Obama steps in with major action halting Dakota Access Pipeline

Friday, September 9, 2016  

Chairman Dave Archambault II of the Standing Rock Sioux Tribe speaks at the United Tribes Technical College's 20th annual Tribal Leaders Summit in Bismarck, North Dakota, on September 6, 2016. To his left are Alice Brown Otter, age 12, and Gracey Claymore, age 19. Photo courtesy United Tribes News

A federal judge on Friday dealt a setback to the Standing Rock Sioux Tribe and the #NoDAPL movement in their efforts to stop the $3.8 billion Dakota Access Pipeline.

In a highly-anticipated decision, Judge James Boasberg denied the tribe's request for a preliminary injunction. Based on the "substantial" evidence presented to the court, he concluded that the U.S. Army Corps of Engineers complied with its duty to consult with the tribe about the controversial project.

"The tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance," the decision read. "It has now filed a motion for preliminary injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue."

"After digging through a substantial record on an expedited basis, the court cannot concur," Boasberg wrote in the 58-page ruling. "It concludes that the Corps has likely complied with the NHPA and that the tribe has not shown it will suffer injury that would be prevented by any injunction the court could issue. The motion will thus be denied."

But shortly after the negative ruling sent shock waves throughout Indian Country, the Obama administration broke its silence on the controversy. In a major development, the Department of Justice, the Department of the Army and the Department of the Interior announced that a key part of the pipeline will not move forward at this point.

"The Army will 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 (NEPA) or other federal laws," the extraordinary joint statement read. "Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time."

Even though Dakota Access continued to build the pipeline near the Standing Rock Sioux Reservation and the #NoDAPL encampment, where thousands have gathered to protest the development, the partnership lacked approval to cross Army Corps land at Lake Oahe. The administration's action has now put an indefinite hold on that part of the project pending further consultation throughout Indian Country.

The "stunning" move was quickly cheered by the Standing Rock Sioux Tribe. Without approval to work at Lake Oahe -- which would have come in the form of an easement -- the pipeline can't transport oil along its current path.

"This federal statement is a game changer for the tribe and we are acting immediately on our legal options," a post on Facebook read.

Those options include appealing the decision that was issued on Friday or seeking an injunction to stop Dakota Access from working on lands that are not under federal jurisdiction. That issue surfaced earlier this week when the judge declined to issue a temporary restraining order regarding sacred sites and burial grounds that are at continued risk of destruction.

The construction is occurring on private lands near the reservation and Boasberg essentially told the tribe's attorney, at a hearing on Tuesday, that he lacked authority over those activities. That resulted in the mixed decision that was a letdown to the #NoDAPL movement.

The Obama administration is asking Dakota Access to "voluntarily pause all construction activity" on private lands east and west of Lake Oahe. But even if the company ignores the request, the pipeline remains in indefinite limbo without the easement from the Army Corps.

The action caps a roller-coaster week of developments that had Indian Country on edge. Last Friday, the Standing Rock Sioux Tribe presented evidence of significant cultural finds within the path of the pipeline.

Democracy Now! on YouTube: Dakota Access Pipeline Company Attacks Native American Protesters with Dogs & Pepper Spray

The next day, security guards hired by Dakota Access unleashed dogs and employed mace on #NoDAPL resisters -- including a pregnant woman and a child -- when they asked construction crews to stop working on sacred ground. Citing escalating tensions and threats to the sites, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe filed emergency papers on Sunday asking for a temporary restraining order against the pipeline partnership.

Even though Monday was a federal holiday, Boasberg took notice of the filings. Usually, urgent requests are handled by an "emergency" judge but he said he ordered a hearing amid significant attention to the dispute.

"Our chambers has been flooded with calls all day," Boasberg said on Tuesday.

Indianz.Com on YouTube: President Obama Dodges Question about #NoDAPL movement and Dakota Access Pipeline

Meanwhile a shift was emerging from the Obama administration. In a short filing on Monday, the Army Corps supported the issuance of the restraining order against Dakota Access.

During the hearing itself, the agency's attorney did little to help Dakota Access with legal arguments even though, technically, the two parties are on the same side of the case. The Army Corps is the "defendant" and the pipeline partnership is the "defendant-intervenor."

And the hearing was attended by Solicitor Hillary Tompkins, the top legal official at the Interior Department, which was part of the statement issued on Friday. Tompkins is a citizen of the Navajo Nation and is the first Native person and Native woman to serve as solicitor.

While change was brewing in D.C., President Barack Obama was asked about the #NoDAPL movement at, of all places, a youth forum in Asia. Though he touted his administration's efforts to improve relations with tribes, he admitted he didn't know much about the issue.

Indianz.Com SoundCloud: President Barack Obama on Dakota Access Pipeline and #NoDAPL Movement

"Now, some of these issues are caught up with laws and treaties, and so I can’t give you details on this particular case," Obama said at the end of the Young Southeast Asian Leaders Initiative Town Hall in Laos. "I’d have to go back to my staff and find out how are we doing on this one."

Just a day earlier, young members of the Standing Rock Sioux Tribe -- including one who met with the president when he and First Lady Michelle Obama came to the reservation in June 2014 -- were upset about the silence from the person whom they considered one of their strongest allies.

"We know that he's listening to us but he isn't speaking out and helping us," 12-year-old Alice Brown Otter said at the 20th annual Tribal Leaders Summit on Tuesday. "He said that he'd do anything for us but where is he now?"

"He's not doing nothing for us," Brown Otter said to applause at the summit, which was hosted by the United Tribes Technical College in Bismarck, North Dakota.

Indianz.Com SoundCloud: Alice Brown Otter and Gracey Claymore at 20th annual Tribal Leaders Summit September 6 2016 [Audio courtesy United Tribes Technical College]

Gracey Claymore, 19, who had met with the Obamas was just as blunt.

"I'm truly disappointed in him because he didn't keep his promises to us," Claymore said of the president. "He promised the youth that he would stand with us. He cried with us and he told us how important we were to him. He told us he would stand behind Indian Country no matter what it took."

"And like Alice said: Where is he now?" Claymore added.

Relevant Documents:
Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers | Federal Court Decision in #NoDAPL Case