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Judge urges tribal coordination on complaint in #NoDAPL case

Tuesday, September 27, 2016

Chairman Dave Archambault II of the Standing Rock Sioux Tribe was among hundreds of attendees of the White House Tribal Nations Conference in Washington, D.C., on September 26, 2016. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

A federal judge is urging the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe to coordinate in the closely-watched #NoDAPL lawsuit.

The Standing Rock Sioux Tribe filed the lawsuit in July and the Cheyenne River Sioux Tribe was allowed to intervene as a plaintiff. But Judge James Boasberg said the Cheyenne River Sioux Tribe isn't entitled to its own complaint in the case even though it has raised different concerns about the pipeline.

The Cheyenne River Sioux Tribe asked Boasberg to reconsider but he declined to do so in a short order issued on Friday. However, he urged both tribes to work together to come up with a joint complaint against the U.S. Army Corps of Engineers, the agency charged with reviewing the controversial pipeline.

In the order, Boasberg wrote that he "believes the wiser course is for the two plaintiffs to file one amended complaint, setting forth the separate (or joint) claims each wishes to make."

But if either tribe disagrees with the approach, he said briefs can be submitted by this Friday outlining any concerns.

Chairman Harold Frazier of the Cheyenne River Sioux Tribe was among hundreds of attendees of the White House Tribal Nations Conference in Washington, D.C., on September 26, 2016. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

In addition to the Standing Rock / Cheyenne River case, Boasberg has been assigned to an entirely different #NoDAPL lawsuit that was filed by the Yankton Sioux Tribe. He has indicated that he might consolidate the cases but that hasn't happened thus far, according to a review of federal court records.

While those proceedings continue, the Standing Rock Sioux Tribe is preparing for its next big court date. The D.C. Circuit Court of Appeals will hear arguments on October 5 as part of the lawsuit.

After Boasberg on September 9 issued a decision that allowed Dakota Access to continue working, the tribe immediately appealed. A week later, the D.C. Circuit issued an administrative injunction that bars work in a key area of North Dakota.

The hearing next week would help a panel a three judges determine whether to grant a more permanent injunction, if at all.

The pipeline comes within a half-mile of the Standing Rock Sioux Reservation and a key portion crosses the Missouri River at Lake Oahe. Since the Army Corps controls that land, Dakota Access needs federal approval -- in the form of an easement -- to build there.

Despite the lack of approval, Dakota Access continued work on the $3.8 billion project and an attorney for the pipeline partnership even said the paperwork had already been "signed" despite mounting controversy over the project.

After the September 9 decision went against the tribe, the Obama administration, in an extraordinary action, stepped in and said it would not "authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it 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."

An attorney for the Obama administration later said that review is expected to take "weeks" but there is no hint of when the easement might be issued.

Separately, the Department of Justice, the Department of the Army and the Department of the Interior have initiated formal consultation with tribes about large infrastructure projects like Dakota Access. A series of meetings will take place in October and November.

D.C. Circuit Court of Appeals #NoDAPL Documents:
Injunction Blocking Construction of Dakota Access Pipeline (September 16, 2016)
Order Setting October 5 Hearing (September 21, 2016)
Order Allocating Oral Argument Time (September 21, 2016)