The Obama administration froze construction of a portion of the Dakota Access oil pipeline today just moments after a federal judge rejected a Native American tribe’s bid to halt the $3.7 billion project.
Judge James Boasberg of the U.S. District Court for the District of Columbia ruled the Army Corps of Engineers had not flouted its duty when consulting the Standing Rock Sioux Tribe, as the tribe had asserted.
The tribe has already appealed the order to the U.S. Court of Appeals for the District of Columbia Circuit.
Boasberg dismissed the tribe’s request to halt the Army Corps’ permitting of the pipeline while acknowledging the Standing Rock Sioux’s fear that the pipeline, which will run within a half-mile of the reservation along the North and South Dakota line, could destroy sites of cultural and historical significance.
The court "concludes that the Corps has likely complied with the [National Historic Preservation Act] and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue," Boasberg wrote.
In the wake of the release of Boasberg’s ruling, the Justice and Interior departments and the Army Corps issued a joint statement halting construction of the pipeline on corps land bordering or under Lake Oahe.
The pause, the agencies, said, would allow time for the corps to determine whether it should reconsider its previous decisions regarding Lake Oahe under the National Environmental Policy Act or other federal laws.
The pipeline dispute raises a larger question about the consideration of tribes’ views on infrastructure projects. Discussions will be held this fall to explore how Native Americans can be better consulted and whether legislation is needed to alter the existing statutory framework.
As protests of Dakota Access mount across the country, the agencies urged calm.
"In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites," they wrote. "It is now incumbent on all of us to develop a path forward that serves the broadest public interest."
Broader issues
Boasberg noted in his decision that while he was denying the injunction, the tribe didn’t press environmental claims under NEPA.
Nor did the tribe seek an injunction based on "environmental harms," such as an oil spill "from having the pipeline on its doorstep," he wrote.
Instead, the case centered on how pipeline construction, namely land grading and clearing, would cause irreparable injury to historical or cultural properties of great significance, he said.
Boasberg in his decision laid out how the pipeline developer, Energy Transfer Partners, chose the route, at one point saying such information "may try the reader’s patience" but explaining that it was critical to answer whether the corps had fully consulted the tribe.
The judge listed the corps’ unsuccessful attempts to consult with tribal leaders and a deteriorating relationship between the two.
"Aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care," he wrote. "Having done so, the Court must nonetheless conclude that the Tribe has not demonstrated that an injunction is warranted here."
The decision caps weeks of legal wrangling over the pipeline project.
The tribe requested the injunction in early August, seeking to halt construction on the line and force the Army Corps to withdraw approval for more than 200 water crossings. The nearly 1,200-mile route that would carry Bakken crude from North Dakota to Illinois crosses mostly private lands that were once home to the tribe’s ancestors.
"The pipeline crosses the Tribe’s ancestral lands, and traverses landscapes that are sacred to the Tribe and carry great historical significance," Earthjustice lawyers representing the tribe said in legal filings last month. "There are sacred stones and historically important sites in the path of the pipeline, few of which have been fully evaluated by Tribal archaeologists. Loss of such sites constitutes irreparable injury to the Tribe and its members."
The effort is part of a broader legal challenge to the corps’ permitting for projects that cross or discharge fill into federally regulated rivers, streams and wetlands.
The program relies on Nationwide Permit 12, which is updated and subject to public comment every five years. A pipeline developer can gain approval for crossings by meeting standard criteria and asking the agency to verify that the crossings are covered under Nationwide Permit 12 (EnergyWire, Sept. 6).
The Sioux say that system cuts tribes out of the process and fails to meet cultural review requirements of the National Historic Preservation Act. They want the corps to initiate an individual permitting process that would include fresh cultural and environmental review of the entire pipeline.
The Army Corps has maintained that the Sioux had ample time to weigh in on the route and that the agency set conditions to protect tribal interests — requiring Dakota Access to allow a tribal monitor to be present at some sites, for example. In legal filings, Dakota Access notes that the route was meticulously planned to avoid cultural sites along the way, often tracking with the path of an existing natural gas pipeline.
Tensions over the project have swelled in recent weeks, as thousands of protesters camp out in North Dakota to attempt to derail construction efforts near Lake Oahe, a dammed section of the Missouri River adjacent to the Standing Rock reservation. Over Labor Day weekend, Dakota Access contractors graded an area of private land where a tribal specialist says he found evidence of a burial ground.
The move sparked outrage from tribal and environmental advocates and prompted the tribe to seek a restraining order.
The district court on Tuesday issued a limited order allowing continued construction on the site at issue but freezing activity closer to the Missouri (EnergyWire, Sept. 7).
DOJ’s announcement continues the freeze immediately around Lake Oahe and urges Dakota Access to hold off on construction within 20 miles.
