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'A historic day': Tribes celebrate victory over Dakota Access as pipeline operator strikes back

Tuesday, July 7, 2020

Tribes fighting the Dakota Access Pipeline won a major victory in court on Monday when a federal judge ordered oil to stop flowing through a controversial project that Indian Country has resisted for years.

Judge James E. Boasberg of the U.S. District Court for the District of Columbia reaffirmed an earlier ruling that requires the Trump administration to conduct a full environmental analysis of the pipeline. But he went a step further and said operations must halt within 30 days, siding with tribes on their long-standing request to stop oil from snaking through Sioux Nation treaty territory.

“Today is a historic day for the Standing Rock Sioux Tribe and the many people who have supported us in the fight against the pipeline,” Chairman Mike Faith said on behalf of the lead plaintiff in the lawsuit. “This pipeline should have never been built here. We told them that from the beginning.”

Chairman Mike Faith: “Today is a historic day for the Standing Rock Sioux Tribe & the many people who have supported us in the fight against the pipeline. This pipeline should have never been built here. We told them that from the beginning.” #NoDAPL #MniWiconi #HonorTheTreaties pic.twitter.com/NiBDNmP10W
— indianz.com (@indianz) July 6, 2020

But the wealthy and politically connected operators of the pipeline aren't accepting defeat. Energy Transfer Partners, whose chief executive enjoys close ties to President Donald Trump and his administration, said the decision was not supported by law or the facts of the case.

“Furthermore, we believe that Judge Boasberg has exceeded his authority in ordering the shutdown of the Dakota Access Pipeline, which has been safely operating for more than three years,” the company said in a statement issued Monday afternoon. “We will be immediately pursuing all available legal and administrative processes and are confident that once the law and full record are fully considered Dakota Access Pipeline will not be shut down and that oil will continue to flow.”

Indeed, before the day was up, Energy Transfer Partners filed an "emergency motion" to place a hold on the judge's decision. The company also filed a notice to take the case to a higher level -- the D.C. Circuit Court of Appeals, just one step below the U.S. Supreme Court, where a Republican-chosen majority often views tribal rights with extreme skepticism.

The operators of the Dakota Access Pipeline rushed to court with an "emergency motion" and a notice of appeal following a federal judge's ruling on July 6, 2020, to halt operations of the controversial project.

According to Energy Transfer, Boasberg’s decision would cost tribal, local and state governments in North Dakota, South Dakota, Iowa and Illinois billions of dollars in tax and royalty revenue. The company also would hurt farmers whose corn, wheat and soy crops would be displaced by oil as crude transportation would have to be moved to rail.

“Shutting down this critical piece of infrastructure would throw our country’s crude supply system out of balance, negatively impact several significant industries, inflict more damage on an already struggling economy, and jeopardize our national security,” the statement read. “This was an ill-thought-out decision by the court that should be quickly remedied."

But in his 24-page ruling, Boasberg wrote that vacating an easement found to have been granted in violation of the National Environmental Policy Act is the “standard remedy.” Having previously ruled in March that the easement granted to Dakota Access violated the law, he said it only made sense now to halt operation of the pipeline until the environmental review could be completed by the U.S. Army Corps of Engineers, whose handling of the project has repeatedly been criticized.

“Although mindful of the disruption such a shutdown will cause, the court now concludes that the answer is yes,” the judge wrote. “Clear precedent favoring vacatur during such a remand coupled with the seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow for the thirteen months that the Corps believes the creation of an EIS will take.”

Boasberg also pointed out that the Energy Transfer assumed "much of its economic risk knowingly in seeking to build a huge infrastructure project whose price tag has been put at $3.8 billion.

"The court will nonetheless require the oil to stop flowing & the pipeline to be emptied within 30 days from the date of this opinion and accompanying order," Boasberg wrote of the upcoming August 5 deadline.

The fight over the Dakota Access Pipeline began almost immediately after the project was announced in June 2014.

The Standing Rock Sioux Tribe and its allies have long argued the pipeline could rupture under the Missouri River, endangering the water it uses for fishing, drinking and religious ceremonies. The tribe sued the federal government in the summer of 2016 in hopes of stopping construction. Energy Transfer was later allowed to join the case as a defendant.

Youth from the Standing Rock Sioux Tribe lead Native Nations Rise, an anti-Dakota Access Pipeline march that took place in Washington, D.C., on March 10, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0) | More Photos

The tribe won a policy victory toward the end of the Barack Obama administration when the Army Corps announced in December 2016 that it wouldn’t grant an easement for the pipeline and would conduct a more thorough environmental review. By that time however, a new figure was on his way to Washington.

Just days after taking office in January 2017, Trump changed course. He canceled the pending review and ordered his administration to "expedite" approval of the final permit for the pipeline, which lies on Sioux Nation treaty territory less than a half-mile from the present border of Standing Rock in North Dakota.

Thanks to Trump's help, Dakota Access was completed in June of that year -- even as the tribes won another ruling in court. The 1,172-mile underground pipeline now carries up to 570,000 barrels of oil a day from the Bakken oil fields in North Dakota to Illinois, with the route crossing through South Dakota and Iowa.

With Monday’s decision, that oil must now stop flowing, though an attorney for the Standing Rock Sioux Tribe said he expects an immediate appeal of the ruling from the Trump administration. A spokesperson for the Army Corps declined to comment, referring Indianz.Com to the Department of Justice>

A Justice spokesperson also declined to comment.

Youth from the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe lead a ReZpect Our Water rally outside of the White House in Washington, D.C., on August 6, 2016. Photo by Indianz.Com (CC BY-NC-SA 4.0) | More Photos

Jan Hasselman, attorney for Earthjustice, a nonprofit environmental law firm representing the Standing Rock Sioux Tribe, said it’s important to understand Boasberg’s ruling doesn’t mean oil will never flow through the Dakota Access Pipeline again.

“This is not a permanent thing,” he said. “This basically kicks this into the next administration for the full EIS and then a new permit decision.”

If Boasberg’s decision is left to stand, Energy Transfer will have 30 days to shut down operation of the pipeline, with an expectation that the full environmental analysis to be finished within 13 months. Hasselman is skeptical the assessment would be done that quickly.

“They haven’t taken the first step to kick off the EIS process,” Hasselman told Indianz.Com.

I stood with protestors at Standing Rock demanding to protect sacred land & water resources from being exploited. This decision is an important marker in our fight to protect communities from water contamination & our environment. #NoDAPL #WaterIsLife https://t.co/aetOx5RWEb
— Rep. Deb Haaland (@RepDebHaaland) July 6, 2020

Regardless, by the time the environmental review is finished and new permits can be issued for the pipeline, a different administration could be overseeing the process, following the November presidential election.

“The election is important for many, many reasons, and this is one of them,” Hasselman said.

The Cheyenne River Sioux Tribe intervened in the lawsuit shortly after it was filed. Chairman Harold Frazier hailed Boasberg’s decision, saying it demonstrates the lack of legal justification for the “snake of oil moving through our territory.”

“The fact that this operation had been operating illegally for three years before this conclusion was finally made shows you the power that money holds on the American government,” Frazier said in a statement on Indianz.Com.

“It is time to put people before profit and seriously consider the impact of not only this project but the harm that this project brings to our land and planet," Frazier said.

It has been six years since the Dakota Access Pipeline began slithering a path through Sioux Nation treaty territory. #NoDAPL #MniWiconi #HonorTheTreaties #LandBack https://t.co/TKFiMkZvcN
— indianz.com (@indianz) July 6, 2020

Nicole Ducheneaux, lead attorney for Cheyenne River, said she was “stunned” to learn of the ruling while vacationing in Montana with her family. She said the decision serves as vindication for the many years the plaintiffs have fought, and often lost, to shut down the pipeline.

She cited failed initial efforts to seek preliminary injunctions based on federal historic preservation and religious freedom standards -- as well as the election of Trump -- as events that discouraged but didn’t stop tribal plaintiffs.

“It felt Sisyphean, that we were just endlessly fighting and even when we win, we still were losing,” Ducheneaux said, referring to the Greek myth of Sisyphus, a king who was punished in the afterworld by being forced to roll a boulder up a hill only to watch it roll down before it reached the top each time.

Ducheneaux, a Cheyenne River citizen, said it will be important for the tribal plaintiffs in the lawsuit to work with whoever is in power following the November general election.

“Ultimately these are political decisions, although they’re informed by the law and they’re informed by real scientific and environmental consequences,” she said. “We know that political people make these decisions.”

In a huge court victory today, U.S. District Court rules that Trump Administration and Army Corps rushed approval of the Dakota Access Pipeline, and now the pipeline must be shut down within 30 days while a revised environmental impact statement is conducted. pic.twitter.com/YqRByYZ9Cb
— Big Fire Law & Policy Group LLP (@bigfirelaw) July 6, 2020

As for whether Democratic presumptive nominee Joe Biden will support Indian Country's ’ efforts to shut down the pipeline if elected, Ducheneaux said she has heard he likely would. During the campaign, other candidates promised to do just that.

“I would hope that he would make a commitment to treaty and trust resources and the environment,” she said of Biden, who served as vice president under Barack Obama. “I would expect that he would come out in our favor.”

However the election turns out, she said the efforts to shut down the pipeline – highlighted by the historic demonstrations at Standing Rock by Native activists in 2016 and 2017 – have created a blueprint for environmental justice efforts in Indian Country moving forward.

“Once again this victory was a combined effort of what the grassroots people did on the ground and what the tribes did in court,” she said. “I hope that those two forces continue to work together in other areas going forward because I think it’s so powerful for Indian Country when the grassroots and the lawyers are united.”

Tribal flags fly at Oceti Sakowin, a former encampment in North Dakota that was established to oppose the Dakota Access Pipeline. Photo: Lucas Zhao

The Oglala Sioux Tribe and the Yankton Sioux Tribe subsequently filed their own separate lawsuits against the Army Corps. Their cases were consolidated with Standing Rock and Cheyenne River.

“I would like to recognize our water protectors that stood watch at the camp on the banks of the Missouri River with water protectors from many other tribal nations," Yankton Sioux Vice Chairman Jason Cooke said on Monday. "Their sacrifice, hard work, and prayers paved the way for today’s decision."

The Great Plains Tribal Chairmen’s Association, the Native American Rights Fund and the National Congress of American Indians congratulated all four tribes on court victory. A joint statement highlighted the need for the federal government to uphold treaty rights and engage in "meaningful" consultation with tribes.

"This decision ensures that the treaty-reserved rights of the plaintiff tribes – the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, the Yankton Sioux Tribe, and the Oglala Sioux Tribe – are adequately addressed, along with any other land and natural resource considerations, in a full-fledged and well-documented environmental review process," the organizations said.

We applaud the D.C. District Court’s decision to vacate the U.S. Army Corps of Engineers’ Lake Oahe easement for the Dakota Access Pipeline, and to require the removal of all oil flowing through the pipeline by August 5, 2020. Read our statement: https://t.co/0Gvd0ghbvw #DAPL pic.twitter.com/VP87rMkxyO
— National Congress of American Indians (@NCAI1944) July 6, 2020

"We hope that this decision helps pave the way for full and proper environmental impact studies as well as meaningful consultation with tribal nations that have direct or indirect stewardship over the lands under review," the statement continued. "Our organizations will continue to work to ensure that every time tribal lands and resources are at stake, the environmental review processes meet all legal standards and respect the federal government’s trust obligations to tribes set forth in federal laws."

Turtle Talk has posted documents from the case, Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. U.S. Army Corps of Engineers. Briefs in support of the plaintiffs were filed by several inter-tribal organizations, Democratic members of Congress and environmental groups.

Relevant Documents

Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. U.S. Army Corps of Engineers (July 6, 2020)