Indigenous

North Dakota commissioners urged to move $15K case against pipeline developer forward

Staffers with the North Dakota Public Service Commission say there's no doubt the developer of the four-state Dakota Access oil pipeline violated rules regarding reporting Native American artifacts.

Public Service Commission says Energy Transfer Partners failed to get approval before construction

Energy Transfer Partners, the company behind the Dakota Access pipeline, is challenging a proposed $15,000 US fine for violating state rules regarding reporting Native American artifacts. (Blake Nicholson/Associated Press)

Staffers with the North Dakota Public Service Commission say there's no doubt the developer of the four-state Dakota Access oil pipeline violated rules regarding reporting Native American artifacts.

Via attorney John Schuh, the staffers urged the three-member commission last month to move the case against Dallas-based Energy Transfer Partners forward, saying the company's arguments against a proposed $15,000 US fine are flawed.

The Public Service Commission maintains that Energy Transfer Partners subsidiary Dakota Access LLC failed to get its approval before proceeding with construction in October on private land in southern North Dakota after the artifacts were found along the route.

Crews diverted construction so the artifacts weren't disturbed. The State Historic Preservation Office concurred with the plan, but the Public Service Commission didn't because it didn't get information from the company until nearly two weeks after the artifacts had been discovered.

The Public Service Commission filed a complaint in November and proposed the fine, which pales in comparison to the $3.8 billion US cost of the pipeline to carry North Dakota oil to a shipping point in Illinois.

No timeline on decision

Energy Transfer Partners in late November decided to fight the fine. Company attorney Lawrence Bender said that, under state law, there needs to be a wilful violation of Public Service Commission orders, which he said didn't occur.

Bender's motion also referenced public comments by Public Service Commission Chairwoman Julie Fedorchak, who said she was "disappointed" with Energy Transfer Partners's conduct but acknowledged it might have resulted from a miscommunication within the company.

Bender said that "hardly rises to the level of wilful, intentional conduct ... warranting a penalty."

Schuh in his Dec. 15 response said Energy Transfer Partners's argument "appears to meander around a number of commission discussions with the public and the meaning of wilful with little contestation of the sufficiency of the complaint."

Schuh also said that requiring intent when it comes to a regulatory offence "would make the application of regulation so cumbersome that it would clearly frustrate its purpose."

There is no timeline for the Public Service Commission's decision on whether to grant the company's motion to dismiss the case or schedule a hearing before an administrative law judge.

Completion of the 1,900-kilometre pipeline has been held up due to the federal government reassessing permitting near the Standing Rock Sioux's reservation.

The pipeline has been protested by the tribe and its supporters, who believe the project might harm drinking water and artifacts. Energy Transfer Partners disputes that.

now