Tribes score victory in long-running battle against Dakota Access Pipeline

Wednesday, March 25, 2020  

In a big victory for tribal nations that have fought the Dakota Access Pipeline through two presidential administrations, a federal judge on Wednesday ruled that the U.S. Army Corps of Engineers must complete a full environmental review of the controversial oil project.

Judge James Boasberg of the U.S. District Court for the District of Columbia said the Army Corps failed to fully examine whether the pipeline’s effects were likely to be "highly controversial" as they relate to provisions of the National Environmental Policy Act. He rejected the agency’s prior efforts -- much of which occurred in the early days of the Donald Trump era in 2017 -- as legally insufficient.

In reaching the conclusion, Boasberg cited a recent decision from the D.C. Circuit Court of Appeals in which the Army Corps was ordered to vacate a permit it had issued to a utility company to build transmission towers across the historic James River in Virgina. In that situation, a full environment impact statement was ordered.

This just in: In a victory for tribes, a federal judge has ordered the Trump administration to prepare an environmental impact statement for the Dakota Access Pipeline, holding that the Army Corps has not "adequately discharged its duties" under federal law. #NoDAPl @bigfirelaw

— indianz.com (@indianz) March 25, 2020

The appeals court in National Parks Conservation Association v. Semonite held that the Army Corps failed to answer important questions about its chosen methodology and the scope of the project’s impact, and also cited misgivings by federal and state agencies about locating transmission towers in a region with such importance in U.S. history. The same standard applies on treaty lands promised to the Sioux Nation in North Dakota, Boasberg determined.

“Applying Semonite, this court ultimately concludes that too many questions remain unanswered,” Boasberg wrote in his 48-page decision. “Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains ‘highly controversial’ under NEPA. As the court thus cannot find that the Corps has adequately discharged its duties under that statute, it will remand the matter to the agency to prepare an environmental impact statement.”

However, Boasberg did not rule on whether oil could continue to flow through the Dakota Access Pipeline, which went into service in June 2016. The pipeline transports nearly 500,000 barrels of oil from North Dakota’s Bakken Formation to Illinois each day, and the operators recently won approval to expand capacity -- over tribal objections.

The judge instead ordered parties for both sides to present briefs on whether the easement should be vacated while the Army Corps completes its environmental review, though he added that vacating an action that violates NEPA is the “standard remedy.”

Nikki Ducheneaux, lead attorney for the Cheyenne River Sioux Tribe, called the ruling a major win for Indian Country, fulfilling original requests to subject the Dakota Access Pipeline to a full environmental review before receiving a federal permit.

“I think it’s incredibly significant,” said Ducheneaux, a Cheyenne River Sioux citizen. “That’s what the tribes have been asking for since the first consultation period prior to 2016. The tribes wanted the agency to take a full look at the impact of this on our treaty rights, as well as the environment. The Corps has always given short shrift to our treaty rights.”

She said her tribal clients assert their treaty rights to be the supreme law of the land, while the Army Corps rarely considers them as actionable when considering the impact of projects on the rights set forth in those treaties.

In his decision, Boasberg cited the Fort Laramie Treaty of 1851 and ordered the Army Corps to consider how the pipeline would impact the tribes’ hunting and fishing resources. The judge also acknowledged the importance of Lake Oahe, located along the Missouri River, to the tribes.

“The tribes now rely on the waters of Lake Oahe in myriad ways, including for drinking, agriculture, industry, and sacred religious and medicinal practices,” he wrote in this decision.

“The court has finally heard what the tribes have had to say all this time,” Ducheneaux said. “It was a beautiful thing for the court to acknowledge.”

She also hailed other aspect of Boasberg’s decision, including his decision to afford tribal experts – such as directors of relevant tribal programs – the same deference as experts put forth by the Corps of Engineers. She said the D.C. Circuit's precedent in Semonite heightened the Army Corps’ responsibility when considering the views of Indian Country.

In his decision, Boasberg described tribes as “‘domestic dependent nations’ that exercise inherent sovereignty” and said their experts should be considered the same as experts representing federal agencies.

“It was a beautiful recognition of the importance of tribal government and legitimacy of tribal government that courts often overlook,” Ducheneaux said.

The judge also took issue with the Army Corps’ assertion that no federal agency had criticized the project, saying prior to the election of President Donald Trump – who expedited approval of the Dakota Access Pipeline within days of taking office – the Department of the Interior and the Environmental Protection Agency had expressed concerns about the handling of the project.

Interior, for example, found the Army Corps’ draft environmental assessment did not support the agency’s conclusion that the project would have no significant impact on the surrounding environment or community. And the EPA recommended that the Army Corps analyze more closely the lead-detection system it had selected and its ability to “identify small volume leaks.”

On Wednesday, numerous officials offered praise for the judge’s ruling.

Rep. Raúl Grijalva (D-Arizona), chairman of the House Committee on Natural Resources, said the Dakota Access Pipeline must be shut down until it can be decided whether it doesn’t violate the rights of people who are impacted.

“Industry needs to learn that if you throw in with the Trump administration, you will bear the costs of its reckless incompetence,” Grijalva said in a statement. “As it turns out, critics of this pipeline and projects like it are right when they say the law requires the administration to take the concerns of tribes and other impacted communities seriously. When they don’t, the courts will hold them accountable.”

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— CRSTChairman (@CRSTChairman) March 25, 2020

Chairman Harold Frazier of the Cheyenne River Sioux Tribe said the court’s decision was a significant win for efforts to ensure treaties with Indian nations are honored.

“The laws pertaining to the Great Sioux Nation have all too often been swept under the rug for American profits,” Frazier said in a statement. “We look forward to participating in the environmental impact statement so that we may demonstrate the real impact this project will have on our people and our planet.”

Chase Iron Eyes, lead counsel for the Lakota People’s Law Project, said the ruling served as vindication for tribes and water protectors who opposed the pipeline. He said the pipeline, as well as the Keystone XL Pipeline and all new pipeline projects, should be shut down because of the horrible safety records of oil companies.

But he also urged caution about the decision

“I’m encouraged, but it’s also important to remember that no matter the outcomes in the courts, we still run the risk of President Trump circumventing separation of powers and exceeding the scope of his authority when it comes to pipelines,” he said.

Ducheneaux said Boasberg’s ruling now means that tribal concerns about the project must be heard.

“We start back essentially from square one in terms of the tribes as least, ensuring that we have a meaningful seat at the table and there is meaningful consultation between the government and tribal governments,” she said.

And she praised the efforts of the water protectors who protested construction of the pipeline in North Dakota, saying they succeeded in convincing former President Barack Obama to reject a key permit for the project and gave the tribal plaintiffs seeking to stop the pipeline time to gather experts to offer testimony to the court.

“It’s really a culmination of all the efforts of the grassroots people and the lawyers,” she said. “It’s really beautiful.”

The Standing Rock Sioux Tribe filed the lawsuit in the summer of 2016, well before the final permit was issued by the Army Corps. The easement at issue lies just a half mile north of the reservation in North Dakota.

“After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” Chairman Mike Faith said in a news release. “It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet. Perhaps in the wake of this court ruling the federal government will begin to catch on, too, starting by actually listening to us when we voice our concerns.”

The Cheyenne River Sioux Tribe was allowed to intervene in the lawsuit during the summer of 2016. The Oglala Sioux Tribe and the Yankton Sioux Tribe later filed their own separate lawsuits, both of which were consolidated with Standing Rock's case.