Permit must be denied. Please consider our humble request for disapproval of the permit that will open the door for destruction of our lands, our culture and our history. In the words of Chief Arvol Looking Horse, 19th Generation Keeper of the Sacred White Buffalo Calf Pipe, "I know in my heart there are millions of people that feel our united prayers for the sake of our Grandmother Earth are long overdue." Please keep the next Seven Generations in your thoughts as we do. Thank you for this opportunity to express our opposition to this project.

Respectfully submitted and Pilamiya (Thank you),

Submitted Electronically: 01/27/2015

Paula Antoine,

Coordinator


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2014-33

RESOLUTION OF THE OCETI SAKOWIN

WHEREAS, we are the OCETI SAKOWIN, known to the United States as the Great Sioux

Nation, and

WHEREAS, we are inherently sovereign nations that predate the United States, have been and are the guardians of the people, air, land and waters of our traditional homelands since time immemorial, and

WHEREAS, despite the efforts of the United States to divide the Oceti Sakowin, we recognize that continued cooperation and support is the best way to continue to improve the quality of life of our people and ensure a better future for our generations to come, and

WHEREAS, the members of the Oceti Sakowin are successors to the signatory bands of the

Fort Laramie Treaties of 1851 and 1868, and

WHEREAS, Article 3 of the Treaty of 1851 provides "In consideration of the rights and privileges acknowledged in the preceding article, the United States bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the people of the said United States, after the ratification of this treaty", and

WHEREAS, The construction of the TransCanada XL Pipeline crosses lands within and adjacent to the lands within the Treaty boundaries of 1851 Treaty of Fort Laramie and the 1868Treaty of Fort Laramie.

WHEREAS, The tribal nations of the Great Sioux Nation have retained aboriginal and treaty rights to those lands, including protection of grave sites and sacred sites, (Native American Graves Protection and Repatriation Act 25 U.S.C. Section3001 et seq., Pub. L. 101-601), protection of cultural, religious and historical sites, (National Historic Preservation Act of 1966.16 U.S.C. Section 470 et. seq., Pub. L. 89-665), and protection of the Oglala Aquifer from contamination of potential catastrophic levels, protection of water rights reserved to Tribal Nations by the Winters Doctrine, and protection of our lands and waters on the tribal aboriginal treaty lands from desecration from tar sands sludge spills; and

WHEREAS, The Tribal Nations of the Oceti Sakowin stand in unified opposition to the construction of the TransCanada XL Pipeline; and

WHEREAS, the Tribal Nations of the Oceti Sakowin agree to introduce resolutions in each of

their respective Tribal Councils to oppose the construction of the TransCanada

XL Pipeline; and

WHEREAS, Appendix A of the Programmatic Agreement, maps of the proposed construction route of the Keystone XL Pipeline, mistakenly identifies are as of Tripp County as an area of tribal concern of the Yankton Sioux Tribe. Tripp County is an area that lies within the original boundaries of the Rosebud Sioux Tribe as established by the 1851 and 1868 Treaty of Fort Laramie and contains tracts of tribally-owned and allotted lands within the jurisdiction of the Rosebud Sioux Tribe; and

WHEREAS, The Tribal Nations of the Oceti Sakowin agree that the Rosebud Sioux Tribe should have been designated as the "consultating Tribe" in the amended Programmatic Agreement that is incorporated in the Environmental Impact Statement; and

WHEREAS, the Tribal Nations of the Oceti Sakowin agree to provide spiritual and any other available support to the efforts of the Rosebud Sioux Tribe to establish spiritual camps along the construction route of the TransCanada Keystone Pipeline within the aboriginal treaty boundaries defined by the 1851 Treaty of Fort Laramie and the 1868 Treaty of Fort Laramie; and

THEREFORE BE IT RESOLVED, the Tribal Nations of the Oceti Sakowin agree to introduce resolutions in each of their respective Tribal Councils to oppose the construction of the

TransCanada XL Pipeline; and

BE IT FURTHER RESOLVED, The Tribal Nations of the Oceti Sakowin agree that the

Rosebud Sioux Tribe should have been designated as the "consultating Tribe" in the amended

Programmatic Agreement that is incorporated in the Environmental Impact Statement; and

BE IT FINALLY RESOLVED, the Tribal Nations of the Oceti Sakowin agree to provide spiritual and any other available support to the efforts of the Rosebud Sioux Tribe to establish spiritual camps along the construction route of the TransCanada Keystone Pipeline within the treaty boundaries defined by the 1851 Treaty of Fort Laramie and the 1868 Treaty of Fort

Laramie.

CERTIFICATION

This is to certify that the above Resolution No. 2014-33 was duly passed by the Rosebud Sioux

Tribal Council in session on February 27, 2014 by a vote of eleven (11) in favor, zero (0) opposed and zero (0) not voting. The said resolution was adopted pursuant to authority vested in the Council. A quorum was present

ATTEST:

Julia Peneaux, Secretary

Rosebud Sioux Tribe

Cyril Scott, President

Rosebud Sioux Tribe


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2011-354

WHEREAS, the Rosebud Sioux Tribe is a federally recognized Indian Tribe organized pursuant to the Indian Reorganization Act of 1934 and pertinent amendments there at and;

WHEREAS, the Rosebud Sioux Tribe is governed by the Tribal Council made up of elected representatives who act in accordance with the powers granted to it by its Constitution and By-Laws; and

WHEREAS, TransCanada Keystone XL crude oil pipeline project is awaiting permit from U.S. State Department pursuant to the authority delegated by the President of the United States under Executive Order 13337 (69 Federal Register 25299): and ;

WHEREAS, Department of State has determined the issuance of a Presidential Permit for the keystone Xl project triggers review under Section 106 of the National Historic Preservation Act and its implementing regulations “Protection of Historic Properties.” (36 CFR Part 800); and:

WHEREAS, Keystone XL project comprises construction of approximately 1375 miles of new crude oil pipeline in the United States (Montana, South Dakota, Nebraska, Kansas, Oklahoma, & Texas) and other associated above ground facilities such as pump stations, transmission facilities, substations, lateral pipelines, storage yards, etc; and

WHEREAS, the Keystone Pipeline will cross the Cheyenne River that flows into the Missouri River up gradient from the intake of the Mni Wiconi Rural Water System that supplies drinking water to the Tribal members on Rosebud, Oglala and Lower Brule Indian Reservations and West River—Lyman Jones customers; and

WHEREAS, the Keystine Pipeline will cross the Mni Wic9oni core pipeline at two locations and

WHEREAS, the Keystone XL pipeline will traverse through the Tripp County in South Dakota where the Ogallala Aquifer extends and from which Tribal members derives their drinking water in Tripp County and Gregory Counties; and

WHEREAS, the TransCanada Keystone XL crude oil pipeline has tremendous potential to contaminate the drinking water sources of Rosebud Sioux Tribal members: and

WHEREAS, Keystone XL pipeline specifically can contaminate the Cheyenne River water impacting the water intake for the Mni Wiconi Rural Water, the water in the pipelines at the two proposed locations of crossing and by leaking/percolation into the Ogallala Aquifer; and


WHEREAS, the Trans Canada keystone XL pipeline has the potential to jeopardize the health and safety of Rosebud Sioux Tribal populations; and

WHEREAS, Environmental Impacts Statement completed by the U.S. State Department did not include all the risks that the keystone XL pipelines poses to the Rosebud Sioux Tribal populations; and

WHEREAS, a Risk Assessment is bang conducted by the Battle Memorial Institute at the present time; and

WHEREAS, the Bureau of Reclamation under trust responsibility to the Rosebud Sioux Tribe can make significant contribution in protecting the Rosebud Sioux Tribal population from the potential contamination threats of the Keystone pipeline XL pipeline project; and

NOW THEREFORE BE IT RESOLVED, that the Rosebud Sioux Tribal Council is vehemently opposed to the construction of me Trans Canada keystone XL pipeline that crosses the Cheyenne River, the Mni Wiconi Water lines at two locations and the Ogallala Aquifer in

Tripp County; and

BE IT FURTHER RESOLVED, mat the Commissioner of Bureau of Reclamation contacts the

State Department and Battle Memorial institute and provides all the relevant information as enumerated in this Resolution and beyond, under trust responsibility to the Rosebud Sioux Tribe, in thwarting the construction of the Trans Canada Keystone XL pipeline that has me potential to jeopardize the health and safety of the Rosebud Sioux Tribal populations.

CERTI FICATION

This is to certify that the above Resolution No. 2011-354 was duly passed by the Rosebud Sioux Tribal Council in session on December 29, 2011, by a vote of Eleven (11) in favor, Zero (0) opposed and Zero (0) not voting. The said resolution was adopted pursuant to authority vested in the Council. A quorum was present

ATTEST:

Linda L. Marshall, Secretary

Rosebud Sioux Tribe

Rodney M. Bordeaux, President

Rosebud Sioux Tribe


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2011-308

WHEREAS, the Rosebud Sioux Tribe is a federally recognized Indian Tribe organized pursuant to the Indian Reorganization Act of 1934 and all pertinent amendments thereof: and

WHEREAS, the Rosebud Sioux Tribe is governed by a Tribal Council made up of elected representatives who act in accordance with the powers granted to it by its

Constitution and By-laws; and

WHEREAS, the Rosebud Sioux Tribe is authorized to promulgate and enforce ordinances for the maintenance of law and order, and to safeguard the peace and morals, and general welfare of the Tribe, and to purchase and to otherwise acquire lands and other property for or on behalf of the Tribe as authorized by law, pursuant to Rosebud Sioux Tribal Constitution and By-laws Article IV, Sections (k), and (m); and

WHEREAS, the United States Department of State has recently notified the Tribes of the Great Plains Region through Section 106 of the National Historic Preservation Act that TransCanada Keystone Pipeline, L.P., is proposing to build an oil pipeline, TransCanada XL from Canada traversing North Dakota, South Dakota, and Nebraska; and

WHEREAS, the proposed TransCanada Keystone Pipeline Project has a potential impact on areas containing human remains as defined by the Native American Grave Protection and Repatriation Act and cultural and historic sites protected by the National Historic Preservation Act; and

WHEREAS, The United States has obligated itself through Treaties entered into with the sovereign Tribes, to protect the legal rights of tribal Nations; and

WHEREAS, the areas of construction of the TransCanada Keystone xl Pipeline Project does not cross tribal lands, but the proposed route is within the treaty boundaries of member tribes of the Great Sioux Nation, and the Rosebud Sioux Tribe is a signatory band to the 1868 Treaty of Fort Laramie, a Treaty between the Great Sioux Nation and the United States; and

WHEREAS, the proposed route of the TransCanada XL Pipeline and the risk of oil spills will endanger the Oglala Aquifer, the source of drinking water for the Midwest, and reserved water rights of all Midwestern Tribal Nations; and

WHEREAS, the Rosebud Sioux Tribe joins the Great Plains Tribal Chairman's Association, the Dene Assembly of First Nations, and all other Tribal Nations, in opposing the construction of the TransCanada pipeline; and

WHEREAS, The Rosebud Sioux Tribe adopts the Mother Earth Accord, September 15-16, 2011, developed by the Tribal Government Chairs and Presidents, Traditional Treaty Councils, and United States property owners, and demands that the Administration of President Barak Obama in finding the TransCanada pipeline is not in the "national interest," and refuse to grant a permit for the construction of the TransCanada XL pipeline;

THEREFORE BE IT RESOLVED, that Rosebud Sioux Tribe has treaty rights and aboriginal rights to cultural, historical and burial sites that may be located in the proposed construction area of the TransCanada Keystone Pipeline; and

BE IT ALSO RESOLVED, the Rosebud Sioux Tribe joins the Great Plains Tribal Chairman's Association, the Dene Assembly of First Nations, and all other Tribal Nations, in opposing the construction of the TransCanada pipeline; and

BE IT FINALLY RESOLVED, The Rosebud Sioux Tribe adopts the Mother Earth Accord, September 15-16,2011, developed by the Tribal Government Chairs and Presidents, Traditional Treaty Councils, and United States property owners, and demands that the Administration of President Barak Obama find the TransCanada XL pipeline is not in the "national interest," and refuse to grant a permit for the construction of the TransCanada XL pipeline.

CERTIFICATION

This is to certify that the above Resolution No. 2011-308 was duly passed by the Rosebud Sioux

Tribal Council in session on September 29, 2011, by a vote of Fourteen (14) in favor, Zero (0) opposed and One (1) not voting. The said resolution was adopted pursuant to authority vested in the Council. A quorum was present

ATTEST:

Linda L. Marshall, Secretary

Rodney Bordeaux, President

Rosebud Sioux Tribe


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2008-178

WHEREAS, the Rosebud Sioux Tribe is a federally recognized Indian Tribe organized pursuant to the Indian Reorganization Act of 1934 and pertinent amendments thereof, and

WHEREAS, the Rosebud Sioux Tribe is governed by a Tribal Council made up of elected representatives who act in accordance with the powers granted to it by its Constitution and By-laws; and

WHEREAS, the Rosebud Sioux Tribe Constitution and By-laws Article IV Section 1. (a) authorizes the council of the Rosebud Sioux Tribe to negotiate with the Federal, State, and local governments on behalf of the tribe; and

WHEREAS, the Rosebud Sioux Tribal Council has enacted Resolution No. 2008-95, finding that legal action is necessary for the protection of treaty and aboriginal rights of the Rosebud Sioux Tribe to cultural, historic and burial sites that may be located within the boundaries of member Nations of die Great Sioux Nation, and the Rosebud Sioux Tribe is a signatory hand to the 1868 Treaty of Fort Laramie, a treaty between the Great Sioux Nation and the United States; and

WHEREAS, the Rosebud Sioux Tribe has joined the Sisseton-Wahpeton Sioux Tribe and the Flandreau Sioux Tribe in an effort to protect the treaty and aboriginal rights of the Great Sioux Nation that may be irreparably damaged or destroyed by the construction of the Keystone TransCanada Pipeline; and

WHEREAS, the TransCanada Pipeline will cross North Dakota and South Dakota, and the

Rosebud Sioux Tribe has officially opposed the construction of the project by

Tribal Council Resolution; and

WHEREAS, the Rosebud Sioux Tribal Historic Preservation Office has requested the Rosebud Sioux Tribe to appropriate $10,000.00 dollars for expenses and initial costs to support litigation; and

WHEREAS, me Rosebud Sioux Tribe authorizes a Social Attorney Contract for Mario Gonzalez, Attorney, and Eric Antoine, Attorney, to represent the Rosebud Sioux Tribe in litigation; now

THEREFORE BE IT RESOLVED, The Rosebud Sioux Tribal Council accepts and adopts the recommendation of the Rosebud Sioux Tribe Historic Preservation Office to appropriate $10,000.00 for expenses and initial costs to support litigation to protect the treaty and aboriginal rights of the Rosebud Sioux Tribe that may the irreparably harmed or destroyed by the construction of the TransCanada Keystone Pipeline.

CERTIFICATION

This is to certify that the above Resolution Number 2008-178 was duly passed by the Rosebud

Sioux Tribal Council in session on August 13,2008, by a vote of twelve (12) in favor, none (0)= opposed and none (0) not voting. The said resolution was adopted pursuant to authority vested in die Council. A quorum was present.

ATTEST:

Gerri Night Pipe, Secretary

Rodney M. Bordeaux, President

Rosebud Sioux Tribe


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2008-161

WHEREAS, the Rosebud Sioux Tribe is a federally recognized Indian Tribe organized pursuant to the Indian Reorganization Act of 1934 and pertinent amendments thereof; and

WHEREAS, the Rosebud Sioux Tribe is governed by a Tribal Council made up of elected representatives who act in accordance with the powers granted to it by its Constitution and By-Laws; and

WHEREAS, the Rosebud Sioux Tribe Constitution and By-laws Article IV Section 1. (a) authorizes the council of the Rosebud Sioux Tribe to negotiate with the Federal, State, and local governments on behalf of the Tribe; and WHEREAS, the Rosebud Sioux Tribal Council has enacted Resolution No. 2008-95, finning that legal action is necessary for the protection of treaty and aboriginal rights of the Rosebud Sioux Tribe to cultural, historic and burial sites that maybe located within the boundaries of member Nations of the Great Sioux Nation, and the Rosebud Sioux Tribe is a signatory band to the 1868 Treaty of Fort Laramie, a treaty between the Great Sioux Nation and the United States; and

WHEREAS, the Rosebud Sioux Tribe desires to initiate legal proceedings as a joint plaintiff with other Sioux Tribes directly affected by the pipeline, namely the Sisseton-Wahpeton Sioux Tribe, Yankton Sioux Tribe, and the Standing Rock Sioux Tribe, for the purpose protecting the cultural and human remains of the Tribe that will be disturbed by the TransCanada Keystone Pipeline Project; and

WHEREAS, the Rosebud Sioux Tribe is contemplating filing a civil action in the United States

District Court, and will need to pay for attorney fees and expenses, and to contribute to the costs of expert witnesses; now

THEREFORE BE IT RESOLVED, that the Rosebud Sioux Tribe hereby requests the Bureau of Indian Affairs to provide a$500,000.00 grant from FY 2008 rights protection funds to the Sioux tribes involved in the Keystone Pipeline civil action, which funds will be expended for attorney fees, expenses and expert witnesses pursuant to a budget agreed upon by the Tribes and approved by the BIA; and

BE IT FURTHERRESOLVED, that each Tribe involved in the TransCanada Keystone Pipeline will receive $100,000.00 each from the $500,00.00 grant from the FY 2008 rights protection funds: and

BE IT ALSO RESOLVED, that the Tribal Treasurer shall place the Rosebud Sioux Tribe's share of any rights protection grant funds obtained for the TransCanada Keystone Pipeline civil action in a special restricted account to be used exclusively for fees, expenses and expert witnesses of the Tribe.

This is to certify that the above Resolution Number 2008-161 was duly passed by the Rosebud

Sioux Tribal Council in session July16, 2008, by a vote of eleven (11) in favor, none (0) opposed and none (0) not voting. The said resolution was adopted pursuant to authority vested in the Council. A quorum was present.

ATTEST:

Gerri Night Pipe, Secretary

Rosebud Sioux Tribe

Rodney M. Bordeaux, President

Rosebud Sioux Tribe


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2008-95

WHEREAS, the Rosebud Sioux Tribe is a federally recognized Indian Tribe organized pursuant to the Indian Reorganization Act of 1934 and pertinent amendments thereof, and

WHEREAS, the Rosebud Sioux Tribe is governed by a Tribal Council made up of elected representatives who act in accordance with the powers granted to it by its Constitution and By-laws; and

WHEREAS, the Rosebud Sioux Tribe Constitution and By-laws Article IV Section 1. (a) authorizes the council of the Rosebud Sioux Tribe to negotiate with the Federal, State, and local governments on behalf of the Tribe; and

WHEREAS, the Rosebud Sioux Tribal Historic Preservation Office has been involved in monitoring the potential for infringement upon traditional and historical lands and rights by the construction of the TransCanada Keystone Pipeline, a project that has already begun construction; and

WHEREAS, the United States Department of State has recently notified the Tribes of the Great Plains Region through Section 106 of the National Historic Preservation Act that TransCanada Keystone Pipeline, L.P, is proposing to build an oil pipeline from Canada traversing North Dakota, South Dakota, and Nebraska; and

WHEREAS, the proposed TransCanada Keystone Pipeline Project has a potential impact on areas containing human remains as defined by the Native American Grave Protection and Repatriation Act and cultural and historic sites protected by the National Historic Preservation Act; and

WHEREAS, the Rosebud Sioux Tribe has not had government to government consultation with the United States Department of State and the federal government has not complied with Section 106 of the National Historic Preservation Office; and

WHEREAS, the Rosebud Sioux Tribe has not had government to government consultation with the United States Department of State and the federal government has not complied with Section 106 of the National Historic Preservation Office; and

WHEREAS, the areas of construction of the TransCanada Keystone Pipeline Project do not cross any federal or tribal lands, but the proposed route is within the areas within the treaty boundaries of member tribes of the Great Sioux Nation, and the Rosebud Sioux Tribe is a signatory band to the 1868 Treaty of Fort Laramie, a treaty between the Great Sioux Nation and the United States; and

WHEREAS, other Tribes with rights protected by federal law and the U.S. Constitution, including the Oglala Sioux Tribe and the Sisseton-Wahpeton Sioux Tribe, have enacted Tribal Resolutions to authorize legal proceedings to halt the construction of the TransCanada Pipeline; and

WHEREAS, the Rosebud Sioux Tribal Council directs the Legal Department and the Tribal

Historic Preservation Office to enter into litigation jointly with other Tribes similarly situated, including the Oglala Sioux Tribe and the Sisseton-Wahpeton Sioux Tribe; and

WHEREAS, the Rosebud Sioux Tribal Council directs the Legal Department and the Tribal

Historic Preservation Office to work collectively with the coalition member tribes and organizations to reduce litigation costs by directing litigation strategies, including choosing lead litigation attorney from the legal team, which consists of the tribal attorneys from their respective Tribes, the Plains Justice Center in Cedar Rapids, Iowa, (a non-profit organization) and other identified groups; and

THEREFORE BE IT RESOLVED, that the Rosebud Sioux Tribe finds that legal action is necessary to protect treaty rights and aboriginal rights of the Rosebud Sioux Tribe to cultural, historical and burial sites that may be located in the proposed construction area of die TransCanada Keystone Pipeline; and

THEREFORE BE ALSO RESOLVED, feat the Rosebud Sioux Tribe condemns die by pass of Section 106has been bypassed with respect to the Indian Tribes and Nations on this project, and rejects the Programmatic Agreement entered into by various agencies of the federal government and a few affected Indian tribes; and

THEFORE BE IT FURTHER RESOLVED, The Rosebud Sioux Tribal Council agrees to enter into litigation jointly with the other Indian Tribes and Nations similarly situated, including the Oglala Sioux Tribe and the Sisseton-Wahpeton Sioux Tribe.

CERTIFICATION

This is to certify that the above Resolution Number 2008-95 was duly passed by the Rosebud

Sioux Tribal Council in session on May 29, 2008, by a vote of fourteen (14) in favor, none (0) opposed and two (2) not voting. The said resolution was adopted pursuant to authority vested in the Council. A quorum was present.

Gerri Night Pipe, Secretary

Rodney M. Bordeaux, President

Rosebud Sioux Tribe


ROSEBUD SIOUX TRIBE

RESOLUTION NO. 2008-44

WHEREAS, the Rosebud Sioux Tribe is a federally recognized Indian Tribe organized pursuant to the Indian Reorganization Act of 1934 and pertinent amendments thereof; and

WHEREAS, the Rosebud Sioux Tribe is governed by a Tribal Council made up of elected representatives who act in accordance with the powers granted to it by its Constitution and By-laws; and

WHEREAS, the Rosebud Sioux Tribe is authorized to promulgate and enforce ordinances for the maintenance of law and order, and to safeguard the peace and morals, and general welfare of the Tribe, and to purchase and to otherwise acquire lands and other property for or on behalf of the Tribe as authorized by law pursuant to Rosebud Sioux Tribal Constitution and By-laws Article IV Sections (k), and (m); and

WHEREAS, the United States Department of State has recently notified the Tribes of the Great

Plains Region through Section 106 of the National Historic Preservation Act that

TransCanada Keystone Pipeline, LJ\, is proposing to build an oil pipeline from

Canada traversing North Dakota, South Dakota, and Nebraska; and

WHEREAS, the proposed TransCanada Keystone Pipeline Project has a potential impact on areas containing human remains as defined by the Native American Grave Protection and Repatriation Act and cultural and historic sites protected by the National Historic Preservation Act; and

WHEREAS, the United States has obligated itself through Treaties entered into with the sovereign Tribes, to protect the legal rights of tribal Nations; and

WHEREAS, the areas of construction of the TransCanada Keystone Pipeline Project do not cross any federal or tribal lands, but the proposed route is within the areas within the treaty boundaries of member tribes of the Great Sioux Nation, and the Rosebud Sioux Tribe is a signatory band to the 1868 Treaty of Fort Laramie, a treaty between the Great Sioux Nation and the United States; now

THEREFORE BE IT RESOLVED, that the Rosebud Sioux Tribe finds that the Rosebud Sioux

Tribe has treaty rights and aboriginal rights to cultural, historical and burial sites that may be located in the proposed construction area of the TransCanada Keystone Pipeline; and

BE IT ALSO RESOLVED, that the Rosebud Sioux Tribe request technical, legal, and any other assistance from the United States Department of Interior, Bureau of Indian Affairs, for the identification, evaluation, and protection of any cultural, historic, religious, and burial sites in the proposed construction area of the TransCanada Keystone Pipeline; now

BE IT FINALLY RESOLVED, that representatives of the Rosebud Sioux Tribal Historic

Preservation Office, and the President of the Rosebud Sioux Tribe are authorized and directed to contact representatives of the BIA for technical, legal and any other assistance that maybe available for the identification, evaluation, and protection of any cultural, historic, religious, and burial sites in the proposed construction area of the TransCanada Keystone Pipeline.

CERTIFICATION

This is to certify that the above Resolution Number 2008-44 was duly passed by the Rosebud

Sioux Tribal Council in session on February 22, 2008, by a vote of twelve (12) in favor, none (0) opposed and two (2) not voting. The said resolution was adopted pursuant to authority vested in the Council. A quorum was present.

ATTEST:

Gerri Night Pipe, Secretary

Rodney M. Bordeaux, President

Rosebud Sioux Tribe


BUREAU OF INDIAN AFFAIRS

ISSUES REGARDING TRUST RESPONSIBILITY AND

TRANSCANADA XL PIPELINE

January 27.2015

1. The Rosebud Sioux Tribe is a federally recognized sovereign Indian tribe organized pursuant to the Act of June 18,1934,48 Stat. 984, as amended, and is governed by a Constitution and By-laws ratified on November 23,1935, and approved by the Secretary of the Interior, Harold L. Ickes, on December 16,1935, and as amended. The Rosebud Sioux Tribe Reservation includes tribally-owned trust lands and allotted lands owned by enrolled tribal members within Todd, Tripp, Mellette, Gregory, and Lyman Counties, South Dakota.

2. The Rosebud Sioux Tribe has jurisdiction of all trust and restricted lands located in the counties of Lyman, Todd, Tripp, Mellette, and Gregory counties of South Dakota, of the Rosebud Sioux Tribe established by the 1851 and 1868 Treaty of Fort Laramie and the Act of March 2, 1889, 25 Stat. 888.

3. The United States Supreme Court in Rosebud Sioux Tribe v. Kniep. 430 U.S. 584, 615 (1977), held that the legislative history of acts opening up Todd, Mellette, Tripp, and Lyman Counties demonstrated a legislative intent to diminish the boundaries of the Rosebud Reservation to remove certain lands in South Dakota from the jurisdiction of the Rosebud Sioux Tribe, but also stated, with regard to lands held in trust in those counties, stated in Footnote 48 as follows: "To the extent the members of the Rosebud Sioux Tribe are living on allotted land outside the Reservation, they, too, are on "Indian Country" within the definition of 18 U.S.C s 1151, and hence subject to federal provisions and protections." 430 U.S. at 615, Footnote No. 48.

4. Appendix A of the Tribal Monitoring Plan, Programmatic Agreement, containing a map of the proposed construction route of the Keystone XL Pipeline, mistakenly identifies Tripp County as an area of tribal consultation with the Yankton Sioux Tribe. Tripp County is an area that lies within the original boundaries of the Rosebud Sioux Tribe as established by the 1851 and 1868 Treaty of Fort Laramie and Act of March2,1889 25 Stat.888, and contains tracts of tribally-owned and allotted lands within the jurisdiction of the Rosebud Sioux Tribe.

5. The construction corridor of the KXL Pipeline would run through areas in close proximity to the Rosebud Sioux Tribe Reservation and cross lands within and adjacent to the lands within the Treaty boundaries of 1851 Treaty of Fort Laramie and the 1868 Treaty of Fort Laramie.; and

6. The amended PA mistakenly identifies the Yankton Sioux Tribe as the consulting Tribe for tribal lands within the jurisdiction of the Rosebud Sioux Tribe located in Tripp County, Rosebud Sioux Tribe Reservation, South Dakota. The misidentification of "Tribal lands" in the amended Programmatic Agreement results in errors in fact, and errors in law resulting in substantial non-compliance of the amended Programmatic Agreement with applicable federal law and federal regulations governing the proposed construction of the TransCanada Keystone XL Pipeline.

7. The PA does not meet the goal of consultation required by Section 106 of the National

Historic Preservation Act, 16U.S.C. § 470 et. seq., with the proper Indian Tribe, to identify historic properties potentially affected by construction of the Keystone XL Pipeline, assess its affects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.

8. The Bureau of Indian Affairs, in signing off on the amended Programmatic Agreement, failed in its trust responsibility to the Rosebud Sioux Tribe by failing to review the amended Programmatic Agreement, failing to comment or take action to correct the wrongful designation of Tripp County as an area within the jurisdiction of the Yankton Sioux Tribe, failing to identify those allotted and tribal trust tracts in Tripp County lying within the original treaty boundaries of the Rosebud Sioux Tribe, failing to comment or take corrective action, to identify the Rosebud Sioux Tribe as the "Consulting Indian Tribe."

9. It is the statutory obligation of the Federal agency to fulfill the requirements of section 106and to ensure that the agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106 compliance in accordance with subpart B of this part. Title 36, Part 800, 36C.F.R. §800.2 (a). The agency official shall involve the consulting parties described in paragraph (c) of this section in findings and determinations made during the section 106 process, and should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation. 36C.F.R. §800. 2 (a)(4). When an Indian tribe has not assumed the responsibilities of the SHPO ("State Historic Preservation Officer") the agency official shall consult with a representative designated by such Indian tribe in additional to the SHPO regarding undertakings occurring on or affecting historic properties on its tribal lands. 36C.F.R. § 800.2 (c)(2)(B)(ii). Section 101 (d)(6)(B) of the act requires the agency official to consult with any Indian tribe or Native Hawaiian organization that attaches religious or cultural significance to historic properties that may be affected by an undertaking, regardless of the location of the historic property. 36 C.F.R. §800.2(c)(2)(B)(ii). It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the section 106 process. 36 C.F.R. § 800.2(c)(2)(B)(ii)(A). The Federal Government has a unique legal relationship with Indian tribes set for the in the Constitution of the United States, treaties, statutes, and court decisions, and consultations with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. 36 C.F.R. § 800.2(c)(2)(B)(ii)(B). Consultations with an Indian tribe must recognize the government-to-government relationship between the Federal government and tribes. 36 C.F.R. §800.2(c)(2)(B)(ii)(C). When Indian tribes and Hawaiian organizations attach religious and cultural significance to historic properties off tribal lands, section 101(d)(6)(B) of the act requires federal agencies to consult with Indian tribes in the section 106 process, and federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral aboriginal or ceded lands of Indian tribes and Native Hawaiian organizations and should consider that when complying with the procedures in this part. 36 C.F.R. §800.2(c)(2)(B)(ii)(D).

10. The Rosebud Sioux Tribe cannot sign the amended Programmatic Agreement as a concurring party, and objects to the amended PA on that basis. Furthermore, the Environmental Impact Statement, finding no significant impact on cultural resources, is based upon incorrect factual and legal assumptions, was prepared without proper consultation with the Rosebud Sioux Tribe, the Indian Tribe with jurisdiction of allotted lands adjacent to the KXL Pipeline construction corridor. The EIS is therefore improperly prepared, and its findings based upon erroneous factual and legal assumptions under federal law.

11. For the reasons above, the BIA should rescind its signature on the amended

Programmatic Agreement, and require the EIS to be rejected for failure to comply with federal law and federal trust responsibility.


Braegelmann, Carol carol_braegelmann@ios.doi.gov

TransCanada Keystone Pipeline, L.P. Response from Fort Peck Tribes

(1 message)

Sydney Campbell Tue, Jan 27, 2015 at 6:14 PM

To: "Carol_Braegelmann@ios.doi.gov"

I was asked to respond to the letter received today with a response needed by today. Fort Peck Tribes is against the TransCanada Keystone Pipeline due to the issue that has arose on the location of pipeline being moved to a different route which is on out skirts of Fort Peck Reservation and locating over by the Fort Peck Dam with the chances of it contaminating all waters on the West end of our Reservation should there ever be any kind of spills or leaks. If you have any questions please feel free to call our office and talk to Chairman AT Stafne in regards to the matter. Thank You.

Sydne E. Campbell

Chairman's Assistant

Fort Peck Tribes

P.O. Box 1027

Poplar, MT 59255

(406) 768-2301 Direct

(406) 768-5478 Fax

scampbell@fortpecktribes.net



 

Braegelmann, Carol

FW: Keystone-XL Pipeline Presidential Permit

(1 message)

Tracey Zephier Tue, Jan 27, 2015 at 6:52 PM

To: "marilyn.bercer@bia.gov" , "timothy.lapointe@bia.gov"

Cc: "Bouriand, Gregg" , "Harold Frazier (haroldcfrazier@yahoo.com)"

, "vogel143@gmail.com" , "Gay Kingman

(kingmanwapato@rushmore.com)" , Patty Marks ,

"Carol_Braegelmann@ios.doi.gov" , "harold.hall@bia.gov"

I am an attorney representing the Cheyenne River Sioux Tribe in the Keystone XL matter.

As you can see from the dates and times on the email string below, I did not receive this notice of comments due by COB today until after the deadline passed.

Since it appears that someone within the BIA chain of command did not forward the Interior's Office of Environmental Policy's request to any Tribes in the Great Plains Region until this afternoon. I am now asking on behalf of the CRST that the BIA request an additional 2 days for Tribes in the Great Plains Region to properly respond to Interior's request for input in this critical matter.

Thank you for your consideration.

On behalf of the Cheyenne River Sioux Tribe,

Tracey Zephier, Esq.

Fredericks, Peebles, & Morgan LLP

910 Fifth Street, Suite 104

Rapid City, SD 57701

Phone: 605-791-1515

Fax: 605-791-1915

Email: tzephier@ndnlaw.com

Website: www.ndnlaw.com


 


From: Patty Marks

Sent: Tuesday, January 27, 2015 3:23 PM

To: Tracey Zephier

Subject: FW: Keystone-XL Pipeline Presidential Permit

Importance: High

Patty Marks

Fredericks Peebles & Morgan LLP

4019th Street NW, Suite 700

Washington, DC20004

202.450.4887 Phone

202.450.5106 Fax

pmarks@ndnlaw.com

www.ndnlaw.com

From: Jennifer P. Hughes [mailto:JHughes@hobbsstraus.com]

Sent: Tuesday, January 27, 2015 5:20 PM

To: Kingman, Gay; Patty Marks; Thomasina Real Bird; pcapossela@nu-world.com

Cc: Dean B. Suagee; Tara M. Houska

Subject: FW: Keystone-XL Pipeline Presidential Permit

Importance: High

Oglala just received word of this via email from BIA. It states that comments are due in today on KXL.

Please pass along to all tribes in the Great Plains.

There is a street address and I am told that the Regional Office said send the comments to Harold Ham at harold.ham@bia.gov

Oglala is working now to resubmit its comment packet and recent letters.


 


Braegelmann, Carol

Comments on the Proposed Keystone XL Pipeline - Oglala Sioux Tribe

(1 message)

Jennifer P. Hughes Tue, Jan 27, 2015 at 7:44 PM

To: "erin_walls@ios.doi.gov" , "laura_davis@ios.doi.gov" ,

"katherine_rupp@ios.doi.gov" , "michael_connor@ios.doi.gov"

, "gareth_rees@ios.doi.gov" , "kevin.washbum@bia.gov"

, "Sarah Hams (sarah.harris@bia.gov)" ,

"carol_braegelmann@ios.doi.gov"

Cc: "johns@oglala.org" , "DonnaS@oglala.org" , Kevin Steele

, "Dean B. Suagee"

Secretary Jewell:

The Oglala Sioux Tribe understands that it is to submit comments on the proposed Keystone XL Pipeline to the Department of the Interior and the Bureau of Indian Affairs. On behalf of the Oglala Sioux Tribe, I am submitting the attached documents which set forth the Tribe's strong opposition to the Keystone XL Pipeline. The documents include:


1. January 27, 2015 letter to Interior Secretary

2. One-page briefing paper on why the Pipeline is not in the national interest

3. March 26, 2014 letter to Interior Secretary

3a. Enclosures to the Tribe's March 26, 2014 letter

4. March 5, 2014 comment packet to the State Department in opposition to the pipeline, which includes a letter, position paper and Tribal Council resolution

5. January 8, 2015 letter to President Obama

6. January 20, 2015 letter to Interior Secretary specifically on the issue of water contamination

Please take these documents together as the Oglala Sioux Tribe's comments in staunch opposition to the proposed Keystone XL Pipeline.

The Tribe calls on the Interior Secretary to convey the Tribe's concerns to the State Department and to urge a denial of TransCanada's request for a Presidential Permit for the Keystone XL Pipeline.

Please do not hesitate to contact the Tribe if you have questions or would like additional information.

Thank you for your attention to this important matter.

Jennifer P. Hughes, Partner

T 202.822.8282 | F 202.296.8834

HOBBS STRAUS DEAN &WALKER, LLP

2120 L Street NW, Suite 700, Washington, DC 20037

HOBBSSTRAUS.COM

Hobbs, Straus, Dean and Walker, LLP. Confidentiality Statement

This message is intended only for the use of the individuals to which this e-mail is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable laws. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this e-mail in error, please notify the sender immediately and delete this e-mail from both your "mailbox" and your "trash." Thank you.

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.

7 attachments

*p> OST statement on KXL one-page 12715.pdf

^ 59K

«* OST Ittr to DOI Secretary Jewell 3-26-14.pdf

^274K

«pt enclosure for DOI letters 3-26-14 .pdf

^ 451K

«n Oglala Sioux Tribe comment package on Keystone XL 3-5-14.pdf

" 1202K

«£) 10815.PresSteele.to.PresObama.pdf

^ 141K

«ft 12115.Steele.Jewell.Keystone.MWP.pdf

^ 238K

«h 12714.0STtoSecretaryJewell.Keystone.2. pdf

^68K


Oglala Sioux Tribe

Office of the President

PO Box 2070

Pine Ridge. SD 57770

Phone: 605.867.5821

Fax 605.867.6076


January 8, 2015

The Honorable Barack Obama

President

United States of America

1600 Pennsylvania Avenue, NW

Washington DC 20500

RE: Veto Legislation to Approve the Keystone XL Pipeline and Do Not Approve A Permit for the Pipeline.

Dear Mr. President:

The Oglala Sioux Tribe calls on you NOT to allow the proposed Keystone XL pipeline to be built. We call on you to act with the welfare of future generations in your mind and your heart. We ask you to veto any legislation Congress sends to you that would approve the Keystone XL pipeline and to deny the proposed pipeline a permit to cross the border from Canada.

We understand that under Executive Order 13337, a Presidential permit is required for a pipeline that crosses an international border, and that the lead responsibility for reviewing this proposed pipeline has been assigned to the Secretary of State, who is charged with making the initial determination as to whether or not permitting the pipeline would serve the national interest. We have called on Secretary Kerry to acknowledge that the proposed pipeline does not serve the national interest and deny the permit. We also understand that, in this case, you are the person who is going to make the ultimate decision in the administrative process.

We are also aware of the efforts in Congress to pass legislation to approve the Keystone XL Pipeline. Such legislation would override the review process pursuant to Executive Order 13337 and would allow a project that is not in the national interest.

We were heartened to hear earlier this week that you will veto Keystone XL Pipeline legislation if it comes to your desk. We thank you for this statement and ask that you to adhere to it.

The Oglala Sioux Tribe strongly opposes the Keystone XL pipeline for many reasons, as we have advised the Department of State on many occasions. A major part of the route of the proposed pipeline would be located within our ancestral homelands, which includes but is not limited to the territory of the Great Sioux Nation, as recognized in the Fort Laramie Treaties of 1851 and 1868. The territory recognized in those Treaties does not include all of the territory that our ancestors inhabited, which we consider our ancestral homelands. These homelands encompass a landscape in the Great Plains region that covers parts often present-day states as well as part of Canada. This landscape retains a great multitude of sites that hold traditional religious and cultural significance for our people, including burials, ceremonial and prayer loci, artifacts, petroglyphs, and habitation locales. Most of those sites have not yet been evaluated for eligibility for the National Register of Historic Places. The programmatic agreement that has been entered into for compliance with the National Historic Preservation Act acknowledges that construction of the pipeline would cause damage or destruction to many such places. That programmatic agreement was negotiated without proper consultation with our Tribe or the other concerned tribes.

We are concerned about the risk that a spill or leak would contaminate groundwater and surface water, including the Missouri River and its tributaries. We are particularly concerned about the risk to the Mni Wiconi Project, our rural water supply system which serves the public health needs of the Pine Ridge Indian Reservation, the Lower Brule Sioux Reservation, the Rosebud Sioux Reservation, and many non-Indian communities in southwestern South Dakota. The federal government has invested $450millionin the Mni Wiconi Project. A spill of tar sands crude could have catastrophic consequences.

We are appalled by the environmental devastation taking place in Canada where the forests are being destroyed for the extraction of tar sands, and where the First Nations are witnessing the loss of wildlife and suffering health impacts. Those impacts constitute violations of the human rights the affected First Nations, including the right to their means of subsistence. As Native peoples, we believe the American people should not be a party to destroying the boreal forest and depriving First Nations of their human rights.

We are also opposed to the proposed pipeline because it would exacerbate the climate crisis. On June25, 2013, you said, "Our national interest will be served only if this project does not significantly exacerbate the problem of carbon pollution." We believe it is obvious that it would. We understand that the Final Supplemental Environmental Impact Statement (FSEIS) includes a market analysis which asserts that whether or not the Keystone XL pipeline is built will have no effect on the rate at which the government of Canada allows the boreal forest in northern Alberta to be destroyed for the extraction of tar sands crude. That market analysis is deeply flawed. It assumes that governments will not act to reduce emissions from consumption of fossil fuels and that a business as usual scenario will prevail. But marketplaces in which energy goods and services are bought and sold respond to and are shaped by governmental policies, and we have to believe that governmental policies will be adopted to move beyond business as usual. The market analysis in the FSEIS ignores the likelihood that, over the coming decade or so as the public becomes better informed about the climate crisis, the people will demand governmental policies to dramatically limit emissions of greenhouse gases. Those policies will dramatically change the markets for carbon intensive fuels such as tar sands.

America needs policies that will help lead the world in a transition to an economy in which energy needs are met with renewable resources and energy demands are kept within reason through efficiency and conservation. American leadership must start now, and this leadership must start with the rejection of the Keystone XL pipeline on the grounds that it would not serve the national interest.

We only have one Mother Earth. In our traditional ways, we are taught to be concerned for the welfare of the seventh generation to come. The next seven generations, and those who come after, are depending on you to make the right decision. We call on you as an honorable human being to deny the permit for the proposed Keystone XL pipeline and to veto any legislative attempt to approve the pipeline.


Respectfully,


John Yellow Bird Steele, President


Oglala Sioux Tribe

Office of the President

PO Box 2070

Pine Ridge. SD 57770

Phone: 605.867.5821

Fax 605.867.6076

January 20,2015

The Honorable Sally Jewell

Secretary of the Interior

1849 C Street, N.W.

Washington DC 20240

RE: Contamination of Mni Wiconi Project Water

Source by Keystone XL or Other Activities

Dear Secretary Jewell:

The Oglala Sioux Tribe has corresponded with the Bureau of Reclamation (Reclamation) previously on the concerns we have with the TransCanada Keystone XL Pipeline (Keystone XL) and its potential impact on the core pipelines of the Oglala Sioux Rural Water Supply System

(OSRWSS) and the people we serve on the Pine Ridge Indian Reservation and throughout the Mni Wiconi Project.

The authorizing legislation of the Mni Wiconi Project (PL 100-516, as amended) contains statutory provisions on the trust responsibility of the United States to ensure a safe and adequate water supply for the project beneficiaries:

...the United States has a trust responsibility to ensure that adequate and safe water

supplies are available to meet the economic, environmental, water supply,

and public health needs of the Pine Ridge Indian Reservation, Rosebud Indian

Reservation, and Lower Brule Indian Reservation;

The Oglala Sioux Tribe, through a 638 cooperative agreement with Reclamation, operates pumping and treatment facilities located along the Missouri River near Fort Pierre, South Dakota, pipelines extending from the Missouri River to the Pine Ridge Indian Reservation and facilities to allow for interconnections with the West River Rural Water System, Lyman- Jones Rural Water System, Rosebud Sioux Rural Water System and Lower Brule Rural Water System in addition to distribution and treatment facilities to serve the needs of the Pine Ridge Indian Reservation. The facilities listed above are known as the OSRWSS, and title to those facilities is held in trust by the United States on behalf of the Oglala Sioux Tribe.

The construction of all Mni Wiconi Project facilities, including OSRWSS and the Indian and non-Indian rural water systems that are interconnected, will be completed in FY2015 at a federal cost of $488 million. Adequate funding for operation, maintenance and replacement (OMR) and source water protection are essential to fulfill the trust responsibilities of the United States to the Oglala Sioux Tribe and other tribal participants.

Our Keystone XL Pipeline concerns related to our Mni Wiconi Project are (1) OSRWSS pipeline integrity at Keystone XL crossings and (2) OSRWSS water source protection at the Missouri River, Cannonball River, Grand River, Moreau River, Cheyenne River and other Western Dakota tributary crossings by Keystone XL. TransCanada dismissed our concerns in its October 10, 2013, letter to Reclamation. Reclamation Regional Director Ryan then corresponded with the Department of State by letter dated December 12, 2013, requesting that the State Department approve Reclamation's crossing criteria for construction and operation of the Keystone XL Pipeline specifically to protect the OSRWSS core pipeline of the Mni Wiconi Project. Our water source concerns in (2) above are not limited to Keystone but also extend to Bakken shale activities in the Northern Great Plains, historical uranium mining in the Cheyenne River watershed and all other sources of contaminants, including, but not limited to, pharmaceuticals and personal care products from Missouri River public wastewater systems and non-point insecticides and pesticides.

The Oglala Sioux Tribe continues to fully and completely oppose the approval of construction of the TransCanada Keystone XL Pipeline. We have called on the President of the United States to deny a permit to Keystone XL. We have also made detailed arguments to the President and State Department outlining why Keystone XL is not in the national interest. The Tribe, however, cannot control the future actions of the Department of State and Department of Interior and their agencies with respect to Keystone XL.

As the President of the Oglala Sioux Tribe, therefore, I will look to the Secretary of the Interior as Trustee to protect our interests in OSRWSS pipeline integrity and water source protection in the streams that eventually enter Lake Oahe and our intake at Echo Point. I will rely on the agencies and officials that you designate to take appropriate steps and keep me fully informed. To further present our concerns, a meeting is requested with you on February 19, 2015.

Your attention to this important matter is greatly appreciated.

Sincerely,

John Yellow Bird Steele, President

Oglala Sioux Tribe

cc Estevan Lopez, Commissioner of Reclamation

Mike Ryan, Great Plains Area Director

David Rosenkrance, Dakota Area Manager


January 27, 2015

The Honorable Sally Jewell

Secretary of the Interior

1849CSt.,NW

Washington, D.C. 20042

RE: Proposed Keystone XL Pipeline National Interest Determination

Dear Secretary Jewell:

On behalf of the Oglala Sioux Tribe, we renew our request that you recommend to the Secretary of State that, pursuant to Executive Order 13337, he deny a Presidential permit for the proposed Keystone XL pipeline to cross the border into the United States. The permit should be denied because to allow the proposed pipeline to be built would not serve the national interest. We made this request of you on March26, 2014, by letter from Bryan V. Brewer, who was then the President of the Oglala Sioux Tribe. In the event that the Secretary of State were to decide to issue such a permit, then we ask you to ask the Secretary to refer the application to President Obama, along with a recommendation from you that the President deny the permit.

The Oglala Sioux Tribe is strongly opposed to this proposed pipeline for many reasons. We have informed the Secretary of State of our views, in a letter, position paper, and Tribal Executive Committee resolution. Our March 26, 2014, letter transmitted a copy of that letter and supporting documents. For your convenience, this letter transmits copies of the earlier correspondence.

In addition, this transmits a one-page statement that summarizes our reasons for believing that the proposed pipeline would not serve the national interest. We ask that you include these reasons in your comments to the State Department which are due on February 2, 2015.

Respectfully,

John Yellow Bird Steele, President

Oglala Sioux Tribe

Enclosures

Honorable Sally Jewell

January 27,2015

Page 2

Cc: Michael L. Connor, Commissioner, BOR

Kevin Washburn, Assistant Secietary- Indian Affairs, BIA


United States Department of the Interior

BUREAU OF RECLAMATION

Great Plains Regional Office

P.O. Box 36900

Billings,MT 59107-6900

IN REPLY REFER TO: GP-4200 ENv-6.00

March 14, 2014

Ms. Genevieve Walker

Project Manager

U.S. Department of State

2201 C Street NW, Room 2726

Washington, D.C. 20520

Subject TransCanada Keystone XL Pipeline, Bureau of Reclamation Required Crossing Criteria

Dear Ms. Walker:

Thank you for including Reclamation's crossing criteria in the Keystone XL Project Final Supplemental Environmental Impact Statement (SEIS, January 2014). In our recent review of the SEIS, specifically Appendix D containing Required Crossing Criteria for Reclamation Facilities, we would like to make a clarification with regard to the two sets of crossing criteria included. One is identified as Required Crossing Criteria for Reclamation Facilities (August 2010, Revised: April2013), and the other is Engineering and Operation& Maintenance (O&M) Guidelines for Crossings (April 2008).

Crossing criteria in the revised 2013 version were prepared for the proposed Keystone XL Project to address unique characteristics of the pipeline crossings, including revisions of crossings of the Mni Wiconi Project. We note that the 2013 criteria differ in certain specifications from 2008 guidelines. Given the overlap and differences between the two versions, we are writing to clarify that Reclamation's 2013Required Crossing Criteria takes precedence over the 2008Engineering and O&M Guidelines for Crossings.

We appreciate your attention to this issue. If you have any questions regarding this, please contact Vernon La Fontaine at 406-247-7720.

Sincerely,

Michael J Ryan, Regional Director

cc: President Bryan Brewer

Oglala Sioux Tribe

P.O. Box 187

Pine Ridge, SD 57770-2070

Mr. James H. Odem

Regional Project Manager

Keystone XL Pipeline

TransCanada

2700 Post Oak Boulevard, Suite 400

Houston, TX 77056

Mr. Frank Means, Director

Oglala Sioux Rural Water Supply System

P.O. Box 610

Kyle, SD 57752-6110

 


United States Department of the Interior

BUREAU OF RECLAMATION

Great Plains Regional Office

RO. Box 36900

Billings, MT 59107-6900

DEC 12 2013

Ms. Genevieve Walker

NEPA Coordinator

U.S. Department of State

2201 C Street NW, Room 2726

Washington, D.C. 20520

Subject: TransCanada Keystone XL Pipeline, Mni Wiconi Project, Oglala Sioux Rural Water Supply

System (OSRWSS) Core System Crossing Criteria, Mni Wiconi Project, South Dakota

Dear Ms. Walker

Enclosed please find TransCanada Corporation's October 10, 2013, response to the Bureau of

Reclamation's inquiry regarding the Oglala Sioux Tribe's May 2, 2013, request for additional measures for the Keystone XL pipeline crossing the North Core and South Core pipelines of the Mni Wiconi Project The additional measures requested were above and beyond those included in the "Mni Wiconi Project, OSRWSS Core System Crossing Criteria for the TransCanada Keystone XL Project" transmitted from Reclamation to your office on April 22, 2013. Reclamation is not planning to revise the April 22, 2013, crossing criteria.

In the April 22, 2013, letter we requested that the Department of State include language in the Record of Decision, should the project be approved, to make Reclamation's crossing criteria a requirement of the construction phases and the operational life of the pipeline. Please note that your March 2013 draft Supplemental Environmental Impact Statement Appendix D contains the previous version of our crossing criteria and will need to be updated to include the revised April 22, 2013, crossing criteria.

We appreciate your attention to this issue. If you have any questions regarding this, please contact

Mr. Arden Freitag at 701-221-1250.

Sincerely,

Michael J. Ryan, Regional Director

Enclosure

cc: Mr. Bryan Brewer

President, Oglala Sioux Tribe

P.O. Box 2070

Pine Ridge, SD 57770

Mr. James H. Odem

Regional Project Manager

Keystone XL Pipeline

TransCanada

2700 Post Oak Boulevard, Suite 400

Houston, TX 77056 (w/encl to each)

Mr. Frank Means

Director,OSRWSS Project Officer

P.O. Box 610

Kyle, SD 57552

be: GP-1000, GP-4200 (LaFontaine)

DK-2000 (SSchelske, DKarsky AFreitag),DK-2002(THall)

(w/encl to each)

WBR:VLaFontain:bscott:12/9/2013:406-247-7720

T:\RMSG\4200\LaFontaine\Final Letter Tiansmitting TransCanada Response to State Dept (1)

121013L.docx



 

United States Department of the Interior

BUREAU OF RECLAMATION

Great Plains Region

PX). Box 36900

Billings, Montana 59107-6900

APR 2 2 2013

Mr. Jim Stobaugh

National Project Coordinator

Bureau ofLand Management

1340 Financial Blvd.

Reno,NV 89520-0006

DearMr. Stobaugh:

The Bureau of Reclamation (Reclamation) is providing final crossing criteria (enclosed) for guiding construction of the proposed TransCanada Keystone XL pipeline across Reclamation facilities. We are requesting the Bureau of Land Management include the enclosed document in the Final Plan of Development. Concurrently, we are submitting the criteria to the Department of State and requesting its inclusion in the Supplemental Environmental Impact Statement. Reclamation is providing copies of the criteria to TransCanada, the Oglala Sioux Tribe, and irrigation district managers of Reclamation project facilities crossed by the pipeline.

The final crossing criteria present reasonable and necessary measures for the proposed pipeline crossings of Reclamation water project infrastructure. The proposed pipeline crosses Reclamation facilities at seven places, all on private lands in Montana and South Dakota. Reclamation provided draft criteria to the Oglala Sioux Tribe, affected irrigation districts, TransCanada, and a professional consulting firm for comment. The final criteria allow for site-specific adjustments that may be necessary during construction. Each party may have representative field personnel responsible for coordinating construction at the crossings.

Under 43 CFR 429, Reclamation would issue TransCanada a letter of Acknowledgement of Easement Crossing including the criteria as terms and conditions. This consent document addresses Reclamation's easement rights to use and enjoy the private lands for the purpose of operating and maintaining water pipelines and related facilities. We are also requesting the Department of State to include language in the Record of Decision, should the project be approved, to make Reclamation's crossing criteria a requirement for the construction phases and for the operational life of the pipeline.

Thank you for considering Reclamation's request. If you have any questions on the information provided or need additional information, please call me at 406-247-7600 or Vernon La Fontaine at 406-247-7720.

Sincerely,

Michael J. Ryan, Regional Director

Enclosure -2 copies

cc: Ms. Genevieve Walker

U.S. Department ofState

Bureau of Oceans and International

Environmental and Scientific Affairs

2201 C Street, NW OES/ENV Room 2657

Washington, D.C 20520

Honorable Bryan Brewer

President, Oglala Sioux Tribe

P.O. Box 2070

Pine Ridge, SD 57770

Mr. Jim White

TransCanada

450 -1st Street S.W.

Calgary, Alberta

Canada T2P5H1

Mr. Steven Marr, P.E.

Manager, U.S. Pipeline

Keystone Pipeline Project

TransCanada Pipelines Limited

2700 Post Oak Blvd., Suite 400

Houston, TX 77056

Jon A. Schmidt, Ph.D.

Vice President

Environmental and Regulatory Services

Exp Energy Services, Inc.

1300 Metropolitan Blvd.

Tallahassee, FL 32308

Mr. Dave Sire

Office of Environmental Policy and Compliance

1849 C Street, NW- MS2462-MIB

Washington D.C. 20240

(w/encl to all)


 


United States Department of the Interior

BUREAU OF RECLAMATION

Dakotas Area Office

P.O. Box 1017

Bismarck, Norm Dakota S8502

DK-2000 APR 2 4 2013

PRJ-28.00

Honorable Bryan Brewer

President, Oglala Sioux Tribe

P.O. Box 2070

Pine Ridge, SD 57770

Subject: TransCanada Keystone XL Pipeline Crossing of the Mni Wiconi Project Pipelines -

Final Crossing Criteria

Dear President Brewer:

The Bureau of Reclamation sent you a letter on February 6, 2013,which explained that Reclamation would need to establish the conditions for the Keystone XL pipeline crossing of the Mni Wiconi project to ensure that TransCanada's proposed project does not interfere with the easements or endanger the Mni Wiconi Project pipeline. Those conditions are identified in crossing criteria which was attached to the February 6, 2013, letter. Reclamation has completed reviews of the crossing criteria and also discussed the crossings with TransCanada. The purpose of this letter is to transmit the final version of the "Mni Wiconi Project OSRWSS Core System Crossing Criteria for the TransCanada Keystone XL Project," which is enclosed in this letter, and to inform you how that crossing criteria will be used in the future.

Our Regional Office provided you, under a separate letter the "TransCanada Keystone XL Pipeline, Required Crossing Criteria for Reclamation Facilities" which covers the all of the Keystone XL pipeline crossings of Reclamation lands. The first section of that document covers the Mni Wiconi Project The document was submitted as part of the Department of the Interior's comments on the Department of State's Keystone LX Pipeline Supplemental Environmental Impact Statement which is currently out for public review. Reclamation also submitted the same crossing criteria document to the Bureau of Land Management which represents the interest of the Department of the Interior in accordance with the Minerals Leasing Act.

The crossing criteria addresses two crossings of the Mni Wiconi Core pipeline. It requires TransCanada to bore under me South Core pipeline (steel) with a safe clearance. The North Core pipeline, however, will be relocated deeper in the ground so the Keystone XL pipeline can be installed above the North Core pipeline (PVV) with a safe clearance distance. Relocating PVC water pipelines under the oil pipeline is the method normally used for PVC water pipelines by rural water systems in South Dakota and was recommended in the "Improving Safety of Crude Oil and Regional Water System Pipeline Crossings" report prepared by South Dakota State University. Reclamation is in the process of developing an agreement with TransCanada to relocate the Norm Core pipeline. West River/Lyman-Jones (WR/L-J) has 35 similar crossings and is negotiating with TransCanada to reimburse their relocation costs. WR/L-J will hire a contractor to construct the 35 pipe relocations and has tentatively agreed to relocate the North Core pipeline under the same contract, with Trans Canada reimbursing WR/L-J for that cost. Reclamation has also contacted the landowner at the North Core and Keystone XL pipeline crossing location to notify them of the proposed relocation of the North Core pipeline on the existing easement.

The final step in the process before TransCanada can construct the Keystone XL pipeline through the Mni Wiconi project easements is for Reclamations to send TransCanada a “consent document.” This document does not grant permission to cross the lands but is simply an acknowledgement that the Keystone XL pipeline crossings will not interfere with or endanger the United States use of the lands if the conditions of the crossing criteria are followed.

If you have any questions or further concerns regarding this letter or other TransCanada Keystone XL Pipeline issues, please contact Arden Freitag at (701)-221-1250, or me at (701)-221-1201.

Sincerely,

Richard L. Long, Area Manager

Enclosure

cc: Mr. Frank Means, Director

Oglala Sioux Rural Water Supply System

Core System

P.O. Box 610

Kyle, SD 57752-6110

Mr. Dean B. Suagee, Of Counsel

Hobbs Straus Dean& Walker, LLP

2120 L Street NW, Suite 700

Washington, DC 20037

Mr. Ray Ecoffey

Acting Manager

Oglala Sioux Rural Water

Supply System Core System

P.O. Box 1209

Ft Pierre, SD 57532

Mike Watson, P.E.

4452FoxView Loop

Helena, MT 58602

Mr. Mario Gonzales

P.O. Box 334

Blackhawk, SD 57719

Mr. Gavin M. Frost, Attorney

Rocky Mountain Region

Billings Field Office

Office of the Solicitor

U.S. Department of the Interior

316 Norm 26th Street, Room 3005

Billings, MT 59101

Mr. Don LeBeau Mr. Paul little

Coreline Field Supervisor Oglala District Councilman

Oglala Sioux Rural Water Tribal Hall

Supply System Core System P.O.Box 2070

P.O. Box 1209 Pine Ridge, SD 57770

Ft Pierre, SD 57532


Mni Wiconi Project, OSRWSS Core System Crossing Criteria for the TransCanada Keystone XL Project

Background Information: The Mni Wiconi Project in South Dakota includes the Oglala Sioux Rural Water Supply System (OSRWSS Core System) which delivers potable water from the vicinity of Fort Pierre, South Dakota, south to three Indian reservations and a non-Indian rural water system. The OSRWSS Core System has two major conveyance pipelines, the South Core line and North Coreline. The South Core line runs directly south of Fort Pierre while the North Core line runs west of Fort Pierre about 40 miles and then south. At the proposed Keystone XL Pipeline crossings the South Core Pipeline is constructed of 24 inch diameter steel while the North Core pipeline is constructed of 14 inch PVC.

Interruption of Service during Keystone XL Construction: TransCanada shall make provisions acceptable to Reclamation and OSRWSS for any activity conducted by TransCanada that causes water service in the OSRWSS Core System pipeline to be interrupted during Keystone XL construction. Under no circumstances shall the South Core and North Core pipelines have interruptions in water service at the same time. Such provisions shall include advance notification of the service interruption and temporary facilities to continue water service for interruptions lasting longer than 12 hours.

General Crossing Criteria:

• Not later than 10 days before start of construction, TransCanada shall provide OSRWSS and Reclamation with notice of the start of construction in the vicinity of the crossing to facilitate monitoring and observation

• TransCanada shall be responsible for addressing landowner concerns, issues and interests within the OSRWSS right of way of easement

• A minimum, clearance of 6 ft between the TransCanada Keystone XL Pipeline and the OSRWSS Core System potable water pipelines at both crossing shall be maintained.

• TransCanada must design its crossing such that the OSRWSS Core Pipeline suffers no reduction in working pressure rating or pipeline integrity due to the operations of TransCanada will design the Keystone XL pipeline at both crossings with a 50 percent working pressure factor (as referenced in Appendix M of the Plan of Development). The higher pressure rated pipe should extend through the existing OSRWSS Core rights of way at both crossing locations.

• TransCanada shall install above ground signage (noting Keystone Pipeline location), and provide copies of as-built drawings of the Keystone XL Pipeline location) and provide copies of as-built drawings of the Keystone XL Pipeline crossings OSRWSS and Reclamation within 90 days of substantial completion of the crossing. The as-built drawings will show the location of the Keystone XL Pipeline, the OSRWSS Core System pipelines and the fiber optic cables. The drawings will denote the latitude and longitude coordinates at each crossing location.


South Core Pipeline Crossing Criteria:

NW¼, Section 36, TIS, R29E, Jones County

• The following drawings depict de3tails of the OSRWSS pipeline in the vicinity of the crossings.

1. Drawing G-3 showing the general location of the ORSWSS steel pipeline crossing

2. Drawing C-40 showing the plan and profile of the OSRWSS steel pipeline crossing

3. Drawing CP-1 showing the Corrosion Protection (CP) Details

• TransCanada shall provide OSRWSS and Reclamation with drawings and specifications for review and comment of all features of construction at the crossing, including cathodic protection. The cathodic protection design is of particular concern to assure it does not impact the South Core pipeline of its cthodic protection system. Comments will be provided to TransCanada which shall be incorporated into the final prohect Plan of Development.

• TransCanada shall bore under the OSRWSS South Core Pipeline right of way, which is 75 feet wide.

• The OSRWSS South Core line (24 inch diameter steel) is protected by an induced current ground bed. TransCanada must coordinate and correspond with OSRWSS’s and Reclamation’s corrosion experts prior to developing crossing plans to assess the potential impacts of interference of its pipeline.

• TransCanada shall install test stations as shown on Drawing CP-1. An alternate design/location of the corrosion protection test station may be used if mutually acceptable.

• TransCanada shall not case the Keystone XL Pipeline crossing under the OSRWSS South Core line due to potential cathodic protection interference problems. If this is not possible, then TransCanada must provide a cathodic protection plan for review, comment, and approval from OSRWSS and Reclamation which accounts for the casing pipe.

• OSRWSS has a buried fiber optic cable installed above the South Core pipeline that was placed by plow; its precise location is unknown. The burial depth information provided on the drawings is for information purposes only. TransCanada shall take whatever precautions necessary to avoid damaging the buried fiber optic cable.

North Core Pipeline Crossing Criteria:

NE¼, Section 8, T2N, R23E, Haakon County

• TransCanada shall provide OSRWSS and Reclamation with drawings and specifications for review and comment of all features of constructions at the crossing. Comments will be provided to TransCanada which shall be incorporate into the final Project plan of Development

• The North Core pipeline (14 inch PVC) pipeline will include a casing pipe using fused joint PVC pipe designed with sufficient diameter and wall strength for the burial conditions. Ends of casing pipe will be sealed.

• The casing pipe will have a minimum total length of 300 feel (150 feet each side of crossing) or longer depending on allowable deflection of the North Core pipeline (14 inch PVC) and fused joint PVC pipe.

• The North Core pipeline relocation shall be designed and constructed in accordance with industry acceptable standards including applicable American Water Works Association manuals and 10 States Standards-Recommend Standards for Water Works.

• The North Core pipeline relocation site will be reclaimed as near as possible to it’s condition prior to the disturbance. The North Core pipeline will be relocated in a manner that causes the least interference to the landowner and their use of the land and if any injury is necessarily done to appurtenances such as roads, ditches, drainage, fences, vegetation, etc., it will repair or replace the same or will pay the landowner for such injury.


Oglala Sioux Tribe

Office of the President

PO Box 2070

Pine Ridge. SD 57770

Phone: 605.867.5821

Fax 605.867.6076


March 5, 2014

The Honorable John Kerry

Secretary

U.S. Department of State

2201 C Street NW

Washington DC 20520

RE: Proposed Keystone XL Pipeline National Interest Determination

Dear Mr. Secretary:

As Secretary of State, you are faced with an awesome responsibility. Pursuant to Executive Order 13337, you are charged with determining whether it would serve the national interest to allow the construction of the proposed Keystone XL pipeline. It is not in the national interest. On behalf of the Oglala Sioux Tribe, we call on you to acknowledge this and deny the proposed pipeline a permit to cross the border into the United States.

The Oglala Sioux Tribe remains strongly opposed to this proposed pipeline for many reasons, as we have informed the State Department on numerous occasions. We are concerned about the risk that a spill or leak would contaminate ground water and surface water, including the Missouri River and its tributaries. We are particularly concerned about the risk to our rural water supply system, the Mni Wiconi Project. A major part of the route of the proposed pipeline would be located within our ancestral homelands, which includes but is not limited to the territory of the Great Sioux Nation, as recognized in the Fort Laramie Treaties of 1851 and 1868. There are many places within our ancestral homelands that are sacred for us, including burial grounds, and we believe that the programmatic agreement is inadequate to avoid the desecration that would result from building the pipeline through our Treaty territory. We are appalled by the environmental devastation taking place in Canada where the forests are being destroyed for the extraction of tar sands, and where the First Nations are witnessing the loss of wildlife and suffering health impacts. As Native peoples, we believe the American people should not be a party to destroying the boreal forest and depriving First Nations of their human rights, including the right to their means of subsistence.

These reasons are discussed in more detail in our enclosed position paper. We believe that each of these reasons supports a finding that the proposed Keystone XL pipeline is not in the national interest.

We have also enclosed Resolution No. 14-19XB which was adopted by the Executive Committee of the Oglala Sioux Tribe, which reiterates our opposition to the proposed Keystone XL pipeline and calls on you to meet with elected representatives of the Oglala Sioux Tribe and other Sioux Tribes to discuss our objections to the proposed pipeline. Such consultation is explicitly authorized by section 1(e) of Executive Order 13337.

We remind you that on June25, 2013, President Obama said, "Our national interest will be served only if this project does not significantly exacerbate the problem of carbon pollution." We believe it is obvious that the proposed pipeline would exacerbate the climate crisis. We understand that the Final Supplemental Environmental Impact Statement concludes that whether or not the Keystone XL pipeline is built will have no effect on the rate at which the government of Canada allows the boreal forest in northern Alberta to be destroyed for the extraction of tar sands crude. This analysis is flawed. Marketplaces in which energy goods and services are bought and sold respond to and are shaped by governmental policies. America needs policies that will help lead the world in a transition to an economy in which energy needs are met with renewable resources and energy demands are kept within reason through efficiency and conservation. American leadership must start now, and this leadership must start with the rejection of the Keystone XL pipeline on the grounds that it is not in the national interest.

We only have one Mother Earth. In our traditional ways, we are taught to be concerned for the welfare of the seventh generation to come. The next seven generations, and those who come after, are depending on you to make the right decision.

We call on you as an honorable human being to make the right decision and deny the permit for the proposed Keystone XL pipeline.

Respectfully,

Bryan V. Brewer, President

Enclosures:


RESOLUTION NO. 14-19XB

RESOLUTION OF THE EXECUTIVE COMMITTEE

OF THE OGLALA SIOUX TRIBE

(An Unincorporated Tribe)

RESOLUTION OF THE EXECUTIVE COMMITTEE OF THE OGLALA SIOUX TRIBE REQUESTING HONORABLE PRESIDENT BARRACK OBAMA TO DENY THE KEYSTONE XL PIPELINE A PRESIDENTIAL PERMIT TO CROSS INTERNATIONAL TREATY BOUNDARIES.

WHEREAS, the Secretary of State is authorized by Executive Order 13337 to make a determination as to whether it would be in the National Interest to approve a Presidential permit for the proposed Keystone XL pipeline because said pipeline crosses an international treaty boundary between the United States and Canada along the 49th Parallel, separating Alberta and Montana, and

WHEREAS, the proposed Keystone XL pipeline is designed to be constructed from Morgan, Montana to Steele City, Nebraska, traversing the states of Montana, South Dakota and Nebraska and dissecting the territories of the Great Sioux Nation and the traditional homelands of Oceti Sakowin, and

WHEREAS, to allow construction of the proposed Keystone XL pipeline would not serve the National Interest, and

WHEREAS, the Oglala Sioux Tribe is opposed to this proposed pipeline for many reasons, as we have informed the State Department on numerous occasions, and

WHEREAS, the proposed Keystone XL pipeline threatens to contaminate the source of water for our Mni Wiconi Project, a rural water supply system in which the federal government has invested $450 million, and which delivers safe drinking water not only to the Pine Ridge Reservation but also to the Rosebud Reservation, the Lower Brule Reservation, and many non-Indian communities in southwestern South Dakota, and

WHEREAS, a major part of the route of the proposed pipeline would be located within territory of the Great Sioux Nation, as recognized in the Fort Laramie Treaty of 1851, territory where many sacred places are located, as well as the graves of many ancestors, and

WHEREAS, the Department of State has never properly consulted with the Oglala Sioux Tribe regarding the likely impacts of the construction of the proposed pipeline on our sacred places, and

WHEREAS, the proposed Keystone XL pipeline would enable the Government of Canada to expand the destruction of the boreal forest to expand extraction of tar sands crude, destroying wildlife habitat and poisoning surface waters, inflicting death and diseases upon the people of the First Nations and depriving them of their means of subsistence, and

WHEREAS, as Native peoples, we believe the American people should not be a party to depriving First Nations of their human rights, including the right to their means of subsistence, and

WHEREAS, the extraction, processing, transport, refining, and ultimate combustion of tar sands oil, on the scale planned for the Keystone XL pipeline will release an enormous amount of carbon dioxide, estimated to be 147 to 168 MMTC02e per year, into the atmosphere, and

WHEREAS, we believe that the proposed Keystone XL pipeline would substantially exacerbate the climate crisis by enabling Canada to expand extraction of tar sands crude, and

WHEREAS, we believe that the finding in the Final Supplemental Environmental Impact Statement that regardless of whether the pipeline is built, there will be no change in the rate at which the government of Canada will allow the boreal forest in northern Alberta to be destroyed for the extraction of tar sands crude, is not credible, and

WHEREAS, the stated purpose of the proposed pipeline is to deliver tar sands crude to the Gulf Coast refineries, in response to global market forces, not for energy needs in America, and

WHEREAS the market forces for energy goods and services respond to, and are shaped by, governmental policies, and

WHEREAS, America needs policies that will help lead the world in a transition away from dependence on fossil fuels and toward an economy in which energy needs are met with renewable resources and energy demands are kept within reason through efficiency and conservation, and allowing the Keystone XL pipeline to be built will impede our progress toward our renewable energy future, and

WHEREAS, proponents of the Keystone XL pipeline who have relied upon the supposed job creation and energy independence attributes of this project for the United States find no support for these beliefs in the Findings of the State Department Report, and

WHEREAS, each of the reasons stated above supports a finding that this proposed project is not in the national interest, now

THEREFORE BE IT RESOLVED, that the Oglala Sioux Tribe calls on Secretary of State John Kerry and President Barack Obama to acknowledge that to allow construction of the proposed Keystone XL pipeline would not serve the National Interest of either the United States, or the Great Sioux Nation, and deny the proposed pipeline a permit to cross the border, and

BE IT FURTHER RESOLVED, that the Oglala Sioux Tribe calls on Secretary of State John Kerry to meet with elected representatives of the Oglala Sioux Tribe and other Sioux Tribes to discuss our objections to the proposed pipeline.

C-E-R-T-I-F-I-C-A-T-I-O-N

I, as undersigned Secretary of the Executive Committee of the Oglala Sioux Tribe, hereby certify that this Resolution was adopted by the vote of: 3 For; 0 Against; 0 Abstain, and 0 Not Voting during a

SPECIAL SESSION held on the 15TH day of FEBRUARY, 2014.

ATTEST

Bryan V. Brewer, President

Rhonda Two Eagle

Oglala Sioux Tribe



 

Oglala Sioux Tribe

Office of the President

Pine Ridge Indian Reservation

Post Office Box 2070

Pine Ridge, South Dakota 57770

Phone: 605.867.8420

Fax 605.867.6076

bryan@oglala.org

 

THE KEYSTONE XL PIPELINE IS NOT IN THE NATIONAL INTEREST

Position Paper of the Oglala Sioux Tribe

 

Enclosure to the March 5, 2014, Letter from

Oglala Sioux Tribal President Bryan Brewer to Secretary of State John Kerry

The Oglala Sioux Tribe remains strongly opposed to the proposed Keystone XL Pipeline for many reasons and encourages the Department of State to agree that the proposed pipeline is not in the national interest of the United States.

The Oglala Sioux Tribe is concerned about the risk that a spill or leak of tar sands crude would contaminate groundwater and surface water, including the Missouri River and its tributaries. A spill could contaminate the source of water for our Mni Wiconi Project, the rural water supply system for the Pine Ridge Indian Reservation. The proposed pipeline would be located within our ancestral homeland, which we shared with our relatives of the Oceti Sakowin.

Our ancestral homeland includes, but is not limited, to the treaty territory of the Great Sioux

Nation, as recognized in the Fort Laramie Treaties of1851 and 1868. Within our ancestral homeland, there are a great many cultural resources and artifacts, graves of ancestors, and traditional and naturally significant places that are sacred to us. The programmatic agreement for compliance with the National Historic Preservation Act, which was developed without our proper involvement, is inadequate to avoid the destruction of cultural resources and burials that will result if the pipeline is built. The Oglala Sioux Tribe believes that the United States should not be a party to the environmental destruction occurring in Canada from the extraction of tar sands and the resulting negative impacts on the First Nations of Canada, impacts that constitute violations of their human rights as indigenous peoples. The proposed pipeline would exacerbate the climate crisis. The analysis of this issue in the Final Supplemental Environmental Impact Statement is deeply flawed. As President Obama has said, exacerbating the climate crisis is not in the national interest.

The United States should be a leader for the world in establishing energy policy to deal with the climate crisis. The United States should help lead the transition toward an economy in which most of our energy needs are met with renewable resources. Rejecting the Keystone XL pipeline as not in the national interest would be a major step leading in the right direction.

WATER RESOURCES

The proposed Keystone XL (KXL) pipeline threatens to contaminate the source of water for our Mni Wiconi Project, a rural water supply system in which the federal government has invested $450 million. The Mni Wiconi Project Act, Pub. L. No. 100-516, as amended, specifically states that the United States has a trust responsibility to ensure that adequate and safe water supplies are available to meet the economic, environmental, water supply, and public health needs of the Pine Ridge Indian Reservation, the Lower Brule Sioux Reservation and the Rosebud Sioux Reservation. Section 2(a)(5). The Mni Wiconi Project helps to carry out the United States' trust responsibility in this regard. The United States' trust responsibility requires

an appropriate level of care, skill and diligence with respect to the KXL pipeline and its potential impacts on the Mni Wiconi Project and the water supply on Indian reservations.

The FSEIS's risk analysis, however, of potential spills is inadequate. Additionally, there

Is no real consideration of potential impacts of the KXL pipeline on the Mni Wiconi Project It is not in the national interest to risk contamination of our Mni Wiconi Project water or damage to our Mni Wiconi Project from the operation and construction of the KXL pipeline.

Pipeline Crossings.

The KXL pipeline would cross the Mni Wiconi distribution infrastructure. We have previously informed the Department of our concerns regarding these crossings. Yet, to date our concerns have not been adequately addressed.

In addition to design and construction specifications that TransCanada must be required to use if the KXL pipeline is built, provision must be made to ensure that the Mni Wiconi Project continues to operate without interruption. TransCanada must construct a fail-safe backup system in the event of a KXL pipeline-caused Mni Wiconi failure. Any damage to the Mni Wiconi

Project would need to be paid for by TransCanada. The FSEIS has not satisfactorily addressed these issues.

The Intake.

Ensuring the Mni Wiconi Project will not suffer the consequences of an upstream oil spill\ I is of critical importance to the Tribe. The Mni Wiconi surface water intake is located on the

Missouri RivernearPierre,SD. If a release were to reach the intake, the impacts on the Mni

Wiconi Project would be catastrophic. The Draft SEIS contained no analysis of possible impacts, potential releases, or cumulative effects of an oil spill on the Mni Wiconi surface water intake. The FSEIS includes a brief discussion of this issue. At 4.3-19.

Yet, the brief discussion of this issue in the FSEIS is inadequate and unreasonable. The

FSEIS risk analysis assumes that an oil spill will pollute rivers for no more than ten miles. The

FSEIS also states that "crude oil materials such as tar balls could travel farther than ten miles but would not have a widespread effect on surface water resources." Limiting the impact assessment in this way is no treasonable. The kind of oil to be pumped through the KXL pipeline is prone to sinking towards the bottom of rivers or other water sources. It has dissolved components mat could be slowly released back to the water column for many years after the release.

The spill into the Kalamazoo River in July 2010 involved the same type of crude as that to be carried by the KXL pipeline (diluted bitumen or "dilbit" oil). That spill affected 36 miles of the River.1 That spill was carried dozens of miles downstream before sinking to the riverbed, and continues to present clean up problems today. The discussion in the FSEIS at 4.3-19 ignores this recent experience, even though the FSEIS elsewhere acknowledges that "sinking oil can be deposited in river or stream bottoms and become a continual source of release over time." At ES-19. A spill like the Kalamazoo spill along the Missouri or its tributaries which would reach the intake would be devastating. The FSEIS somehow predicts that a spill which would reach the Mni Wiconi intake is an event that is likely to occur once in between 18,000 and 47,500 years. This prediction is preposterous. Spills happen -1,692 of them happened between 2002 and 2012. At ES-18.

While the FSEIS states that it addresses possible risks to high consequence areas (HCAs), it does not address the possible risks to the Mni Wiconi intake facility despite the fact that it meets the definition of "high-consequence area" (HCA)2 and the Mni Wiconi Project meets the definition of a "Community Water System" in 49 C.F.R. §195.6(c).3 Accordingly, the Mni Wiconi intake must be considered but an unusually sensitive area and an HCA. Despite this, the FSEIS does not address possible consequences of a spill with regard to the Mni Wiconi intake. The analysis in the FSEIS is therefore incomplete. The analysis of threats to HCAs relies on Appendix P, which is dated 2009 (and was apparently part of the original draft EIS). We found no discussion in the FSEIS to recognize that the Mni Wiconi intake is an HCA.

We also point out that the FSEIS does not even consider all the tributaries upstream of the Mni Wiconi intake even though we previously stated our concern with the KXL pipeline crossing the Missouri River in Montana, and the Cannonball River, Grand River, and Moreau River crossings in the Dakotas. The Cannonball River, Grand River, Moreau River and Cheyenne River individually and collectively enter the Missouri River in Lake Oahe, the Pick Sloan Reservoir immediately upstream from the Mni Wiconi Project intake.

It is in the national interest to ensure clean, safe drinking water for Tribal peoples to whom the United States bears a trust responsibility. Jeopardizing our water resources does not serve the national interest.

SACRED AND CULTURAL PROPERTIES INOURTREATY TERRITORY

Much of the proposed KXL pipeline would be located within the territory of the Great Sioux Nation as recognized in the Treaty of Fort Laramie of 1851 and 1868. We must also note that the territory recognized in those Treaties does not include all of the territory that our ancestors inhabited, which we consider our ancestral homelands and burial grounds. The Oglala Lakota, who derive from a larger Nation commonly known as the Oceti Sakowin or Seven Council Fires of Lakota, Dakota, and Nakota peoples have inhabited a vast land base and hunting territory as a shared and collective resource since time immemorial. Historically speaking, our people had annual purposeful travels from one seasonal camp site to the next, and we followed our brothers the buffalo through a pathway of life that supported our entire existence all within our aboriginal/ancestral homelands. These homelands encompass a landscape in the Great Plains region that covers parts of ten present-day states as well as part of Canada. This landscape retains millions of burials, ceremonial and prayer loci, artifacts, petroglyphs, habitation locales, and sites of traditional religious and cultural significance to our Lakota peoples.

The National Historic Preservation Act (NHPA) recognizes that it is in the national interest to preserve places that are eligible for the National Register of Historic Places. The review process pursuant to NHPA section 106,16 U.S.C. §470f; as implemented through regulations issued by the Advisory Council on Historic Preservation (ACHP), 36C.F.R. part 800, requires federal agencies to take into consideration the effects of any proposed undertaking on places that are listed on or eligible for the National Register. The section 106 process is intended to make sure that if a federal or federally-assisted undertaking would cause damage to places that are listed on or eligible for the National Register, there must be an agreement in place that provides for acceptable mitigation measures. The NHPA recognizes that places which hold religious and cultural significance for Indian tribes may be-eligible for the National Register, and requires federal agencies to consult with any tribe that attaches religious and cultural significance to any historic property that would be affected by a proposed undertaking. 16U.S.C. §470a(d)(6). The ACHP regulations include numerous provisions to implement this statutory requirement to consult with tribes.

In this case, the section 106 process has failed. While there is a programmatic agreement (PA), that in itself is an acknowledgment that there will be adverse impacts on properties that are eligible for the National Register.

The Oglala Sioux Tribe decided not to sign the PA because the State Department’s consultation with Tribal Nations in the development of the PA was grossly inadequate and did not fulfill the regulatory requirement that such consultation be conducted in good faith. The current version of the PA is substantively quite similar to the version that was executed in 2011, which the Tribe believes was entered into without a good faith effort to consult with concerned Tribal Nations. There was a lack of good faith on the part of the State Department when the Tribal Nations were contacted in 2011 regarding the proposed PA Tribal representatives were led to believe that a decision on the pipeline had been made - that the pipeline would be approved, without true attention to all of the Tribal Nations affected by this project and regardless of any objections Tribal Nations might raise. Thus, we believe that the Department intended to make it appear to have consulted in good faith while actually only trying to do the bare minimum to pass legal muster.

Though we believe that the State Department's steps to fulfill the requirements of the statute and regulations were grossly inadequate, we see that the FSEIS implies that there was extensive consultation between the State Department and Tribal Nations after the State Department received the new application for the KXL pipeline. ES-26. The FSEIS states that the Department has "continued government-to-government consultations... to ensure that tribal issues of concern are addressed in the consultation process, and to amend and incorporate comments and modifications to the PA as appropriate —"Id. This, however, was not the case. As stated above, the current PA is substantively quite similar to the version that was executed in

2011. Moreover, the State Department's steps to consult with Tribal Nations were limited to issues relating to historic properties, while Tribal Nations sought government-to-government consultation on a wide range of issues, and believed that such government-to-government consultations should have taken place prior to the more narrowly focused section 106 consultation. As one example, the Oglala Sioux Tribe's concerns regarding the Mni Wiconi Project were not addressed despite specifically and persistently raising them to the Department of State throughout the process to date. It is our position that Tribal consultation has been inadequate and remains incomplete, in both the section 106 context and the broader government-to-government context.

The FSEIS states that field studies were conducted between 2008 and 2013 to identify "cultural resources and assess archaeological resources, historic resources, and properties of religious and cultural significance, including traditional cultural properties." ES-25. The FSEIS states that "As of December 2013, most of the proposed Project area has been surveyed for cultural resources." ES-26. The FSEIS attempts to create the impression that there has been extensive involvement of tribes in conducting cultural resource surveys. This impression is not accurate, and we regard it as deceitful. In light of the lack of good faith on the part of the State Department, the Oglala Sioux Tribe did not participate in the field studies and cultural surveys. Our decision not to participate reflects differing cultural worldviews and disagreement regarding the methodology for identification, documentation and recordation of traditional and naturally significant places, or Lakolyakel na echa wankatuya yawa owanka. The approach taken by the State Department did not allow for resolution of such differences.

It is not in the national interest to choose private corporation profit over the cultural resources and historically significant properties of the Native American peoples especially when those resources and properties are integral to our cultural identities and our way of life, and they have not adequately been the subject of section 106 consultation in the required good faith manner. The State Department should have demonstrated the intent to conduct section 106 consultation in good faith by starting with meaningful government-to-government consultation.

CLIMATE CRISIS IMPACTS

The FSEIS asserts that the greenhouse gas (GHG) emissions that would result from allowing the KXL pipeline to be built can be ignored. It is not in the national interest to do so. In the Northern Plains, we are witnessing impacts of climate change, as plants and animal species move in from the south, the patterns of the seasons change, and the web of life is disrupted.

The FSEIS acknowledges that construction and operation of the proposed KXL pipeline would result in an enormous amount of GHG emissions: "The total lifecycle emissions associated with production, refining, and combustion of 830,000 bpd of oil sands crude oil transported through the proposed Project is approximately 147 to 168 MMTC02e [million metric tons of carbon dioxide equivalents] per year." At ES-15. The FSEIS also acknowledges that tar sands crude is about 17percent more intensive in total carbon dioxide emissions (well to wheels) than the average kind of crude oil that is refined in the United States. In addition, transporting the tar sands crude through the proposed pipeline would emit 1.44 MMTC02e per year, which the FSEIS equates to the GHG emissions of about 300,000 cars. Adding the transport emissions to the production, refining, and combustion emissions yields a range of about 148.4 to 169.4 MMTCC fee per year. This would be about equivalent to the emissions of 30.9 to 35.2 million

cars. Regardless of the accuracy of these projections, in terms of order of magnitude, the proposed pipeline would result in an enormous amount of GHG emissions.

The FSEIS uses an invalid implicit assumption to distract attention from the projected actual GHG emissions associated with the tar sands crude that would be transported through the

proposed KXL pipeline. It asserts that emissions associated with the supplies of crude oil that

are currently being processed in the Gulf Coast refineries should be subtracted from the tar sands emissions to derive an estimate of the projected "incremental" emissions. At 4.14-36 - 4.14-40. Through the use of this assumption, the FSEIS estimates that the "incremental" GHG emissions brought about by the KXL pipeline would be1.3 to27.4 MMTC02e per year. This assumption is flawed because, unlike the tar sands crude, the supplies of crude currently being processed in the Gulf Coast refineries are not landlocked. If those supplies of crude are not processed in the Gulf Coast refineries, it seems reasonable to assume that they will be processed somewhere else, and the FSEIS does not offer any explanation for the assumption that those supplies would somehow be removed from the market Accordingly, the analysis in the FSEIS actually indicates that the incremental GHG emissions of the KXL pipeline would be in the range of 148.4to 169.4 MMTC02e per year.

In addition to using that flawed assumption to dramatically underestimate the incremental

GHG emissions of the proposed KXL pipeline, the FSEIS uses a similar technique to present the incremental GHG emissions of the option of snipping tar sands crude by rail in a misleading way. The information presented in table5.3-2 compares the GHG emissions of the rail alternatives to the GHG emissions associated with shipping by the proposed KXL pipeline and the existing southern segment of the KXL). At 5.3-5. This comparison purports to show that the rail alternatives would result in substantially more GHG emissions than the proposed pipeline, about 40 percent more for two of the three rail alternatives. If, however, the emissions projected for rail transport are seen in the context of the aggregate GHG emissions of the proposed project-the range of 148.4 to 169.4 MMTC02e per year as discussed above - the incremental increase would be in less than 3 percent more for rail transport

The presentation of this point appears to be intentionally misleading. Why else does the

FSEIS exaggerate the incremental GHG emissions of shipping tar sands crude by rail while understating the incremental GHG emissions of the entire project?

In any case, the FSEIS asserts that the projected GHG emissions of the proposed pipeline can simply be ignored.

The FSEIS attempts to rationalize this assertion by saying that the decision whether or not to allow the pipeline to be built will not significantly affect the rate of extraction of tar sands.

According to the reasoning in the FSEIS, if this pipeline is not built, the government of Canada will find other ways to get this crude to the world market – the carbon in the tar sands is going to be extracted and burned anyway. Thus, according to the FSEIS, the decision whether to permit the pipeline to cross the border will not in itself contribute to emissions of greenhouse gases. FSEIS at ES-16. This assertion makes no sense.

The assertion that GHG emissions can be ignored is based on a market analysis presented in section 1.4ofthe FSEIS. The market analysis considers a number of scenarios, with multiple variables. While these projected scenarios may have a degree of validity in the near term, they become increasingly suspect as the time frame lengthens. The FSEIS acknowledges "possible scenarios in which production and investment in the oil sands could abate due to extremely low oil prices, regulatory changes, or the development of new technologies or energy sources" but then says that "such factors should not be conflated with the effects of constraints on an individual pipeline." At 1.4-138 (emphasis added). In other words, the FSEIS states that while factors such as low oil prices, regulatory changes, or a worldwide transition to a post-fossil fuels energy economy may operate to limit the extraction of tar sands, such factors should be ignored in making the decision whether to allow a pipeline that will facilitate the GHG emissions caused by 830,000 barrels per day of tar sands crude.

In our view, factors such as low oil prices, regulatory changes, or a worldwide transition to a post-fossil fuels energy economy must be taken into consideration.

Oil prices.

Increases in the costs of production should be expected to constrain tar sands extraction in ways similar to the effects of low prices. Incredibly, the market analysis in the FSEIS does not factor in the price of greenhouse gas emissions. This factor is bound to affect the price of crude oil over the next few decades, whether it is incorporated into the price through emissions allowances or carbon taxes or some other mechanism.

The market analysis concludes that the estimated break-even point for in situ tar sands extraction projects is the price range of$65 to $75 per barrel. As stated in the Executive

Summary, "there could be a substantial impact on oil sands production levels" if the long-term price for West Texas intermediate crude equivalent (WTI-equivalent) were to fell "to around approximately $65 to$75 per barrel, if there were long-term constraints on any new pipeline capacity, and if such constraints resulted in higher transportation costs." At ES-16 - ES-17.

This point is discussed in more detail in the Market Analysis section of the FSEIS, which states,

"Over the long-term, lower-than-expected oil prices could affect the outlook for oil sands production, and in certain scenarios higher transportation costs resulting from pipeline constraints could exacerbate the impacts of low prices." At 1.4-136 -1.4-137; see also 1.4-34 -

1.4-37 (explaining assumed average cost of production cost range of $65 to $75 per barrel for in situ extraction). The FSEIS acknowledges that "this estimated price threshold could change if supply costs or production estimates prove different than estimated" in the FSEIS. At ES-17.

The projected break-even price threshold for tar sands crude could change as a result of increased costs on the supply side as well as from deceases on the demand side. Incredibly, the market analysis does not discuss the cost of GHG emissions as a factor that will affect thebreak even point for tar sands crude.

Over the next few decades, as various mechanisms are used to incorporate the costs of carbon pollution into prices, and as those costs are incorporated into the costs of production, the break-even point can be expected to rise. Using the numbers in the FSEIS as noted above (annual GHG emissions in the range of about 148.4 to 169.4 MMTC02e per year for tar sands crude transported at a rate of 830,000 barrels per day for 365 days a year or302.95 million barrels per year), yields a range of emissions of 0.49 to 0.56 metric ton of CC^e per barrel. This factor should be clearly explained in the FSEIS - reviewers should not have to derive an estimate on their own using the information in the FSEIS.4 The cost of carbon emissions will become a significant factor in the cost of fossil fuels, including tar sands crude, and for the market analysis in the FSEIS to overlook this factor is a major omission.

While currently there is no standard price that is imposed on carbon emissions, many companies have integrated an "internal carbon price" into their business strategies. According to are cent published report, for companies that disclosed their internal carbon price in 2013, the price ranged from $6to $60 per metric ton, with an average for U.S.-based electric utilities of $20 per metric ton and for international oil companies of$40 per metric ton.5 Using the metric tons per barrel range derived in the preceding paragraph, and the $40 per metric ton internal price currently used by international oil companies, the cost of producing a barrel of tar sands crude would be increased in the range of$19.6to $22.4perbarrel. Cost increases in this range might be enough to constrain tar sands extraction, but this factor does not appear to have been considered in the market analysis in the FSEIS.6

We note that the FSEIS does briefly mention the possibility of two scenarios in which there would be a carbon tax: a "New Policies" scenario with a carbon tax of$60 per ton and a "450" scenario with a carbon tax of$120 per ton. At 2.2-43. These scenarios are briefly mentioned in the section of the FSEIS in which it dismisses the potential of renewable energy and conservation for reducing market demand for tar sands crude. At that point, the FSEIS states that these two scenarios would reduce the demand for tar sands crude by 0.5 and 1.4 million barrels per day respectively. Thus, the"450" scenario would reduce demand for tar sands crude by an amount greater than the capacity of the proposed KXL pipeline (1.68 times greater). Yet the FSEIS dismisses the projection, and the market analysis section ignores it

In the absence of regulatory mechanisms to make the prices charged for fossil fuels incorporate the societal and environmental costs of carbon pollution, such costs will be borne by the public. Such costs could be estimated by using "Technical Support Document" prepared by the federal Interagency Working Group on Social Costs of Carbon. That Technical Support Document presents a range of values at five-year increments from 2010 to2050, using three different discount rates. In the mid-range set of values, using a3.0percent discount rate, the social cost of carbon in 2015 is $38 per metric ton, rising to $62 per metric tonin2040 (an out year in which the proposed pipeline would still be in use). If these costs are not internalized into the price of tar sands crude, then the public would, in effect, be subsidizing extraction by absorbing these costs. As the public becomes better informed about this hidden subsidy, the public might decide that the subsidy should be eliminated. That might push the cost of extraction over the break-even point.

As such, even if the social costs of carbon pollution are not internalized into the price of tar sands crude, these costs should be considered in the national interest determination. An4 when these "external" costs are considered, it is apparent that to allow this pipeline to be built is not in the national interest.

Regulatory changes.

Given the recognition of the social costs of carbon pollution and, more generally, awareness of the reality of the climate crisis, it is not reasonable for the market analysis in the FSEIS to simply assume away the adoption of regulatory measures that will affect the market for tar sands crude. As discussed above, such regulatory measures could include taxes on carbon emissions or other measures that would be the functional equivalent of a tax, such as regimes for trading emissions allowances. Regulating GHG emissions, however, is but one way in which regulatory changes could affect the market demand for tar sands crude. A wide variety of regulatory changes are likely to be adopted during the next few decades, i.e., the time frame in which the proposed pipeline would be in operation.

Given the numerous way sin which governmental policies shape energy marketplaces, there are many ways in which governmental policies could be implemented over next decade or so to encourage a transition away from fossil fuels and toward energy efficiency and renewable energy technologies. Some of the existing regulatory programs are briefly discussed in the FSEIS. At 4.14-6-4.14-13. One kind of existing regulatory program mentioned is a low carbon fuel standard (LCFS), noting that such policies have been adopted in California, British Columbia, and the European Union. The FSEIS dismisses such policies with the assertion, "The impact of LCFS on the U.S. market demand for oil sands crude oil is speculative at this time since few jurisdictions have implemented these standards." At 4.14-13.

For the FSEIS to simply assume that the adoption and implementation of such changes in policies will not affect the financial viability of a single pipeline for transporting tar sands crude is not reasonable. The proposal to build the KXL pipeline assumes that it would be transporting tar sands crude for decades, and, over the next few decades, a wide range of governmental policies will be adopted and implemented to promote the transition to a post-fossil fuels economy. These policies are bound to affect the market demand for tar sands crude.

Transition to a post-fossil fuels energy economy.

Closed-minded reasoning is also apparent in the determination in the FSEIS to not give serious consideration to renewable energy and conservation as an alternative to the proposed pipeline AtES-32. This determination is supported by the statement that "the crude oil would be used largely for transportation fuels and, therefore, any alternatives to the crude oil would need to fulfill the same purpose. The analysis found that even with renewable energy and conservation, there would still be a demand for oil sands-derived crude oil." While it is generally true that most large scale renewable energy projects currently produce electric power rather than liquid fuels, it is technologically feasible, over the timeframe in which the proposed pipeline would be operational, for a transition to be underway from internal combustion motor vehicles to electric and plug-in hybrid electric vehicles, and the sources of electric power for such vehicles could increasingly be provided from renewable sources, especially wind and solar.

As noted earlier, the FSEIS does briefly mention the possibility ofa"450" scenario with a carbon tax of$120 per ton. At 2.2-43. The scenario is designed to limit the concentration of carbon dioxide to no more than 450 parts per million (ppm), with the hope of achieving the goal of limiting the increase in mean global surface temperature to no more than two degrees Celsius above what it was in pre-industrial times.

As public awareness grows regarding the impacts and causes of the climate crisis, governmental policies are increasingly likely to be adopted to favor renewable energy over fossil fuels. To simply assert that renewable energy cannot displace a perceived market demand for tar sands crude for transportation is not reasonable.

To some extent, governmental policies will be driven by growing awareness - in the public and among political leaders - that, if we are to have any realistic hope of avoiding the more catastrophic impacts of global warming, we will need to keep most of the known reserves of fossil fuels in the ground. The most authoritative on the science of global warming is the Intergovernmental Panel on Climate Change (IPCC).8 In its Fourth Assessment Report (2007), the IPCC warned of major disruptions in ecological systems if the mean global surface increases in the range of two degrees Celsius above the mean before the industrial revolution. The IPCC's projections indicate that that amount of warming is a virtual certainty unless we accomplish major reductions in GHG emissions, soon. The IPCC has emphasized the importance of renewable energy for achieving reductions in emissions.9

Just how dramatically we need to reduce GHG emissions is not entirely clear. A group of

climate scientists led by James Hansen has concluded that, in order to avoid a tipping point beyond which changes will not be reversible, our policies should be designed so that the atmospheric concentration of carbon dioxide is no higher than 350 parts per million. The concentration level has already reached 400 parts per million. Some analysts have argued that, if we are to have any hope of stabilizing the climate before those irreversible changes happen, we simply cannot afford to allow most of the known reserves of fossil fuels to be extracted and

burned.11

In our cultural traditions, we are taught that we have responsibilities to future generations, and to our relations among other than human beings. These responsibilities require us to become aware of the need to move beyond the fossil fuel economy before it is too late and to carry out such awareness in our actions.

Avoiding the climate catastrophe is not the only reason for leaving the fossil fuel economy behind. Moving into the renewable energy future will also mean more employment opportunities. The International Renewable Energy Agency has published a working paper on its review of a number of studies of the employment prospects in renewable energy deployment, noting one study which found that "the number of jobs generated per dollar of investment or per unit of capacity is generally higher in renewable energy than in fossil fuel generation."12 In contrast, the proposed KXL pipeline is predicted to create only about 50 permanent jobs during operation and about 1,950jobs per year over a two-year construction period. At ES-19.

Realizing the potential for jobs in renewable energy will not just happen on its own; rather, it will require governmental policies to develop an appropriately skilled workforce and to encourage private investment in renewable energy. America needs to help lead the world in making the transition to an economy in which energy needs are met with renewable resources and energy demands are kept within reason through efficiency and conservation. American leadership must start now. Our national interest will be better served by focusing on renewable energy and our national policy should drive private investment toward renewable energy. To permit the KXL pipeline to be built would be the wrong direction for our long-term national interest.

IMPACTS IN CANADA

The extraction and processing of tar sands crude is causing an enormous amount of environmental destruction in the territory currently known as the Province of Alberta* The environmental devastation caused by oil sands extraction inflicts severe adverse impacts on the First Nations of the region. As explained below, these impacts constitute violations of their human rights. It does not serve the national interests of the United States to be an accomplice to such human rights violations.

The impacts of extraction and processing of tar sands are discussed to some extent in section 4.15 of the FSEIS. At 4.15-4-4.15-116. The FSEIS assumes that such impacts will occur regardless of whether the KXL pipeline is allowed and that the consideration of such impacts is solely a matter of Canadian law. This section of the FSEIS reiterates the assumption

in the "Market Analysis" (Section 1.4) that "approval of... the proposed Keystone XL pipeline,

is unlikely to significantly impact the rate of extraction in the oil sands." FSEIS at page 4.15-

104. This assumption is not credible, as previously discussed*.

Denying a permit for this proposed pipeline will constrain the expansion of tar sands extraction in the near term. Such near term constraints will allow time for public awareness to grow regarding the environmental devastation caused by tar sands extraction. As such public awareness grows, governmental policies will be adopted that to constrain the expansion of tar sands extraction and to promote instead the shift to the renewable energy future. If such changes in policy are not adopted, the Canadian public can be expected, sooner or later, to vote out the politicians that refuse to change the national energy policy and vote in politicians who will make the needed changes.

Regardless of whether the constraint on tar sands extraction that would result from stopping this pipeline is substantial or only incremental, the United States should not be a party to depriving the affected Canadian First Nations of their human rights.

According to the FSEIS, there are some 18 First Nations and six Metis settlements in the region where deposits of tar sands are located. At 4.15-114. As indigenous peoples, these groups have certain rights under international law. (This Position Paper does not address the subject of the rights of these groups under Canadian law.) Two of the key instruments in which the rights of indigenous peoples are enshrined are the International Covenant on Civil and Political Rights (the "Covenant") and the United Nations Declaration on the Rights of Indigenous Peoples (the "Declaration").

The Declaration was adopted by the U.N. General Assembly, and is often described as an "aspirational" document Nevertheless, Article 43 proclaims, "The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world." As such, the articles in the Declaration articulate standards that can be used in applying the recognized norms of international human rights law in the context of indigenous peoples. For example, Article 27 of the Covenant proclaims:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The cultures of the First Nations of northern Alberta, like other indigenous peoples, are deeply rooted in the lands and waters where they live. Several of the articles in the Declaration articulate the rights of indigenous peoples to carry on their cultural traditions, including articles 8,11,20,25, and 29. These articles are reproduced below (some in full, some as excerpts):

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

* * *

Article 11 '

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs....

* * *

Article 20 .

1. Indigenous peoples have the right to maintain and develop then: political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 29

1. Indigenous peoples have the right to the conservation and protection of

the environment and the productive capacity of their lands or territories and

resources. ...

* * »

The right to "their own means of subsistence," as stated in Article 20, elaborates on aright that is also enshrined in Article 1ofthe Covenant: "In no case may a people be deprived of its own means of subsistence." For the First Nations of northern Alberta, hunting and fishing are integral aspects of their cultural traditions. And their means of subsistence.

The environmental destruction that is being caused by tar sands extraction violates the human rights principles listed above in many ways. The range and scale of environmental impacts jeopardize the viability of fish and wildlife populations on which the First Nations depend Extraction of tar sands and conversion to crude entails destruction of large areas of the boreal forest. Strip mining involves outright destruction, and in situ extraction also involves an extensive amount of deforestation and destruction of wildlife habitat. Habitat fragmentation is such that the survival of caribou herds is jeopardized. Toxins from waste lagoons seep into streams and rivers, contaminating fish and other aquatic species.

The FSEIS attempts to create the impression that the environmental impacts of tar sands extraction are being adequately controlled, mitigated, and monitored, and that the scale of those impacts should be considered reasonable. The FSEIS is misleading. The Pembina Institute has been monitoring the impacts of tar sands extraction for many years and reporting on its f^

A recent Briefing Note" states:

The public relations campaigns put forward by oils ands proponents speak of a rigorous and robust environmental management system in place to deal with the impacts of oils ands development Although there are some environmental management systems in place and others under development, the policies and processes in place are not proving effective in managing the resulting industrial effects:

• After five years, not a single oil sands producer is complying with Alberta's tailings rules (Directive 074), which provided the first binding requirement for operators to reduce the volume of toxic tailings on the landscape.

• Although Alberta's greenhouse gas regulations are touted as the first such regulations in North America, the stringency of these has not increased since their inception in 2008 and remains at a level too low to provide incentive to reduce emissions.

• Oils ands facilities are not required to stop withdrawing water from the Athabasca River even during periods when river flows are so low that fisheries and habitats are at risk.

• The Alberta government has admitted that monitoring in the oil sands is inadequate and the full impact of these developments remains unknown—while it continues to approve projects that have been shown to result in significant adverse and irreversible environmental effects.

Other Pembina Institute reports present more detailed analyses of the impacts of tar sands extraction and the failures of the Alberta government to adequately regulate such impacts.14 In a "Progress Update" issued in April 2013, Pembina reported lack of progress on a number of fronts.15 For example, a "Joint Review Panel" called for the establishment of an ecological base flow (EBF) for the Lower Athabasca River, such that withdrawals of water for extraction would not be allowed to deplete the River below the levels needed to sustain the ecosystem, but there is still no EBF in place. Alberta is "many years overdue" in implementing a policy to compensate for the loss of wetlands habitat caused by tar sands extraction. Woodland caribou populations continue to decline, and no measures have been identified to conserve remaining habitat Forest restoration efforts have not been effective.

The FSEIS also attempts to create the impression that the provincial government of

Alberta has engaged First Nations in an integrated approach to planning, as described in a2009 document captioned "Responsible Actions: A Plan for Alberta's Oil Sands." (This document is referred to in the April 2013 Pembina "Progress Update" as "Alberta's previous oil sands plan," i.e„ the predecessor to the Lower Alberta Regional Plan (LARP).) Although not mentioned in the FSEIS, First Nations have very publicly withdrawn from engagement in activities related to the LARP.16 As reported, "aboriginal leadership felt the program was no longer listening to their needs." Withdrawal from a monitoring program is but one indicator of resistance by Canadian

First Nations to the environmental destruction caused by tar sands extraction. Canadian First

Nations are also engaged in a number of legal actions.

The FSEIS can be read to provide some insight into the ways in which the First Nations perceive that their concerns are disregarded by the government of Alberta. In its discussion of "Impacts to Aboriginal Groups," the FSEIS notes that six cases of a rare form of bile cancer were reported in Fort Chipweyan between 1995 and2006, and two cases were confirmed. An expert panel, however, found that there was "insufficient evidence to link these cancer incidents to oil sands operations" and "no credible evidence of public reports of elevated cancer rates occurring in Fort Chipweyan associated with exposure to contaminants released by oil sands operations."

At 4.15-114. Such findings can be interpreted by First Nations peoples as willingness by the non-Native society to treat Native people as an experimental population. The implication is that, before taking regulatory action to reduce exposures to contaminants, there first must be longitudinal studies to develop definitive evidence that exposure to contaminants introduced into the environment through tar sands extraction really does cause negative effects on human health. A civilized society should be following the precautionary principle.

The destruction of the forests and wetlands and the poisoning of surface waters are inflicting a great deal of suffering on the First Nations who have called that territory home for countless generations. These are indigenous peoples who depend on hunting, trapping, and fishing as a primary means of subsistence. Their cultural identities as distinct peoples depend upon being able to continue to carry on such traditions. Although the FSEIS does not acknowledge it, the impacts of tar sands extraction deprives Canadian First Nations of their human rights.

The United States of America should not be an accomplice in such human rights violations. We, the Oglala Sioux Tribe, stand with our brothers and sisters of the First Nations. The United States should standup for them.


 

Oglala Sioux Tribe

Office of the President

Pine Ridge Indian Reservation

Post Office Box 2070

Pine Ridge, South Dakota 57770

Phone: 605.867.8420

Fax 605.867.6076

bryan@oglala.org


March 26, 2014

The Honorable Sally Jewell

Secretary of the Interior

1849 C St., NW

Washington, D.C. 20042

RE: Proposed Keystone XL Pipeline National Interest Determination

Dear Secretary Jewell:

On behalf of the Oglala Sioux Tribe, we ask you to recommend to the Secretary of State that he deny a Presidential permit for the proposed Keystone XL pipeline to cross the border into the United States. To allow the proposed pipeline to be built would not serve the national interest. In the event that the Secretary were to decide to issue such a permit, then we ask you, pursuant to Executive Order 13337, to ask the Secretary to refer the application to the President.

The Oglala Sioux Tribe is strongly opposed to this proposed pipeline for many reasons.

We have informed the Secretary of State of our views, in a letter, position paper, and Tribal Executive Committee resolution. This transmits a copy of that letter and supporting documents.

Our reasons for opposition are discussed in detail in the enclosed position paper, and most of our reasons are summarized in this letter. One of our reasons for opposition, the risk to the Mni Wiconi Project, implicates the trust responsibility of the United States.

Cultural Resources and Sacred Places. A major part of the route of the proposed pipeline would be located within our ancestral homelands, which includes but is not limited to the territory of the Great Sioux Nation, as recognized in the Fort Laramie Treaties of 1851 and 1868. The territory recognized in those Treaties does not include all of the territory that our ancestors inhabited, which we consider our ancestral homelands. These homelands encompass a landscape in the Great Plains region that covers parts often present-day states as well as part of Canada. This landscape retains millions of burials, ceremonial and prayer loci, artifacts, petroglyphs, habitation locales, and sites of traditional religious and cultural significance to our peoples. The programmatic agreement that has been entered into for compliance with the National Historic Preservation Act acknowledges that construction of the pipeline would cause damage or destruction to many such places. That programmatic agreement was negotiated without proper consultation with the concerned tribes.

Human Rights of First Nations and Environmental Devastation in Canada. We are appalled by the environmental devastation taking place in Canada where the forests are being destroyed for the extraction of tar sands, and where the First Nations are witnessing the loss of wildlife and suffering health impacts. As Native peoples, we believe the American people should not be a party to destroying the boreal forest and depriving First Nations of their human rights, including the right to their means of subsistence.

The Climate Crisis. Another reason for our opposition to the proposed pipeline is that it would exacerbate the climate crisis. On June 25, 2013, President Obama said, "Our national interest will be served only if this project does not significantly exacerbate the problem of carbon pollution." We believe it is obvious that it would. The Final Supplemental Environmental Impact Statement (FSEIS) includes a market analysis which asserts that whether or not the Keystone XL pipeline is built will have no effect on the rate at which the government of Canada allows the boreal forest in northern Alberta to be destroyed for the extraction of tar sands crude. That market analysis is deeply flawed.

The market analysis in the FSEIS includes a number of assumptions regarding the range of prices that the industry can expect for tar sands crude over the next several decades. These assumptions are incorporated into scenarios, which project that even considering the incremental costs associated with shipping the tar sands crude by rail as compared to the cost of transport by pipeline, the "break-even" price for the tar sands crude will not be exceeded, which means that the corporations with legal rights to extract the tar sands will continue to do so.

Incredibly, none of the scenarios in the FSEIS market analysis considers the likelihood, or even the possibility, that the United States and international community will implement effective strategies to reduce GHG emissions on the order of magnitude needed to some of the more catastrophic impacts of global warming. As the externalities are incorporated into prices, by whatever mechanisms are eventually chosen (e.g„ carbon taxes, cap-and-trade, regulatory controls), the prices for fossil fuels will increase relative to alternatives such as renewable energy technologies and energy efficiency measures. More GHG-dense fossil fuels, such as tar sands crude, will become less marketable as the externalities are factored into prices-this can be expected to drive the cost of delivering tar sands crude to the Gulf Coast refineries over the "break-even" price range. The social costs of the GHG emissions can be seen as a place holder for whatever mechanisms are eventually implemented to achieve meaningful reductions of GHG emissions.

We made this point in our comments to the State Department, but we also note that this point has been made in greater detail in a recent report prepared by the former head of research for Deutsche Bank for Carbon Tracker. James Leaton, et al„ "Keystone XL Pipeline: The 'Significance' Trap," (Mar. 3, 2014), available at www.carbontracker.org/kxl. We commend that report to your attention. Marketplaces in which energy goods and services are bought and sold respond to and are shaped by governmental policies. We have to believe that, over the coming decade or so as the American public becomes better informed about the climate crisis, the people will demand governmental policies to dramatically limit GHG emissions. Those policies will dramatically change the markets for carbon intensive fuels such as tar sands. The market analysis in the FSEIS ignores simply this.

America needs policies that will help lead the world in a transition to an economy in which energy needs are met with renewable resources and energy demands are kept within reason through efficiency and conservation. American leadership must start now, and this leadership must start with the rejection of the Keystone XL pipeline on the grounds that it would not serve the national interest.

Water Resources and the Mni Wiconi Project We are concerned about the risk that a spill or leak would contaminate groundwater and surface water, including the Missouri River and its= tributaries. We are particularly concerned about the risk to our rural water supply system, the Mni Wiconi Project, a rural water supply project which serves the Pine Ridge Indian Reservation, the Lower Brule Sioux Reservation, the Rosebud Sioux Reservation, and many non-Indian communities in southwestern South Dakota as well as two other reservations and non-Indian communities in southwestern South Dakota. The federal government has invested more than $450 million in the Mni Wiconi Project This is a matter on which we ask for your assistance in your capacity as trustee. The Mni Wiconi Project Act, Public Law 100-516, as amended, clearly states that the United States has a trust responsivity to ensure that adequate and safe water supplies are available to meet the economic, environmental, water supply, and public health needs of the three Indian reservations the Project serves.

The proposed Keystone XL pipeline presents two kinds of risks to the Mni Wiconi Project. One kind of risk is that the proposed pipeline would cross several tributaries of the Missouri River upstream from the Mni Wiconi intake structure. A leak or spill of tar sands crude into any of those tributaries could contaminate the Missouri River. The intake structure near Pierre, South Dakota, is downstream from several points at which the proposed pipeline would cross tributaries of the Missouri, and a spill of tar sands crude could have catastrophic consequences. The diluted bitumen could settle into river beds where it would be nearly impossible to remove and then continue to release toxins into the water.

In analyzing the risk of spills into surface water, the FSEIS disregards the risks to rivers and streams more man ten miles downstream from are lease. FSEIS at 4.3-18. In several recent spills, however, the pollution did not stop at the ten-mile limit, e.g., Kalamazoo 2010, Yellowstone 2011. In light of such recent experiences, we have no confidence in assurances by

TransCanada that, in the event of a release of tar sands crude, it would promptly act to control the release, to remediate the damage caused, and to provide alternative supplies of water.

A second kind of threat is posed by the two points at which the proposed Keystone XL pipeline would cross the core pipeline of the Mni Wiconi Project. Construction and operation, including a leak of the Keystone XL pipeline, at either of these points could cause damage to the Mni Wiconi pipelines such that a safe and adequate water supply, assured by Public Law 100- 516,couldnot be delivered to the water users we serve.

By letter dated April 22,2013, the Director of Reclamation's Great Plains Regional

Office transmitted to the State Department "final crossing criteria" for the points at which the proposed Keystone XL pipeline would cross Reclamation facilities, including the Mni Wiconi

Project (We have enclosed a copy of that letter and the crossing criteria for the Mni Wiconi

Project, but not the criteria for other Reclamation facilities, as the enclosures with the letter were quite voluminous.) By letter dated March 14, 2014, the Director of Reclamation's Great Plains Regional Office raised this point again, after having reviewed the FSEIS. We have enclosed a copy of that letter as well.

Reclamation's April 22, 2013, letter was filed as a comment letter on the draft supplemental environmental impact statement (DSEIS) on the proposed Keystone XL pipeline. We note that, by letter dated April 29, 2013, the Derailment of the Interior's Office of Environmental Policy and Compliance filed what appears to be a consolidated comment letter on the DSEIS. The Department's April 29letter, however, does not include any mention of the concerns raised in Reclamation's April 22 letter.

After filing its April 22letter, Reclamation provided the Oglala Sioux Tribe with a copy of the crossing criteria that Reclamation recommended for the two points at which the Keystone

XL pipeline would cross the Mni Wiconi core pipeline. Upon its review, the Tribe concluded that these criteria were not sufficiently protective of the Mni Wiconi Project The Tribe then developed recommendations for additional measures, which were conveyed to Reclamation in a letter dated May 2,2013, and which Reclamation then conveyed to TransCanada (the proponent of Keystone XL), on August 8,2013. The Tribe's recommendations included bypass structures for the two points at which Keystone XL would cross the Mni Wiconi pipeline. The Tribe had also asked for measures for the detection and containment of leaks at the Missouri River, Cannonball River, Grand River, Moreau River, Cheyenne River and other Western Dakota tributary crossings by Keystone. By letter to Reclamation, dated October 10, TransCanada rejected the additional measures that the Tribe had recommended, saying that it "declines to fund construction of the proposed bypasses." In addition to bypasses, the October 10, 2013,

TransCanada letter also rejected the measures proposed for crossing the Missouri River and its tributaries.

After receiving the October 10,2013, TransCanada letter, Reclamation sent a letter to the State Department, dated December 12,2013, (copy enclosed), transmitting a copy of the October 10 TransCanada letter and saying that while it will not push for the Tribe's additional measures, it will insist on its crossing criteria included in the "Mni Wiconi Project, OSRWSS Core System Crossing Criteria for the TransCanada Keystone XL Project" transmitted from Reclamation to the State Department on April 22,2013. The December 12 Reclamation letter also points out that Appendix D of the Draft SEIS contains an earlier version of Reclamation's crossing criteria, and that this "will need to be updated."

We continue to believe that that the additional measures that the Tribe had recommended in our May 2letter are necessary and reasonable. However, should the Keystone XL pipeline be approved, it must at least be held to the criteria prescribed by Reclamation in its April 22 letter, and that crossing criteria must be included in the Record of Decision to make this a legal requirement The trust responsibility of the United States includes taking the steps that are necessary to protect the Mni Wiconi Project from the risks associated with the Keystone XL pipeline's crossing of the Project, in the event that the proposed pipeline is approved.

In light of the omission of this matter in the Department's April 29,2013, letter to the State Department, we request that you take whatever steps are necessary to convey to the State Department that you support Reclamation on this important point.

Thank you for you for your consideration of these issues. We would welcome the opportunity to meet with you to discuss this matter.

Respectfully

Bryan V. Brewer, President

cc: Michael L. Connor, Deputy Secretary

Lowell Pimley, Acting Commissioner, BOR

Kevin Washburn, Assistant Secretary - Indian Affairs, BIA

Mike Ryan, Regional Director, Great Plains Region, BOR

Richard Long, Dakotas Area Office, BOR



 

THE KEYSTONE XL PIPELINE IS NOT IN THE NATIONAL INTEREST

Oglala Sioux Tribe

January 27, 2015

 

The Oglala Sioux Tribe remains strongly opposed the proposed Keystone XL Pipeline. To permit this pipeline to be built would not serve the national interest. On March 5, 2014, a detailed statement of reasons why it would not serve the national interest was conveyed to the Secretary of State by the President of the Oglala Sioux Tribe.

At this time, the Secretary of State has asked the Secretary of the Interior and the heads of other federal agencies, pursuant to Executive Order 13337, to provide their views on whether permitting the proposed pipeline to be built would serve the national interest. We call upon

Secretary of the Interior as the head of the federal agency charged with lead responsibility for carrying out the trust relationship with Indian Tribes, along with the heads of the other federal agencies to tell the truth – tell the Secretary of State that this pipeline would not serve the national interest.

The proposed KXL pipeline presents a substantial risk that spills or leaks would contaminate groundwater and surface water, including the Ogallala Aquifer and the Missouri River and its tributaries. The Missouri River is the source for our Mni Wiconi Rural Water System. The risk of such contamination would not serve the national interest.

Construction of the proposed pipeline within the ancestral homelands of the Great Sioux Nation would result in damage to or destruction of cultural resources and burials, as well as many sacred natural places. The programmatic agreement (PA), which was developed without our proper involvement, is inadequate to avoid the damage and destruction that will result. It would not serve the national interest to permit this damage and destruction to take place.

The environmental destruction occurring in Canada from the extraction of tar sands and the resulting negative impacts on the First Nations of Canada constitute deprivations of the human rights of those First Nations. It would not serve the national interest for the United States to be a party to depriving indigenous peoples of their human rights.

The proposed Keystone XL pipeline would exacerbate the climate crisis. Although the analysis in the Final Supplemental Environmental Impact Statement presents an alternate conclusion, that analysis is fundamentally flawed. It would not serve the national interest for the United States to facilitate access to international markets for the carbon-intensive Alberta tar sands.

The United States should be a leader for the world in establishing energy policy, specifically leading the transition toward an economy in which most of our energy needs are met with renewable resources. Rejecting the Keystone XL pipeline as not in the national interest would be a major step leading in right direction. analysis is fundamentally flawed. It would not serve the national interest for the United States to facilitate access to international markets for the carbon-intensive Alberta tar sands.

The United States should be a leader for the world in establishing energy policy, specifically leading the transition toward an economy in which most of our energy needs are met with renewable resources. Rejecting the Keystone XL pipeline as not in the national interest would be a major step leading in right direction.



Fredericks Peebles & Morgan LLP

Attorneys at law

Thomasina Real Bird

1900 Plaza Drive

Louisville, Colorado 80027

T (303) 673 9600

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E: trcalbirdtondnlaw.com

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January 27,2015

SENT VIA EMAIL AND US CERTIFIED MAIL

Secretary Jewell Bureau of Energy Resources,

United States Department of the Interior Room 4843

OFFICE OF THE SECRETARY Attn: Keystone XL Public Comments

Office of Environmental Policy and U.S. Department of State, 2201 C St. NW.

Compliance Washington, DC 20520

1849 C Street, NW - MS2462-MIB

Washington, D.C. 20240

Email: Sallv.Jewellf&ios.doi.ftov

Dear Secretary Jewell:

I am writing to you on behalf of the Yankton Sioux Tribe to urge the Department of the Interior recommend President Obama reject TransCanada Keystone Pipeline LP's application for its Keystone XL pipeline. The Tribe's public comments previously submitted to the Department of State regarding the Draft and Supplemental Environmental Impact Statement are enclosed for your consideration.

As an initial matter, the Tribe would like to thank you for this opportunity but also to express its heartfelt concern regarding the inadequate consultation and communication throughout this process. Not only has the Department of State failed to consult with tribes in good faith regarding the application, but now the Tribe's trustee, the Department of the Interior, has also chosen not to engage in government-to-government consultation or even grant a meeting with the Tribe.

The timeline allowed for federal agencies to submit final comments was unreasonable. However, the Yankton Sioux Tribe, along with the other member tribes of the Great Plains Tribal Chairman's Association immediately requested a meeting with Secretary Jewell to discuss the Tribe's well-founded concerns about the Keystone XL pipeline. Unfortunately, the Department of the Interior rejected the meeting request without explanation and did not offer an alternative option for the tribes. Moreover, the information leading to the submission of this letter was not provided to the Tribe in a manner that allowed for meaningful participation. The handling of this has been wholly inappropriate and disappointing, to say the least.

Enclosed are the previously-submitted comments from the Yankton Sioux Tribe to the Department of State that communicate the deficiencies in the SEIS as identified by the Tribe as well explain the Tribe's many concerns with the Keystone XL pipeline project. We believe these reason also support a rejection of the application for a presidential permit In addition, the Great Plains Tribal Chairmen's Association Resolution and two letters advocating rejection of a presidential permit are enclosed for your consideration.

Sincerely,

Thomasina Real Bird

Associate

Fredericks Peebles & Morgan, LLP

General Counsel to the Yankton Sioux Tribe

Enclosures:

April 23,2013 Letter of Comment submission on behalf of the Yankton Sioux Tribe

April 21, 2013 Ihanktonwan Treaty Council Comments in Regard to TransCanada, Attachment

1 to Tribe's April 23, 2013 Comment

International Treaty to Protect the Sacred from Tar Sands Projects, Attachment 2 to the Tribe's

April 23, 2013 Comments

Yankton Sioux Tribe Proposed Resolution Demanding the United States Uphold the Rights of the Ihanktonwan Dakota Historical Sites, Attachment 2 to the Tribe's April 23, 2013 Comments

Yankton Sioux Tribe General Council Resolution No. 2013-13, Attachment 4 to the Tribe's

April 23, 2013 Comments

March 10, 2014 Letter of Comment submission on behalf of the Yankton Sioux Tribe

Official Comments of the Ihanktonwan Treaty Committee of the US Department of State,

Attachment 1 to March 10, 2014 Comment Submission

Yankton Sioux Tribe Resolution No. 2014-041, Attachment 2 to the March 10, 2014 Comment

Submission

Yankton Sioux Tribe Resolution NO. 2014-042, Attachment 3 to the March 10, 2014 Comment

Submission

January 11, 2015 Great Plains Tribal Chaiman's Association Letter to President Obama

Regarding Veto Legislation to Approve the Keystone XL Pipeline

Great Plains Tribal Chairman's Association Resolution No. 30-9-928-11

Meeting Request to Secretary Jewell regarding the Keystone XL Pipeline

CC:

Yankton Sioux Tribe Business and Claims Committee

Yankton Sioux Tribe Treaty Steering Committee

Timothy La Pointe, Acting Great Plains Regional Director, BIA, timothy.lapointeC&bia.aov

Ben Kitto, Superintendent, Yankton Agency, BIAbeniimiakitto@bia.gov

OEPC Staff Contact: Carol Braegelmann, Carol.Braegelmannf&ios.doi.gov

Harold Halll: harold.hall&lbia.gov

A. Gay Kingman, GPTCA, Executive Director, kingmanwapatoforushmore.com


 


April 23, 2013 Letter of comment submission on behalf of the Yankton Sioux Tribe

To Whom It May Concern:

Please accept and fully consider these comments on behalf of the Yankton Sioux Tribe. The

Comments of the Yankton Sioux Tribe include this Comment, the Ihanktonwan Treaty Council

Comments in Regard to TransCanada/KXL Pipeline SEIS (Attachment 1), the International Treaty to Protect the Sacred from Tar Sands Projects (Attachment 2), Department of State Consultation Resolution (Attachment 3), and General Council Resolution No. 2013-13 (Attachment 4).

Failure to Consider the Cumulative Impact of the Keystone XL Pipeline

The United States has historically acted both as harbinger and shepherd of environmental protection through its substantive and procedural review process for major federal actions. However, the Draft Supplemental Environmental Impact Statement ("SEIS") for the Keystone XL Pipeline does not provide a satisfactory review process of the pipeline's environmental effects as it sweeps blatant environmental justice issues under the rug, again permitting the indigenous peoples of North America to suffer disproportionate adverse effects. The National Environmental Policy Act ("NEPA") requires that any federal agency contemplating a major federal action significantly affecting the quality of the human environment conduct an Environmental Impact Statement ("EIS") to assemble and analyze environmental information. 42 U.S.C. § 4332(2)(C). Such a requirement maintains a national "look before you leap" policy regarding major federal actions. The EIS is supposed to protect the integrity of agency decision-making by assuring that "stubborn problems or serious criticisms have not been swept under the rug." Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973). Essentially, the EIS is intended to "insure a fully informed and well-considered decision." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978).

NEPA imposes a procedural, rather than substantive, requirement: "(1) to ensure the agency will have detailed information on significant environmental impacts when it makes its decisions; and (2) to guarantee that this information will be available to a larger audience." Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996). "The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." 40 C.F.R. § 1500.1(c). NEPA requires agencies to take a "hard look" at a project's impact to the environment, enabling an analysis of the likely effects that also addresses the potential alternatives. By performing this hard look before committing to any course of action, NEPA provides critical procedural protections for resources at risk. See Conservation Law Foundation v. Watt, 560 F. Supp. 561, 581 (D. Mass. 1983), aff'd by Massachusetts

v. Watt, 716 F.2d 946 (1st Cir. 1983).

In addition to taking a "hard look," NEPA requires that federal agencies also consider the cumulative environmental impacts in its environmental analyses. See Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir. 2002); see also Grand Canyon Trust v. Federal Aviation Admin., 290 F.3d 339, 345-47 (D.C. Cir. 2002). NEPA's regulations provide that "effects" includes ecological, aesthetic, and historic impacts, "whether direct, indirect, or cumulative." 40C.F.R. § 1508.8. "Cumulative impact" is defined as:

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.


Id. § 1508.7. The fact that a project may result in even an incremental increase in the overall impact to a resource is meaningless if "there is no way to determine . . . whether [this small increase] in addition to the other [impacts], will 'significantly affect' the quality of the human environment." Grand Canyon Trust, 290 F.3d at 346. A cumulative impacts analysis must include "some quantified or detailed information." Without such information, neither the courts nor the public can determine whether an agency undertook the necessary "hard look" that is required. Neighbors of Cuddy Mountain v. Forest Service, 137 F.3d 1372, 1379 (9th Cir. 1998). "General statements about 'possible effects' and 'some risk' do not constitute a 'hard look' absent a justification regarding why more definitive information could not be provided." Id. at 1380.

The Draft SEIS provides an inadequate environmental review of the Keystone XL Pipeline's cumulative impact. By finding that the pipeline is not likely to have a substantial impact on the rate of tar sands development, the SEIS understates and disregards the risk posed to human and environmental health. The crux of the SEIS analysis is instead focused on the pipeline itself, rather than the inevitable development spurred by the pipeline. Despite the transient nature of pollution and greenhouse gas ("GHG") emissions, which expanded tar sands development will intensify, the SEIS fails to include the required "quantified or detailed information," merely referencing a Canadian report on the pipeline's environmental effects. Such indirect effects should not be absent from the SEIS merely because the very worst environmental impacts will occur in Canada. By focusing on the environmental impact of the pipeline itself, rather than the intensified pollution and GHG emissions, the SEIS essentially misdirects the focus of the pipeline's impact. As a direct consequence, the SEIS does not inform the public of the potential impacts of the project, as required by NEPA.

Section 1.7 of the SEIS, which examines the Canadian portion of the project, relied upon a

Canadian report concluding "that implementation of the proposed Keystone XL Project in Canada would not likely result in significant adverse environmental effects with incorporation of Keystone's proposed measures to avoid or minimize impacts and with Keystone's acceptance of the NEB's regulatory requirements and recommended conditions attached to the ESR." But this general statement does not constitute the necessary hard look. "[Activities associated with tar sands production are projected to account for more than sixteen percent of Canada's C02 emissions by 2020 and already exceed the emissions of several European countries on an annual basis."1 Aside from the carbon intensive extraction process, expanded tar sand production destroys an important carbon sink in Canada's boreal forests and peat bogs, replacing these with a blighted landscape bespattered with large and unlined toxic tailings ponds."

Further, the effects of climate change should have been given more weight in the SEIS because they result directly from tar sands development. The U.S. Environmental Protection Agency ("EPA") estimates that the quantity of barrels per day of tar sands crude carried by the Keystone XL pipeline would result in the approximate annual emissions of seven coal-fired power plants. Tar sands oil is higher in contaminants and more difficult to extract than conventional sources, resulting in more GHG emissions.4 The colossal carbon footprint from tar sands production will have trans-boundary effects. North America should not be the source for the alarming GHG emissions that will result from increased development at a time when the Earth is on a path toward catastrophic and irreversible climate change. Therefore, the determination that the pipeline is not likely to result in significant adverse environmental effects is misleading since the SEIS does not provide "quantified or detailed information" about the how the pipeline, in addition to the extraction process, will "significantly affect" the quality of the human environment.

NEPA also requires "efforts which will prevent or eliminate damage to the environment" and "understanding of the ecological systems and natural resources." 42 U.S.C. § 4321. A thorough NEPA analysis should consider the full range of a federal project's effects. Because the SEIS does not provide a thorough and adequate understanding of the ecological systems and natural resources that will be affected, the SEIS does not put forth the requisite effort to prevent or eliminate damage to the environment. Though most of the environmental destruction caused by the pipeline will occur in Canada, trans-boundary pollution and GHG emissions will affect the United States. Accordingly, the SEIS provides an inadequate analysis of the pipeline's environmental impacts. In addition to environmental destruction, tar sands development also ravages cultures and communities of the First Nations. Therefore, expanded development directly resulting from the Keystone XL Pipeline will continue to wreak havoc on both the environment and thee aboriginal peoples of Canada. However, this was not addressed in the SEIS.

Indiscriminate Effects on the First Nations of Canada

The United States has a track record of approving projects that indiscriminately affect the most vulnerable portions of the population. Often, these effects fall upon Native Americans. Just as the treaty rights of Native Americans have been historically trampled under the pretense of "progress," the SEIS overlooks the effects of expanded tar sands development on the First Nations, whose health, environment, and treaty rights will all suffer. Therefore, the SEIS should have considered the pipeline's effects on Canada's First Nations.

The purpose statement of NEPA explicitly includes preservation of "important historic, cultural, and natural aspects of our national heritage." 42 U.S.C. § 4331(b)(4); 40 C.F.R. § 1508.08(b). This requirement was expanded to include cultural and religious aspects of Indian tribal heritage in Executive Order No. 13007, which requires each executive branch agency to "(1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites." A "sacred site" means "any specific, discrete, narrowly delineated location on Federal land that is identified by an Indian tribe, or Indian individual determined to be an appropriately authoritative representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion . . .." Id.

In January of 2013, the Yankton Sioux Tribe signed the International Treaty to Protect the Sacred from Tar Sands Projects to protect the cultural and religious heritage of the First Nations. The treaty found that the tar sands projects present unacceptable risks to the soil, the waters, the air, sacred sites, and the indigenous way of life. Development has destroyed, and will continue to destroy, the rivers, lakes, boreal forests, and both the homelands and health of the Cree, Dene, and Metis peoples in the Northern Alberta tar sands region. The cumulative effects on human and environmental health will be drastic, laying waste to important cultural resources, sacred and historic places, burial grounds, and the environmental resources essential to the First Nations. Therefore, the Yankton Sioux Tribe found it necessary to take governmental action to protect and advance tribal interests affected by the pipeline project.

The SEIS does not adequately assess the environmental, social, or cultural impact of the Keystone XL Pipeline from an environmental justice framework. The EPA and the U.S. Council on Environmental Quality ("CEQ") defines environmental justice as the "fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies." Fair treatment means that no group of people, including racial, ethnic, or socio-economic groups should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.6 Executive Order 12898 directs federal agencies to make environmental justice part of their mission. The Obama Administration issued guidance in 2010 prioritizing environmental justice for the EPA and directing that environmental justice be factored into every agency decision. Therefore, environmental justice must be recognized and included in consultations under NEPA. See Hualapai and Fort Mojave Indian Tribes, 180 IBLA 158 (Dec. 7, 2010).

The environmental justice issue is twofold: who has the most to gain and who has the most at stake. It is clear that private interests such as the oil and gas industry have the most to gain. But the SEIS does not address who has the most at stake. Approval of the pipeline will result in the First Nations bearing a disproportionate share of the environmental consequences, severely impacting both the health and the culture of the Dene, Cree, and Metis' First Nations. Tar sands development devastates the ecosystem—relied upon by these First Nations and guaranteed through treaty—in the form of poisoned waters, contaminated lands, polluted air, and deformed fish. A corollary to the environmental destruction is the damage to areas of cultural and historical significance to the First Nations.

Nevertheless, the SEIS fails to factor environmental justice into this SEIS and take a "hard look" at the environmental effects falling disproportionately on the First Nations. Failing to account for the expanded development that is a logical result of increased pipeline capacity, the SEIS focuses almost entirely on the environmental consequences of the pipeline itself in the United States. By assessing the environmental and cultural effects of the least harmful aspect of tar sands extraction, the transportation of the crude oil from Alberta to refineries in the United States, the SEIS has not taken a "hard look" at the cumulative impacts and its disproportionate effects. By finding that the "proposed Project is unlikely to have a substantial impact on the rate of development in the oil sands," the U.S. Department of State circumvented the necessary environmental justice analysis. Accordingly, the SEIS is inadequate as it effectually sweeps both direct and indirect environmental effects, as well as environmental justice issues, under the rug.

Impacts on the Yankton Sioux Tribe

Cultural resources are considered significant, in the context of NEPA and National Historic Preservation Act ("NHPA") discussions, if they appear to meet the criteria for listing in the National Register of Historic Places ("NRHP"). Section 106 of the NHPA requires federal agencies to consult with potentially affected parties prior to commencing a federal "undertaking" that may affect property eligible to be included in the NRHP and to consider the undertaking's effect on eligible property. 16 U.S.C. § 470f; 36 C.F.R. §§ 800.1(a), 800.2(c)(2). The NHPA is similar in purpose and scope to NEPA except that it requires consideration of historic sites, rather than the environment. United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993). Properties of traditional religious and cultural importance to Indian tribes may be eligible for listing on the NRHP. 16U.S.C. § 470a(d)(6)(A). Historic properties of religious and cultural importance to tribes include traditional cultural properties ("TCPs"), and a federal agency must consult with an Indian tribe which attaches religious or cultural importance to TCPs listed on, or eligible for, listing on the NRHP that may be affected by an undertaking. 36 C.F.R. § 800.2(c)(2)(ii). Therefore, under the NHPA, federal agencies must make a reasonable and good faith effort to identify and consider the impacts of a proposed project on historic properties of significance to Indian tribes, and grant indigenous peoples "a reasonable opportunity" to identify their concerns. Id. See also Te-Moak Tribe of W. Shoshone of Nev. V. U.S. Dep't of the Interior, 608 F.3d 592, 608 (9th Cir. 2010).

"The NHPA involves a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance." San Carlos Apache Tribe v. United States, All F.3d 1091, 1093-94 (9th Cir. 2005) (internal quotation marks and citation omitted). An important measure to encourage preservation is the consultation process, which is triggered "[w]hen an undertaking may affect properties of historic value to an Indian tribe on non-Indian lands." Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 806 (9th Cir. 1999) (quoting 36 C.F.R. § 800.1(c)(2)(iii)). Through consultation, the federal agency must "take into account the effect of [an] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the Nation Register [of Historic Places]," 16 U.S.C. § 470f, and determine whether there will be an adverse effect, and avoid or mitigate any such effects. See 36 C.F.R. § 800.6.

While the undefined term "consult" can lead to differing views and conflicting judicial interpretations, the NHPA explicitly delegates authority to the Advisory Council on Historic Preservation ("Council") to promulgate regulations interpreting and implementing § 106. Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 (1st Cir. 2003). Under the pertinent regulations, the agency official is responsible for initiating consultation with the tribes. 36 C.F.R. § 800.3(c). "Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them . . . ." 36 C.F.R. § 800.16(f). Further, "[t]he goal of consultation is to identify historic properties potentially affected by the undertaking," and to understand tribal concerns sufficiently to take into account the effects that a proposed federal undertaking may have on eligible properties. Id. § 800.1(a). The regulations require that consultation with Indian tribes should be respectful of tribal sovereignty and must recognize the government-to-government relationship between the Federal Government and Indian tribes and "conducted in a manner sensitive to the concerns and needs of the Indian tribe." Id. § 800.2.

The State Department did not accurately identify the relevant cultural and religious concerns of Native Americans in the SEIS because it did not make a good faith consultation effort. The NHPA consultation process has been referred to as a "complex consultative process," Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49, 61 (1st Cir. 2001), that requires agency decision-makers to "stop, look, and listen." Muckleshoot Indian Tribe, 111 F.3d at 805. Though the consultation does not require the agency to reach any particular outcome, it is a procedural requirement that must be initiated when a tribe considers a site that might be affected by the undertaking to have religious or cultural significance. 36 C.F.R. § 800.2(c)(2)(ii). Upon such a designation, a tribe is entitled to identify "its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects." Id. § 800.2(c)(2)(ii)(A).

Moreover, the State Department has failed to properly involve indigenous nations on a government-to-government basis in its review of the proposed project because it has not made a good faith effort to consult with tribes. "The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey." Id. § 800.4. It is imperative that the State Department do more than pay lip service to the consultation process to preserve and protect the cultural and spiritual resources of tribes.

In addition, the State Department cannot determine the impact the proposed Keystone XL pipeline would have on cultural and historic sites until the affected lands have been properly surveyed. Indigenous nations have not been properly involved in the surveying process or the environmental review of the proposed Keystone XL Pipeline. Without adequate tribal consultations, the route cannot be properly surveyed because surveyors are unaware of what possesses the unique cultural and spiritual attributes important to tribes.

It is important to consult with tribes in good faith because although the regulations allow tribes to participate in the consultation process, they may not turn back the clock. Narragansett Indian Tribe, 334 F.3d at 167. Though consultation is not the same thing as control over a project, tribes are entitled to "identify its concerns," to "advise," to "articulate," and to "participate." 36 C.F.R. § 800.2(c)(2)(ii)(A). The Yankton Sioux Tribe feels that the State Department's "consultations" have been inadequate. Please see the attached Resolutions and the Ihanktonwan Treaty Council Comments in Regard to TransCanada/KXL Pipeline SEIS.


In addition, the Yankton Sioux Tribe identifies its concerns about certain properties of traditional religious or cultural significance to the tribe in the Ihanktonwan Treaty Council Comments in Regard to TransCanada/KXL Pipeline SEIS. For these reasons, the Yankton Sioux Tribe believes that the SEIS is inadequate.

Cultural Landscapes

NEPA also triggers the NHPA by requiring agencies to consider the effects of a proposed project on sites listed or eligible for listing in the NRHP or that may otherwise "cause loss or destruction of significant scientific, cultural, or historical resources." 40 C.F.R. § 1508.27(b)(8). A cultural landscape is a landscape resulting from cultural practices over historical and prehistoric times, is eligible for listing in the NRHP and it may be eligible for listing in the NRHP. National Register Bulletin 38 clarified that NHPA's reach extends to "traditional cultural properties," identifying a traditional cultural property as "one that is eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that (a) are rooted in the community's history, and (b) are important in maintaining the continuing cultural identity of the community."7 The Yankton Sioux Tribe does not believe that the SEIS accounts for "cultural landscapes" that are important to Indian tribes and does not believe that it has been consulted.

The Native American Graves Protection and Repatriation Act

The policy of the United States is to protect and preserve the Native American right to exercise traditional religious beliefs, including access to religious or cultural sites, use and possession of sacred objects, and worship through ceremonials and traditional rites. 42 U.S.C. § 1996. The Native American Graves Protection and Repatriation Act ("NAGPRA") was enacted to safeguard "the rights of Native Americans by protecting tribal burial sites and rights to items of cultural significance to Native Americans." Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936, 938 (10th Cir. 1996). "Cultural items protected under NAGPRA include Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony." Id. (citing 25 U.S.C. § 3001(3)). NAGPRA is intended to rectify a history of injustice whereby Native American graves were looted, sacred objects were appropriated, and the bodies of Native Americans were desecrated.

The Yankton Sioux Tribe believes that inadequate tribal consultations have resulted in a SEIS that does not comply with the NAGPRA. Accordingly, the Yankton Sioux Tribe requests that the federal agencies fulfill its consultation duties with tribes on each tribe's reservation.

Endangered Species Act

The Yankton Sioux Tribe also believes that the SEIS did not adequately consider species under the Endangered Species Act. In 2008, four federally-endangered animals were listed in Charles Mix County. These included the whooping crane, the least tern, the piping plover, and the pallid sturgeon. Whooping cranes migrate through South Dakota on their way to northern breeding grounds and southern wintering areas, playing an important role in the Yanktontribal culture. The least tern and piping plovers are known to nest along the Missouri River, typically breeding in South Dakota between May and August. The pallid sturgeon is an endangered species of ray-finned fish, endemic to the waters of the Missouri and lower Mississippi River basins of the United States. In addition, the Tribe is concerned about the burying beetle, which is listed as an endangered species in the State of Nebraska, less than a mile south of the Yankton Sioux Indian Reservation. Burying beetles play an important role in agriculture and the Tribe wants to ensure that they continue to play this role. Finally, the Tribe wishes to protect the red fox, the prairie dogs, certain bat species, and the black-footed ferret. The Tribe demands that it be properly consulted on these matters. See General Council Resolution No. 2013-13.