Cultural resource specialists and energy infrastructureexperts see the controversy over Dakota Access Pipeline as proof of the need to re-examinehow tribal outreach and historic resource preservation efforts are handledduring pipeline permitting.
"Consultation is fascinating when it works," EdGehres, a partner at Van Ness Feldman LLP, said at the Energy Bar Association's2016 Mid-Year Energy Forum on Oct. 5. "It really represents a modern-dayembodiment of pre-treaty, pre-Indian War engagement between two completelyseparate and distinct government bodies."
But there has never been one formulaic method that theparties can follow to easily ensure that all groups are satisfied wheninfrastructure projects like natural gas or crude oil pipelines are proposed inan area, according to Gehres, who is both an Eastern Band Cherokee descendantand a coordinator for Native American affairs at Van Ness Feldman. No matterwhat each tribe hopes to accomplish when a new infrastructure or pipelineproject is proposed, the general process that pipeline sponsors must use tocommunicate with tribal groups overburdens FERC, and is in need of re-evaluation,he said.
"No party to this process is currently really living upto what the law expects of them," Gehres said.
While FERC is able to study aproposed pipeline once it has entered its application, companies should beproactive, according to Eric Howard, a tribal coordinator in FERC's Office ofEnergy Projects.
"We prefer a consultation tocome in very early on and engage between the companies and the tribes and thestate historic preservation officers and any other consulting parties, prior tocoming to FERC if it is not in a prefiling state," Howard said. "Ifit is in a prefiling state, FERC can participate alongside with everyone inthat process and we actually prefer that."
Besides working with thecommission during prefiling, other panelists at the conference recommended thatcompanies rely on more than a good-faith effort in reaching out to tribalcommunities. Without positiverelationships, consultation, as seen in the case regarding the Dakota AccessPipeline, can quickly deteriorate into confrontation.
"If you have a relationshipwith another party in this process, then the regulations and the executiveorders and statutes – they're not really as important because you work thingsout in the context of your relationship," said Valerie Hauser, director ofthe Office of Native American Affairs for the Advisory Council on HistoricPreservation.
Jerry Pardilla, director of the Office of EnvironmentalResource Management for United South and Eastern Tribes Inc., explained thatthe entire process regarding historic or culturally significant propertiesneeds to be documented and that tribes' priorities can greatly vary and canextend beyond the borders of tribal lands.
Engagement during the planningprocess is crucial with any landowners or residents, since avoiding significantor sensitive areas can be difficult after a final route and engineering havefinished. The panelists also advised project sponsors to become more involvedwith tribal consultations.
Whereas a state historicpreservation officer might not recognize certain features in a region asneeding avoided, someone highly familiar with the region might spot cultural orreligious significance in something overlooked, said Brian Benito Jr., seniorenvironmental specialist for major projects at Kinder Morgan Inc.
"Building that trust andthat relationship really helps an applicant move the process forward,"Benito said. "I think in our industry … sometimes, it's really importantto have someone regionally aware of all the players."