With less than two weeks before the alleged deadline, it’s time for the company to stop the doubletalk and set the record straight.
The company behind the Dakota Access Pipeline (DAPL) owes its investors a straight answer: does it face a January 1 contractual deadline with its shippers, or doesn’t it? Company spokespeople have told the court that they do, but told the press that they don’t. Now, with less than two weeks before the alleged deadline, it’s time for the company to stop the doubletalk and set the record straight.
In a sworn declaration submitted to a federal court on August 2, Joey Mahmoud, a Vice President of Dakota Access, LLC (and also an Executive Vice President of Energy Transfer Partners (ETP), a co-owner of Dakota Access) clearly stated that the pipeline’s long-term shipping contracts would expire on January 1:
“In connection with its long-term transportation contracts with 9 committed shippers, Dakota Access has committed to complete, test and have DAPL in service by January 1, 2017. The long-term transportation contracts give shippers a right to terminate their commitments if DAPL is not in full service per the contract deadline…and loss of shippers to the project could effectively result in project cancellation.” [Emphasis added.]
The legal team representing Dakota Access doubled down on the claim in late November, warning the court of the financial harm that the company faces if the pipeline is not completed on January 1 and…
“…those who have contracts to purchase oil from Dakota Access exercise their rights to cancel due to the delay.” [Emphasis added.]
Yet in repeated statements to the press, the company has flatly denied that it faces any deadline on January 1. A November 4 story in the Sioux Falls Argus Leader quoted Energy Transfer Partners spokeswoman Vicki Granado contradicting Mahmoud’s declaration, telling a reporter point blank, “There is no Jan. 1 deadline.” She repeated the claim in a story published on December 1, 2016, saying flat out:
“There is nothing contractual tied to the January 1 date. That was an initial in-service target date. The contractual dates are further out and pose no issue to the project.”
The two accounts of the deadline simply can’t be reconciled, and there is no indication that either newspaper story was corrected. Which raises two important questions: who is Dakota Access misleading, and why has it engaged in this kind of obfuscation?
The conflicting accounts represent more than an innocent error; in each case, the company carefully calibrated its statements to achieve a specific goal. Dakota Access first mentioned the January 1 deadline as a part of a legal strategy to convince the court to speed up its deliberations: the company wanted the court to believe that the January 1 deadline posed dire financial consequences. Granado’s statements, in contrast, served to mollify investors, reassuring them that January 1 had absolutely no contractual significance. And since the company hasn’t made its contracts public, these contradictory statements have left investors and the court wondering which ETP spokesperson is speaking on the level.
But the deception is more than just another black mark on the pipeline’s record. It may carry legal ramifications as well.
The original mention of a January 1 deadline came from sworn testimony in federal court. The declarant, Mr. Mahmoud, had good reason to be familiar with the terms of the shipping contracts. If he misinformed or misled the court about the details those contracts, he may potentially face serious repercussions, including accusations of perjury.
Just as importantly, though, the company’s duplicitous statements about the contract deadline may have misled investors about a material risk to the company’s business prospects. And because ETP is a publicly traded company listed on the New York Stock Exchange (NYSE), this sort of deception may carry financial and legal consequences. NYSE rule 435(5) prohibits the circulation of false or misleading rumors “of a sensational character which might reasonably be expected to affect market conditions.” Further, SEC rule 10b-5, covering “Employment of Manipulative and Deceptive Practices,” declares that it is unlawful “To make any untrue statement of a material fact…in connection with the purchase or sale of any security.”
And as it turns out, just about anything ETP says in public right now could have a bearing on the “purchase or sale” of company stock. On November 21—the day before the Dakota Access legal team doubled down its claim about the importance of January 1 to the company’s finances—the company that controls ETP announced its intention to sell a controlling interest in the firm to a sister company, Sunoco Logistics Partners. The proposed $21 billion sale immediately proved controversial, with ETP share prices falling by 7 percent on the day the deal was announced. Some investment analysts lambasted the move as little more than a backdoor way to slash ETP’s payments to shareholders, since Sunoco pays lower dividends than ETP. Advocates for investors are now considering suing ETP over the proposed deal, questioning whether it was in shareholders’ best interests.
In that context, ETP’s contradictory and misleading statements about the January 1 deadline could have materially affected investors’ perceptions of the company’s value. And that’s true no matter whether the January 1 contractual deadline really exists. Some investors may have taken the company’s court declaration at face value, downgrading their assessment of the company’s prospects based on the risk that it could lose shippers at the beginning of the year. Other investors may have relied on the company’s statements to the press, discounting the consequences of a missed deadline. In either case, some investors may have been misled about ETP’s financial health as a result of credible public statements by ETP representatives.
The company owes the public and its shareholders a clear and transparent accounting of whether it faces contractual deadlines on January 1. If they do, ETP owes the press, the public, and its investors a forthright explanation of why a company spokesperson denied its existence. And if the deadline isn’t real, the company will have to face any legal consequences for misleading the court.
Either way, investors now have an additional reason to doubt the candor, integrity, and commitment to transparency of the company backing the Dakota Access Pipeline.
If you want to know what’s really going on at Standing Rock, research and learn about
the ‘Doctrine Of Discovery’
Statement by Permanent Observer Mission of the Holy See
Economic and Social Council, 9th session of the Permanent Forum on Indigenous Issues
On Agenda Item 7: Discussion on the reports
Impact on Indigenous Peoples of the International Legal construct known as the Doctrine
of Discovery, which has served as the Foundation of the Violation of their Human Rights”
and “Indigenous Peoples and boarding Schools: A Comparative Study”
New York, 27 April 2010
My delegation takes this opportunity to reply to some of the comments and
concerns made today.
Regarding the question of the doctrine of discovery and the role of the
Papal Bull Inter Coetera, the Holy See notes that Inter Coetera, a s a source
of International Law, the division of lands between Castile-Aragon (Spain)
and Portugal was first of all abrogated by the Treaty of Tordesillas in 1494
and that Circumstances have changed so much that; to attribute any
juridical value to such a document seems completely out of place.
Similarly, as a source of Canon or Church Law, since the document had
called for excommunication latae sententiae those who do not respect its
dispositions, Inter Coetera has also been abrogated by the facts, first and
foremost by the unsanctioned immediate expansion of the territory of
Brazil to the west well beyond the Treaty of Tordesillas and by the
colonization of North America and the Caribbean by the King of France.
In addition, It was also abrogated by other Papal bulls, for example
Sublimis Deus in 1537 which states, “Indians and all other people who
may later be discovered by Christians, are by no means to be deprived of
their liberty or the possession of their property, even though they be outside
the faith of Jesus Christ; and that they may and should, freely and
legitimately, enjoy their liberty and the possession of their property; nor
should they be in any way enslaved; should the contrary happen, it shall be
null and have no effect.” This view was expanded upon and reinforced in
Immensa Pastorum of Benedict XIV of 20 December 1741 and a number
of other Papal Encyclicals, statements and decrees.
If any doubt remains, it is abrogated by Canon 6 of the Code of Canon Law
of 1983 which abrogates in general all preceding penal and disciplinary
As you may gather from the above, this abrogation process took place over
the centuries according to the legal maxim: Lex posterior derogat priori,
i.e. a subsequent law imports the abolition of a previous one. Therefore, for
International Law and for the Catholic Church Law, the bull Inter Coetera
is a historic remnant with no juridical, moral or doctrinal value.
Further, the doctrine of the temporal power of the papacy, upon which Inter
Coetera rests, was finally overturned by the Second Vatican Council:
Finally, the doctrine of forced conversion of non-Christians was contested
and changed by the Junta Teologica de Valladolid (1550-1551), not long
after the bull of Alexander VI, and was also condemned by Vatican II.
Further, the assertion that wars of conquest are justifiable in order to
convert non-Christians was completely overturned by the documents of the
second Vatican Council (see above) and by the general condemnations of
The fact that juridical systems may employ the “Doctrine of Discovery” as
a juridical precedent is therefore now a characteristic of the laws of those
states and is independent of the fact that for the Church the document has
had no value whatsoever for centuries. The refutation of this doctrine is
therefore now under the competence of national authorities, legislators,
lawyers and legal historians.
Regarding the concerns raised against the educational programs of the
Church and its boarding schools in different parts of the world, my
delegation would like to clarify that the ultimate objective of the church
was to offer the indigenous population improved education. Most of the
leaders of such communities were formed in such education centers and are
grateful for the services that received from the Church. Education is the key
to development, especially when different models of development are
imposed without respect for the indigenous culture and identity.
The Holy See recognizes the right of the indigenous peoples for education,
for development and their traditional beliefs. For the shortcomings and
mistakes the Church has sought always means of dialogue and
reconciliation. Last year, for example, when Pope Benedict XVI received
the representatives of the First Nation is Canada, this issue was discussed.
In addition, in a number of meetings and discussions with Indigenous
peoples from around the world, Pope John Paul II also reiterated the Holy
See’s support for the rights of indigenous people while acknowledging and
asking forgiveness for past mistakes by missionaries.
With this explanation, I hope the following becomes clear: 1) The Holy See
confirms that Inter Coetera has already been abrogated and considers it
without any legal or doctrinal value; 2) The Holy See, in accordance with
Catholic social teaching, is consistently paying particular attention to the
relationship of indigenous peoples to their lands and resources; 3) The Holy
See, as demonstrated also by our support for the recent Declaration of the
Rights of Indigenous Peoples, will continue to be an outspoken moral voice
in support of the dignity and rights of indigenous peoples.
Thank you Mr. Chairman.
Settler governments worldwide, such as but not limited to the United States, Canada, Australia
still use the ‘Doctrine Of Discovery’ to claim title to Indian land today!
If you read the history of Hitler… You can tell exactly what Trump has planned… He’s following Hitler’s play book word for word… I know I’m just now blow but I’ve studied enough to realize that… Next thing you know he’ll start passing out SMALL POX BLANKETS…. Any way no one will read what I say…. So go for HITLER & YOUR ( SS FOLLOWERS) THANKYOU Dj
Thank you Clark.
If Tesoro Savage or NWIW make misleading statements, I’ll forward them to you.
Things do not look good for Kelcy Warren, DAPL, ETP, and any and all other connections to this corporate pipeline. This is especially due to the fact that there is conflict over a simple matter of a set of dates. Misleading the court, or your shareholders, and/or the public, will eventually bring serious consequences for the actions involved over this situation.
Tanyan omani yelo – Walk in balance.
Anybody compiling a list to establish probable cause for criminal investigations of Energy Transfer? Starting with this article and with “Energy Transfer Partners May Have Misled State to Secure Tax Break,” Naveena Sadasivam, 12-09-2016, Texas Observer, https://www.texasobserver.org/energy-transfer-partners-may-have-mislead-state-to-secure-tax-break/
Here on the south most tip of Texas we’re focused on fighting three LNG export companies seeking FERC approval to build and operate at our local Port of Brownsville (next door to South Padre Island). See saveRGVfromLNG on Facebook. But we’ve also generated some FERC Public Comments and Motions To Intervene against the Valley Crossing Pipeline Mexico’s hired Spectra to build from 130 miles north of our Port down to and under our ship channel out into the South Bay here and across Brazos Island and then into the Gulf of Mexico headed for Veracruz, Mexico.