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Dakota Access Pipeline Legal Battle to Rage Through Summer

Native American protest inside Union Station in Washington, D.C., in support of Standing Rock Sioux Tribe s stance against the Dakota Access Pipeline, or DAPL. November 15, 2016.

The protesters and cameras are gone and oil is flowing[1] through the Dakota Access Pipeline in North Dakota, but the battle over the 1,200-mile pipeline continues in a federal courtroom in Washington, D.C.

In the next few months, a team of lawyers at Gibson, Dunn & Crutcher and Norton Rose Fulbright[2] will try to convince a district judge to keep the pipeline open while the U.S. Army Corps of Engineers reassesses the permit it granted Dakota Access. The Standing Rock Sioux and other nearby tribes asked that the pipeline be shut down Wednesday during the Corps review.

Opening briefs on the issue from Dakota Access and the Corps were set for July 17, and the tribes response is due Aug. 7. A decision isn t expected until as early as September.

Last week, in a 91-page opinion[3], Judge James Boasberg ruled the Corps permitting process was legally flawed. Boasberg ordered the Corps to conduct further review to determine if an EIS is needed, but declined to vacate the existing permit.

Leading the charge for Dakota Access, which joined forces with the Army Corps as an intervenor, are William Scherman, David Debold and Miguel Estrada of Gibson Dunn, and Kimberly Caine and Robert Comer of Norton Rose. Alan Glen of Nossaman is also on the team.

Opposing them is Jan Hasselman with the environmental legal group Earthjustice[4], who is arguing the case on behalf of the Standing Rock Sioux.

Our view is that until there is a proper risk analysis that looks at the risk of oil spills, that considers the impacts to the tribe, they shouldn t be operating that pipeline, Hasselman said after the hearing. We ll be saying that as forcefully as we can to the court.

Another concern for the tribes, raised multiple times during the hearing Wednesday, is whether the Corps will allow public comment and input from the tribes during the review. If they don t, Hasselman said his clients will seek a court order requiring it.

If the Army Corps goes into a room and closes the door and comes up with a new analysis, we won t have moved this ball forward. We won t have solved any legal problem. We ll just be back in front of the court again, Hasselman said. So our position is, this needs to be an open process.

The tribes had argued[5] that under the National Environmental Policy Act, the Corps should be required to conduct a full environmental impact statement, known as an EIS, before issuing a permit to Dakota Access. In December, the Obama administration rescinded the permit and ordered[6] an EIS. But in February, the Trump administration rescinded that order and granted the permit.

For much of last year, the litigation ran parallel to massive protests by tribe members and activists at the pipeline construction site in North Dakota. An estimated 10,000 people camped out in the area to protest, the last of whom were cleared[7] out in February. Tensions reached new heights after protests turned violent[8] amid clashes with private security officers in September. North Dakota then-Gov. Jack Dalrymple even activated[9] the state s National Guard to assist local law enforcement with the protests.

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Peak summer travel means increased airport security

SALT LAKE CITY With summer air travel season expected to peak in the coming weeks, security at the state’s largest airport is ramping up to meet the safety demand. The Transportation Security Administration and authorities at Salt Lake City International Airport are gearing up to provide enhanced security, particularly during the peak summer travel season. The TSA projects the number of passengers traveling from Salt Lake City will jump by about 12 percent over this same period last year, and agents at the airport are expected to screen an average of 25,000 people per day, with the busiest period starting in mid-July and continuing through August, explained Lorie Dankers, TSA public affairs manager for Utah.

The busiest days travel days are expected to be Sundays and Mondays, along with Thursdays and Fridays, with peak times at the security checkpoint projected to be from 4:30 a.m. to 10:30 a.m., and 2:30 p.m. to 4:30 p.m., she said. Passengers are advised to plan ahead to limit the impact of the peak travel periods.

“We do recommend during peak travel times that passengers arrive two hours early to allow time to check baggage and check in, come through security and get to your gate,” Dankers said during a news conference Tuesday at Salt Lake City International Airport. “With a 12 percent increase, you will find that every step of the process will take you a little more time.”

Peak travel months nationally will be June and July, including the Fourth of July weekend. During the busiest days of the summer, the TSA will screen more than 2.5 million passengers per day, she noted. Among the more pronounced safety measures being implemented at airports across the country will be added canine security officers, including several in Salt Lake City.

“These canines are specially trained to detect explosives and explosive components,” Dankers explained. “They are also trained to detect explosive components that are mobile and trained to pinpoint the source of that odor.”

Peak Summer Travel Means Increased Airport Security


Peak Summer Travel Means Increased Airport SecurityJasen Lee 0 Pending


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A Father’s Day Remembered

Thirty years ago on Father s Day, my wife, Donna, and our daughter, Jennifer, were in Europe as part of a European study group. They were awakened at 2 a.m. and told I was lost at sea. At the same time, I was in the Gulf fighting off a shark. I would spend 28 hours swimming to shore and arrive 43 miles from where I started.

While recovering, Donna had me write down all that had happened. The following is from that journal:

The shark circled me with its mouth cracked open. He swam toward me and then turned away just out of my reach. It became a ritual. He came in. I tried to stab him. He turned away. I got angry. I tried to bring it in close so I could stab him, but he veered at the last moment. I learned later that sharks often begin to feed at dusk and it was getting dark. I had been alone in the water since noon. In a few hours it would be Father s Day.

It was my idea for Donna and Jennifer to leave me behind with 5-year-old John while they went to Europe. After a week I was feeling sorry for myself and anxious to get out with friends. Three of us, Doug Smith, Mike Gower, and I left Harlingen at dawn Saturday morning. Neighbor Doug Smith was a decorated Vietnam vet and college football player. Wife Charlotte taught school with Donna and our children were friends, so John stayed with them for a playdate. Mike Gower, an experienced diver and businessman from McAllen, joined us for the dive. The water was rough. It was hard to tie up and even harder to put on our gear. For this short dive, I didn t bother with my wet suit. It was thick and hard to don.

Mike steered while I tied our small boat to an oil rig offshore from Port Mansfield. It was just before noon. The sea was rough but it would be fine on the sea floor. I was the most experienced diver and before anyone got more seasick from the rocking, I helped Mike and Doug get underwater and told them I’d catch up. I had trouble with my buoyancy compensator but when it suddenly deflated, I dropped quickly, clearing my ears as I sank 75 feet to the bottom. Visibility was poor. The current carried me away from the boat and the oil rig so I resurfaced to get my bearings.

Away from the protection of the rig, I was in the grip of a stiff wind and strong current. The sea was covered with whitecaps. I dove under and swam hard toward the boat, but it did no good. I dropped my diving weights. When my friends surfaced, I thought they d see me. I watched from a distance when they came up holding tightly to the oil rig and then the boat line. They hadn’t gotten any fish. The conditions were so bad that they hadn’t been able to let go of the rig long enough to load their guns. They looked but couldn t see me. Like most gear, mine was dark blue. I put one of my gloves on the end of my spear gun and waved it high in the air. I shouted and then blew on the emergency whistle that I had on my B.C. The wind and noise blocked everything. A helicopter flew over me. I waved my spear gun at them with the glove on it, but a wave buried me and ripped it off.

The copter landed on the rig’s heliport. Mike Gower climbed up, jumped in and directed the pilot to fly around the rig. The wind was blowing steadily at 20-25 mph. and it was impossible to see me in the waves. It was hard to swim with the spear gun so I removed the heavy spear, took off the spear point and released the heavy shaft. I watched it drop and my spirits dropped too. I jammed the spear point into the hollow tube and kept swimming to stay near the rig. My feet were raw from the chafing of the fins. I had been swimming since noon. Just before 5 p.m. I felt a hard bump on my right leg and saw a flash in the water. Deep down I knew what it was.

Sharks first bump their prey, and then come back to attack. I thought, “What else can go wrong,” and for the first time I knew I was in trouble. I put on my mask and went under water and saw the 5-foot tiger shark interested in my raw feet. One bite could draw a crowd. There were plenty of sharks in the water-in fact, a shark fishing tournament was going on. A search pilot later remarked that he saw so many sharks he thought you could walk to shore on their backs.

Without my spear gun, I was prey. All I could do to keep him away was to try to stab him with the spear point. Swimming against the current kept me stationary, so I started swimming west. I’d swim 10 kicks, turn around in the water, and there was the shark coming in at me. As long as I turned and met him head on, he backed off. I tried to draw him in close. Each time I tried to stab him, he moved. I felt slow and stupid. Several times, I lost sight of him in the murky water before he d reappear. I could only see 10-12 feet so I’d swim a little farther west until I got a bad feeling. I’d turn around in the water and there he’d be.

I kept swimming toward the setting sun. It was getting late when he disappeared again, but after more than two hours, I was afraid to even hope. I knew I wouldn’t be found at night. I had never been so cold. I focused on doing everything right. I concentrated on my directions. I located the Big Dipper and the North Star. I saw a distant glow to the south that had to be Port Mansfield. If I swam west all night, I thought I could make shore. I’d been scuba diving for 11 years and had been certified by two professional associations. As president of the area scuba club, I stressed “safe scuba.” I’d never had a mishap, but going without the wet suit was foolish. Water cools a body 25 times faster than air, and I couldn’t stop shaking.

When I commit to something I don t give up. That can be my strength but it s a weakness too. The wind, tide, waves, and lack of visibility that morning were telling me to cancel the dive. I should have. There was no moon. I was cold, thirsty, sore, numb, cramped and nauseous. Waves washed over me, and the salt water I swallowed upset my empty stomach. Between spitting out saltwater and retching, I was dehydrated, but my biggest problem was hypothermia. I took stock of what I had. I let the air out of my tank and filled my buoyancy compensator. I slipped the tank underneath me and got my head and shoulders out of the water. I put my mask on top of my head like a cap to trap heat. I kept my arms tight against my body and put my hands against my neck. The waves that washed over me felt like ice water. I concentrated on swimming west, but the current was pulling me further out to sea.

John was enjoying a sleepover at a friend’s unaware of what was going on. Donna and Jennifer were in Austria trying to fly to Texas. My sister, Rosalie, was already on her way from Milwaukee. Best friend, Randy Fleuriet, was determined to find me. He mobilized boats, planes, helicopters, and four-wheel-drive vehicles for the search. I had nothing else to do but think too much. I ached all over and shivered constantly. I wanted to sleep. Would I choke if I slept? Would I lose my grip and slip under? Was it any use to head west? Maybe I could aim at one of the lights out in the water. If it was an oil rig, I could climb out of the water. I kept imagining how good that would feel. My thinking got increasingly morbid. Did I have enough life insurance? Could Donna collect if they didn’t find my body? Before I died, I’d have to strap myself to my tank. I had kept the rope from my spear gun. I thought about how to do it and did it. I thought about my dad and whether I’d see him. I never got over his death. What would happen to my John and Jennifer?

I swam through something that seemed to coat me with sparkling light. I thought it wasn t real until I read later about bioluminescent plankton. I wasn t sure what was real anymore. I started to lose control of my thoughts. I repeated the names of my family and focused on swimming west. In the early morning, a partial moon came up. I sighted a large oil rig, too big to be real, and my hopes soared. It wasn’t there. The sky lightened up more. I thought I saw shore. On top of a big wave 30 minutes later, I was sure it was shore. I was about five miles away from it, but the tide was going out to sea and trying to take me along. I thought about Jennifer, the swimmer in the family. On the high school swim team, Jenny could swim a couple miles just to warm up. I tried to imitate her clean, smooth, strokes. I called them “Jenny strokes” and told myself, ‘You can do a couple of miles for Jennifer.’

I was tied to my equipment with my rope, so I towed my tank behind me. I swam hard for more than an hour.

I made many promises and so did others. My brother promised to never miss church again. My sister-in-law gave up smoking. The whole city of Harlingen and people throughout Wisconsin were praying for me in English and in Spanish. I felt it. Suddenly, about 11 a.m. Sunday morning, I started to make real progress toward shore. The tide literally changed. When I reached shore I couldn’t stand. I crawled ashore, curled up like a reptile in the sun and passed out. A fisherman and his wife found me and helped me into the bed of their pickup. I must have looked a mess. My mouth was full of sores and my teeth were loose from biting on the snorkel.

At the Ranger Station, I called Doug Smith’s house. When they heard it was a collect call from Mike Metke, they thought it was a sick joke. Then Doug got on the phone. I told him to meet me at the nearest Whataburger and then I heard the world s loudest grito. I’d been gone over 30 hours and by now everyone but Randy and Doug thought I was dead. Donna and Jennifer landed in Houston and were directed to a chapel. An attendant told them my body had been located but omitted an important detail. The Coast Guard estimated that I’d come ashore about 35 miles north of Port Mansfield. Not including adverse currents and tides, I had swum more than 43 miles. They said trying to find someone like me was nearly impossible. While I recovered, I thought about the extra time on earth I was getting. I want to appreciate each day and see things with a fresh eye. We shouldn’t have to nearly lose our lives to discover the joy of each moment, but for that I’m grateful.

I made all kinds of bargains while I was lost at sea. I had begged just take an arm or leg but let most of me make it back alive. I was willing to come back in any condition, and I made it back whole.

I never appreciated family and friends as much, and I never knew how many people cared about me. I learned that the time to tell people you care is while they can still hear you.

I will never forget Sunday, June 21, 1987 – Father’s Day. A plaque on my wall reads: To Every Thing There Is A Season A Time To Be Lost And A Time To Be Found. Father’s Day 1987

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