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Stanford experts discuss legal and environmental challenges at Standing Rock - Stanford University News - 04 Dec 2016 05:05


[[html]]Since April, protesters have been in a standoff with law enforcement authorities over a planned underground pipeline that would transport crude oil from the Bakken oil fields in North Dakota to an oil tank farm in Patoka, Illinois. The pipeline would run less than a mile from the northeast border of the Standing Rock Sioux Reservation underneath the tribes primary water source, the Missouri River. Police have used water cannons, rubber bullets and pepper spray to stop protestors from advancing, while protestors have been accused of starting fires around barricades. The U.S. Army Corps of Engineers (USACE) has said it will close the area where protestors are camped starting Monday, Dec. 5.<br><br><img class="wp-image-11626 size-full img-responsive" src="" alt="Law enforcement personnel fire a water cannon at Standing Rock protestors in sub-zero temperature." srcset=" 750w, 555w, 705w, 345w, 375w" sizes="(max-width: 750px) 100vw, 750px"/>Law enforcement personnel fire a water cannon at Standing Rock protestors in sub-zero temperature. Protestors against the Dakota Access Pipeline have raised legal and environmental challenges against the pipelines construction. (Image credit: Dark Sevier)<br><br>Stanford professors Greg Ablavsky, Rob Jackson, and Deborah Sivas spoke with Stanford Report about the environmental and legal challenges to the pipeline.<br><br>What is the current status of the legal challenge against the Dakota Access Pipeline from the Standing Rock Sioux?<br><br>Ablavsky: Both the district court and the D.C. Circuit largely denied the tribes motions for an emergency injunction. The legal challenge proceeds, but Dakota Access may continue construction. However, USACE is still reconsidering its permitting decision for the pipelines river crossing, so Dakota Access cannot currently build on USACE land bordering the Missouri River.<br><br>What is the likelihood of a pipeline leak that would contaminate the water source of the Sioux at Standing Rock?<br><br>Jackson: The chance of a large oil spill is small, especially from a new pipeline. It isnt zero, though. Pipeline spills are up in the United States primarily because were producing and shipping more oil than five or 10 years ago. The biggest fear is a spill that affects the Missouri River and drinking water for the Standing Rock Sioux and other people.<br><br>Do the people of Standing Rock have grounds to argue against the pipeline based on the Clean Water Act?<br><br>Sivas: Because construction of the pipeline will require digging and other work in hundreds of wetlands and water bodies, including tunneling under the Missouri River, the Clean Water Act mandates that the pipeline company obtain various permits from USACE. In July, the tribe filed a lawsuit in U.S. District Court arguing that, in issuing these authorizations, USACE failed to adequately consider the impacts of construction and operation on the tribes cultural, religious and historic uses of the area.<br><br>Are there laws that mandate that Native American tribes must be consulted on projects that may impact them?<br><br>Ablavsky: Various federal statutes including the National Historic Preservation Act at issue here require consultation with affected tribes. This consultation, however, does not mandate a particular outcome, and agencies may still approve projects notwithstanding tribes objections, although written comments are required.<br><br>The United Nations Declaration of Rights of Indigenous Peoples (UNDRIP), which the United States agreed to support in December 2010, mandates that the free, prior and informed consent of indigenous peoples be obtained prior to governmental actions affecting them. But in announcing its support, the United States noted that the UNDRIP was not legally binding or a statement of current international law.<br><br>Why are the Treaties of Fort Laramie from 1851 and 1868, which gave the Sioux much larger territorial claims over the land in dispute with the pipelines construction, not being honored by the U.S. government?<br><br>Ablavsky: In the late 19th century, Congress diminished the boundaries of the Sioux Reservation established in the 1851 and 1868 treaties. Although this violation of the treaties occurred without tribal consent, unfortunately the Supreme Courts 1903 decision in Lone Wolf v. Hitchcock allows Congress to abrogate Indian treaties unilaterally.<br><br>Would rerouting the pipeline be possible, and could this be ordered through the courts?<br><br>Sivas: There has recently been talk by some, including President Obama, of rerouting the pipeline to avoid the impacts to the tribe and its sacred lands. The pipeline company, Energy Transfer Partners, seems to have soundly rejected that idea. The laws being used by the tribe in its lawsuit would not allow a court to order a new route. At most, the court could block the proposed construction and order USACE to consider a different route.<br><br>Advocates against the Dakota Access Pipeline have alleged that the original pipeline route was changed due to concerns over its impact on Bismarcks water source. If true, how does this affect the tribes case?<br><br>Sivas: If the record in fact shows that the proposed pipeline had been rerouted to avoid environmental impacts, such as impacts on Bismarcks water supply, that may cut against the tribes legal claims. It would allow USACE to argue that it already conducted a full review of the options as the law requires, and chose the least impactful. On the other hand, if prior rerouting protected non-native communities by pushing impacts onto the tribal lands, the tribe might have some new arguments based on environmental justice or environmental racism.<br><br>What can the Obama administration do, if anything, to stop construction of the pipeline?<br><br>Ablavsky: For now, USACE is reevaluating the permit required for the crossing of the Missouri River, which has temporarily halted construction. While the Corps asked for more time, it cannot delay indefinitely, and a decision to revoke the permit would almost certainly be subject to legal challenge.<br><br>How might the incoming Trump administration affect the pipeline dispute?<br><br>Ablavsky: In general, Trumps handful of past statements on Indian affairs are not encouraging to supporters of tribal sovereignty. The Trump administration could likely reverse any Obama administration decision and allow construction to proceed, notwithstanding the objections of Standing Rock. The sole recourse then would be with the courts, although, given the recent rulings, Standing Rock probably doesnt have much likelihood of success.<br><br>Greg Ablavsky is an assistant professor of law at Stanford Law School.<br><br>Rob Jackson is the Michelle and Kevin Douglas Provostial Professor in Stanfords School of Earth, Energy &amp; Environmental Sciences and a senior fellow at the Stanford Woods Institute for the Environment and the Precourt Institute for Energy.<br><br>Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law, director of the Environmental and Natural Resources Law and Policy Program and director of the Environmental Law Clinic at Stanford Law School, and a senior fellow at the Stanford Woods Institute for the Environment.<br><br>[[/html]] - Comments: 0

Travis Vader verdict won't stand, say some legal experts &mdash; latest twist in troubled murder case - 17 Sep 2016 17:43


[[html]]As an Alberta Court of Queens Bench justice wrapped up the lengthy, sometimes chaotic Travis Vader murder trial by handing down a second-degree murder guilty verdict Thursday, his decision was already under fire from some criminal law experts. <br><br>Justice Denny Thomas commended the RCMP for a job well done, months after describing parts of the investigation as bungling in a different decision.<br><br>I became increasingly impressed by how the RCMP investigation of Mr. Vader wove a credible, albeit circumstantial web where Mr. Vader was the obvious suspect, Thomas wrote.<br><br>Earlier this year, Thomas denied a defence application to have the charge against Vader judicially stayed, following a lengthy abuse of process hearing, but said it had been a very close call.<br><br>The massive investigation into the McCanns 2010 disappearance involved 600 police officers and multiple undercover operations. Court documents show hundreds of officers investigated tips, watched Vaders family, intercepted his in-custody communications, seized vehicles, met with informants and produced thousands of documents, videos and audio recordings. <br><br>As the investigation ballooned in size, disclosure of prosecution material to the defence became problematic. Complicated by Vader changing defence lawyers numerous times, the RCMP discovered late in the process they hadnt disclosed all the necessary materials.<br><br>Vaders lawyer, Brian Beresh, was still asking for disclosure only weeks before the double-murder trial was scheduled to begin in April 2014. That March, Beresh received 5,000 pages of new material not previously disclosed to the defence. The late disclosure forced the prosecution to stay the murder charges. Months later, RCMP again charged Vader with killing the McCanns.<br><br>Beresh argued this was an abuse of process, but Thomas didnt accept that.<br><br>In his written ruling last January, Thomas acknowledged an obvious and serious failure in the disclosure process by the RCMP, but ruled the bungling was unintentional negligence and not an abuse of process. Thomas also rejected the argument there had been an unreasonable delay.<br><br>With his guilty verdict Thursday, which was live-streamed from the courtroom, Thomas again sided with the Crown, though he said he could not conclude the Crown had proven beyond a reasonable doubt that Vader was guilty of first-degree murder. <br><br>Thomas ultimately accepted the bulk of the Crowns argument, and chose to find Vader guilty on two counts of second-degree murder, citing Section 230 of the Criminal Code.<br><br>Criminal law experts on social media pointed out Section 230, though it still exists, had been struck down as unconstitutional by the Supreme Court in 1990. It had stated that second-degree murder can be committed if a death occurs, even unintentionally, in the course of committing another crime. <br><br>University of Alberta law school professor Peter Sankoff set off a social media storm with his tweets.<br><br>Speaking to Postmedia, Sankoff called Thomas error unbelievable. Vader might well be guilty of manslaughter, he said, but not of second-degree murder, at least not on the basis of Thomas legal and factual argument.<br><br>Its just a staggering thing, said Sankoff. Its mind-boggling. This murder verdict cant stand. <br><br>Immediately after the verdict, Beresh said there were errors in the judgment, and that the defence team planned to appeal. He later told Postmedia he is considering asking for a mistrial. <br><br>Beresh said he plans to file an appeal Friday.<br><br>Crown prosecutor Ashley Finlayson initially said he was pleased with the ruling, and that he was glad Thomas had accepted each little bit of the circumstantial evidence that led to the whole picture. Later in the day, the Crown Prosecutors Office said it could not comment on the Section 230 issue, as the matter is before the court. <br><br>&#13;With files from Paula Simons and Tony Blais<br><br>moc.aidemtsop|snosrapp#moc.aidemtsop|snosrapp<br><br>&#13;<br><br>[[/html]] - Comments: 0

Hey There, And Welcome To My New Website And Blog. - 22 Jul 2016 06:28


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Hello, And Welcome To My Brand-New Website And Blog Site. - 20 Jul 2016 03:15


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