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Tribes vow fight against Dakota Access ahead of court hearing in D.C.

Thursday, December 8, 2016

Leonard Crow Dog, a spiritual leader of the Sioux Nation, accepts an apology offered by veteran Wesley Clark Jr., during an emotional forgiveness ceremony at the Prairie Knights Casino and Resort on the Standing Rock Sioux Reservation in North Dakota on December 5, 2016. Photo by Indigenous Rising Media [Support the Indigenous Environmental Network]

The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe remain united as they return to Washington, D.C., for a hearing in their #NoDAPL lawsuit.

The tribes submitted a joint status report on Wednesday that hailed the decision by the U.S. Army Corps of Engineers to deny an easement for the final portion of the Dakota Access Pipeline. Without the easement, the wealthy backers of the project can't drill under the Missouri River at Lake Oahe in North Dakota.

But with Dakota Access insisting on a legal right to finish the costly project, the tribes remain vigilant. While they believe the firm's cross-claim against the Army Corps lacks "merit," they are worried that a ruling on that matter could result in "immediate construction work to complete the project under Lake Oahe."

"The tribes reserve their rights to make any argument, and seek any relief, to prevent the completion of the project while their original claims are litigated," the status report read.

In hopes of finishing the project, Dakota Access filed a cross-claim on November 15 and a motion to expedite on November 15. The firm -- citing losses in the hundreds of millions of dollars due to delays in construction -- asked a federal judge to resolve the matter as early as January.

But even though Judge James E. Boasberg never formally agreed to move forward with the cross-claim, Dakota Access went ahead and filed a motion for summary judgment -- essentially a move to secure the easement -- on Monday. In a 35-page memorandum, the firm's well-connected attorneys offered to present arguments on the matter this Friday, during a hearing that had been already scheduled before all of the latest developments.

The tribes, however, "object" to the use of the hearing for arguments on the cross-claim, their attorneys wrote in the status report. They are vowing to fight the motion and plan to ask for more time -- a "modest extension" -- to respond to Monday's motion, they said.

It's not clear how Boasberg will proceed, given all the new information. In a short order on Monday, he had only said the parties "may" present arguments on the cross-claim issue, indicating that he was interested in hearing more.

But since he never agreed to the aggressive scheduled proposed by Dakota Access, which included a request for another hearing on January 3, 2017, he may be willing to wait on the tribes. The Army Corps has already said it opposes any efforts to expedite the cross-claim.

Still, Boasberg is likely to have plenty of questions about all of the latest developments. After the Obama administration stepped into the fray on September 9 by announcing that the easement was still being reviewed, he used a previously-scheduled hearing on September 16 to force an apology out of the Department of Justice for its handling of the case.

"If we didn't share with you sufficient information to fully inform the court about other issues that played into the context of the overall project, I certainly apologize for that. That was certainly not our intention," James Gette, who serves as section chief within the division at DOJ that handles environmental and Indian law cases, said at the time. It took about 20 minutes of repeated questions from Boasberg for the apology to come out. [Transcript of Proceeding]

In denying the easement, the Army Corps said it would prepare an environmental impact statement to examine potential changes in the route of the pipeline at Lake Oahe. The process is likely to take months, meaning it will stretch into the administration of Republican president-elect Donald Trump.

With that in mind, the tribes are willing to put the lawsuit on hold until the work is complete, they wrote in their status update. Depending on the outcome of the process, they could end up dismissing the case or amending their separate complaints.

"The tribes propose that the parties file quarterly status reports with this court to update it on the progress of the EIS process," the status update read.

Any efforts to delay or put the lawsuit on hold are bound to draw fierce opposition from Dakota Access. On the same day authorities in North Dakota engaged in a violent assault on pipeline resisters, the firm asserted a right to drill at Lake Oahe without a written easement.

And two days later, as a young woman lay in a hospital after her arm, in the words of her father, was "pretty much blown off," Dakota Access complained of financial woes. According to the firm, unless the pipeline starts moving oil by January 1, its backers will lose $2.7 million per day or $83.3 million per month.

A few days after that, a top executive said the 1,172-mile project, which travels through four states, was all but complete except for the portion at Lake Oahe. Vice president Joey Mahmoud said "less than 1 mile" of pipe needed to be laid at a site less than a half-mile from the border of the Standing Rock Sioux Reservation.

And in response to the denial of the easement, Energy Transfer Partners and Sunoco Logistics Partners, the backers of the pipeline, insisted that "two federal courts" have sanctioned the Army Corps' handling of the matter. What they left out of their joint statement was that they were warned about the dangers of proceeding without the easement.

"If you're not going to get the permit to cross at the critical point, you're going to have to redirect the pipeline, right?" Judge Thomas B. Griffith of the D.C. Circuit Court of Appeals asked during the October 5 hearing in Washington, D.C.

"Yes," responded Miguel A. Estrada, a well-connected attorney who was hired by Dakota Access.

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

Friday's hearing takes place at 10:30am in Courtroom 19, on the sixth floor of the federal courthouse in Washington, D.C. It's the same place where prior proceedings occurred.

The Standing Rock Sioux Tribe filed the lawsuit in July. The Cheyenne River Sioux Tribe was allowed to intervene as a plaintiff in August.

The defendant is the Army Corps of Engineers. Dakota Access was granted permission to intervene as a defendant.