Tribes in for long haul as oil continues to flow through Dakota Access Pipeline

Friday, June 23, 2017  

Tribal leaders remain confident they will be able to stop oil from flowing through the Dakota Access Pipeline even though a decision isn't expected until the fall.

The Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe secured a major victory last week when a federal judge ordered the Trump administration to conduct a more thorough review of the controversial project. But he left open a big question -- whether the pipeline can continue to transport oil through their treaty territory while the case proceeds.

Based on a schedule approved after the parties came together for a hearing on Wednesday, a decision on that potential “remedy” -- as Judge James Boasberg put it -- won't come for a couple more months. The final brief from the tribes isn't due until August 28, according to the court's order.

The timeline ensures the wealthy backers of the $3.8 billion project will continue to benefit from their costly investment. Oil started flowing on June 1 after the final portion was completed at a site less than a half-mile north of Standing Rock.

Despite the hurdles, tribal leaders and their allies are committed to the cause, which drew international attention when tens of thousands people flocked to the construction grounds in North Dakota last year to oppose the 1,172-mile pipeline. The #NoDAPL movement shows little signs of dying out, thanks in part to the ongoing lawsuit.

“We have won yet another fight in this battle against corporate greed and dirty oil, but it is not over. We must continue to believe and to pray and to make our voices heard loud and clear: we will not continue to accept this treatment any longer,” Standing Rock Sioux leaders said in a post on Facebook on Friday.

In the meantime, tribes and tribal activists are pushing the U.S. Army Corps of Engineers to conduct the analysis that the Trump administration scuttled without warning at the same time the final portion of the pipeline was approved. Boasberg, in his decision last week, said the review must take treaty rights, oil spills and environmental justice issues into account.

“All of those things are going to be on the table,” attorney John Dossett from the National Congress of American Indians said last week during the organization's mid-year session, where tribal leaders cheered the judge's ruling. “I think it's a victory for all tribes.”

But so far, the agency hasn't indicated when -- or whether -- it will start preparing the environmental impact statement for that portion near Standing Rock. No notices have been sent to the Federal Register as of Friday afternoon.

“We know that we face an uphill legal battle to victory, but we remain committed to the protection of the water and the power of our movement to keep fossil fuels in the ground,” Dallas Goldtooth, the lead national organizer for the Indigenous Environmental Network, which has played a key role in the struggle, said after Wednesday's court hearing.

In addition to Standing Rock and Cheyenne River, the Oglala Sioux Tribe and the Yankton Sioux Tribe are part of the lawsuit. The latter had filed separate complaints against the Army Corps that were recently consolidated with those of the other tribes.

The judge also agreed to add individual tribal citizens to the case Steve Vance, the historic preservation officer at Cheyenne River, joined earlier this week over objections from the federal government and Dakota Access.

Also this week, another group that includes LaDonna Brave Bull Allard, a prominent activist from Standing Rock, entered the case. They agreed to drop President Donald Trump from their complaint after the judge strongly suggested they do so if they wanted to proceed with the other pipeline opponents.

But even if the lawsuit doesn't bear his name, Trump's presence looms large. Without his intervention, the pipeline would be stuck in limbo, undergoing a review that had been ordered by the Obama administration just two days before the new president took office on January 20.

Four days after that, Trump directed his administration to conduct an “expedited” review of the project. Barely two weeks later, the final portion was approved without consulting leaders from Standing Rock or Cheyenne River.

The environmental analysis was canceled soon after and Trump later indicated he didn't put much thought into the entire matter.

“Nobody thought any politician would have the guts to approve that final leg and I just closed my eyes and said 'Do It,'” Trump said during a June 7 speech on infrastructure.

The briefing schedule approved by Judge Boasberg on Wednesday follows:

MINUTE ORDER:
As discussed at the June 21, 2017, status hearing, the Joint Motion for Briefing Schedule is GRANTED. The Court ORDERS that:
(1) Opening briefs of no more than 20 pages each shall be submitted by July 17, 2017, by Defendant United States Army Corps of Engineers and Intervenor Defendant Dakota Access;
(2) Responses of no more than 40 pages in total shall be submitted by August 7, 2017, by Plaintiff Standing Rock Sioux Tribe and Intervenor Plaintiff Cheyenne River Sioux Tribe;
(3) Any other Intervenor or Consolidated Plaintiff may file a brief up to 10 pages by August 7, 2017, dealing only with issues not raised by Standing Rock and Cheyenne River;
(4) Replies of no more than 10 pages each shall be submitted by August 17, 2017, by the Corps and Dakota Access;
(5) Sur-replies of no more than 20 pages in total shall be submitted by August 28, 2017, by Standing Rock and Cheyenne River; and
(6) Any other Intervenor or Consolidated Plaintiff may file a sur-reply up to 5 pages by August 28, 2017, dealing only with issues not raised by Standing Rock and Cheyenne River.
Signed by Judge James E. Boasberg on 6/20/2017. (lcjeb3)

The Yankton Sioux Tribe did not support the “lengthy briefing schedule,” attorneys wrote in advance of the hearing. “The tribe’s position is that the issues for briefing can and should be completed much more quickly,” the filing stated.

Federal Register Notices:
Notice of Termination of the Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (February 17, 2017)
Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (January 18, 2017)

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)

Mark Trahant: Dakota Access decision offers a chance to return to respect (June 16, 2017)
Cheyenne River Sioux Tribe hails 'victory' in Dakota Access Pipeline case (June 16, 2017)
Indian Country cheers as judge orders review of Dakota Access Pipeline (June 15, 2017)
Albert Bender: Judge drags his feet in Dakota Access Pipeline case (June 12, 2017)
Dakota Access faces fines for disturbing artifacts in North Dakota (June 8, 2017)
President Trump put wealthy firm first in approving Dakota Access Pipeline (June 7, 2017)
Dakota Access Pipeline begins shipping oil months behind schedule (June 1, 2017)