SANDISFIELD — A Native American tribe says the Federal Energy Regulatory Commission broke federal law by giving Tennessee Gas Pipeline Co. permission to build a natural gas storage loop here before fully studying Native American sites in Otis State Forest.
The Narragansett Indian Tribal Historic Preservation Office has filed a rehearing request with FERC on grounds the agency violated the National Historic Preservation Act by not taking proper legal steps to protect ceremonial stone landscapes found along the proposed pipeline path.
And the tribe's attorney says she will take this violation to appeals court if FERC denies either the request or its wrongdoing.
"FERC thinks it can break laws," said Anne Marie Garti. "And we're challenging that."
Tree clearing is complete and trench digging is still underway for the Kinder Morgan subsidiary's tri-state Connecticut Expansion Project, a 13-mile line, about 2 miles of which are going into an existing pipeline corridor here. Two of those miles are on state-owned and protected land.
HISTORY AND CULTURE
The stones are arranged in a way that tribe Officer Doug Harris and other tribal preservationists said have religious and cultural significance to a handful of tribes outside the Berkshires whose history intersects with that of what was then the area's Mohican tribe and its leaders, Sachems Konkapot and Umpachene.
"It was Umpachene who welcomed Narragansett refugees into the area in the late 1600s because of shared ceremonial beliefs," Harris said of what happened to the tribe after King Philip's War ravaged them.
Harris is also working with historic preservation commissions of several towns to create a historic Umpachene district, after finding stone landscapes in Egremont, Sheffield, New Marlborough and Great Barrington, he said.
The stone groupings vary in size and shape, and while some may be thousands of years old, some may have "represented a form of prayer after European contact [with the tribes]," Harris noted.
Tennessee Gas has said it will work with a tribal monitor to protect the majority of the 74 identified landscapes. But the company can't avoid them all, and said it would have to dismantle and restore one-third of these.
Harris said this was desecration, and said he refused to participate in a process that would sanction dismantling.
"Sacrilege is sacrilege," he said.
Kinder Morgan spokesman Richard Wheatley told The Eagle the company is working with "all tribal monitors who have chosen to participate," but would not say which of the other tribes with an interest in protecting the sites were consulting.
The Eagle has observed — from a distance — protective fencing around several landscapes during tree cutting work.
THE LAW COMES FIRST
The stone landscapes are just one of many issues that have embroiled the project in controversy, and one issue that might go on after the estimated six-month project is over.
Garti said the tribe plans to persist in fighting the agency, and will take it to appeals court if necessary, but must first wait until FERC makes its final decision on the request, which was filed last month.
"We intend to bring this forward, even if the pipeline is built," Garti said. "FERC has to be held accountable for breaking the law and not complying with schedules in federal law."
Tennessee Gas immediately filed an answer with FERC, asking the commission to deny the rehearing request, saying it and the commission did everything right.
But Matt Spangler, spokesman for the federal Advisory Council on Historic Preservation has previously said FERC's rubber-stamping of the project before the tribal consultations were complete made it hard for the company to choose a pipeline route that would have avoided all the stone features.
And Garti said FERC can't hold the rehearing until it has enough members to vote, an ongoing quorum issue that has held up other rehearing requests about the project, and stirred more criticism of the commission.
Garti, who is based in New York City, said she was a leader in stopping the Constitution Pipeline proposed for New York and Pennsylvania. She said she and others are still defending that victory in court. In that instance, New York's water quality permit was not in place before FERC approved the project, and the permit was denied after some of the work had begun in Pennsylvania.
Garti said her specialty is how FERC's process interacts with other laws, and she said FERC has previously violated the Clean Water Act in a way that is similar to how it has handled the ceremonial sites.
"FERC thinks it can issue a [pipeline] license before the state gives [the company] permits," she said, adding that FERC issued Tennessee Gas its license in 2016 before surveying the land for the stones.
In its response to the tribe's rehearing request, Tennessee Gas said it began notifying the Narragansett and four other tribes — including the Stockbridge-Munsee Community Band of Mohican Indians — as early as 2013, and blamed the tribe for any delays.
Garti said this doesn't matter.
"Once adverse impacts [to sites] are found, [FERC] had to do certain steps, and they did not," she said.
If the tribe were to win in appeals court, Garti added, the case could change the way pipeline companies and FERC treat historical and cultural finds nationwide.
Reach staff writer Heather Bellow at 413-329-6871