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Another big week as Standing Rock Sioux Tribe heads back to court

Monday, October 3, 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

The #NoDAPL movement continues to dominate headlines as the Standing Rock Sioux Tribe heads back to court to protect its homelands from a controversial and costly oil pipeline.

The D.C. Circuit Court of Appeals has already halted construction of the $3.8 billion Dakota Access Pipeline in a key area of North Dakota. But the order is only temporary and a hearing in Washington, D.C., on Wednesday could determine whether the contested project moves forward.

Going into the hearing, the tribe enjoys an unusual advantage. The court's administrative injunction, which was issued on the evening of September 16, just hours after a federal judge declined to take further action against the pipeline, is unprecedented in an Indian law case.

The court's decision to convene a hearing solely on the tribe's request for an injunction is also unprecedented in an Indian law case. But the advantage ends there -- what happens next is in the hands of a panel of three judges, one of whom has already indicated how she might rule on the dispute.

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At stake in this stage of the case are sacred sites and burial grounds in the path of the pipeline. An emergency motion accuses Dakota Access of moving in with bulldozers barely a day after a highly-respected tribal historian disclosed several significant cultural finds just north of the Standing Rock Sioux Reservation.

"Continued construction in the 20 miles around Lake Oahe is likely to irreparably harm the tribe because this is a landscape filled with irreplaceable sacred sites, graves, and cultural features," the tribe's motion for an injunction reads. "Indeed, the precise harm that the tribe has long feared came to pass on September 3, 2016, when Dakota Access bulldozers destroyed graves, prayer sites, and stone features the day after the tribe filed evidence describing them to the district court."

Although thousands had already flocked to the #NoDAPL encampment to resist the pipeline, the September 3 incident helped draw more attention to the cause. A widely-viewed Democracy Now! report -- an accompanying video on Facebook has drawn nearly 14 million views -- showed security guards for Dakota Access unleashing dogs and using mace against a group of people who asked construction crews to stop working on sacred ground.

Even though work continued for several days after the incident, Dakota Access LLC, the partnership behind the pipeline, has denied destroying sacred sites. A response to the motion for the injunction disputes the presence of any of the graves and stone features that were observed by Tim Mentz Sr., the tribe's former longtime historic preservation officer who was the first certified tribal historic preservation officer in the nation.

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But in the eyes of the partnership, there's an even bigger concern -- getting the pipeline finished before the end of the year. Dakota Access wants to start transporting oil by January 1, and continued delays are obviously hurting the bottom line.

"The costs of even a temporary delay are greater than $430 million, with demobilization costs alone accounting for $200 million," the response reads. "Each additional month of delay would cost interested parties at least $83.3 million."

It continues: "Dakota Access faces $1.4 billion dollar losses in its first year of delays, including the cost to renew easements ($70,000,000), remobilization costs ($200,000,000), maintenance of work sites ($1,500,000 per month), capital expense ($36,000,000 annually), loan renewal fees ($15,500,000), 2017 lost revenue ($913,000,000), specialty seed payment ($4,500,000), duck lease penalty ($3,000,000), and completed-by breach payments ($4,300,000)."

According to the filing, the Phillips 66 Company, a publicly-traded company that reported revenue of nearly $100 billion in 2015 and nearly $163.7 billion in 2014, owns 25 percent of Dakota Access LLC.

Of the remaining 75 percent, 60 percent is owned by LaGrange Acquisition -- a privately-held entity also known as Energy Transfer Partners -- and 40 percent is owned by a subsidiary of Sunoco Logistics Partners, a publicly-traded company with nearly $10.5 billion in revenues in 2015 and over $18 billion in 2014. Sunoco, however, describes Energy Transfer Partners as its "general partner," so the two entities are closely connected.

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Somewhere in the middle of the fight is the U.S. Army Corps of Engineers, the defendant in the lawsuit. Although the agency continues to insist that it properly consulted the tribe during review of the pipeline, the Obama administration has yet to grant final approval for a crucial portion of the project.

In response to the tribe's motion, an attorney for the Department of Justice note that "the pipeline cannot cross Lake Oahe, a federally-authorized project under the Corps’s jurisdiction, until Dakota Access first obtains a real estate easement from the Corps. The Corps has not granted that easement, and Dakota Access cannot build at Lake Oahe until it does."

But whether or not the easement will be granted is another big question. During a hearing in the lower court on September 16, a different government attorney said the review is "likely to take weeks" as opposed to "months."

The Obama administration is asking tribes about infrastructure projects like Dakota Access but that process is separate from the lawsuit and the review of the easement.

"I know that many of you have come together across tribes and across the country to support the community at Standing Rock. And together, you’re making your voices heard," President Barack Obama said at his final White House Tribal Nations Conference last Monday.

Wednesday's hearing takes place in Courtroom 31 of the federal courthouse in Washington, D.C. Arguing for the Standing Rock Sioux Tribe is Jan Hasselman, an attorney from the non-profit Earthjustice, who has been allotted 15 minutes.

James A. Maysonett of the Department of Justice is arguing for the Army Corps. He's been allotted 10 minutes.

Dakota Access LLC will be represented by Miguel A. Estrada, a high-profile Washington, D.C., attorney with close ties to the Republican establishment. His firm was only brought on board last week and he has been allotted 5 minutes during the hearing.

According to the D.C. Circuit's calendar, the #NoDAPL hearing is the only one on the schedule for Wednesday so the judges have plenty of wiggle room for arguments if arguments go longer. Audio will be posted by the court later in the day.

The judges hearing the case are Janice Rogers Brown, Thomas B. Griffith and Cornelia T.L. Pillard. Regardless of the way they rule on the injunction, the lawsuit is far from over -- the tribe will still be able to proceed with its appeal, meaning additional briefs and possibly another hearing are still on the horizon.

Of the three judges, Brown was against the administrative injunction, according to the court's September 16 order. She was nominated to the bench by former president George W. Bush in 2005 and quickly generated a strong anti-tribal record, according to a 2008 review of her writings by Indianz.Com.

For Wednesday's hearing, the D.C. Circuit has only received four briefs -- the original motion filed by the Standing Rock Sioux Tribe, the response from the Army Corps, the response from Dakota Access and another reply from the tribe. The judges have the power to issue a decision any time they choose.

Regardless of the outcome at the appeals level, the lawsuit will continue in the lower court, where it is being handled by Judge James Boasberg, who is an Obama nominee. The parties are due back in his court for a status update on November 10.

D.C. Circuit Court of Appeals #NoDAPL Documents:
Standing Rock Sioux Tribe's Emergency Motion for Injunction Pending Appeal (September 12, 2016)
Dakota Access LLC Opposition (September 14, 2016)
U.S. Army Corps of Engineers Opposition (September 14, 2016)
Standing Rock Sioux Tribe's Reply (September 15, 2016)
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)