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Youth from the Standing Rock Sioux Tribe lead the Native Nations Rise march through the streets of Washington, D.C., on March 10, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)
D.C. Circuit Court of Appeals: Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers
Tuesday, January 26, 2021
Indianz.Com

The D.C. Circuit Court of Appeals has issued a ruling in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers.

The 36-page decision, released Tuesday morning, confirms that the U.S. Army Corps of Engineers acted “unlawfully” in approving the final portion of the pipeline near the Standing Rock Sioux Reservation. The action occurred in the early days of the Donald Trump administration, back in 2017, over the objections of tribal nations.

“The tribes’ unique role and their government-to-government relationship with the United States demand that their criticisms be treated with appropriate solicitude,” Judge David S. Tatel wrote in the decision.

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indianz · Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers
Indianz.Com Audio: D.C. Circuit Court of Appeals – Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers – November 4, 2020

But the appeals court won’t require the illegal pipeline to be shut down. Tatel said it would be up to the new administration of President Joe Biden to take action, though the ruling also left the door open for further litigation to stop the oil from flowing on Sioux Nation treaty territory.

“It may well be — though we have no occasion to consider the matter here — that the law or the Corps’s regulations oblige the Corps to vindicate its property rights by requiring the pipeline to cease operation and that the tribes or others could seek judicial relief under the APA should the Corps fail to do so,” Tatel wrote in reference to the Administrative Procedure Act (APA), the U.S. law that governs how federal agencies develop and carry out actions.

“But how and on what terms the Corps will enforce its property rights is, absent a properly issued injunction, a matter for the Corps to consider in the first instance, though we would expect it to decide promptly,” Tatel concluded for the court.

Since becoming operational in June 2017 thanks to the Trump administration, the Dakota Access Pipeline has transported up to 500,000 barrels of oil per day. The 1,172-mile path runs through North Dakota, South Dakota and Iowa before ending in Illinois.

The portion of the pipeline at issue in the litigation crosses the Missouri River at Lake Oahe. The site, which is managed by the U.S. Army Corps of Engineers, falls within Sioux Nation treaty territory and is less than a half-mile from the northern border of the Standing Rock Sioux Reservation.

The portion at Standing Rock was the last to gain approval before the pipeline went online.

The Standing Rock Sioux Tribe initiated litigation against the Army Corps in the summer of 2016, while the final portion was still under review at the agency. The Cheyenne River Sioux Tribe, whose reservation lies downriver from the pipeline crossing, was allowed to intervene in the case after it was filed.

Separately, the Oglala Sioux Tribe and the Yankton Sioux Tribe filed lawsuits against the Army Corps. The cases have since been consolidated with Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers.

As part of the litigation, a federal judge in June 2017 ruled that the Standing Rock crossing was unlawfully approved. The decision determined that the Army Corps took action without considering all of the concerns the tribes raised, including threats to their water supply and treaty rights.

Following another internal review, the Army Corps arrived at the same conclusion and approved the final easement. But in June 2020, Judge James Boasberg of the U.S. District Court in Washington, D.C., once again said the process was flawed and ordered oil to stop flowing pending a full environmental impact statement into the portion at Lake Oahe.

The Army Corps and the wealthy backers of the Dakota Access Pipeline appealed Boasberg’s ruling to the D.C. Circuit. The higher court lifted the shutdown order while the case was being reviewed.

Oral arguments took place on November 4, 2020, resulting in the new decision on Tuesday.