ANALYSIS: Tesoro High Plains Pipeline offer to Native landowners unacceptable

FORT BERTHOLD RESERVATION, ND –  Tesoro High Plains Pipeline recently began sending a  right-of-way and “past use” agreement to hundreds of individual landowners on the Fort Berthold Reservation. A proposed lease agreement opponents consider “wholly unacceptable.”

The pipeline offer attempts to remedy a seven-year-long trespass across Fort Berthold that crosses some 90 acres. The pipeline was owned by Andeavor, which was later bought by Marathon Petroleum Corp. The company first sought a lease renewal from landowners in October 2017. After repeated meetings and failed “good-faith” negotiations, landowners responded by filing lawsuits.

While landowners have been left to negotiate with Marathon, leaders of the Three Affiliated Tribes Tribal Business Council struck their own deal with the oil company in 2016. Tribal leaders did not attempt to get the same fair-market deal for tribal citizens. Mark Fox told the Bismarck Tribune in October 2018 that it was up to the BIA, not the tribe, to take care of the individual landowner.

“Andeavor has provided an offer to landowners that is less than 1/20^th what it paid the tribe for the exact same pipeline over similar land. Importantly, we do not consider this good faith negotiations.”

Attorney Keith Harper, a former U.S. ambassador to the United Nations Human Rights Council

Fox’s line of thinking runs contrary to the practice of true tribal sovereignty which calls for tribal leaders to take care of the people. Ironically, it is the individual landowners at Fort Berthold who own title to 66 acres of land compared to the tribe’s 24 acres. Yet, tribal leaders negotiated a contract and allowed the trespass to continue without seeking individual landowner input. The tribe’s contract with the oil company is tens of millions of dollars more than what is being offered to its citizens.

“Andeavor has provided an offer to landowners that is less than 1/20^th what it paid the tribe for the exact same pipeline over similar land,” said attorney Keith Harper, a former US ambassador to the United Nations Human Rights Council “We are in the process of communicating this offer to the landowners but we suspect most, if not all, will consider this offer wholly unacceptable. Importantly, we do not consider this good-faith negotiations.”

Meanwhile, after standing by idly for years, the Bureau of Indian Affairs appears finally ready to issue a trespass decision. Reed Soderstrom, an attorney representing a group of Three Affiliated Tribes landowners, has requested the BIA issue a cease and desist order. As the years pass, Marathon-Tesoro pipeline operators continue to reap billions of dollars in profits while transporting oil across reservation land. The pipeline carries oil to the Marathon Petroleum Mandan Refinery in Mandan, N.D.

Mediation is being scheduled, said Reed Soderstrom, an attorney representing a group of Fort Berthold landowners. It will likely take place in August.

“This offer attempts to settle both the trespass and the future right of way,” said Soderstrom. “This offer is as follows:  $9,000 bonus per acre, annual payments for the remaining 21 years of $2,000 per acre, and $19,600 per acre for trespass. Tesoro see this offer as totaling $70,600 per acre. We think this offer is too low and advise everyone not to sign.”

Harper as well as members of the Fort Berthold Alllottee Land and Mineral Owners Association filed separate lawsuits in 2018, but the suits were dismissed in 2019. A federal judge ruled that  tribal remedies needed to be exhausted, remedies that fall to the Bureau of Indian Affairs. Bureaucrats have done little to nothing to stop the ongoing trespass.

Seven years of trespass is seven years too long, said Tex Hall, former Chairman of the Three Affiliated Tribes. “The BIA — as our trustee that’s supposed to safeguard our allotted Indian trust lands – must hold Marathon accountable and require trespass payment at fair market value.” Hall, president of the Fort Berthold Allottee Land and Mineral Owners Association, said the BIA should issue a cease and desist letter to shut down the Tesoro High Plains Pipeline until payment is made to the allottees.

Jodi Rave holds title to individual trust land on the Fort Berthold Reservation. She is the publisher of Buffalo’s Fire and advocates for freedom of information and an independent American Indian press. She can be reached at 701-264-8961 or jodi@imfreedomallian