Harold Frazier, the chairman of the Cheyenne River Sioux Tribe, addresses a #NoDAPL rally outside of the federal courthouse in Washington, D.C., on August 24, 2016. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Environment | Law | National | Politics

Judge deals tribes major setback with decision in Dakota Access Pipeline case

Wednesday, October 11, 2017

Oil will continue to flow through the Dakota Access Pipeline despite "deficiencies" in the Trump administration's handling of the controversial project.

In a highly-anticipated ruling, Judge James Boasberg again faulted the U.S. Army Corps of Engineers for failing to address tribal objections when it approved the final portion of crude oil pipeline. But he refused to halt operations in light of the "serious possibility" that a new review won't change the outcome of the politically-charged dispute.

On the contrary, Boasberg said he trusts the Army Corps to follow the law as it considers, among other issues, the impact on tribal treaty rights. The agency expects to come up with another analysis in the spring of 2018, allowing the pipeline's wealthy backers to continue to benefit from their $3.8 billion investment as the review drags along.

"The lengthy procedural history of this case shows, moreover, that there has been nothing hasty about the Corps’ decisionmaking thus far," Boasberg wrote in the 28-page decision on Wednesday. "There is no reason to think that it will be any less thorough in analyzing the three deficiencies on remand."

The ruling brought a strong rebuke from Chairman Harold Frazier of the Cheyenne River Sioux Tribe. Continued operation of the pipeline endangers his community and infringes on treaties signed in the late 1800s, he said.

“I am deeply saddened by the yet another example of the United States disregarding the rule of law after inflicting violence on my people to violate treaty responsibilities," Frazier said. "This decision is an example that the United States only applies their own laws when it is convenient to wealthy people operating under the guise of a business."

"If we cannot stop the United States from breaking their own laws, how can we expect the justice from their laws?” Frazier added.

Oil began flowing through the pipeline on June 1 after the Trump team approved the final crossing in North Dakota. Neither the Cheyenne River Sioux Tribe, nor the Standing Rock Sioux Tribe, whose reservation is less than a half-mile from the last portion, were consulted by the new administration.

Barely two weeks later, Boasberg gave hope to the tribes when he ordered the Army Corps to conduct another environmental analysis. He even invited them to suggest a "remedy" -- they responded by seeking a shutdown of operations while the review was being completed. Indian Country supported the request in a slew of briefs.

But that's now out of the question with the latest ruling. "After the agency’s further work on remand, the parties may well disagree over the sufficiency of its conclusion," Boasberg wrote.

"If and when such a dispute arises, they will again have the opportunity to address whether defendants have in fact fulfilled their statutory obligations," he added.

There is little doubt that the Army Corps will once again approve the final crossing. Attorneys from the Department of Justice have already indicated as much in court filings.

"There is a serious possibility that the Corps will substantiate its prior decisions, in part because the risk that any oil will spill into Lake Oahe is low," an August 17 brief stated. The final portion of the pipeline crosses federally-managed land at Lake Oahe.

At the time, government attorneys anticipated a new analysis before the end of the year. But the timeline is now being pushed out to April 2018 -- because Dakota Access needs more time to submit oil spill information, according to a filing submitted last week.

"The Corps is actively working on ways to shorten this timeline," the October 6 notice stated.

The Obama administration had put the final portion on hold in response to widespread opposition to the pipeline. Yet the Army Corps didn't initiate an environmental impact statement until January 18.

Two days later, President Donald Trump took office and made the pipeline one of his top priorities. He ordered the Army Corps to "expedite" consideration of the final crossing and, two weeks later, Dakota Access secured permission to place the pipeline in tribal treaty waters.

"Now, what other politician, if elected president, would have done that?" Trump said during a speech at an oil refinery in North Dakota last month. "They would have stayed far away. And I did it immediately."

"I didn't even do it, in that case, for jobs -- it was the right thing to do," Trump said to cheers. "And that is flowing now beautifully. So it was the right thing to do."

The 1,172-mile pipeline starts in North Dakota and runs through South Dakota and Iowa before ending in Illinois. Construction began even though Dakota Access lacked the easement for the final portion near Standing Rock. Work continued as tens of thousands of people flocked to the #NoDAPL encampment nearby and as the movement drew international attention.

The pipeline is buried about 92 feet below the surface of the Missouri River at Lake Oahe. Project backers have always insisted that a risk of a spill into the waters there is extremely low.

The Cheyenne River Sioux Tribe and the Standing Rock Sioux Tribe retain water, hunting and other rights at Lake Oahe through treaties signed with the United States. The Army Corps failed to fully consider those rights when it issued the easement to Dakota Access, according to Judge Boasberg's June 14 ruling in the case.

Boasberg is convening a hearing next Wednesday, October 18, to discuss the case.