Jun 15, 2017 by


The Standing Rock Sioux Tribe’s Litigation on the Dakota Access Pipeline

In a victory for the Standing Rock Sioux Tribe, the Court finds that approval of Dakota Access Pipeline violated the law.

In a 91-page decision, Judge James Boasberg ruled that the federal permits authorizing the pipeline to cross the Missouri River just upstream of the Standing Rock reservation, which were hastily issued by the Trump administration just days after the inauguration, violated the law in certain critical respects.
The Court did not determine whether pipeline operations should be shut off and has requested additional briefing on the subject and a status conference next week.
The federal judge wrote, “the Court agrees that [the Corps] did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.”
“This is a major victory for the Tribe and we commend the courts for upholding the law and doing the right thing,” said Standing Rock Sioux Chairman Dave Archambault II. “The previous administration painstakingly considered the impacts of this pipeline, and President Trump hastily dismissed these careful environmental considerations in favor of political and personal interests. We applaud the courts for protecting our laws and regulations from undue political influence, and will ask the Court to shut down pipeline operations immediately.”
“This decision marks an important turning point. Until now, the rights of the Standing Rock Sioux Tribe have been disregarded by the builders of the Dakota Access Pipeline and the Trump administration—prompting a well-deserved global outcry,” said Earthjustice attorney Jan Hasselman. “The federal courts have stepped in where our political systems have failed to protect the rights of Native communities.”
The Court ruled against the Tribe on several other issues, finding that the reversal allowing the pipeline complied with the law in some respects.
About The Litigation:

Why did the Standing Rock Sioux Tribe bring a lawsuit?

The Standing Rock Sioux Tribe is deeply concerned about the construction of the major crude-oil pipeline that passes through its ancestral lands.

What are the key legal issues in this case?

The motion for summary judgment, filed on Feb. 14, asked the Judge to rule on major legal questions that have not yet been resolved during this case, including whether National Environmental Policy Act requirements have been met and whether the Corps’ actions violate the Tribe’s Treaty rights.
Our lawsuit raises three critical claims, and asks the court to throw out the federal approvals.
First, the law requires a full, transparent and public environmental review for any federal action that has “significant” environmental effects. These environmental reviews have been prepared for decisions as mundane as off-leash dog areas and allowing jet skis in parks. The idea that a 30-inch crude-oil pipeline under one of the most economically and culturally important waterways in the nation isn’t significant enough to warrant an environmental review is absurd.
Second, the history of the U.S. government’s broken promises to the Sioux people is long and tragic. No one disputes that the Tribe has important Treaty rights that guarantee the integrity of its reservation. This means that the federal government and its agencies cannot take any federal action that harms the Standing Rock reservation or the water in the Missouri River on which the people of Standing Rock depend.
The Obama administration made a carefully considered decision that these Treaty rights needed to be respected in connection with an oil pipeline immediately upstream of the reservation. The Trump administration ignored that advice, and acted as if the Tribe does not exist.
And finally, there are limits on the extent to which one administration can reverse the decisions of its predecessor. While federal agencies can change their minds about matters of policy, the courts will set aside reversals that are not fully justified and explained.

Where can I find a recap of the dramatic events of the summer, fall, and winter of 2016?

“Things moved very fast.” Read an account from Earthjustice attorney Jan Hasselman on seeking the preliminary injunction, the Court’s ruling on the request, and the remarkable announcement issued by the Army Corps of Engineers and the Department of Justice and Interior.

Where can I find an explanation and summary of the Tribe’s legal fight?

See: Standing With Standing Rock.
Earthjustice attorney Jan Hasselman, lead counsel to the Standing Rock Sioux Tribe, provides an overview of the origins of this historic legal case, explains the dramatic turn of events during the spring, summer and fall of 2016 and the Trump administration’s recent actions, and outlines what lies ahead.
Additionally, the timeline section of this FAQ gives a summary of key events.

Where can I find legal documents related to this case?

From The Standing Rock Sioux Tribe

Setting The Record Straight.

On Feb. 23, the Tribe issued a report on engagement on the Dakota Access Pipeline. Selected excerpts from Setting The Record Straight:
The Tribe was fully engaged from the beginning. The Tribe contacted the Army Corps, even before DAPL applied for permits, to express its deep concerns about the pipeline in this location and its effect on the Tribe’s treaty rights and cultural sites. (The full story.) In September 2014, the Tribe made its overwhelming objection to the proposal clear to DAPL representatives, and promised to fight them if they proceeded in the proposed location. A recording of what was said:
The Corps did not hold 389 meetings with Tribes. A significant portion of that ‘389’ number were requests from Tribes to the Corps seeking information about the proposed pipeline and the Corps’ process for reviewing it, raising concerns and objections, and requesting meetings to discuss those concerns—many of which were ignored by the Corps.
The Tribe participated fully in the NEPA process. The Tribe submitted three lengthy sets of technical and legal comments on the December 2015 draft EA, comprising hundreds of pages, raising objections and seeking better analysis of spill risks and the Tribe’s treaty rights.
The Tribe sought to protect its rights when no one else would. The Tribe refused to get out of DAPL’s way and allow them to do something the Tribe thought was illegal and immoral. Neither the Corps nor DAPL ever explained why, if the pipeline was so safe, they didn’t select the alternative route and cross the Missouri River north of Bismarck where the river is narrower.
The Corps relied on flawed, one-sided analysis prepared by DAPL—and never subjected to any independent review—minimizing the risks of oil spill, and ignored the Tribe’s treaty rights to water, fishing, and hunting. In December 2016, the Corps correctly found that those issues needed further consideration through an EIS process. On his second full day in office, the Trump administration overruled the Corps and ordered the permits to be granted. Standing Rock Chairman Archambault was on his way to meet with the White House when the easement was issued—no one from the Trump administration ever talked to a representative of the Tribe before ordering the project to go forward.
The new administration failed to engage in good faith in the process.
Timeline of Events:
July 27, 2016

The Tribe files a lawsuit in federal district court in Washington, D.C., where it was assigned to U.S. District Judge James E. Boasberg.

August 4, 2016

The Tribe asks the Court for a preliminary injunction since the pipeline is already under construction and would be finished before the case could be formally decided.

August 24, 2016

Judge Boasberg holds a hearing on the motion in Washington, D.C. Over 500 people participated in an action outside the federal courthouse in support of the Tribe. The Judge indicated that he would rule in roughly two weeks.

Sept. 3, 2016

While the parties are awaiting the Court’s decision, Dakota Access bulldozed an area of the pipeline corridor filled with Tribal sacred sites and burials that had been identified to the Court just the previous day. Demonstrators trying to prevent the destruction of the sacred site were pepper sprayed and attacked by guard dogs (as documented by Amy Goodman and her Democracy Now camera crew.) On Sept. 4, the Tribe files an emergency motion for a temporary restraining order to block the construction until a decision is reached on the injunction motion.

Sept. 6, 2016

Judge Boasberg holds a hearing on the emergency motion for a temporary restraining order. The Judge issues a temporary restraining order for the pipeline corridor nearest the Missouri River but declines to halt construction on the portion of the pipeline route that had recently been identified as sacred tribal burial ground.

Sept. 9, 2016

The Court denies the Tribe’s motion for a preliminary injunction. Minutes later, three federal agencies—The Department of Justice, Department of the Army and Department of the Interior—issue a joint statement announcing that the federal agencies will halt any additional permitting and reconsider its past permits of the project. The statement states that while it appreciates the Court’s review, the government believes that the Tribe has raised some important issues worthy of additional consideration. It also called for a national review of the government’s approach to Tribal consultation for major fossil fuel projects.

Sept. 12, 2016

After filing an appeal of the District Court’s decision with the D.C. Circuit Court of Appeals, the Tribe files a request for an injunction pending appeal. The motion asks the Court to make the Government’s request for a voluntary pause on construction within 20 miles of Lake Oahe an enforceable requirement while the appeal process goes forward.

Sept. 16, 2016

The Court issues an order issuing an “administrative injunction … to give the court sufficient opportunity to consider the emergency motion for injunction pending appeal.” The court directed “that Dakota Access LLC be enjoined pending further order of the court from construction of the Dakota Access Pipeline for 20 miles on both sides of the Missouri River at Lake Oahe.”

Oct. 5, 2016

Oral arguments on the emergency motion for injunction are held at the Court of Appeals for the D.C. Circuit. A ruling was not issued, keeping the temporary halt to construction in place until the Court issues a decision.

Oct. 9, 2016

The D.C. Circuit issues a ruling denying the tribe’s request for an injunction pending appeal but emphasizes that it hoped that the “spirit of Section 106 [of the National Historic Preservation Act] may yet prevail” as the Court did not have the last word, and decisions still need to be made at the permit crossing at Lake Oahe. Both the appeal and the district court litigation will proceed, but the injunction covering work in the pipeline corridor has ceased.

Oct. 10, 2016

The Department of Justice, Department of the Army and Department of the Interior issue a joint statement following the court order which says in part: “The Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon. In the interim, the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe. We repeat our request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

Dakota Access has forcefully rejected the Government’s request for a voluntary pause, and continues to pursue construction ever closer to the Missouri River and the camps of protesters.

Oct. 20, 2016

The Army Corps conducts a site visit to the area bulldozed over Labor Day to determine whether Dakota Access violated federal law by knowingly damaging a tribal sacred site. Under federal law, if Dakota Access is found to have knowingly damaged a historic or cultural resource with the intent of sidestepping the National Historic Preservation Act, the Corps cannot issue the easement. No determination has been finalized.

Oct. 24, 2016

As confrontations between Tribal water protectors and an increasingly militarized construction effort heat up, Tribal Chairman Dave Archambault II calls on the Department of Justice to conduct an investigation into heavy-handed police tactics and violations of civil rights.

Nov. 2, 2016

Following comments from President Obama in an interview on Nov. 1, Tribal Chairman Dave Archambault II issues a statement, saying in part, “While the Army Corps of Engineers is examining this issue we call on the Administration and the Corps to issue an immediate ‘stop work order’ on the Dakota Access Pipeline.” Read the Tribe’s full statement.

“Earthjustice is honored to represent the Standing Rock Sioux Tribe in court as it seeks to protect its people’s sacred lands and water from the Dakota Access pipeline,” said Trip Van Noppen, president of Earthjustice, also in response to President Obama’s Nov. 1 remarks. “We also want to reiterate the Chairman’s call for a full environmental impact statement. No such careful review has occurred to date. Considering all that’s at stake, that’s simply unacceptable.” Read Earthjustice’s full statement.

Nov. 3, 2016

An independent expert hired by the Standing Rock Sioux Tribe (Richard Kuprewicz of Accufacts, Inc., a consulting firm that advises government agencies and industry about pipelines) finds that the government’s environmental assessment of the Dakota Access pipeline’s environmental impact was inadequate. In light of Kuprewicz’s report and the deficiencies contained in the environmental assessment, Tribe Chairman Archambault II asked for the government to reconsider its early decisions and disallow the easement for the pipeline crossing. Read the letter to Assistant Secretary Jo-Ellen Darcy. Read the Accufacts report. Read the news release.

Nov. 10, 2016

The Department of Justice announces in federal court that it will be announcing the next steps on a ‘path forward’ for the Dakota Access Pipeline crossing at Lake Oahe. Read the Tribe’s statement.

Nov. 14, 2016

The U.S. Army Corp of Engineers announces they are delaying an easement for the Dakota Access Pipeline project until it conducts further environmental review with the Standing Rock Sioux Tribe. “We are encouraged and know that the peaceful prayer and demonstration at Standing Rock have powerfully brought to light the unjust narrative suffered by tribal nations and Native Americans across the country,” says Standing Rock Sioux Tribal Chair David Archambault II.

Nov. 15, 2016

Energy Transfer Partners, the company behind the Dakota Access Pipeline files a lawsuit charging the U.S. Army Corp of Engineers has no right to delay easement to pipeline construction.

Nov. 21, 2016

The Standing Rock Sioux Tribe issues a statement calling on President Obama to deny easement, investigate pipeline safety and protect tribal sovereignty. Read the Tribe’s statement.

Nov. 25, 2016

Federal officials announce that a decision had been made to close access to the entire area north of the Cannonball River including the Standing Rock protest campsite at Oceti Sakowin. They said the decision was made because of public safety concerns and that a ‘free speech zone’ to the south of Cannonball River would be created. Anyone on the closed land after Dec. 5 could be charged with trespassing. Read the Tribe’s statement.

Nov. 28, 2016

The Water Protector Legal Collective, an initiative of the National Lawyers Guild, files a lawsuit in U.S. District Court against Morton County, Morton County Sheriff Kyle Kirschmeier, and other law enforcement agencies for using excessive force against peaceful protesters near the Standing Rock protest camp on the night of November 20. More details. (Earthjustice, representing the Standing Rock Sioux Tribe in litigation against the U.S. Army Corps of Engineers, is not involved in this class action lawsuit.)

Standing Rock Sioux Tribe Chairman Dave Archambault II responds to Gov. Dalrymple’s Nov. 28 executive order calling for mandatory evacuation of all campers located on U.S. Army Corps of Engineers lands (also known as the Oceti Sakowin camp), saying, in part, “If the true concern is for public safety than the Governor should clear the blockade and the county law enforcement should cease all use of flash grenades, high-pressure water cannons in freezing temperatures, dog kennels for temporary human jails, and any harmful weaponry against human beings.” Read the Tribe’s full statement.

Dec. 2, 2016

The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe ask the Inter-American Commission on Human Rights to stop the violence against water protectors at Standing Rock. An official petition has been submitted to the IACHR.

Dec. 4, 2016

The Dakota Access Corporation is not granted the easement needed for construction under Lake Oahe. The U.S. Army Corps of Engineers moves to prepare an Environmental Impact Statement for alternative routes. Read more.

Dec. 5, 2016

DAPL files a motion for summary judgment. Read the legal document.

Dec. 9, 2016

Tribal representatives testify at a hearing by the Inter-American Commission on Human Rights. The hearing examined the impact of extractive industries and projects on the human rights of indigenous peoples, focusing on the Dakota Access Pipeline and the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe.

Jan. 6, 2017

The Standing Rock Sioux Tribe files a motion with the U.S. District Court in Washington, D.C., asking District Judge James Boasberg to throw out Dakota Access’s lawsuit against the Army Corps of Engineers. The Department of Justice, which represents the Corps, files a similar motion.

Jan. 18, 2017

The scoping notice soliciting public comment on the Environmental Impact Statement process for the Dakota Access Pipeline is published in the Federal Register. The notice opens the public scoping phase and invites interested parties to identify potential issues, concerns, and reasonable alternatives that should be considered in an EIS. Comments from the public are being requested through Feb. 20.

Jan. 24, 2017

President Donald Trump takes executive action towards an approval of an easement for the Dakota Access Pipeline, risking contaminating tribal and American water supplies while disregarding treaty rights. “The existing pipeline route risks infringing on our treaty rights, contaminating our water and the water of 17 million Americans downstream,” said Dave Archambault II, chairman of the Standing Rock Sioux Tribe. “We are not opposed to energy independence. We are opposed to reckless and politically motivated development projects, like DAPL, that ignore our treaty rights and risk our water. Creating a second Flint does not make America great again.” Read full statement from the Standing Rock Sioux Tribe. Read statement from Earthjustice.

Feb. 1, 2017

Senators Cantwell, Tester and Udall send a letter to the White House expressing their concern about the Presidential Memorandum issued January 24 and reports that the Army Corps of Engineers intends to grant a final easement allowing construction of the Dakota Access Pipeline without appropriate consultation with the Standing Rock Sioux Tribe and due process. Read the letter.

Feb. 7, 2017

The Army Corps of Engineers notifies Congress that—within the next 24 hours—it will issue an easement to allow the Dakota Access Pipeline to cross under Lake Oahe in North Dakota near the Standing Rock Sioux Tribe reservation. Read the EIS termination. Read the Army memorandum.

Feb. 14, 2017

The Standing Rock Sioux Tribe files a motion for summary judgment, asking the Court to overturn recent Army Corps of Engineers permits of the pipeline issued without environmental review or consideration of treaty rights. The lawsuit challenges the Corps’ hasty and unexplained departure from its previous decision, and explains how the Corps ignored the Tribe’s treaty rights and seeks to destroy culturally significant and sacred sites. It also explains how the Corps violated federal statutes requiring close environmental analysis of significant and controversial agency actions. Read the legal document.

Feb. 15, 2017

North Dakota Gov. Burgum issues an emergency evacuation order of the Oceti Sakowin camp, ordering that the site be vacated by 2:00pm local time on Feb. 22. In a statement on Feb. 7, Standing Rock Chairman Archambault II had asked supporters to “please respect our people and do not come to Standing Rock and instead exercise your First Amendment rights and take this fight to your respective state capitols, to your members of Congress, and to Washington, D.C.”

Feb. 23, 2017

The Standing Rock Sioux Tribe issues Setting The Record Straight, documenting engagement on the Dakota Access pipeline.

Feb. 24, 2017

A buried memo from Interior Department’s top lawyer surfaces in legal filings. The 35-page formal legal opinion, dated Dec. 4, found that the existing environmental assessment for the Dakota Access pipeline suffered from fatal flaws. The Trump administration quietly suspended the opinion as it prepared to approve the pipeline. Of the Trump administration’s attempts to bury the memo, Earthjustice attorney Jan Hasselman said, “The Standing Rock Sioux deserve better. That’s why we have courts.” Read details.

Apr. 5, 2017

The Standing Rock Sioux Tribe applauds BNP Paribas’ decision to divest from the Dakota Access Pipeline. “As corporate greed continues to fuel dirty energy projects on our land, it is heartening to see that some banks recognize the imminent harm to our people posed by DAPL, and are taking actions accordingly,” said Dave Archambault, Chairman of the Standing Rock Sioux Tribe. “We appreciate BNP Paribas, ING and DNB leadership and their advanced understanding and respect of tribal sovereignty and Indigenous Peoples’ rights.”

May 10, 2017

The local South Dakota outlet Aberdeen News reports that a leak occurred in the not-yet completed Dakota Access pipeline on April 6. “Our lawsuit challenging this dangerous project is ongoing, and it’s more important than ever for the court to step in and halt additional accidents before they happen—not just for the Standing Rock Sioux Tribe and our resources, but for the 17 million people whose drinking water is at risk,” said Standing Rock Sioux Tribe Chairman Dave Archambault II.

June 14, 2017

The Standing Rock Sioux Tribe wins a significant victory, when Judge James Boasberg rules that the federal permits authorizing the pipeline to cross the Missouri River just upstream of the Standing Rock reservation, which were hastily issued by the Trump administration just days after the inauguration, violated the law in certain critical respects. The Court did not determine whether pipeline operations should be shut off, requesting additional briefing on the subject and a status conference for the following week. Read the court opinion.

Key Legal Documents:

Leave a Reply

Your email address will not be published.