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Another rollercoaster week as #NoDAPL fight enters new phase

Monday, September 19, 2016

A rally in Seattle, Washington, on September 16, 2016, was among dozens of events held in solidarity with the #NoDAPL movement. Photo by John Duffy

• The U.S. Army Corps of Engineers has yet to issue an easement for the Dakota Access Pipeline -- a decision is "likely to take weeks," according to an Obama administration attorney.
• The Dakota Access Pipeline is blocked from construction under an order from a federal appeals court in Washington, D.C.

The high-stakes battle over the Dakota Access Pipeline is moving into a new phase as the backers of the $3.8 billion project rest their fates on actions in faraway Washington, D.C.

A majority of the work on the 1,172-mile, four-state pipeline is complete. But a key portion remains on hold, both in the federal court system and within the Obama administration, and resolution could result in an even bigger financial and public relations hit for the backers of the costly and controversial effort.

At first, Dakota Access seemed to be on the path to victory. When a hearing in D.C. on August 24 failed to result in an immediate decision to halt construction, the company continued building on private lands near the home of the Standing Rock Sioux Tribe in North Dakota.

Even after the tribe rushed back to court the following week with evidence of sacred sites and burial grounds on and near those lands, Judge James Boasberg declined to take action. So Dakota Access kept building, albeit amid ongoing resistance from the #NoDAPL encampments near the Standing Rock Sioux Reservation.

Yet when Boasberg finally issued a highly-anticipated ruling on September 9, the pipeline partnership still had reason to celebrate. To the detriment of the tribe's cause, the 58-page decision almost entirely focused on the U.S. Army Corps of Engineers, leaving the company in the clear to keep going.

"As Standing Rock acknowledges, Dakota Access has demonstrated that it is determined to build its pipeline right up to the water’s edge regardless of whether it has secured a permit to then build across," Boasberg observed in the lengthy decision.

But any sense of optimism that Energy Transfer Partners, the parent company of Dakota Access, displayed in public has since gone down the proverbial pipeline. A higher court ordered a halt to construction on Friday evening, just hours additional light was shed on the obstacles facing the project.

"With the case hanging over the pipeline, it's going to interfere with the pipeline," William Leone, an attorney for the Dakota Access partnership who served as a federal prosecutor during the Bush administration, said in court on Friday afternoon.

The proceeding was supposed to be a routine status update but it took some dramatic turns over the course of about an hour. At the onset, Judge Boasberg was clearly bothered by the Obama administration's unprecedented action that came shortly after his September 9 decision.

"I won't say I've been misled [but] I don't feel like the filings have been fully truthful," Boasberg said. 'That's my concern."

Michael Thorp, a senior attorney from the Department of Justice who had never argued in the case up until Friday, tried to explain why the extraordinary press release did not alter the government's stance in the lawsuit. But when he struggled to address Boasberg's repeated questions, a higher-level official stepped up to the plate.

"If we didn't share sufficient information with you ... I certainly apologize for that," said James Gette, who serves as section chief within the division at DOJ that handles environmental and Indian law cases. Before Friday, he hadn't argued in the case either.

While it took about 20 minutes for that apology to come out, Gette's words were obviously reassuring because Boasberg quickly dropped his line of inquiries about the press release. But the drama wasn't over as attention moved to Leone, who offered new details that help explain why Dakota Access has been so optimistic about completing the pipeline.

According to Leone, the Army Corps told Dakota Access that it had already granted an easement for the pipeline to cross the Missouri River at Lake Oahe. The document had even been "signed," he said, and all that was left was for the agency to notify Congress, a step seen as a mere formality in the process.

But Leone essentially accused the Army Corps of stabbing his clients in the back. He confirmed that the earlier August 24 hearing was the first he was made aware that the easement hadn't been approved.

"We are as confused and befuddled as you are," Leone told the judge on Friday.

The easement is in fact on hold and won't be approved until the Army Corps "can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act or other federal laws," according to the September 9 joint statement from the Department of Justice, the Department of the Army and the Department of the Interior.

But just when that will happen is a big question. According to Gette, an answer from the Army Corps is "likely to take weeks."

"It is not likely to take months," Gette said.

A speedy timeline is crucial to Dakota Access because its backers have vowed to start transporting oil by January 1, 2017. The longer the Army Corps takes, the harder it will be for Energy Transfer Partners to complete the project on time.

But even if an answer comes sooner rather than later, Dakota Access must deal with another Washington institution -- the D.C. Circuit Court of Appeals, whose order on Friday evening put a halt to construction within 20 miles on both sides of Lake Oahe.

While the injunction is only temporary, it still prevents the company from building "its pipeline right up to the water’s edge regardless of whether it has secured a permit to then build across," effectively undercutting the opinion that Boasberg issued earlier this month.

According to the D.C Circuit's order, the case will be handled by Judge Janice Rogers Brown, Judge Thomas B. Griffith and Judge Cornelia T.L. Pillard. They plan to schedule a hearing that could determine whether the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, the other plaintiff in the lawsuit, are entitled to a more permanent injunction on construction of the pipeline. They could also determine to lift the injunction.

As of Monday afternoon, the D.C. Circuit had not yet scheduled a hearing, which leaves Dakota Access in limbo as it seeks to finish construction more than 1,500 miles from the nation's capital. Although work on the east side of Lake Oahe is done, according to Leone, the west side is still in play.

"The pipeline is 60 percent done," Leone said.

Of the judges assigned to the case, Brown quickly created a negative record in Indian law after she was nominated by former president George W. Bush, according to a 2008 review of her writings by Indianz.Com. She did not agree with the injunction that was issued on Friday, according to the order.

As the case in the D.C. Circuit proceeds, the underlying lawsuit remains active. Judge Boasberg ordered the Army Corps to file its formal answer 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 status conference on November 10.

Additionally, Boasberg indicated he will consolidate the lawsuit with another one filed by the Yankton Sioux Tribe. That would make the case even more busy because it would bring in the U.S. Fish and Wildlife Service, an agency of the Department of the Interior, as a defendant. Three tribes would be on the same side as plaintiffs.

"As Chairman of the Ihanktonwan, I and the Ihanktonwan Oyate support the efforts our relatives at Standing Rock and Cheyenne River are taking to protect what we as the Oceti Sakowin hold sacred. We stand with them and all our relatives in taking this action in defense of our people," Chairman Robert Flying Hawk said in a press release announcing the lawsuit.

DC Circuit Court of Appeals #NoDAPL Injunction:
Order: Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (September 16, 2016)