NEW TOWN, N.D. - Construction has resumed on a pipeline that will cross a water body over the objections of a North Dakota Native American tribe.
No, it's not the Dakota Access Pipeline. This project involves Paradigm Energy Partners, a company that is installing two pipelines under Lake Sakakawea that will be owned by Sacagawea Pipeline Co.
The Mandan, Hidatsa and Arikara Nation asserts that Paradigm was required but failed to get the tribe's permission to begin pipeline construction under the lake. The Tribal Business Council voted Aug. 3 to issue a cease and desist order to halt all construction under Lake Sakakawea.
"Paradigm was informed on several different occasions that the consent of the MHA Nation would not be granted unless there were adequate assurances that an oil pipeline under the lake posed no threat to the MHA Nation's water resources," Tribal Chairman Mark Fox wrote in an Aug. 8 letter. "To date, that assurance has not been provided to the MHA Nation's satisfaction."
Paradigm filed a federal lawsuit on Aug. 19 against Fox and Tribal Police Chief Nelson Hart arguing they have no authority to halt construction. The company is constructing two 70-mile companion oil and natural gas pipelines that will travel from McKenzie to Mountrail counties.
The oil pipeline, which was the first to be constructed and is nearly complete, is under investigation by federal pipeline regulators after former contractors said the pipeline was installed under the lake without being properly inspected. The current contractor maintains the pipeline was inspected and the allegations are false claims being made by workers who were fired.
While those concerns remain unresolved, the company began installing a natural gas pipeline under Lake Sakakawea. Because the 16-inch diameter pipeline will transport raw gas, it is considered a gathering pipeline and is not subject to the same regulatory scrutiny or public meeting requirement as the oil pipeline.
Paradigm sought a temporary restraining order to prevent the tribe from halting construction, arguing it has the regulatory approval from the U.S. Army Corps of Engineers and the Bureau of Indian Affairs.
Last week, U.S. District Judge Daniel Hovland granted the temporary restraining order, authorizing construction to resume. However, the parties will be back in court in Bismarck on Thursday as Paradigm argues for an injunction against the tribe and to continue the restraining order.
All of this has played out quietly while a protest of the 1,172-mile Dakota Access Pipeline has attracted thousands north of the Standing Rock Sioux Reservation. The tribe is suing the Corps of Engineers over its approval of the $3.78 billion pipeline's Missouri River crossing.
The MHA Nation's situation is further complicated by the fact that the tribe has a stake in Sacagawea Pipeline Co. The company is a joint venture involving Paradigm Energy Partners, Phillips 66 and Greywolf Midstream, an entity owned by the tribe that's an investor in the project. The Fort Berthold Indian Reservation produces about one-sixth of North Dakota's total oil production.
Reducing trucks, flaring
Paradigm says the Sacagawea Pipeline system will reduce truck traffic and reduce natural gas flaring in areas where pipeline capacity is limited. The pipelines will cross privately owned lands, state trust lands, Fort Berthold Indian Reservation lands and land regulated by the Corps of Engineers.
About 8,980 feet of the pipeline system will pass under Lake Sakakawea via the installation of about 10,980 feet of welded steel pipeline, the Corps of Engineers said in its environmental assessment. The pipeline will be installed at least 100 feet below the lakebed through horizontal directional drilling with emergency shut-off valves on either side of the lake and around-the-clock pipeline monitoring to detect leaks.
The Tribal Business Council supported the Sacagawea Pipeline system in an April 2015 resolution, finding it in the best interest of the tribe to grant a right-of-way for the project. The North Dakota Public Service Commission has jurisdiction over the oil pipeline but not the natural gas gathering pipeline.
In late July, shortly before the tribe issued its cease and desist order, federal pipeline regulators received a complaint about potential problems with the oil pipeline under Lake Sakakawea. On Aug. 3, the Laborers District of Minnesota and North Dakota notified the PSC about potential violations on the oil pipeline.
A former laborer on the pipeline alleges that the contractor, Boyd & Co., failed to properly inspect the pipeline before it was installed under the lake, putting the lake at risk of a spill. Two other former workers have reported similar concerns to federal and state regulators.
The owner of Boyd & Co. told Forum News Service the pipeline was properly inspected and he says the claims are false accusations made by workers who were fired.
Public Service Commission Chairwoman Julie Fedorchak said the state agency has forwarded those reports to the federal Pipeline and Hazardous Materials Safety Administration, which has jurisdiction in that area.
"We're certainly going to look at what PHMSA says, but they're the authority on those regulations and determining if there's a violation of them," Fedorchak said.
PHMSA has confirmed it's investigating the claims, but the status of the investigation is unclear.
Meanwhile, Phillips 66 has told investors the Sacagawea Pipeline is expected to be operational by Sept. 30.
The PSC is investigating concerns from the Laborers Union about construction practices on the oil pipeline the union says did not properly protect wetlands, prevent erosion or protect the pipeline coating from becoming damaged.
In addition, PSC inspectors who have visited the oil pipeline construction have raised concerns about poor topsoil separation on the project, a step that is important to successfully restoring the land.
A Paradigm spokesperson said the company took immediate action after learning of the concerns on topsoil management. In addition, the company said PHMSA has been involved during construction and has reviewed documentation from third-party inspections.
"Sacagawea Pipeline Company stands behind our contractors and third-party inspectors and remains fully committed to preserving the environment and ecological safety of Lake Sakakawea and all areas where we operate," the company said in a statement.
The natural gas pipeline construction has proceeded with less regulatory oversight than the oil pipeline.
The North Dakota Industrial Commission has limited regulation over gathering lines and has six pipeline inspectors who can inspect projects. But under current rules, the company is not required to notify regulators about a gathering pipeline until after it is constructed and placed into service.
"We were not aware of the construction of this pipeline, but under our current regulations we wouldn't have to be notified of that construction," said Department of Mineral Resources spokeswoman Alison Ritter said.
New proposed rules on gathering pipelines are expected to take effect on Oct. 1 that would include notifying the agency seven days prior to construction.
Kevin Connors, pipeline program supervisor for the Department of Mineral Resources, said Friday the concerns raised about the oil pipeline have gotten the agency's attention. The natural gas pipeline is being constructed in the same right-of-way as the oil pipeline.
"We'll certainly approach this situation with a closer look," Connors said, adding he planned to ask an inspector to look into the project this week.
The Corps of Engineers also has oversight of the construction of both pipelines as it relates to Corps-managed land, said spokeswoman Eileen Williamson. The Corps permit has several requirements to protect the lake, including spill response planning.
Lake Sakakawea is the drinking water source for several western North Dakota cities, including communities on the Fort Berthold Indian Reservation.
Paradigm attorneys wrote in court records that if the natural gas pipeline is not complete by Nov. 1, the company will lose its anchor customer and the project will fail.
The Laborers Union, which supports the Dakota Access Pipeline being constructed by union contractors, questioned last week why pipeline opponents are so vocal about that project but not speaking out about the Sacagawea Pipeline.
"Our members find it hard to understand why protesters have targeted a pipeline that's being built the right way, but we don't hear a word about the pipeline just installed under Lake Sakakawea that workers say wasn't properly inspected," said Kevin Pranis, a spokesman for the Laborers International Union of North America in North Dakota.