[News] Tribes score victory in long-running battle against Dakota Access Pipeline

Anti-Imperialist News news at freedomarchives.org
Thu Mar 26 16:55:07 EDT 2020

score victory in long-running battle against Dakota Access Pipeline
By Kevin Abourezk - March 25, 2020

In a big victory for tribal nations that have fought the Dakota Access
Pipeline through two presidential administrations, a federal judge on
Wednesday ruled that the U.S. Army Corps of Engineers must complete a full
environmental review
of the controversial oil project.

Judge James Boasberg of the U.S. District Court for the District of
Columbia said the Army Corps failed to fully examine whether the pipeline’s
effects were likely to be "highly controversial" as they relate to
provisions of the National Environmental Policy Act
He rejected the agency’s prior efforts -- much of which occurred in the
early days of the Donald Trump era in 2017 -- as legally insufficient.

In reaching the conclusion, Boasberg cited a recent decision from the D.C.
Circuit Court of Appeals
<https://www.indianz.com/m.asp?ur=https://www.cadc.uscourts.gov/> in which
the Army Corps was ordered to vacate a permit it had issued to a utility
company to build transmission towers across the historic James River in
Virgina. In that situation, a full environment impact statement was

The appeals court in *National Parks Conservation Association v. Semonite*
<https://www.indianz.com/News/2020/03/25/18-5179-1790348.pdf> held that the
Army Corps failed to answer important questions about its chosen
methodology and the scope of the project’s impact, and also cited
misgivings by federal and state agencies about locating transmission towers
in a region with such importance in U.S. history. The same standard applies
on treaty lands promised to the Sioux Nation in North Dakota, Boasberg

“Applying *Semonite*, this court ultimately concludes that too many
questions remain unanswered,” Boasberg wrote in his 48-page decision
<https://www.indianz.com/News/2020/03/25/dapl032520.pdf>. “Unrebutted
expert critiques regarding leak-detection systems, operator safety records,
adverse conditions, and worst-case discharge mean that the easement
approval remains ‘highly controversial’ under NEPA. As the court thus
cannot find that the Corps has adequately discharged its duties under that
statute, it will remand the matter to the agency to prepare an
environmental impact statement.”

However, Boasberg did not rule on whether oil could continue to flow
through the Dakota Access Pipeline
which went into service in June 2016. The pipeline transports nearly
500,000 barrels of oil from North Dakota’s Bakken Formation to Illinois
each day, and the operators recently won approval to expand capacity --
over tribal objections.

The judge instead ordered parties for both sides to present briefs on
whether the easement should be vacated while the Army Corps completes its
environmental review, though he added that vacating an action that violates
NEPA is the “standard remedy.”

Nikki Ducheneaux, lead attorney for the Cheyenne River Sioux Tribe
<https://www.indianz.com/m.asp?url=https://www.sioux.org/>, called the
ruling a major win for Indian Country, fulfilling original requests to
subject the Dakota Access Pipeline to a full environmental review
before receiving a federal permit.

“I think it’s incredibly significant,” said Ducheneaux, a Cheyenne River
Sioux citizen. “That’s what the tribes have been asking for since the first
consultation period prior to 2016. The tribes wanted the agency to take a
full look at the impact of this on our treaty rights, as well as the
environment. The Corps has always given short shrift to our treaty rights.”

She said her tribal clients assert their treaty rights to be the supreme
law of the land, while the Army Corps rarely considers them as actionable
when considering the impact of projects on the rights set forth in those

In his decision, Boasberg cited the Fort Laramie Treaty of 1851
and ordered the Army Corps to consider how the pipeline would impact the
tribes’ hunting and fishing resources. The judge also acknowledged the
importance of Lake Oahe
located along the Missouri River, to the tribes.

“The tribes now rely on the waters of Lake Oahe in myriad ways, including
for drinking, agriculture, industry, and sacred religious and medicinal
practices,” he wrote in this decision.

“The court has finally heard what the tribes have had to say all this
time,” Ducheneaux said. “It was a beautiful thing for the court to

She also hailed other aspect of Boasberg’s decision, including his decision
to afford tribal experts – such as directors of relevant tribal programs –
the same deference as experts put forth by the Corps of Engineers. She said
the D.C. Circuit's precedent in *Semonite* heightened the Army Corps’
responsibility when considering the views of Indian Country.

In his decision, Boasberg described tribes as “‘domestic dependent nations’
that exercise inherent sovereignty” and said their experts should be
considered the same as experts representing federal agencies.

“It was a beautiful recognition of the importance of tribal government and
legitimacy of tribal government that courts often overlook,” Ducheneaux

The judge also took issue with the Army Corps’ assertion that no federal
agency had criticized the project, saying prior to the election of
President Donald Trump – who expedited approval of the Dakota Access
Pipeline within days of taking office – the Department of the Interior
<https://www.indianz.com/m.asp?url=https://www.doi.gov/> and the Environmental
Protection Agency <https://www.indianz.com/m.asp?url=https://www.epa.gov/>
had expressed concerns about the handling of the project.

Interior, for example, found the Army Corps’ draft environmental assessment
did not support the agency’s conclusion that the project would have no
significant impact on the surrounding environment or community. And the EPA
recommended that the Army Corps analyze more closely the lead-detection
system it had selected and its ability to “identify small volume leaks.”

Native Nations Rise

On Wednesday, numerous officials offered praise for the judge’s ruling.

Rep. Raúl Grijalva
(D-Arizona), chairman of the House Committee on Natural Resources
said the Dakota Access Pipeline must be shut down until it can be decided
whether it doesn’t violate the rights of people who are impacted.

“Industry needs to learn that if you throw in with the Trump
administration, you will bear the costs of its reckless incompetence,”
Grijalva said in a statement. “As it turns out, critics of this pipeline
and projects like it are right when they say the law requires the
administration to take the concerns of tribes and other impacted
communities seriously. When they don’t, the courts will hold them

Chairman Harold Frazier
<https://www.indianz.com/m.asp?url=https://twitter.com/crstchairman> of the
Cheyenne River Sioux Tribe said the court’s decision was a significant win
for efforts to ensure treaties with Indian nations are honored.

“The laws pertaining to the Great Sioux Nation have all too often been
swept under the rug for American profits,” Frazier said in a statement
“We look forward to participating in the environmental impact statement so
that we may demonstrate the real impact this project will have on our
people and our planet.”

Chase Iron Eyes, lead counsel for the Lakota People’s Law Project
<https://www.indianz.com/m.asp?url=https://www.lakotalaw.org/>, said the
ruling served as vindication for tribes and water protectors who opposed
the pipeline. He said the pipeline, as well as the Keystone XL Pipeline and
all new pipeline projects, should be shut down because of the horrible
safety records of oil companies.

But he also urged caution about the decision

“I’m encouraged, but it’s also important to remember that no matter the
outcomes in the courts, we still run the risk of President Trump
circumventing separation of powers and exceeding the scope of his authority
when it comes to pipelines,” he said.

Ducheneaux said Boasberg’s ruling now means that tribal concerns about the
project must be heard.

“We start back essentially from square one in terms of the tribes as least,
ensuring that we have a meaningful seat at the table and there is
meaningful consultation between the government and tribal governments,” she

And she praised the efforts of the water protectors who protested
construction of the pipeline in North Dakota, saying they succeeded in
convincing former President Barack Obama to reject a key permit for the
project and gave the tribal plaintiffs seeking to stop the pipeline time to
gather experts to offer testimony to the court.

“It’s really a culmination of all the efforts of the grassroots people and
the lawyers,” she said. “It’s really beautiful.”

The Standing Rock Sioux Tribe
<https://www.indianz.com/m.asp?url=https://www.standingrock.org/> filed the
lawsuit in the summer of 2016, well before the final permit was issued by
the Army Corps. The easement at issue lies just a half mile north of the
reservation in North Dakota.

“After years of commitment to defending our water and earth, we welcome
this news of a significant legal win,” Chairman Mike Faith said in a news
“It’s humbling to see how actions we took four years ago to defend our
ancestral homeland continue to inspire national conversations about how our
choices ultimately affect this planet. Perhaps in the wake of this court
ruling the federal government will begin to catch on, too, starting by
actually listening to us when we voice our concerns.”

The Cheyenne River Sioux Tribe was allowed to intervene in the lawsuit
during the summer of 2016. The Oglala Sioux Tribe
<https://www.indianz.com/m.asp?url=https://oglalalakotanation.info/> and
the Yankton Sioux Tribe
later filed their own separate lawsuits, both of which were consolidated
with Standing Rock's case.
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