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Invited Essay:
Pipelines, Protest, and Property

That land is a community is the basic concept of ecology, but that land is to be loved and respected is an extension of ethics. That land yields a cultural harvest is a fact long known, but latterly often forgotten.

—Aldo Leopold, A Sand County Almanac

Let us put our minds together and see what life we can make for our children.

—Chief Sitting Bull of the Hunkpapa Lakota, quoted in David Archambault II, "Taking a Stand at Standing Rock"


At the end of 2016, more than 2.7 million miles of pipe carrying natural gas, crude oil, and other hazardous liquids crisscrossed the United States (PHMSA 2017). Most of these pipelines were built without major conflict. They required numerous government approvals and many, many property transfers of private rights-of-way to pipeline developers. These pipelines contribute to critical infrastructure for energy transmission and distribution, and pipeline proponents have declared the safety and efficiency of pipelines as compared to rail, highway, or other alternatives means of transport. Developers also cite a boost to local economies from new pipeline construction.

Meanwhile, technological changes in oil and gas production are creating new infrastructure demands as emerging production centers—largely in the northern Great Plains—need new pathways for transport (Klass and Meinhardt 2015). Now, this relatively conflict-free pattern of pipeline development seems to be changing. Two recent oil pipeline projects in the Great Plains—the Keystone XL Pipeline, intended to transport oil from Alberta to Nebraska, and the Dakota Access Pipeline ("DAPL"), currently operating between North Dakota and Illinois—have sparked unprecedented protests and resistance.

Many of the policy and legal disputes regarding these two particular pipelines are ongoing as this essay goes to press (in late summer 2017). Keystone XL still requires Nebraska approval prior to construction and is subject to other litigation. Oil is currently flowing through the DAPL pipeline, but its continued operation is subject to legal challenges as well. This essay does not attempt to resolve the important underlying substantive questions about whether these pipelines are the right infrastructure investment for present and future needs. These pipelines bring up difficult, multilayered challenges involving [End Page 69] the US energy future, environmental and climate effects of fossil fuel dependence (especially fuels from oil sands and hydraulic fracturing), pipeline safety, national security, tribal sovereignty, and the economy. Without attempting to resolve these essential disputes, this essay instead seeks to situate the recent Keystone XL and DAPL resistance in a wider reflection about the meaning and significance of private property, especially as it relates to the future of the Great Plains.

Framing Private Property

Private land ownership predominates across much of the Great Plains. Stemming from its frontier history and pattern of homesteading development, private land ownership is a core feature of many Great Plains stories and identities. For many of us, private property symbolizes freedom, independence, and individual control. William Blackstone famously opined: "Property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" (Ehrlich 1959, 113). Property, at least according to Blackstone, is the legal space where we can post a "Keep Out" sign to the rest of the world, enjoy perfect control over what happens within a bounded domain, and be totally free from everyone else in the universe.

Blackstone's simple vision of property hits some roadblocks in the complexity of the real world, but this common ethos of private property—with its primacy on the individual right to exclude outsiders from a private space—persists in both popular perceptions and legal theories (e.g., Merrill 1998). For example, under a Lockean labor theory, exclusive property ownership is our reward for and the product of hard work—an individual entitlement earned over time when we (or our ancestors) mixed our efforts (and our self) with an otherwise unowned thing. Property's exclusion is also valued for its protection of individual liberty. In this liberty-oriented theoretical view, property does its most important work when it shields the autonomous individual from the control of the state in an essentially private personal sphere, preserving human freedom and dignity. And, in a utilitarian calculus, exclusive property rights are the currency of economic efficiency. Society as a whole is better off, this theory emphasizes, when resources are allocated to their highest and best uses through secure market transactions, which are facilitated best by definite and transferrable private property rights. (For a robust but readable property theory overview, see Alexander and Peñalver 2012.)

The difficulty is that any property narrative that monistically lifts up the individual right to exclude as the single priority of our property system falls apart quickly both practically and legally. Lots of individual human actions have unavoidable interlocking and cascading effects beyond the artificial legal boundaries of a single property parcel. We are inescapably interconnected, both ecologically and economically. Flashing neon lights on my neighbor's house may negatively impact my property value and my ability to sleep. It may also deter the birds I enjoy viewing in my trees. Or, if my neighbor is a popular celebrity, her purchase may increase my house's worth, but then the traffic from the paparazzi may negatively impact me and the birds, and we cycle around again.

Individual land uses within a community (or an ecosystem) often have spillover effects—sometimes positive, sometimes negative. This compels us, often, to cooperate across individual property boundaries to achieve aggregate benefits (see Rose 1990). Using zoning to segregate private homes from intensive industrial developments, for example, should benefit most of us, as would working together to maintain more cohesive, un-fragmented wildlife habitats. Property is also paradoxical because, although we view it as providing protection from the state, we have to rely on the state to enforce our property rights, whether through trespass actions, nuisance remedies, or proactive zoning to aggregate the benefits of coordinated uses. Property is the legal mechanism through which land-use decisions are made, but property rights are neither truly independent nor absolute. Instead, they are often relative and contingent.

Some of these challenges come directly to a head in the context of pipeline debates. Private landowners' rights to exclude can clash with pipeline developers' desires to lay contiguous pipe along a route that is as straight, direct, and efficient as possible across vast distances. Even a few landowners holding out and excluding the pipeline from their individual properties along a chosen route could quickly derail an entire project. This may be a fine result if this hypothetical pipeline is not a good decision for the community, state, country, or world. But if the pipeline does serve some important public interest, does one individual landowner's right to exclude—supported by the state and impacting all of us—really solve the debate so simply? And, more broadly, [End Page 70] what can this crescendo of social action and protest around recent pipeline projects reveal to us about the essential interconnectedness of private rights and collective responsibilities?

Pipeline Conflicts in Context

In order to build a new pipeline in this country, private pipeline developers must generally acquire two threshold things: (1) governmental approval for the placement (including the specific route selection) of the pipeline itself and (2) an assembly of sufficient contiguous property rights to access the approved route. (Beyond construction, there are numerous other operation-related regulatory requirements imposed on pipelines, which are not at issue here.)

Developers typically assemble property rights for pipelines via easements (limited rights to use property for specific purposes) and, where voluntary agreements cannot be negotiated with individual landowners, developers rely on the backstop of eminent domain authority. Eminent domain is the constitutional right of the government to take private property for public purposes, upon the payment of just compensation (US Const. amend. V). Depending on the governing jurisdiction, this power is often delegated to pipeline companies—typically only after they get a threshold government approval for the pipeline route first.

Crude oil pipelines are unique in this country because, even when they travel hundreds of miles across the country and cross multiple state boundaries, they are generally subject to the separate jurisdictions of each state they cross, and there is no single unified or comprehensive federal siting authority. Natural gas pipelines, in contrast, are subject to broad federal authority. In the case of oil pipelines, federal permissions are generally required only if the pipeline (1) crosses an international border (as in the case of Keystone XL) or (2) makes discrete crossings of federally owned or managed land or water (as in the case of DAPL). (For more detail, see Klass and Meinhardt 2015.)

For purposes of orienting the reader, the remainder of this section provides a brief overview of the Keystone XL and DAPL disputes, including a short summary of legal and other challenges they face. Given the detailed complexity of both of these projects and their frequently changing legal landscape, however, these overviews are necessarily generalized and subject to change.

Keystone XL

The Keystone XL pipeline project sponsored by TransCanada Corporation would build a 36-inch-wide pipeline from Hardisty, Alberta, to Steele City, Nebraska. The US portion would cross Montana and South Dakota before ending at a regional oil hub in Nebraska. Keystone XL would carry crude oil (processed or diluted bitumen) derived from Canadian oil sands (or "tar sands") resources as well as oil produced via directional drilling and hydraulic fracturing (or fracking) from the Bakken Formation in Montana and North Dakota (Merrill and Schizer 2013; Ramseur et al. 2014; Parfomak et al. 2015).

The project has been particularly controversial because of concerns about increased negative environmental impacts (including greenhouse gas emissions) that may be associated with oil sands compared to conventional crude or renewable fuels. An original proposed route also drew controversy because it would have crossed directly over the sensitive Nebraska Sand Hills ecosystem and a shallow portion of the Ogallala Aquifer, where some feared a leak would be particularly troublesome. The project is promoted, however, in part based on national security benefits of connecting the United States to a North American energy source and reducing reliance on other, less stable foreign fuels. The sides disagree about what economic benefit will actually inure to the US economy (as opposed to Canadian producers and foreign export markets), the likelihood and effect of any potential spill on water and other resources, and the overall impact of this individual pipeline on total future oil sands production, perhaps particularly given the volatility of global energy markets (e.g., Parfomak et al. 2012; Lattanzio 2014a, 2014b; Ramseur 2014).

Conflict over Keystone XL has fumed for nearly a decade, with legal issues arising at both the federal and state levels. Because the project proposes to cross the US-Canada border, this particular pipeline requires a presidential permit (Exec. Order No. 11423, 33 Fed. Reg. 11741 [August 16, 1968]; Exec. Order No.13337, 69 Fed. Reg. 25299 [May 5, 2004]). The president (with powers delegated to the Department of State) must determine whether the requested permit would "serve the national interest"—an undefined term that has been interpreted to include effects on the environment, climate, economy, cultural and historic resources, energy security, and foreign relations policy (Vann et al. 2012; Parfomak et al. 2015). The presidential permit requirement also triggers [End Page 71] environmental review under the National Environmental Policy Act ("NEPA") (42 U.S.C. §4321).

TransCanada first applied for the presidential permit in 2008, and President Obama and his State Department denied the permit twice: the first time in January 2012 when Congress forced a decision while details of an alternative route through Nebraska to avoid the Sand Hills were still being finalized (Vann et al. 2012), and then again in November 2015, after TransCanada reap-plied for federal approval but continued to struggle to resolve legal issues in Nebraska. President Obama cited his commitment to addressing climate change with immediate action as one of several reasons for his 2015 denial (Statement by the President on the Keystone XL Pipeline [Nov. 6, 2015]).

In his first week in office, President Trump issued a presidential memorandum inviting TransCanada to resubmit an application for a presidential permit for Keystone XL—reopening the project after more than a year—and directed his administration to conduct an expedited review of that application (Presidential Memorandum Regarding Construction of the Keystone XL Pipeline [January 24, 2017]). TransCanada did reapply, and on March 23, 2017, the Trump State Department issued the presidential permit, finding the proposed pipeline to be in the national interest (Presidential Permit Authorizing TransCanada Keystone Pipeline, L.P. [March 23, 2017]). Several environmental and indigenous rights groups quickly filed lawsuits challenging this permit decision, and these actions are still pending as of this writing. (E.g., Indigenous Envtl. Network v. US Dep't. of State, Case No. 4:17-cv-00029-BMM [D. Mont.]; N. Plains Res. Council v. Shannon, Case No. 4:17-cv-00031-BMM [D. Mont.]).

If the presidential permit survives current legal challenges, this federal permit only authorizes the pipeline to cross the international boundary. State-level siting requirements (and individual property acquisitions) are still required. Initially, the project received comparatively easy siting approvals from the South Dakota Public Utilities Commission ("SD-PUC") in 2010 (SD-PUC 2010) and the Montana Department of Environmental Quality in 2012 (MT-DEQ 2012). Because the project was not actually constructed within the time limit of its initial approval, however, South Dakota required a reauthorization process. The South Dakota PUC granted that reauthorization in 2016 (SD-PUC 2016), but a group of landowners and other stakeholders, including the Yankton Sioux and Cheyenne River Sioux tribes, are currently challenging that decision in state court (In re Pub. Util. Comm'n Docket HP14-001, Case No. 32CIV16-33 [S.D. Sixth Jud. Cir. Ct.]; Associated Press 2017). In June 2017, a South Dakota circuit court affirmed the state PUC decision to permit the pipeline, but several opponents are now appealing that decision to the state supreme court (e.g., Yankton Sioux Tribe Notice of Appeal, In re Pub. Util. Comm'n Docket HP14-001, Case No. 32CIV16-33 [S.D. Sixth Jud. Cir. Ct. July 19, 2017]).

Meanwhile, TransCanada is also still navigating the approval process in Nebraska. Nebraska has been the focus of much of the national attention in the Keystone XL conflict. Protests have included a Willie Nelson and Neil Young resistance concert on the edge of a Nebraska rye field and opposition efforts from multiple tribal and environmental groups (e.g., Smith 2014).

The issues in Nebraska have been complicated by a changing legal landscape regarding how—or if—oil pipelines in the state must acquire route approval before receiving eminent domain authority. At the time of TransCanada's initial application for a federal permit, Nebraska had no special state-level authorization requirements for oil pipelines (Neb. Rev. Stat. §57-1101 [2010 Reissue]; Parfomak et al. 2015). Concerned about the original proposed route through the Sand Hills, Nebraska's governor had to voice his objection to President Obama in August 2011 (Hovey 2011). Nebraska later adopted a new pipeline siting law requiring pipeline operators to seek approval through the Nebraska Public Service Commission ("PSC") before installing a new route and exercising the state's power of eminent domain (Neb. Laws LB 1 [November 23, 2011]). In 2012 Nebraska changed this siting law again and gave pipeline operators the option of approval either by the governor or the PSC (Neb. Laws, LB 1161, §1 [April 18, 2012]).

Meanwhile, TransCanada agreed to an alternative route through Nebraska that would avoid much of the Sand Hills (Parfomak et al. 2012). Relying on the amended siting law (LB 1161), the Nebraska governor approved that route on January 22, 2013 (Broder 2013). The use of gubernatorial, as opposed to PSC, approval was challenged by a group of Nebraska landowners as an unconstitutional delegation of authority under the state constitution. A district court agreed (Order, Thompson v. Heineman, No. CI 12-2060 [Neb. Dist. Ct. Lancaster Cty. Feb. 19, 2014]), but the state supreme court failed to reach a binding conclusion on that issue because three justices determined the plaintiffs lacked standing to bring the suit (Thompson v. Heineman, 857 N.W.2d [End Page 72] 731 [2015]). Soon after, other landowners challenged the gubernatorial approval option, this time in the face of specific condemnation threats (e.g., Complaint, Steskal v. TransCanada, No. CI 15–6 [Neb. Dist. Ct. Holt Cty. Jan. 16. 2015]). Rather than continue this course, TransCanada ultimately sought to avoid the LB 1161 issue by electing to start over with a new PSC application for route approval (Bergin 2015).

After the Trump administration reignited the project, TransCanada did seek approval through the Nebraska PSC (TransCanada 2017), and that body is currently reviewing TransCanada's application (Smith 2017).

The Nebraska PSC held a final hearing on the matter in August 2017, and a decision is expected in the fall of 2017 (Brocious 2017). Regardless of outcome, however, the dispute is unlikely to resolve quickly. If the Nebraska PSC approves the route, there is likely to be more litigation—including more appeals and future condemnation proceedings. As of April 2017, approximately 9% of Nebraska landowners in the proposed Keystone XL route were still refusing to transfer easements to TransCanada—even with the looming threat of eminent domain (if the route is approved) or opportunity loss (if the route is denied) (Smith 2017). Despite some conflicting reports, as many as 6% of landowners in South Dakota may also be holding out, and more protests are possible in both states (Hendershot 2017; Smith 2017). Conversely, if Nebraska denies the route or the ongoing South Dakota litigation vacates that state's approval, legal reforms to approve the pipeline could be explored at the federal level or other legal actions may be pursued by TransCanada itself (see, e.g., Voluntary Dismissal Order, TransCanada v. Kerry, No. 4:16CV00036 [S.D. Tex. April 4, 2017]).

Dakota Access

DAPL, developed by a subsidiary of Energy Transfer Partners, is also designed to transport crude oil from the Bakken Shale Formation—though this time from production in North Dakota to an oil storage hub near Pakota, Illinois (Leonard 2017). The 30-inch-wide, 1,172-mile-long pipeline can transport roughly 500,000 barrels of Bakken crude a day (about half of North Dakota's daily output) (Dakota Access 2016).

Because DAPL is a domestic oil pipeline that does not cross an international border, it never required a presidential permit. Instead, the federal role in siting this pipeline is more limited as compared to Keystone XL. As much as 99% of the DAPL route crosses private property (Evans 2016). The DAPL developer required state-level route approvals from North Dakota, South Dakota, Iowa, and Illinois, which were received in 2015 and 2016 (IL-CC 2015; SD-PUC 2015; IA-UB 2016; NDPSC 2016; also Parfomak 2017). Only specific portions of the DAPL project require federal siting approval. For example, the United States Army Corps of Engineers ("the Corps") must approve, and in some cases grant rights of way over, sections of the pipeline that cross waters or lands under Corps jurisdiction. The Clean Water Act (33 U.S.C. §1344) regulates discharges in certain federal waters, and the Rivers and Harbors Act (33 U.S.C. §408) requires Corps permission before certain construction around federal waters. DAPL also required easements under the Mineral Leasing Act (30 U.S.C. §185) for certain crossings. This Corps involvement also triggered NEPA requirements (Parfomak 2017).

In June 2016 the federal government completed an initial environmental assessment and issued a "finding of no significant impact" for the proposed pipeline crossings that were deemed within federal jurisdiction (Parfomak 2017). In July 2016 the Corps granted a series of necessary authorizations for the development—including permits and verifications of developer authority under an existing nationwide permit—for 202 proposed water crossings along the route, as well as other federal land and easement crossings (Parfomak 2017). By September 2016, the pipeline was nearly fully complete, with one of the few unfinished exceptions being a planned crossing 95 to 115 feet under Lake Oahe, a man-made reservoir located at the confluence of the Missouri and Cannonball Rivers in North Dakota and one-half a mile from the Standing Rock Sioux Tribe ("Standing Rock" or the "Tribe") reservation (Standing Rock v. US Army Corps, 205 F.Supp.3d 4, 12-13, 24 [2016]; also Varsalona 2016).

Lake Oahe became the epicenter of most of the DAPL protests. One of the legal issues the federal government and the Standing Rock disagreed about is when and how often the Tribe was consulted regarding the project. The federal government asserts that the Tribe was unresponsive to initial requests for comments and, when they did express concerns, were fairly included in the decision process. Standing Rock asserts just the opposite and argues that, as a sovereign Indian nation, they should have been more meaningfully engaged regarding a pipeline in such close proximity to their reservation and at a place [End Page 73] of such cultural, social, religious, and treaty-based significance to the Tribe (see Standing Rock v. US Army Corps, 205 F.Supp.3d 4 [2016]).

In all events, the facts are clear that by early spring of 2016, a protest camp was forming along the banks of Lake Oahe. A group of young people from Standing Rock and neighboring tribes made headlines by running from North Dakota to the Army Corps of Engineers headquarters in Washington, DC—traveling between 30 and 70 miles a day—to protest DAPL (Hull 2016; Ritscher and de Leon 2017). They returned to much greater public awareness and protest encampments that swelled, over the course of the summer and fall of 2016, to thousands of people, including representatives from hundreds of different indigenous nations around the globe (Donnella 2016; Donovan 2016; Solnit 2016). The Lake Oahe protest was not the only place of conflict along the proposed DAPL route (for a sampling of other conflicts, see Aisch and Lai 2017), but it was the one that most captivated national attention.

In late July 2016 the Tribe sued the Corps, alleging that the pipeline permits for the project violated the law—alleging, generally, both that the federal environmental review was insufficient and that the Corps had failed to adequately consult with the Tribe (see Complaint, Standing Rock v. US Army Corps, Case No. 1:16-cv-1534 [D.D.C. July 27, 2016]). Over time, other tribal governments also brought legal challenges to the DAPL project (e.g., Yankton Sioux Tribe v. US Army Corps, Case No. 16-1796 ([D.D.C., filed Sept. 8, 2016]); Oglala Sioux Tribe v. US Army Corps, Case No. 17-267 ([D.D.C., filed February 11, 2017]). The Cheyenne River Sioux Tribe ("Cheyenne River") in particular intervened in the Standing Rock lawsuit and pursued a preliminary injunction on the grounds that the presence of oil under Lake Oahe would cause irreparable harm to its members' religious exercise rights. The district court acknowledged Cheyenne River could likely establish that its members held a sincerely held religious belief that would be harmed by the presence of an oil pipeline under Lake Oahe, but denied the injunction on other grounds (Memorandum Opinion, Standing Rock v. US Army Corps, Case No. 1:16-cv-1534 ([D.D.C. March 7, 2017]).

For its lack of adequate consultation claim, the Standing Rock Tribe relied on the National Historic Preservation Act, which expressly requires federal agencies to "take into account the effect" of any federal "undertakings" on qualifying sites of historic and cultural significance, including sites of significance to Indian nations (54 U.S.C. §§306102, 306108). The Tribe sought a preliminary injunction in August 2016, arguing that this alleged lack of consultation caused a risk of irreparable injury to sites of great cultural or historical significance to the Tribe (see Plaintiff's Motion for Preliminary Injunction, Standing Rock v. US Army Corps, Case No. 1:16-cv-1534 [D.D.C. Aug. 4, 2016]).

While this motion was pending, the Tribe filed a new affidavit asserting that the Tribe had identified new and extremely significant sacred sites on private lands near the Lake Oahe crossing and that these sites could be destroyed by pipeline construction (Supplemental Declaration of Tim Mentz Sr. in Support of Motion for Preliminary Injunction, Standing Rock v. US Army Corps, Case No. 1:16-cv-1534 [D.D.C. Sept. 2, 2016]). There were then allegations that, on a Saturday immediately after this new court filing, the developer leapfrogged ahead to target construction at these newly identified sites—possibly impacting or even destroying these sacred sites before the court could act (e.g., Emergency Motion, Standing Rock v. US Army Corps, Case No. 1:16-cv-1534 [D.D.C. Sep. 4, 2016]). The court held an emergency hearing, but ultimately, on September 9, 2016, denied any emergency relief, taking a narrow view of the impact and scope of the Corps' decisions and authorities (205 F.Supp.3d 4 [2016]). For example, risks to the sites on private lands immediately adjacent to the Corps permit area were deemed outside the scope of federal jurisdiction—at least as to the specific issues raised in the motion at that preliminary stage. (The degree to which sacred sites were actually destroyed or damaged remains a contested and unresolved issue, both at these specific sites and elsewhere in North Dakota, too (e.g., Milman 2016; Levin 2016).)

Hours after the federal court denial, however, the Departments of Justice, Army, and Interior jointly issued a statement that the Corps would not authorize DAPL construction at Lake Oahe until it could further assess the Tribe's concerns (DOJ 2016). On December 4, 2016, the Corps said it would not grant an easement at Lake Oahe, and on January 18, 2017, published a Notice of Intent to conduct a more comprehensive environmental review, including a full Environmental Impact Statement ("EIS") under NEPA (Parfomak 2017).

Upon taking office, President Trump dramatically altered the course of the federal response, and on January 24, 2017, issued a presidential memorandum directing the Corps to "review and approve in an expedited manner, to the extent permitted by law and as warranted," [End Page 74] the Lake Oahe easement application and to "consider" whether to abandon the planned EIS (Presidential Memorandum Regarding Construction of the Dakota Access Pipeline §2 [Jan. 24, 2017]). On February 7, 2017, the Corps stated that it no longer intended to complete an EIS, and on February 8, 2017, the Army granted the easement to cross under Lake Oahe (US Army Corps 2017; also Carter 2017). Oil began flowing through the completed pipeline on June 1, 2017 (Kirby 2017).

Meanwhile, the Standing Rock lawsuit continues in federal court. Most recently, Standing Rock and Cheyenne River (collectively "the Tribes") have pursued challenges to DAPL's environmental impact—and, more specifically, the sufficiency of the federal environmental review under NEPA. Just as this essay went to press, the federal court agreed with the Tribes that the government's environmental assessment was deficient in at least some respects, including a failure to consider adequately tribal treaty rights and issues of environmental justice (see Memorandum Opinion, Standing Rock v. US Army Corps, Case No. 1:16-cv-1534 [D.D.C. June 14, 2017]). The court has ordered further briefing on the remedy for this relatively narrow deficiency and is currently considering whether the pipeline must be shut off pending further environmental assessment.

This and other litigation is likely to continue for some time. In Iowa, for example, several landowners and the Sierra Club are challenging the Iowa Utilities Board's approval of the DAPL pipeline (and its delegation of eminent domain authority to the project developer) by alleging, among other things, that DAPL provides no or insufficient public service to the state (e.g., Lamb v. Iowa Utilities Board, Case No. CVCV 051997 [Iowa Dist. Ct. Polk Cty.]). Several tribal representatives have also asserted their claims in international tribunals (e.g., Request for Precautionary Measures to Inter-American Commission on Human Rights [Dec. 2, 2016]).

Protests and Engagement around the Future of Place

These pipeline conflicts are all disputes about the regulation of land use and, to varying degrees, property rights—when, where, and how pipeline demands override the individual right to exclude. Looking critically at these events, these conversations complicate otherwise familiar assumptions about private property, with potentially important consequences. Instead of viewing property simply as the "Keep Out" sign at the end of the road, recent pipeline debates help reveal a much more complex web of social, economic, and ecological interactions and relationships mediated through these legal rights to resources. Pipeline disputes invite us to think more pluralistically about the values reflected in our property system, to hear more voices impacted by these legal structures, and, possibly, to use that knowledge to make more thoughtful choices about the future of private land use in the Great Plains.

Property's Pluralism

The Keystone XL and DAPL protests—even when championed by landowners asserting their right to be free from pipeline development in somewhat simple, exclusion-oriented terms—really speak to wider understandings of property's role in regulating complex relationships. This recognizes, for example, the deep interconnectedness of humans and the environment (e.g., Freyfogle 2013). It also resonates with a growing school of property theorists who focus on property's role in organizing our complex social relationships in a way that impacts both owners and non-owners and reflects a whole range of human values (e.g., Singer 2009; Alexander et al. 2009; Alexander 2011; Rosser 2013; Dyal-Chand 2014).

For example, these pipelines disputes remind us clearly that property is more than pure alienability and economics. If property were simply an economic unit, and if pipeline companies are the more powerful and motivated actors, then one would expect landowners in the pipeline's path to always sell easements for the right price. For some subset of landowners along the planned routes, however, there appears to be no price that would persuade voluntary sales. Anecdotal reports indicate that TransCanada, at least in many cases, has been offering landowners "enough money" to purchase easements in Nebraska but that other motivations are driving landowners' refusals (see Blake 2014). Landowners opposed to pipeline easements remind us that, for some, there are values not economically quantifiable or transferable in their property rights. These include environmental and other costs associated with the risk of a spill, the potential impact on climate over generations, and the sanctity of personal, emotional connections built over time in these subjectively important spaces. In this way, these landowners' hold-out stance rings loudly in other narratives [End Page 75] of property: individual choice and liberty but also a host of non-economic legacy values tied to specific places.

At the same time, eminent domain exists as a fundamental and longstanding part of our American property system. In some respects, eminent domain is itself a reflection of the interconnectedness of landowners. Individual landowners' rights to exclusion are never absolute, but always subject to recall by state action under collectively agreed-upon circumstances. In pipeline contexts, eminent domain conversations require us, as property always does, to reconcile more than just one single owner's right to exclude and instead bring to the table broader questions about the public good. Is eminent domain use by a (sometimes foreign) pipeline company a public purpose? Are these oil pipelines in particular the right use of private resources for aggregate public good? Is this within the meaning of our interwoven social contract? Who should decide that and how?

These careful conversations about who decides these disputes, what metrics we use in land-use choice, and the environmental and other risks we are willing to take and for what ends are always at play in individual land-use choices. Because individual property boundaries do not sync with the interactions of landscapes, ecosystems, and even human communities, property owners have rights but also responsibilities to consider these wider effects. A pipeline spill will affect more than just its legal easement. A leak into a surface waterway will spread downstream. Oil transport impacts everyone's fuel prices and energy security and even climate. The importance of being awake to these interactions—and the benefits of at least some broader, coordinated policy decisions in some cases—is clear in the pipeline context, regardless of one's view of the proper project outcomes.

This awareness is also relevant to a range of other challenges across the Great Plains that may benefit from aggregating clusters of coordinated private property choices. For example, conservation, water use, and even community economic development can all benefit from strategic and complementary uses on adjacent properties to maximize value (e.g., Schutz 2010).

Reconciliation and Justice

There is also the matter of justice. Property conversations tend to focus heavily on the rights of owners, but our property system as a whole must be justified—just as any legal action is—by its net benefit for the good of society (e.g., Freyfogle 2013). That must include the perspectives of both owners (those who are included and have the right to exclude others) and non-owners (those who are directly impacted by the system's exclusionary effects).

Pipeline conflicts also remind us of the important and difficult ways that ownership may be constructed and contested. Many of the pipeline opponents are current landowners, and many are Native Americans. Every property title in this country traces its roots to a colonial acquisition of title based on "discovery" of this continent by Europeans. The Supreme Court opinion that rationalized this territorial land grab explicitly rests on racist claims of superiority of civilized, Christian Europeans over the "savage" indigenous peoples of this place (Johnson v. M'Intosh, 21 U.S. 543 [1823]; also Robertson 2005). This colonial claim of title supplanted by legal force the indigenous institutions of governance, resource allocation, and dispute resolution that were already established in this country. Thus, many of the tribes and tribal citizens raising their voices in protest of the pipelines are no longer deemed "owners" of the land at issue—but only because of the way we have elected to construct original property acquisition claims in this country.

For example, the Ponca Tribe of Nebraska, one of many tribes actively contesting Keystone XL, has no formal reservation land base in the state. The Tribe has historic ties to this region, but the Tribe was terminated in 1962 by an Act of Congress that stripped the Tribe of its federally recognized sovereign status and compelled the Tribe to sell its reservation land in northeastern Nebraska (Pub. L. 87-629, Sept. 5, 1962, 76 Stat. 429). Strategically deploying the power of property law as a transformative force, this act was part of a wider federal termination policy that, like other federal Indian land policies before it (e.g., McDonnell 1991), explicitly used top-down property law reforms within indigenous territories to achieve specific social, cultural, and economic ends. Termination's goal was to use the power of private property—as opposed to the special trust status of Indian lands within reservations—to "free" the Ponca people and expedite assimilation. It diminished tribal sovereignty and the policy, overall, was a moral and practical failure (see Newton 2012, §1.06). In 1990 the Tribe was restored to recognized sovereign status under the Ponca Restoration Act (Pub. L. 101-484, Oct. 31, 1990, 103 Stat. 1167), but it now only has certain service areas for the Tribe, not a legal reservation. [End Page 76]

The Ponca acts of protest against Keystone XL, nonetheless, have been powerful. In addition to participating in the legal fights, Ponca activists have joined with current Nebraska landowners to plant ancestral Ponca corn along the planned pipeline route. The corn is itself considered sacred and its replanting in the pipeline path is intended as a symbolic act of resistance—as well as a practical effort to reclaim the native crop and rebuild the tribe's seed stock (Bergin 2014). The Ponca seeds are called "Seeds of Resistance" and represent the first time this Ponca corn has been planted in ancestral lands for over 130 years (Bruzon 2016). Whatever one's view of the pipeline project itself, this voluntary and pure sharing of land and seed between current owners and tribal leaders is a profound act.

In the DAPL context, Standing Rock, at the epicenter of the protest, also made no direct claim of ownership to the land around Lake Oahe—though they do assert treaty rights to hunt, fish, and access water there. The pipeline passes within a half mile of their reservation but is not on tribal lands directly. Standing Rock also has a complicated history of land loss. The 1851 Treaty of Fort Laramie guaranteed the Great Sioux Nation (or Oceti Sakowinthe)—of which Standing Rock is one successor—exclusive right to remain in the space where DAPL now runs (1851 Fort Laramie Treaty, Sept. 17, 1851, 11 Stat. 749). Then, gold was discovered in the Black Hills, and over more treaty changes, the federal government proceeded to break its promises. The Sioux were forced to relocate into a series of smaller, fragmented reservation spaces—including the current Standing Rock Reservation—in what the Supreme Court later concluded was not only an unconstitutional taking of tribal property but the most "ripe and rank case of dishonorable dealings" likely to be found in US history (United States v. Sioux Nation, 448 U.S. 371, 388 [1980]).

The Supreme Court did order compensation to the Sioux Nation for the taking of some treaty lands, including a large part of the Black Hills, but the Sioux—including Standing Rock—have refused to take this money, asserting again that no money could ever compensate for the loss of the Black Hills. Since the Supreme Court decision in 1980, this sum still sits in the US treasury and has grown to over $1.3 billion (Uenuma and Fritz 2011).

And, this was not the last taking Standing Rock endured. In 1958 the Army Corps of Engineers dredged the Cannonball River to construct the Oahe Dam, which created Lake Oahe (Varsalona 2016). The dam flooded 160,889 combined acres on the Standing Rock and Cheyenne River reservations, "destroy[ing] more Indian land than any other single public-works project in the United States" (Lawson 2009, 47, 286).

In its DAPL challenge, Standing Rock submitted evidence to the court about the particular significance of the Missouri and Cannonball Rivers, where their ancestors gathered to trade and where the waters honed perfectly round sacred stones. They also pointed to important burial sites in the area and explained that, despite the 1958 dredging of these rivers, Lake Oahe was integral to life on the reservation and its bank used for spiritual ceremonies (205 F.Supp.3d at 12–13). As Standing Rock Chairman eloquently described, theirs was a claim that transcended legal constructions of ownership:

History connects the dots of our identity, and our identity was all but obliterated. Our land was taken, our language was forbidden. Our stories, our history, were almost forgotten. What land, language, and identity remains is derived from our cultural and historic sites.… Sites of cultural and historic significance are important to us because they are a spiritual connection to our ancestors. Even if we do not have access to all such sites, their existence perpetuates the connection. When such a site is destroyed, the connection is lost.

(205 F.Supp.3d at 33)

Indigenous leaders—including not only Standing Rock but the hundreds of other tribal nations represented at the DAPL protests—powerfully tell us that they are fighting pipelines not just for their land rights but for the care and concern for the land for all of us, and this is what property debates at their best should be about (e.g., Archambault 2016). Tribal representatives assert a cultural right to steward certain places (see Carpenter et al. 2009), and federal law does recognize consultation rights for government actions impacting places of special religious and cultural significance, without regard to ownership (e.g., 35 C.F.R. §800.2; also Eid 2015). But as evidenced by the course of conflict in DAPL, and the rise of such a resounding reactionary outcry and movement across Native America, this may not yet be enough—and could encourage us to think more broadly about those who are excluded from formal, legal claims of ownership in more contexts. [End Page 77]

Future Dynamics

Finally, the last story we often hear about property is that it is a static, fixed system of defined entitlements that is neutral (and, therefore, implicitly unexaminable). This speaks to the need for certainty and stability in promoting economic investments and the genuine value of having clear, defined, and uniform institutions of ownership that are easily and efficiently communicated to the outside world. But in fact, property is often dynamic. Property has changed numerous times—in large ways, from the removal of feudalism in England to the desegregation of lunch counters in the United States, and in smaller iterative ways, such as requiring incrementally higher standards of habitability in residential rental housing and experimenting with novel, pop-up, and shared use arrangements, such as in new community agriculture or online space-sharing platforms.

It is hard to predict how the monumental protests spurred by these recent years of pipeline conflict will shape the future of property and land use in the Great Plains. One thing we know is that most theories that predict misallocation of resources, such as the tragedy of the commons or the anticommons, all rely on an assumption that stakeholders cannot and will not adequately communicate and cooperate with each other (Ostrom 1990). We also know that protests, particularly in the property context, have a history of being productive for moving and shaping property conversations about equity, access, and the shared dignity of all human beings—even when immediate results may be slow to materialize (Peñalver and Katyal 2010). And, students of the common law are also well familiar with the naturally iterative development of legal institutions and legal and social change—what Llewellyn described as a process of accumulative storytelling such that "the heaping up of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all" (Llewellyn 1951; also Dyal-Chand 2014).

Concrete instances do pile up. In one example, before the Keystone XL conflict and the massive uprising around DAPL, a different debate swirled in Nebraska—a very public disagreement over the state historical society's possession of centuries-old remains and burial items of almost 500 Pawnee people (see Welsch 2012). The Pawnee had been forcibly removed from Nebraska to Oklahoma in the late 1800s (another forced federal land policy), but Pawnees requested repatriation of their ancestors' remains from museum storage so they could, in their words, rebury their elders (Trimble 2010).

After years of debate, Nebraska finally passed legislation that, in turn, helped spur federal legislation—the Native American Graves Protection and Repatriation Act (25 U.S.C. §3001)—that requires broad repatriation of certain human remains and tribal cultural objects to tribal parties upon request and protects future discoveries on federal and tribal lands (see Brown 1995). The conversation around Pawnee remains in Nebraska, however, spread even further than that (already significant) law change. The town of Genoa, Nebraska—the home of an old Pawnee mission—ultimately donated a large plot of land in the city cemetery "at the very site of the old Pawnee village" for reburial (Welsch 2012). Roger and Linda Welsch owned land where the Pawnee had camped in 1871 as the first Danes crossed the Loup River, and when the Welsches invited the Pawnee to explore their land as a place of potential reburial, Roger and Linda quickly determined to return the land to the Pawnees permanently—feeling, very clearly, "that the Pawnee had not been our guests on our land, but without question we were guests on theirs" (Welsch 2012, 79).

Today, near a town that calls itself the Danish capital of Nebraska, and one county over from where the Keystone XL pipeline is seeking a route, the Pawnee are—quite unexpectedly and quite profoundly—back in ancestral lands of deep-seated significance for the first time in over a hundred years. There is a beautiful coming together going on. After the burials in Genoa and the transfer of the Welsches' 60 acres, another landowner donated "a beautiful country house and adjacent land to the Tribe" and a downtown building in Dannebrog was also gifted to the Tribe (Trimble 2010). That downtown hall is now the Pawnee Art Center, where a New York Times reporter came in some awe and speakers from around the country now come for talks on indigenous themes on crisp fall afternoons (Perrottet 2012).

The final story of DAPL and Keystone XL may still be untold, and the answer may not be fully legal. Litigation, debate, and grassroots movements for change may continue for some time. Aldo Leopold famously argued that the best and only way to pursue a truly sustainable future is through landowners internalizing an ethic of stewardship and concern for community, including the natural world (Leopold 1968). Legal scholars have frequently used similar ideas focused on building more empathetic individual and collective understandings in [End Page 78] order to adopt more just social responses (e.g., Singer 2017; Riley and Carpenter 2016; Dyal-Chand 2014).

May we similarly hope that by hearing fully all the voices in these pipeline debates—developers, proponents, landowners, and also tribal activists—that we move toward a place of greater empathy and vision, with a broader view of what it means to own property and be a region of private land ownership.

Jessica A. Shoemaker

Jessica Shoemaker, Associate Professor, College of Law, University of Nebraska–Lincoln, 211 Ross McCollum Hall, Lincoln, NE 68583, jshoemaker@unl.edu


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