Opponents of the Dakota Access Pipeline gather Nov. 1, 2023, in Bismarck ahead of a U.S. Army Corps of Engineers public meeting on an environmental impact statement. The Standing Rock Sioux Tribe opposes the pipeline, citing concerns for its water supply. (Kyle Martin/For the North Dakota Monitor)
By: Mary Steurer
BISMARCK, N.D. (North Dakota Monitor) – The U.S. Army Corps of Engineers says the Standing Rock Sioux Tribe’s latest lawsuit over the Dakota Access Pipeline should be tossed, arguing the tribe can’t sue the agency over a permit that hasn’t been granted yet.
The lawsuit, filed in October, accuses the Army Corps of unlawfully allowing the Dakota Access Pipeline to operate without an easement, a complete environmental assessment or sufficient emergency spill response plans. The tribe wants a federal judge to shut the pipeline down.
The Army Corps of Engineers has jurisdiction over a part of the pipeline that passes below a reservoir on the Missouri River less than a half-mile upstream from the Standing Rock Reservation.
The agency for the past several years has been working on an environmental impact statement that, once finalized, will inform whether or not the Corps will grant the easement for that segment of the pipeline.
Standing Rock argues the Corps should never have allowed the pipeline to operate while the study is still pending.
Standing Rock has opposed the pipeline for years, saying it infringes upon the tribe’s sovereignty, has damaged sacred cultural sites and will pollute the tribe’s water supply.
“The Corps has failed to act and failed to protect the tribe,” Standing Rock Chair Janet Alkire said in an October press conference announcing the lawsuit.
The Army Corps previously approved the easement in 2017, but a federal judge revoked it in 2020, finding that the Corps violated environmental law by granting it without properly researching how the pipeline would affect the surrounding environment.
U.S. District Court Judge James Boasberg consequently instructed the Army Corps of Engineers to complete the environmental impact study. Boasberg also ordered the pipeline to stop operating and be drained, though that demand was overturned by an appellate court.
In a 2021 ruling, Boasberg wrote he could not shutter the pipeline because the tribe hadn’t sufficiently demonstrated that it posed an immediate threat of irreparable harm.
Standing Rock’s latest lawsuit, which is also before Boasberg, seeks to bring new evidence to light, including a 2024 engineering report that raised questions about the construction of the pipeline underneath the reservoir, also known as Lake Oahe.
Still, the Army Corps wrote in its January filings that the evidence isn’t enough for Boasberg to change his position.
The Corps also said that Standing Rock cannot take the agency to court over the easement at this time.
“At the heart of plaintiff’s complaint is a contradiction. The contradiction lies in the fact that the entire complaint is devoted to challenging a decision that has not yet been made,” the Corps wrote.
The tribe argues the Corps’ lack of a position on the pipeline’s continued operation is, in and of itself, illegal. It says that judges can order a federal agency to take action when that agency unlawfully fails to do so.
In his 2021 order, Boasberg also indicated the Corps could have taken a more firm stance on whether the pipeline should be allowed to continue operating while the environmental impact study is underway.
“Ever since this Court’s vacatur order in July 2020, and across two presidential administrations, the Corps has conspicuously declined to adopt a conclusive position regarding the pipeline’s continued operation, despite repeated prodding from this Court and the Court of Appeals to do so,” Boasberg wrote. He also said, however, that this matter was not the place of a court to decide.
The Corps claims that even if it does deny the easement under Lake Oahe, it doesn’t have the authority to shut the pipeline down.
Standing Rock accuses the Army Corps of several other violations in its complaint. For one, the agency should have closed the pipeline due to evidence its construction damaged Native sacred sites near Standing Rock in 2016, the tribe argues.
It also says the Army Corps should have required the pipeline developers to improve its emergency response plans and share them with Standing Rock in the case of a spill under Lake Oahe.
The pipeline’s parent company denies the allegations that it damaged archeological sites and that the company failed to prepare and disclose adequate emergency response plans.
The Army Corps says Boasberg should reject these and other alleged violations raised by the tribe since the Corps is still working on its environmental review.
It’s not the court’s role to review a federal agency decision until it’s final, the Corps wrote.
The Corps also says some of Standing Rock’s allegations are the jurisdiction of other federal agencies, like the Pipeline Hazardous Materials Safety Administration.
The more than 1,000-mile pipeline passes through North Dakota, South Dakota, Iowa and Illinois. Its pathway includes unceded land recognized as belonging to the Sioux Nation under an 1851 treaty with the U.S. government.
Pipeline company Dakota Access LLC, North Dakota and 13 other Republican-led states joined the lawsuit on the side of the Army Corps of Engineers.
Dakota Access in court documents emphasized its business interest in keeping the pipeline operational.
The states have argued shutting down DAPL would harm the regional economy, violate state rights and make road and rail transit less safe.
The pipeline has provided tens of millions of dollars in tax revenue to North Dakota, South Dakota, Iowa and Illinois, the states said in documents filed in the lawsuit.
Comments