Hundreds of #NoDAPL resisters marched peacefully on September 4, 2016, to protest the destruction of sacred sites and burial grounds in the path of the Dakota Access Pipeline in North Dakota. Photo: Dallas Goldtooth

Environment | Law | National

Dakota Access fires back at tribes and #NoDAPL movement ahead of hearing in federal court

Tuesday, September 6, 2016

A major showdown is brewing in federal court as the backers of the $3.8 billion Dakota Access Pipeline insist they haven't destroyed any sacred sites or burial grounds.

Attorneys for the pipeline partnership are instead accusing leaders of the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe of encouraging "illegal conduct" among the thousands who have gathered at the #NoDAPL encampment in North Dakota. A court filing on Monday cited broken fences, incidents of trespass and "horrible threats of physical violence" against construction workers and other employees.

"After failing at every turn to follow the process prescribed by law and declining repeated invitations to consult, plaintiffs cannot now stop or delay this project by violating the law, engaging in guerilla legal tactics, and/or attempting to do what they should have done two years ago," Dakota Access wrote in response to the tribes' requests for temporary restraining orders.

As for the work that occurred over the Labor Day weekend, which led to a violent confrontation between Dakota Access security guards and #NoDAPL resisters on Saturday, the company is attempting to link it to Indian Country for supposed lawlessness. The filing states that "local law enforcement" raised concerns about the large number of people expected at the United Tribes Technical College this week and weekend in Bismarck.

Even though Bismarck is more than an hour away from the #NoDAPL encampment -- a distance made longer due to a roadblock put in place by the North Dakota Highway Patrol -- Dakota Access appears to suggest that "Pow Wow" attendees might want to cause trouble for the pipeline.

"As a result of (1) those concerns, (2) to help ensure the safety of the workers in light of Plaintiffs’ complete disregard for the law, (3) intelligence from the field that the number of protesters seemed to have abated, and (4) to ensure that all work that can be done in advance of the Pow Wow, DA altered its construction schedule weeks ago to complete the grading on portions of the right-of-way in close proximity to Lake Oahe," the filing states.

Yesterday, over 500 Water Protectors marched to the location where the Dakota Access pipeline company bulldozed thru a...
Posted by Dallas Goldtooth on Monday, September 5, 2016

The attorneys do not say who from "local law enforcement" raised concerns about the 20th annual Tribal Leader’s Summit and the 40th annual International Powwow. But the filing includes a press release from Morton County Sheriff Kyle Kirchmeier, who has made unsubstantiated claims about violence in the #NoDAPL camps and has accused resisters of breaking the law even though he has failed to arrest anyone for major crimes.

The city of Bismarck, on the other hand, has extended a warm welcome to the estimated 20,000 people who are expected at the UTTC summit , which begins on Tuesday, and the powwow, which begins on Friday and runs through Sunday. Bismarck is located in neighboring Burleigh County.

In addition to casting aspersions on Indian Country, Dakota Access is trying to undermine Tim Mentz Sr., the former longtime historic preservation officer for the Standing Rock Sioux Tribe. He surveyed private property near the path of the pipeline last week and reported several extraordinary finds, including stone features and grave sites.

Despite his highly-regarded reputation -- Mentz was the first certified tribal historic preservation officer in the nation -- the pipeline partnership argues he is too biased to be trusted. The filing claims his finds were based on "subjective or religious assessment" rather than study by "qualified archeologists."

At any rate, the firm is rejecting the need for a restraining order because it says all of the work in question is occurring on private property.

"Plaintiffs cite no legal authority whatsoever that would authorize any kind of order, much less a temporary restraining order, that would extend 20 miles from the banks of the Missouri River and would prevent private use of private land," the attorneys wrote. "The land in question, and everything on it and under it belongs to the landowner."

The U.S. Army Corps of Engineers, however, is supporting a restraining order, either as a matter of public interest or as a matter of public safety. The agency is the named defendant in the lawsuit -- Dakota Access was allowed to intervene as a defendant as well.

Arguments in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers are being heard in federal court in Washington, D.C., on September 6, 2016.

The heated arguments will be aired before Judge James E. Boasberg on Tuesday afternoon. After receiving the tribal motions for the restraining orders on Sunday, he issued an order on Monday -- despite it being a federal holiday -- and scheduled the hearing.

The hearing will take place at 3pm in Courtroom 19 of the federal courthouse in Washington D.C., the same place where the Standing Rock Sioux Tribe asked for the preliminary injunction less than two weeks ago. Hundreds gathered in support of the #NoDAPL movement at the time.

"Today, as we remain peaceful and prayerful, I feel we are turning the corner! As the injustices implemented on our indigenous rights and lands start to surface, eventually, this great nation will do the right thing and stop the pipeline from crossing our water!" Standing Rock Sioux Chairman Dave Archambault II said on Facebook on Tuesday morning.

The Cheyenne River Sioux Tribe, which was allowed to intervene as a plaintiff, will be participating in the hearing via telephone, according to an order granted on Tuesday.

Relevant Documents:
Standing Rock Sioux Tribe's Emergency Motion for a Temporary Restraining Order | Declaration of Tim Mentz, Sr. | Cheyenne River Sioux Tribe's Emergency Motion for a Temporary Restraining Order | U.S. Army Corps of Engineers Response | Dakota Access Response