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Standing Rock Sioux Tribe sees setback as court lifts injunction in #NoDAPL case

Monday, October 10, 2016

Chairman Dave Archambault II of the Standing Rock Sioux Tribe addresses the media 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

• Order from federal appeals court notes the lack of easement for the Dakota Access Pipeline to cross the Missouri River at Lake Oahe.
• Order does not affect the Standing Rock Sioux Tribe's ability to continue pursuing the appeal in the #NoDAPL lawsuit.

Construction on the controversial and costly Dakota Access Pipeline can resume after a federal appeals court turned away the Standing Rock Sioux Tribe for now.

In a short order issued on Sunday evening, the D.C. Circuit Court of Appeals lifted an administrative injunction that had put a halt to construction in a key area of North Dakota. The decision means the company can continue work in areas where the tribe has documented the presence of sacred sites and burial grounds.

But the court noted that Dakota Access has yet to secure approval for an extremely crucial portion of the project. The U.S. Army Corps of Engineers still hasn't issued an easement for the pipeline to build on federal land at Lake Oahe. Without that easement, no oil can flow under the Missouri River.

"A necessary easement still awaits government approval — a decision Corps’ counsel predicts is likely weeks away," the two-page order stated.

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The order was posted on the court's online system right at 7pm Eastern on Sunday night, just ahead of the Columbus Day federal holiday. It marks yet another unusual event in the course of the closely-watched dispute and it comes just four days after a panel of three judges heard arguments on the tribe's request for a more permanent hold on construction.

Despite the setback on that request, the tribe isn't giving up. Chairman Dave Archambault has called the pipeline, which comes within a half-mile of the reservation, a threat to his people's sovereignty and their future generations.

“The Standing Rock Sioux Tribe is not backing down from this fight,” Archambault said in a statement. “We are guided by prayer, and we will continue to fight for our people. We will not rest until our lands, people, waters and sacred places are permanently protected from this destructive pipeline.”

Archambault attended the October 5 hearing, which went more than three times as long as scheduled, in Washington, D.C. The lack of the easement was among several major issues considered by the court, with one judge questioning why Dakota Access started building the $3.8 billion project without it.

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"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."

Miguel A. Estrada, a well-connected attorney who was brought on board by Dakota Access only two weeks ago, defended his client's decision to start building. He insisted that the easement was all but a "formality."

"We were sent all the paperwork and [told] that it was merely on the desk of the final person for the signature," Estrada said during the hearing.

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

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The Army Corps first brought up the lack of an easement during an August 24 hearing, when the case was in a lower court. At the time, a different attorney for Dakota Access expressed surprise at the disclosure and reconfirmed his shock at a follow-up status conference on September 16.

The pipeline partnership's confidence helps explain why it didn't take the #NoDAPL movement seriously even as thousands flocked to North Dakota to show solidarity with the tribe. Even after the Obama administration issued an extraordinary joint statement regarding the easement, Energy Transfer Partners, the parent company of Dakota Access, remained silent for four days before announcing a vague effort to lobby "officials in Washington" about the project.

The Army Corps has not signaled how it will rule on the easement. During the hearing last week, James A. Maysonett of the Department of Justice said the review process will take "weeks" as opposed to "months."

He also said the agency is considering environmental, treaty law and other issues raised by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe. Cheyenne River has joined Standing Rock in the lawsuit while Yankton Sioux has filed its own.

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

With that process ongoing, the D.C. Circuit appeared to offer some guidance to the Army Corps. The order noted that Section 106 of the National Historic Preservation Act requires the agency to consult with tribes about impact on their cultural resources, such as sacred sites and burial grounds.

"Its consultative process — designed to be inclusive and facilitate consensus — ensures competing interests are appropriately considered and adequately addressed, the order stated.

"We can only hope the spirit of Section 106 may yet prevail," it concluded.

The D.C. Circuit's order came only in response to the Standing Rock Sioux Tribe's request for an emergency injunction pending appeal and was not a ruling on the merits of the underlying lawsuit. The tribe will still be able to pursue the case before the court, meaning additional briefs and possibly another hearing are on the horizon before a full decision is reached.

The lawsuit also continues in the lower court, where it is being heard by Judge James Boasberg. He had denied the tribe's request for an injunction on September 9, which prompted the appeal to the D.C. Circuit.

The appeals process is not known for moving quickly. The D.C. Circuit's order to halt construction, even temporarily and hear arguments on the tribe's request is 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)