The Painful ‘Appendix C’

‘They get insular and get their blinders on’

Bottom Line: An obscure and often problematic federal law may well determine the fate of the Dakota Access pipeline.

Heavy construction on projects like the Dakota Access pipeline begins with a bevy of bureaucracy.

APImages

Most pressing issues between Indian country and the federal government are steeped in legalese and long numerical references to laws and regulations. The very stuff of Native life and its protection, however, is referenced and hidden within these drily worded documents.

One example is a set of regulations created by the U.S. Army Corps of Engineers. Called “Appendix C,” it may determine the future of the Dakota Access Pipeline project, as well as other projects for which the Corps issues federal permits.

Tribes have been complaining about the legality of Appendix C for years, and with good reason. Appendix C spells out how the Corps will meet its obligation to fulfill Section 106 of the National Historic Preservation Act (NHPA), created to protect places of historic, architectural and/or cultural significance.

A law unto itself?

Part of Section 106 requires that agencies carry out the process in consultation with Tribal Historic Preservation Officers, and identify and assess impacts to properties of traditional religious and cultural significance to tribes. All federal agencies may create their own means by which they fulfill the terms of the section.

But the Army Corps has chosen to streamline the process by creating its own regulations. Tribes and other federal agencies argue that these regulations not only fail to meet 106 requirements but also directly conflict with the law.

Take the case of the Advisory Council on Historic Preservation. It is an independent federal agency charged by Congress with overseeing implementation of the National Historic Preservation Act. But the Corps contradicts several of its regulations with its own process as spelled out under Appendix C.

The differences between Section 106 regulations and Appendix C are substantial. Chief among them are the Corps’ decision in the Standing Rock case to review each river crossing of the Dakota Access pipeline as a separate project, rather than considering the entire pipeline as one project.

“This allows the Corps to dismiss the potential for effects to historic properties that may be located within the broader project area of an undertaking,” according to an August 2, 2016 letter from the Advisory Council to the Corps.

The final sentence of the October 9 court ruling denying the Standing Rock Sioux Tribe’s appeal to halt work on the Dakota Access pipeline alludes to the enormity of the Corps actions under Appendix C.

“We can only hope the spirit of Section 106 may yet prevail,” wrote judges Janice Rogers Brown, Thomas B. Griffith and Cornelia T.L. Pillard in their October 9 ruling. There is a world of meaning, history and possibility in those few words.

A problematic mandate

The ways in which Appendix C regulations fail to protect historic properties and traditional cultural properties for tribes are significant, Suquamish Tribal Chairman Leonard Forsman recently wrote in an internal document. They include:

• Significant decrease in the Area of Potential Effect. Corps regulations, unlike the Advisory Council limit the Area of Potential Effect to the permit area—rather than the geographic area where a project may directly or indirectly alter the character or use of historic properties.
• Narrow definition of adverse effects. The Corps’ Appendix C limits the agency’s responsibilities by narrowing the definition of adverse effects—thus ignoring Advisory Council regulations that consider the direct and indirect effects of projects.
• No requirement for tribal consultation. Appendix C states that tribes may be consulted as part of the district engineer’s investigations, unlike Advisory Council regulations, which require tribal consultation. The Corps also grants itself the sole right to terminate consultation.
• Failure to fully protect confidentiality. Unlike the NHPA and Advisory Council regulations, the Corps only protects information from disclosure when there is a substantial risk of harm, theft or destruction.

“Congress did not explicitly or implicitly delegate regulatory authority to the [Corps] to promulgate its own Section 106 regulations under an authorizing statute,” Forsman has written. “A federal agency does not have independent legislative power.”

Maj. Gen. Donald “Ed” Jackson of the Army Corps of Engineers spoke of the Corps’ role in infrastructure projects at the National Congress of American Indians conference this month. Mary Annette Pember

“What do you do when a federal agency violates its own rules?” asked Standing Rock Tribal Historic Preservation Officer Jon Eagle, referring to the Corps’ permitting process for Dakota Access.

Some of the problems may lie with the Corps’ mission, which includes an emphasis on economic development. Forsman believes this may be the underlying basis for the Corps’ stated regulatory policy to avoid unnecessary regulatory controls when giving the go-ahead for infrastructure projects.

Forsman, however, lauded the Corps for its May 2016 denial of a permit for what would have been the nation’s largest coal terminal, Gateway Pacific Terminal, in Washington State. The Lummi Nation said the terminal would have threatened the tribe’s fishing rights, protected by treaties. In this case, the Corps agreed.

“If the Corps would be more transparent and do more outreach they could avoid a lot of these problems,” said one tribal leader during the recent National Congress of the American Indians gathering in Phoenix, Arizona. “Unfortunately, they get insular and get their blinders on.”

The Corps now considers the Section 106 process closed. But it is far from over for the Standing Rock Sioux Tribe. Several points, including the Corps’ dependence upon Appendix C to complete its Section 106 responsibilities, will be argued in lawsuits, Eagle promised. Indeed, he feels, there may be something approaching a legal precedent.

“We have heard that the Corps has consistently lost lawsuits in which the legality of Appendix C has been questioned.”

Successful Pushback

The use of Appendix C has indeed been challenged successfully in court several times, according to Javier Marques, associate general counsel of the Advisory Council. He cited a 2001 decision that held that the Corps could not issue a Clean Water Act permit for a wastewater treatment plant without first considering other issues under Section 106—even though some of those issues fell outside the permit’s scope.

Also in 2001, a court rejected the Corps’ narrow interpretation of the area within which to consider impacts and effects on historic properties as contrary to Section 106.

In 1985, a court ruled in favor of the Colorado River Indian Tribes’ claim that the Corps’ practice of limiting its historic preservation review to Appendix C’s narrowly defined “permit area”—as opposed to the broader area in the Advisory Council’s Section 106 implementing regulations—was a breach of its 106 responsibilities.

The Army Corps did not respond to questions about its use of Appendix C in its permitting process. Nor could Marques comment about the DAPL case, because it is currently in litigation. But he discussed the overall situation relating to the Army Corps’ use of Appendix C.

“Our position has always been that the Corps does not have the authority to issue regulations implementing Section 106,” Marques said. “The only agency in the federal government with this authority is the [Advisory Council on Historic Preservation]. Although Appendix C has been on the books for many years, we have never seen the authority that the Corps claims to have to issue these regulations.” http://bit.ly/2ef4Ual

‘America’s Gray Ghosts’

Kootenai Tribe works to revive a disappearing species

Bottom Line: The last dozen caribou in the contiguous United States are hanging by a thread. But their tribal defenders are doing everything they can to preserve them.

In seven years, the Selkirk caribou have been depleted by almost 75 percent.

Bart George, Kalispel Tribe (2016 census)

In 2009, on Kootenai tribal territory in the Idaho Panhandle, the last remaining caribou in the contiguous United States took a severe drop—from 46 down to 12 animals. Those same dozen caribou continue to roam the Selkirk mountain range near the Canadian border. A recent New York Times article spotlighted the severity of the situation, referring to the species as “America’s gray ghosts.”

Last year, the Kootenai Tribe began leading efforts with the U.S. Fish and Wildlife Service and other partners—the states of Idaho and Washington, British Columbia, the U.S. Forest Service, the Kalispel Tribe, and the Ktunaxa Nation—to devise a plan to save the Selkirk caribou from extinction.

“Seven years ago, we weren’t having this discussion,” Norm Merz, wildlife biologist for the Kootenai Tribe of Idaho, told Indian Country Today Media Network. “We had 46 animals, they were reproducing, and things were going good. And then the population fell off a cliff.”

Merz attributes that drop largely to heavy predation by wolves and cougars. But caribou face another chief disadvantage: they are slow to reproduce. Whereas other hoofed mammals (ungulates), including deer, elk and moose, generally reproduce during their second year of life, caribou generally don’t until their third year. And they only produce one calf.

“A species with low reproduction has to compensate by having longevity in the adults,” Merz said. “With caribou, what we’re seeing in the Selkirks and actually throughout most of southern British Columbia is our animals are succumbing to predation, and so they’re not living as long, and they don’t reproduce fast. And therefore the population is declining.”

Shortly after birth, caribou calves struggle to their feet and begin following their mothers. Despite their early mobility, many quickly meet their death due to predators or natural causes, according to a report by the British Columbia Ministry of Environment, Lands and Parks.

The Kootenai Tribe plans to implement maternal penning, “in which we would capture the females in the herd and bring them into a predator-free enclosure around March,” said Merz. “That would allow them to calve, get their calves good and strong, and sometime around July or after we would release them back into the wild.” The operation would be modeled on several successful pilot projects tested in British Columbia and in the Peace River region near Alberta, home to the Little Smoky caribou herd.

But the most effective method of caribou protection has been wolf management. “Since British Columbia implemented the wolf management in caribou habitat, we haven’t documented any additional wolf mortalities,” Merz said.

Canadian government sharpshooters are eliminating wolves that invade caribou habitat from helicopters. Just 19 wolves have been killed in the Selkirk mountain range thus far. Merz stresses that wolves are only shot when caribou fatalities are a risk.

“British Columbia is tracking animals” with GPS-equipped radio collars, he said. “So they’re monitored and not removed. The animals that move into caribou habitat that pose a threat are removed. It’s not an ‘every wolf is bad’ situation. It’s: ‘We’ve got to try and limit mortality of caribou, and this is one way we can do it.’”

Unlike the caribou herds that migrate across the barren Alaskan tundra, southern mountain caribou live in small, localized groups. They stick to high terrain, dense with old-growth forests that offer heavier lichen loads and trees that intercept snow. Perhaps most importantly, the thick woods allow caribou to avoid predators—most commonly wolves, cougars, bears and wolverines—that generally prey on other ungulates that live in areas with younger forests or clearings.

“They don’t migrate, other than some elevational migration during different seasons,” Merz said. “They pretty much stay in the same general vicinity.”

Thus, it is a particularly vicious cycle when their caribou country is devastated. Logging, mining and resource extraction are common ways that humans destroy caribou habitat.

“When the habitat is modified through logging or large-scale forest fires, you’re talking 150 years for that to regenerate to provide caribou habitat,” Merz said. “And in that 150 years, while it’s regrowing into caribou habitat, it’s providing for deer, elk and moose along the way, which is drawing predators into the higher [elevated caribou] country.”

Despite extreme challenges, Merz remains optimistic that revival efforts will prove successful. “I think it’s very possible to get to a self-sustaining population, but it’s going to take work, it’s going to take effort, and it’s going to take money. But I think it’s possible, and I think it’s realistic to think so.” http://bit.ly/2ekDO4b

An Activist Education

‘We don’t just sit around and talk. We study serious subjects.’

Bottom Line: Children currently camped out at Standing Rockare getting a workout in life lessons from protesting parents and teachers.

At the Oceti Sakowin School, children whose parents are involved in the Dakota Access pipeline protests are learning both traditional lessons and cultural skills.

Mary Annette Pember

“We aren’t just sitting around out here talking bad about the pipeline,” said Tashubi B., an 11-year-old Sicangu Lakota girl.

As more and more protesters have gathered to oppose the Dakota Access pipeline project, they have increasingly brought their children with them. And these children must go to school. But where—and how?

That is where the fledgling Oceti Sakowin School, near the Standing Rock Indian Reservation in North Dakota, comes in. The fully operational school combines conventional classes with real-world experience. For instance, Tashubi and her classmates are creating documentaries about their lives and perspectives at the camp.

“They said they were tired of reporters coming to the camp and telling stories about them and the school,” said Teresa Dzieglewicz, an Oceti Sakowin teacher. “They decided they wanted to tell their own stories.”

Dzieglewicz and her colleagues are working with students as they first create written proposals and later gather interviews and information to tell their stories. “Our plan is to have all the documentaries online for everybody to see,” she said.

Started by Standing Rock schoolteacher Alayna Eagle Shield, the camp school has attracted a core group of committed teachers and support staff, among them Dzieglewicz and her colleagues Blaze Starkey and Jose Zagney. Although Dzieglewicz initially planned to stay only two days when she arrived more than a month ago, she has since decided to put her MFA studies in St. Louis on hold and stay on. Previously she had taught elementary school on the Rosebud Reservation in South Dakota.

“I believe deeply in environmental and indigenous rights issues,” Dzieglewicz said. “I decided that I needed to care about them here rather than from far away in St. Louis.”

Parents and students are very engaged with the home schooling curriculum. For instance, after realizing that the kids wanted to tell their own stories about the camp and share their feelings about the pipeline, Dzieglewicz arranged for the donation of 15 tablets and solar chargers with the help of attorney Eric DeWeese of Portland, Oregon, who has volunteered as Oceti Sakowin’s legal counsel.

“I saw the elders in a tipi talking and I thought, Wow, they must have amazing stories to tell,” said DeWeese. “I thought it was an incredible opportunity.”

The students were a little weary from several days of media attention when an ICTMN reporter arrived. This made Tashubi initially reluctant to discuss her project—until she learned that one of her teachers had said she was a very sharp girl.

“Well, of course,” she quickly agreed. “My project is about the resources that we have here at camp. I want people to see that we have lots of things here and that we can take care of ourselves in a good way. We have a school, a kitchen, security and supplies.”

She wanted people to know that the camp school is a serious place. “We don’t just sit around and talk. We study serious subjects like math and science. We also get to learn about Lakota values and language. Mostly I want people to know that we are unarmed; we are humble and peaceful people who are praying for a new way to live on the Earth.”

Not everyone agrees that the school is a good thing. North Dakota Department of Public Instruction Superintendent Kirsten Baesler has told the Standing Rock Sioux Tribal Council that the Oceti Sakowin camp school is operating illegally and does not fit the official definition of a home-schooling operation, the Bismarck Tribune reported. She has offered to bus students to Mandan public schools, the newspaper said.

Dzieglewicz responds that Oceti Sakowin adheres strictly to the state’s home schooling requirements and standards, and helps parents work on completing home-school paperwork. But according to Baesler, North Dakota regulations governing home schooling require that parents must be the primary educators for students.

Dzieglewicz is a former certified teacher; Blaze Starkey, one of the main teachers at the camp, has a bachelor’s degree in language arts. Neither has ever made any pretense of operating the school as an accredited institution, they told the Tribune. Moreover, North Dakota law is not precise about stating that parents must be the educators in home schooling students, said Dan Beasley, a staff attorney with the Home School Legal Defense Association.

Amid the more formal instruction are cultural lessons about Lakota values and traditional skills. For this, Dzieglewicz and her colleagues have been able to draw from some of the most talented and skilled Native teachers and artists in Indian country, as they cycle regularly through the camp.

Among the instructors is Steve Tamayo of the Milk’s Camp community on the Rosebud Sioux Indian Reservation, who has spent several days with the children teaching traditional skills such as tipi and drum making. (For the Cowboy and Indian Alliance, he painted the tipi that was presented to President Obama in 2014 to help raise awareness about the Keystone XL pipeline.)

Tamayo integrates sacred Lakota symbolism and spirituality, as well as knowledge of plants and their uses in his lessons. For instance he incorporates the spiritual Lakota significance of the numbers four, seven and 13 into teaching about tipi building. At the same time, he creates a valuable lesson in math and problem solving. The students are working with Tamayo to create a winter count using Lakota symbols that will tell the story of their experience at camp.

Currently Tamayo works as manager and cultural arts specialist with the Native American Advocacy Program (NAAP) in Herrick, South Dakota. NAAP is a nonprofit organization that helps at-risk youth build a cultural identity based on the traditional Lakota way of life. Its executive director, Marla Bull Bear, has also worked with children at the camp, teaching them a Lakota morning song every day.

“Your prayers count,” she told the group as they sat in a circle around her. She led the students in song, quietly at first, then building to a crescendo that silenced the surrounding camp conversations.

With the help of teachers at Oceti Sakowin, the Sacred Stone camp has also started a school of its own just across the Cannonball River. Mary Paniscus of Berlin, as well as other volunteers, had just finished organizing the huge number of donated books and school supplies when ICTMN visited.

“I was just telling my mother this morning that I was thinking I might return to teaching,” Paniscus said with a laugh. “Now, this afternoon, I find that I’m the principal of the Sacred Stone Camp School.”

Paniscus, who teaches genetics in Germany, had just arrived with her mother. After teachers and students posed for their first-day-of-school photo, she shooed parents and visitors out.

“You’ll have to excuse us now,” she said. “It’s time for class.” http://bit.ly/2dw7quy

How Did I Miss That?

Ghost peppers, emissions in Chicago and Trump on Pluto

WFLA reported that Elisha Griggs was denied service in a Bradenton, Florida McDonald’s because of her service dog, a Pomeranian named Onyx. Mickey D’s demanded “paperwork,” so Griggs went back to her car and retrieved a doctor’s note. The manager refused to accept the doctor’s note and wanted to cross-examine her about her disability.  She was finally served after calling the sheriff.

* * *

KRON reported that a man got a 2 1/2 centimeter hole in his esophagus from eating a hamburger smothered in ghost pepper puree. On the Scoville measure of heat, a habanero rates a paltry half a million but a ghost pepper is twice that.  A jalapeño is practically ice cream, at only 2,500 to 8,000.

When I lived in Wisconsin, I could win bar bets by chomping jalapeños. In those days, things Mexican were so obscure that they gave you the hairy eyeball if you ordered a drink containing tequila.

* * *

People who are fond of exotic rock formations like the Bisti/De-Na-Zin Badlands—which is Navajo property claimed by New Mexico—might wish to book a future SpaceX vacation in an area similar to that photographed by NASA’s New Horizon probe. Gizmodo has published the high-resolution results, which come from the body formerly known as a planet called Pluto.

My cousin Ray Sixkiller, certain that there will be a Trump golf course there soon, was composing a letter to Pluto’s inhabitants, explaining that they have been “discovered.”

* * *

Rachel Maddow reported that the Santa Barbara, California News-Press became the first daily newspaper in the U.S. to endorse Donald Trump. She also reported paying ten dollars to get past the pay wall so she could find out why. It turns out they didn’t say why.

The News-Press was last a media story when Wendy P. McGraw bought it from The New York Times Company in 2000. According to staffers, McGraw began to treat the paper as an instrument of her personal politics, claiming she was demanding slanted news coverage.

On July 6, 2006, five editors and a columnist resigned. There were subsequent resignations and firings; the employee count went from about 250 to 25. Yet the editorial staff won the Payne Award for Ethics in Journalism in 2007.  The editors who quit in 2006 and three additional staffers received an ethics in journalism award from the Society of Professional Journalists. So you might say Trump was endorsed by what was left of the News-Press.

Cousin Ray wondered if they skipped the custom of saying why, because everybody who could write an editorial either quit or got fired.

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According to a poll from the Center for Public Opinion at the University of Massachusetts-Lowell, 53 percent of people ages 18-35 would rather have a giant meteor destroy the planet than have Donald Trump become president. Thirty-four percent, by contrast, would prefer the killer meteor to President Hillary Clinton. Twenty-three percent would prefer planetary annihilation to either.

And 39 percent would prefer that Barack Obama declare himself president for life.

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If Trump’s attack on the U.S. electoral system is not a sign of the apocalypse, some academics would cite Bob Dylan winning the Nobel Prize in Literature “for having created new poetic expressions within the great American song tradition.” Dylan, characteristically, has said nothing.

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The Chicago Tribune reported that the Illinois Environmental Protection Agency will shut down the last two emissions testing facilities in Chicago on November 1 “to reduce costs and streamline operations.”

I thought this was an attention-getting lead and that the full story would show something more reasonable than the third largest city in the country having no place to have a car tested. I was wrong. The Illinois EPA is serious and they expect to save $11 million per year by grossly inconveniencing Second City car owners.

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Fox News reported that a bus chartered by the Democratic National Committee was photographed dumping waste into a storm drain in Lawrenceville, Georgia. Cousin Ray said that was a perfect metaphor for this entire election. http://bit.ly/2dtGls5