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Sparring continues in #NoDAPL case as tribes seek halt to pipeline work

Friday, September 16, 2016

Construction has continued on the Dakota Access Pipeline in areas west of Lake Oahe near the #NoDAPL encampments in North Dakota. Photo by Rob Wilson Photography [GoFundMe]

A federal judge forced an apology out of the Obama administration for its handling of the #NoDAPL case as attorneys returned to court in Washington, D.C.

After spending considerable resources writing a 58-page opinion in the closely-watched dispute, Judge James Boasberg said he was surprised by the press release issued shortly afterward. He accused government attorneys of being less than forthcoming about their intentions regarding the controversial Dakota Access Pipeline.

"Why did you wait until minutes after my order?" Boasberg said in court on Friday afternoon. "You waited for my opinion to issue it," he said, answering his own question.

Michael Thorp, a senior attorney from the Department of Justice, struggled to explain why the extraordinary joint statement didn't change the government's stance in the lawsuit. He noted that the U.S. Army Corps of Engineers, the defendant in the case, has yet to issue a crucial easement for the pipeline to cross the Missouri River at Lake Oahe.

"The easement has always been under consideration," Thorp, who was making his first appearance in the case so far, told the judge

But the judge wasn't the only one in the room with questions. William Leone, an attorney for the Dakota Access partnership, was reeling too.

"We are as surprised as anyone," Leone told the judge of the Obama administration's action. "We are as shocked as anyone."

Ongoing Coverage: Construction of the Dakota Access Pipeline is ongoing at multiple sites 2 miles south off exit 123...
Posted by Rob Wilson Photography on Wednesday, September 14, 2016

The sparring came as the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe work feverishly to stop construction of the pipeline in areas that remain out of the federal government's reach. They have asked the D.C. Circuit Court of Appeals for an injunction while they pursue an appeal of the 58-page opinion that Boasberg issued last week.

The proposed injunction would cover both sides of Lake Oahe. Dakota Access has continued construction activities on the west side, in areas where the tribes are concerned about damage to sacred sites and burial grounds.

As for the east side of Lake Oahe, Leone said: "The pipeline is in the ground."

The tribes are hoping the D.C. Circuit will issue a ruling on their motion by the end of Friday. But with no answer so far, Boasberg saw no need to extend a temporary restraining order that had applied to the areas east of Lake Oahe.

That order, which was issued on September 6, essentially had no effect because Dakota Access wasn't working east of Lake Oahe at the time and still has no immediate plans to do so.

"The work is done east of Lake Oahe," Leone noted.

Officially, Energy Transfer Partners, the parent company of Dakota Access, has vowed to complete the pipeline. But the #NoDAPL movement has dealt a significant public relations and financial blow to the partnership.

"This company has lost $5 billion in market value" in the last couple of weeks, Leone said in court.

Arguing that the "media" has painted the Obama administration's action as a "victory" for the tribes, Leone urged the judge to resolve the case as quickly as possible. Previously, he has said Dakota Access wants to start shipping oil on the pipeline by January 1, 2017, so a decision is of great financial importance to the partnership.

"With the case hanging over the pipeline, it's going to interfere with the pipeline," Leone said.

Jan Hasselman, an attorney from the non-profit Earthjustice who is representing the Standing Rock Sioux Tribe, agreed that the case should be resolved as quickly as possible. He didn't appear at the hearing in D.C., in person, instead participating by phone.

Along those lines, Boasberg ordered the Army Corps to file its official answer to the tribe's complaint by October 11 and to file what is known as administrative record -- essentially, the documents used during the agency's consideration of the pipeline -- by November 10. He also scheduled another hearing on November 10.

Erica Zilioli, another Department of Justice attorney, had been asking for a delay to file those responses. Her proposal would have kept the tribes and Dakota Access waiting for the administrative record, which she described as lengthy and complex, until mid-December.

"The Corps is working diligently in compiling the administrative record," said Zilioli.

While Zilioli has been assigned to the case from the start, Friday's hearing marked the first time she argued in court. In prior hearings, government attorney Matt Marinelli handled the arguments.

As of 5pm Eastern, the online record system for the D.C. Circuit Court of Appeals did not indicate any rulings on the tribes' motion for the injunction.