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Appeals court halts Dakota Access Pipeline work pending hearing

Friday, September 16, 2016

Dave Archambault II, the chairman of the Standing Rock Sioux Tribe addresses supporters outside of the federal courthouse in Washington, D.C., on August 24, 2016. Photo by Indianz.Com

A federal appeals court has handed a temporary victory to the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe as the #NoDAPL fight continues.

The D.C. Circuit Court of Appeals issued an order on Friday that prevents Dakota Access Pipeline from doing construction within 20 miles on both sides of Lake Oahe. That's exactly what the tribes and the #NoDAPL resisters have been seeking as they work to protect sacred sites and burial grounds near the Missouri River.

But the court cautioned that it was not making a decision on the merits of the underlying lawsuit. Instead, the order was described as an "administrative" one that will give the court more time to consider the tribes' request for an injunction.

"The purpose of this administrative injunction is to give the court sufficient opportunity to consider the emergency motion for injunction pending appeal and should not be construed in any way as a ruling on the merits of that motion," the clerk of the court wrote in the one-page order.

D.C. Circuit Court of Appeals issued order halting work on the Dakota Access Pipeline for 20 miles on both sides of the Missouri River at Lake Oahe. September 16, 2016

Nevertheless, the action represents a significant setback for the costly, $3.8 billion pipeline. Just hours earlier, an attorney for the Dakota Access partnership lamented the public relations and financial blow that the controversial project has suffered as the #NoDAPL movement spreads worldwide.

"This company has lost $5 billion in market value" in the last couple of weeks, attorney William Leone said during a status conference before a federal judge in Washington, D.C.

Leone said the company intended to keep on working on the west side of Lake Oahe in order to finish work on the pipeline. But that won't be happening as a result of the higher court's action.

As for the other side of Lake Oahe, Leone said: "The pipeline is in the ground. The work is done east of Lake Oahe."

A panel of three judges of the D.C. Circuit now plans to schedule oral argument on the tribes' motion for the injunction. It's not clear when the hearing will take place but it could happen soon because the parties have been asked to submit additional copies of their already-filed pleadings by 4pm on Monday.

September 16, 2016 The U.S. Court of Appeals for the District of Columbia Circuit issued a short-term injunction...
Posted by Standing Rock Sioux Tribe on Friday, September 16, 2016

Standing Rock Sioux Tribe statement on the temporary injunction against the Dakota Access Pipeline. September 16, 2016. Source: Facebook

But already a potential issue has emerged. Of the three judges who have been assigned to hear the appeal, one of them was against granting the administrative injunction, according to the clerk's order.

That judge is Janice Rogers Brown, who was nominated to the D.C. Circuit by former president George W. Bush. Within three years of joining the court, she generated a strong anti-tribal record, according to a 2008 review of her writings by Indianz.Com.

The other two judges on the case are Thomas B. Griffith, another Bush nominee, and Cornelia T.L. Pillard, who was nominated by President Barack Obama and is relatively new to the D.C. Circuit. She was part of the panel that gave the Cowlitz Tribe of Washington a significant victory in its land-into-trust case.

The hearing will take place at the federal courthouse in Washington, D.C., the same building where a large crowd turned out on August 24 for a rally in support of the #NoDAPL movement.

Relevant Documents:
Order: Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (September 16, 2016)