![](https://www.indianz.com/News/2016/08/25/davearchambault082416b.jpg)
Dave Archambault II, the chairman of the Standing Rock Sioux Tribe addresses a #NoDAPL rally outside of the federal courthouse in Washington, D.C., on August 24, 2016. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License
The backers of the controversial Dakota Access Pipeline are seeking to regain an advantage on the eve of a crucial hearing in federal court. The D.C. Circuit Court of Appeals closed the door to briefs more than two weeks ago when it ordered a halt to construction of the $3.8 billion pipeline in a key area of North Dakota. No one -- not even the Standing Rock Sioux Tribe -- was allowed to submit additional pleadings. But an expensive and well-connected law firm hired by Dakota Access LLC, the partnership behind the project, has found a way around the restriction. Exploiting a rule that allows parties to submit "pertinent" information even after a brief has been filed, attorney Miguel A. Estrada of Gibson, Dunn & Crutcher has advised the court of a report that claims no sacred sites or burial grounds were found in the path of the #NoDAPL pipeline. "On September 21, 2016, seven archaeologists from the State of North Dakota conducted a cultural resources survey of this area after it became safe again for investigators to return," Estrada wrote in a letter to the D.C. Circuit on Tuesday. "They concluded that the plaintiffs' allegations have no merit," the letter continued, referring to the Standing Rock Sioux Tribe, the plaintiff in the case.
![](https://www.indianz.com/News/2016/10/04/statehistoricalsocietyofnorthdakota.jpg)
A one-page memo, accompanied by a map and three photos, was prepared after seven archaeologists from the State Historical Society of North Dakota visited a Dakota Access Pipeline construction site on September 21, 2016.
While the report by the State Historical Society of North Dakota was officially completed on September 22, it's not clear why Dakota Access waited so long to file it. The rule being exploited by Estrada -- known as Rule 28(j) -- requires a party to "promptly" inform the court of additional information. The contents of the report -- which consists merely of one page, one map and three photos -- were in fact publicized in the North Dakota media more than a week ago. But an email included in Estrada's filing appears to suggest that the document was only made public on Monday. The email in question was sent by Paul Picha, North Dakota's chief archaeologist and the author of the memo, to Lawrence Bender, an attorney in North Dakota who was hired by Dakota Access to go after Standing Rock Sioux Chairman Dave Archambault II and other tribal leaders in a case that has been effectively dismissed by a federal judge. But there are no other attachments so it's not possible to determine, based on Estrada's filing alone, how long ago Bender inquired about the report.
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Standing Rock Sioux Tribe on Facebook: Official Fund [Crowdrise]
The sacred sites and burial grounds are a key issue as the D.C. Circuit meets on Wednesday morning for the hearing. The Standing Rock Sioux Tribe's request for an injunction accuses Dakota Access of moving in with bulldozers barely a day after a highly-respected tribal historian disclosed several significant cultural finds in the path of the pipeline. Dakota Access disputed the claim in its response to the tribe but its brief was filed on September 14, well before the State Historical Society made the trip to the construction area. The brief also was filed by a different law firm -- Estrada was only brought on board last week. The hearing takes place at 9:30am in Courtroom 31 of the federal courthouse in D.C. Audio will be posted by the court later in the day. D.C. Circuit Court of Appeals #NoDAPL Documents:
Standing Rock Sioux Tribe's Emergency Motion for Injunction Pending Appeal (September 12, 2016)
Dakota Access LLC Opposition (September 14, 2016)
U.S. Army Corps of Engineers Opposition (September 14, 2016)
Standing Rock Sioux Tribe's Reply (September 15, 2016)
Injunction Blocking Construction of Dakota Access Pipeline (September 16, 2016)
Order Setting October 5 Hearing (September 21, 2016)
Order Allocating Oral Argument Time (September 21, 2016)
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