By: Mary Steurer (ND Monitor)
The Standing Rock Sioux Tribe is asking the D.C. Circuit Court of Appeals to review a federal judge’s decision to dismiss its latest lawsuit against the U.S. Army Corps of Engineers over the Dakota Access Pipeline.
Standing Rock filed the lawsuit in October, asking the court to find the pipeline must be shut down because it still lacks an easement authorizing it to pass under the Missouri River’s Lake Oahe reservoir, which is regulated by the Army Corps.
“The Corps of Engineers has not earned the trust of our Tribe,” Standing Rock Chairwoman Janet Alkire said in a statement last week announcing the appeal. “We cannot rely on the Corps to properly evaluate DAPL, so we are continuing our legal efforts to protect our water and our people from this dangerous pipeline.”
The Army Corps originally granted the easement to the pipeline’s developer in 2017, but U.S. District Court Judge James Boasberg revoked it in 2020 after finding the agency had issued the permit without completing the full environmental review required by federal law. The matter was brought to him through a lawsuit the tribe filed against the Army Corps in 2016.
Boasberg at the time directed the Corps to withhold making a decision on the easement until it completes a full environmental impact study. He also ordered the pipeline to be shut down, though that demand was later reversed by an appellate court.
Five years later, the Army Corps still has not finished the environmental review. It published a draft in late 2023.
Standing Rock in its latest suit argues that keeping the pipeline open without an easement is a violation of federal law. The tribe also alleges the Army Corps is at fault for a number of other regulatory violations related to the pipeline.
In court filings, Standing Rock has said it intends to present new evidence related to the pipeline’s safety. The pipeline company has indicated previously it does not consider that information credible.
Boasberg tossed the suit in March, finding that the courts cannot intervene in the matter until the Army Corps wraps up its environmental study.
“No matter its frustration with Defendants’ sluggish pace, it is not yet entitled to a second bite at the apple,” he wrote in his March order.
Boasberg previously indicated that while the agency works on the study, it has the option of enforcing its property rights since the pipeline is operating on federal land without authorization.
“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,” he wrote in a 2021 order.
Standing Rock leaders say they hope the D.C. Circuit will overturn Boasberg’s decision to dismiss the case.
In her statement, Alkire said the tribe fears the Army Corps’ study will “whitewash” the pipeline’s risk to the surrounding environment.
The pipeline crosses Lake Oahe just north of the Standing Rock Reservation. The tribe opposes the Dakota Access Pipeline as a threat to its sovereignty, water supply and cultural heritage sites.
Alkire also underscored the tribe’s dismay over a March jury verdict that found the environmental group Greenpeace at fault for damaging the pipeline developers property and business as part of its protests against Dakota Access Pipeline. The jury ordered Greenpeace to pay the company, Energy Transfer, roughly $667 million.
Standing Rock has criticized the verdict as based on a false narrative that Greenpeace, and not Standing Rock and other tribes, led the protests.
“We saw Energy Transfer’s efforts to re-write history as we know it and lived it in their lawsuit against Greenpeace,” she said.
In April, another federal judge ordered the Army Corps to pay North Dakota $28 million in connection to the anti-pipeline protests, finding the agency’s actions had wrongfully forced the state to pay millions policing the protests and cleaning up the aftermath.
The Dakota Access Pipeline passes through unceded land previously recognized as belonging to the Sioux Nation in 19th century treaties with the U.S. government.
