Company showed 'lack of transparency' in reporting artifacts discovery

BISMARCK-The company building a controversial oil pipeline north of the Standing Rock Sioux Reservation failed to immediately notify state regulators after finding four stone cairns and other artifacts during construction in Morton County as tensions grew among pipeline opponents, documents show.

Dakota Access LLC, a subsidiary of Dallas-based Energy Transfer Partners, waited at least 10 days to notify the Public Service Commission about an unanticipated discovery found in mid-October, a potential violation of the state permit that authorizes pipeline construction.

The company formally notified the PSC on Oct. 27, making the unanticipated discovery report a public record for the first time, the same day hundreds of law enforcement officers evicted protesters blocking the pipeline's construction route on private land, leading to 141 arrests.

Commission Chairwoman Julie Fedorchak said she's disappointed the company didn't notify the PSC at the same time as the State Historic Preservation Office.

"I was very upset when I found out about it and asked for immediate information," she said.

Fedorchak said the three-member commission plans to discuss the matter and the possibility of fining Dakota Access during its meeting at 10 a.m. Wednesday at the State Capitol.

The Standing Rock Sioux Tribe, which has repeatedly disputed the state archaeologist's findings that the pipeline route won't affect cultural resources, was not involved in evaluating the find.

Jon Eagle Sr., tribal historic preservation officer for the tribe, said normally he would have been notified about such a discovery, but he didn't know about it until contacted Tuesday by Forum News Service.

"North Dakota State Historic Preservation Office has closed their doors to the tribe," Eagle said. "They don't return my phone calls, they didn't respond to my letter. There's no open communication."

'The site was protected'

The State Historical Society reviewed the site but did not notify Standing Rock representatives, even though they jointly toured part of the pipeline route three days after the Oct. 17 discovery.

The state's chief archaeologist, Paul Picha, also didn't notify the PSC about the evaluation of the cairns and artifacts.

Fedorchak said she first learned on Oct. 25 about the discovery from the third-party consultant hired by the PSC to inspect pipeline construction.

Keitu Engineers and Consultants wrote in a report that inspectors learned of the discovery during an Oct. 21 inspection. The firm said it was informed by an Energy Transfer Partners environmental inspector that the discovery was made "on or about Oct. 15."

Fedorchak said she thinks the company "followed in the spirit of the requirement" by notifying the State Historic Preservation Office, but said she found a "general lack of transparency" by not telling the PSC at the same time.

Vicki Granado Anderson, a spokeswoman for Dakota Access, said all of the proper procedures were followed.

Fedorchak said the historic preservation office was "apologetic" for not notifying the PSC about the discovery.

"The process was followed, the site was protected, the experts that were responsible for that were engaged quickly and the work was done effectively," she said.

Area flagged for avoidance

An attorney for Dakota Access informed the PSC in a letter dated Oct. 27 that the unanticipated discovery occurred Oct. 17 when a third-party cultural resource monitor was inspecting the site in conjunction with clearing and grading activities.

The project's hired archaeologist was sent to assess the find, which was "thoroughly investigated" with photos, mapping and excavation of 17 shovel probes, the letter said.

The shovel probes identified degrading sediments "with a low likelihood for buried cultural deposits," but because there were multiple cairns in close context with Knife River flint artifacts, the principal investigator "recommended avoidance of the property," the letter states.

Dakota Access notified the historic preservation office on Oct. 17, and the office signed off the next day on the company's plans to avoid any impacts, said Picha, the chief archaeologist.

Picha said cairns, or rock piles, can be commemorative markers, trail markers and "in a small number of instances, they have marked human burials." He said the cairns discovered Oct. 17 aren't believed to mark burial sites, and he noted the route was changed to avoid that area.

Eagle said tribes associate cairns with burial sites.

"These are the same people that said there's nothing there. Now they're reporting a find?" Eagle said. "Also there's still no tribal consultation, there's no tribal participation."

Dakota Access rerouted the pipeline within the approved corridor to avoid any impacts to cultural resources, and the discovery was made far enough in advance that construction crews weren't stalled, the company's letter said.

There is a 50-foot buffer between the construction space and the nearest artifact, Fedorchak said.

Company explains delay

The company said the delay in notifying the PSC about the discovery was "a result of the find occurring simultaneously with Dakota Access officials coordinating an on-site visit for various officials," including U.S. Rep. Kevin Cramer, R-N.D., Standing Rock Sioux Tribe Chairman Dave Archambault II and the U.S. Army Corps of Engineers' district commander.

That tour took place Oct. 20, three days after the find. Two bones discovered along the pipeline route during the tour were tested by the state forensic examiner and determined to be carpal bones from a large mammal, too big to be human bones.

"Dakota Access ensured the Unanticipated Discovery Plan protocols were followed, and did not intentionally delay providing notification to the Commission," the company's letter states.

On Aug. 12, when authorities investigated a report of possible human remains found in a Morton County pipeline construction area, former Standing Rock tribal preservation officer Tim Mentz Sr. was among the group that investigated. The inspection found no evidence of human remains. In that case, the company filed a letter notifying the PSC on Aug. 15.

Picha said the Oct. 17 discovery was farther west of the roughly two-mile area toured three days later, so those on the tour-including Eagle-would not have seen it. Asked why his office didn't notify the tribe, Picha said it's not required in the unanticipated discovery plan.

The Dakota Access Pipeline unanticipated discovery plan, which spells out the protocol to follow in the event of a find, lists a contact for the Cheyenne River Sioux Tribe, but no contacts for Standing Rock.

When asked if the tribal historic preservation officer should have been notified, Fedorchak said the PSC leaves that decision to the state historic preservation officer.

"We really rely on their expertise to engage in that process and make sure that it's done right because they're the archaeologists," Fedorchak said.