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Appeals court takes up #NoDAPL case as pipeline remains in limbo

Wednesday, October 5, 2016

Chairman Dave Archambault II of the Standing Rock Sioux Tribe stands outside of the federal courthouse in Washington, D.C., on October 5, 2016. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

The leader of the Standing Rock Sioux Tribe continued to call for prayers as a federal appeals court heard arguments in the closely-watched #NoDAPL lawsuit.

The D.C. Circuit Court of Appeals did not issue a decision after more than 90 minutes of arguments on Wednesday morning. But Chairman Dave Archambault II said it was "clear" that the Dakota Access Pipeline poses a significant threat to his people.

"I have to continue to pray and I have to continue to hope that it's clear to everybody what the wrongs are, so that we can continue to get the support and continue to try and fight this pipeline from damaging what's important to us," Archambault said outside of the courthouse in the nation's capital.

"And that's our ancestral sites, protecting our water, protecting the future for our kids and exercising our tribal sovereignty," the chairman said.

Indianz.Com on YouTube: Chairman Dave Archambault II of the Standing Rock Sioux Tribe

Inside a packed courtroom, a panel of three judges posed difficult questions to attorneys representing the tribe, the U.S. Army Corps of Engineers and Dakota Access LLC, the partnership behind the controversial and costly project. They all wondered whether they have the authority to extend a termporary injunction that has halted construction, for now, in a key area of North Dakota.

But one judge also questioned why Dakota Access started building in the first place. The Army Corps has yet to authorize construction on federally-owned land along the Missouri River, and without that easement, the pipeline can't go forward.

"Why not wait until you see whether you're going to get the easement?" asked Judge Thomas B. Griffith asked. "To a neutral outside observer, it looks like you're forcing their hand."

"So it's a gamble," Griffith said. "You're gambling you're going to win."

Indianz.Com SoundCloud: D.C. Circuit Court of Appeals Oral Arguments in Standing Rock Sioux Tribe v. Army Corps of Engineers October 5, 2016

But Miguel A. Estrada, a well-connected attorney who was brought on board by Dakota Access last week, defended his client's tactics. If the partnership had waited for the easement, he said that would have delayed completion of the 1,172-mile pipeline.

"It's a judgment we are entitled to make," Estrada told the court. Dakota Access has previously said it needs to start shipping oil by January 1, 2017.

At the same time, Estrada explained why Dakota Access remained confident even as the #NoDAPL movement gained steam over the summer and grew into an international cause. The partnership was assured by the Army Corps that the easement was merely "a formality" and all that was needed was an official signature, he insisted.

"It's not a formality now, is it," Griffith responded.

James A. Maysonett of the Department of Justice argued on behalf of the Army Corps at the hearing. He again confirmed that the easement has not been issued and said the process is likely to take "weeks" as opposed to "months."

But he offered some fresh details about the process. The Army Corps is reviewing environmental, treaty law and other claims not only raised by the Standing Rock Sioux Tribe but also by the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe, he said.

"This case has slowly transmogrified in the last couple of weeks," Maysonett told the court.

Indianz.Com on YouTube: Chairman Dave Archambault II on the law

The Cheyenne River Sioux Tribe has joined the Standing Rock Sioux Tribe's lawsuit as a plaintiff in the case while the Yankton Sioux Tribe has filed its own #NoDAPL lawsuit. It's possible that both cases will be consolidated as proceedings continue in a lower court.

Jan Hasselman, an attorney from the non-profit Earthjustice, represented the Standing Rock Sioux Tribe. Although he had only been allotted 15 minutes for arguments, the judges kept him on his feet for 35 minutes as they sought to gain clarity about the sacred sites and burial grounds that are at risk.

"We're talking about a very narrow injunction in an undeniably special place, a place of great historical, ceremonial and religious importance to the Standing Rock Sioux," Hasselman said. The pipeline is being built on treaty lands that were taken from the tribe, he noted.

"We know there are a couple miles left that haven't been bulldozed or graded yet," Hasselman told the court of the situation on the ground. "They would like to get back in there and look for human remains," he said of the tribe's intentions at one particular area.

In addition to Judge Griffith, the panel that heard the case consisted of Judge Janice Rogers Brown and Judge Cornelia T.L. Pillard. They could issue a decision on the tribe's request for a more permanent injunction at any time.

Regardless of the outcome, the tribe will still be able to pursue its appeal in the case. It arose after Judge James Boasberg refused to block construction of the pipeline in a September 9 decision that was essentially a victory for Dakota Access.

Immediately following that decision, the Obama administration issued an extraordinary joint statement addressing the lack of an easement at Lake Oahe on the Missouri River.

A week later, the D.C. Circuit issued its administrative injunction and ordered a hearing. Both actions were unprecedented in an Indian law case.

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)