By Juliana Pérez Calle

Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2016 LEXIS 121997 (D.D.C. Sep. 9, 2016).

 

On July 27, 2016, the Standing Rock Sioux Tribe (“Tribe”) filed a complaint against the U.S. Army Corps of Engineers (“Corps”) seeking preliminary injunctive relief from construction of the Dakota Access Pipeline (“DAPL”) claiming that ongoing construction of the pipeline along the Tribe’s ancestral lands will harm historically and culturally significant sites[1] and poses environmental and economic risks and harms.[2] DAPL is planned to transport over half a billion gallons of crude oil across four states, beginning in North Dakota.[3] Of particular concern to the Tribe is that DAPL runs half a mile from the Standing Rock reservation, crosses Lake Oahe, which is of religious significance to the Tribe and the source of the Tribe’s drinking and irrigation water,[4] and has resulted in the bulldozing of a landscape of Native American graves.[5] The Tribe argued that the Corps’ issuance of a permit known as NWP 12 (under the Clean Water Act) allowing construction of the pipeline violated the National Historic Preservation Act (“NHPA”) because the Tribe was not adequately consulted as required by NHPA section 106 obligations.[6] Under NHPA section 106 agencies must “fully consider the effects of its actions on historic, cultural, and sacred sites” and to consult with Indian Tribes on federally authorized “undertakings” on sites that are culturally significant to Indian Tribes.[7]

On September 9, 2016, the U.S. District Court for the District of Columbia issued its much-anticipated opinion,[8] in light of culminating protests by Native Americans and allies along the pipeline path.[9] The Court found favorably for the Corps and denied the Tribe’s request for a preliminary injunction, concluding that the Corps likely complied with the NHPA and the Tribe had not demonstrated that it would suffer an injury that could be prevented by an injunction.[10] The Court did not consider the concerns over potential environmental harms because the Tribe only claimed injury to historic or cultural sites.[11]

In a long explanation of the facts, the court described what it believed to be stellar behavior of consideration by the company, Dakota Access, such as opting to build its new pipeline “along well-trodden ground wherever possible”, meeting with the Tribal Council once the pipeline plan went public “as part of a larger community-outreach effort”, and acting on the suggestions submitted in comment by other tribes.[12] The court also described that the Corps “launched a formal NHPA Section 6 consultation” once it received the first request for DAPL permitting in the fall of 2014.[13] Despite the consultation process consisting of multiple failed attempts to meet with the Tribe to discuss DAPL, the Tribe’s decline to submit comments to proposed actions and refusal to participate in surveys due to their limited scope, the court held that the Corps and the Tribe had engaged in “meaningful exchanges that resulted in concrete changes to the pipeline’s route.”[14] Further, the Court limited its jurisdiction over the Corps by stating that only 3% of the pipeline is subject to federal permitting, the majority of construction is on private land, and 48% of the pipeline had already been cleared when the complaint was made.[15]

However, that same day after the Court’s conclusion in favor of the Corps, the Department of Justice, Department of the Army Corps of Engineers, and the Department of the Interior announced that the Corps would not authorize construction of DAPL on Corps land bordering or under Lake Oahe until it can determine whether it has to reconsider the pipeline route under the National Environmental Policy Act (NEPA) or other federal laws.[16] The agencies stated that the Tribe, and thousands of peaceful protestors, had raised important issues regarding DAPL and highlighted the need to determine whether there should be nationwide reform to consider Tribes’ views on infrastructure projects.[17] Also that same day, the Tribe filed a notice of appeal with the D.C. Circuit Court of Appeals[18] and on September 12 filed a request for an emergency injunction pending appeal.[19] On September 16, the D.C. Circuit issued an administrative injunction pending consideration for the emergency injunction pending appeal, which is scheduled for oral arguments on October 5th.[20]

Regardless of the D.C. Circuit Court of Appeals opinion, the government’s announcement to seek the broader public interest on the issues raised by the Tribe is highly significant for the future of domestic pipeline infrastructure projects, as large oil and gas companies seek to maintain expedited permitting procedures.[21] This could signal a policy move towards greater regulation of infrastructure permitting when Tribes are involved, and moving towards greater deference to Tribal sovereignty with consultation meaning consent during the permitting process. As a result, companies seeking to easily make use of land surrounding and impacting Tribal Nations’ lands will have to take much more precaution as to its impact on the community and seek consent from the community before guaranteeing the confirmation of a project. This is not an issue exclusive to North Dakota and the Standing Rock Sioux tribe but also extends throughout the Americas from Canada to Chile as indigenous communities seek to enforce their civil, human and land rights through democratic mechanisms.[22]

 

[1] Complaint for Declaratory and Injunctive Relief ¶¶ 2, 143, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-01534 (D.D.C. July 27, 2016).

[2] Id. at ¶¶ 9, 191.

[3] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 2016 U.S. Dist. LEXIS 121997, at *2, (D.D.C. Sept. 9, 2016).

[4] Compl. ¶¶ 3, 74.

[5] Mot. for Inj. Pending Appeal at 1, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-5259 (D.C. Cir. Sept. 12, 2016).

[6] Memorandum in Support of Motion for Preliminary Injunction at 1-3, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 1:16-cv-1534-JEB (D.D.C. July 27, 2016).

[7] Id. at 2.

[8] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 2016 U.S. Dist. LEXIS 121997 (D.D.C. Sept. 9, 2016).

[9] Jack Healy, Occupying the Prairie: Tensions Rise as Tribes Move to Block a Pipeline, N.Y. Times (Aug. 23, 2016), https://www.nytimes.com/2016/08/24/us/occupying-the-prairie-tensions-rise-as-tribes-move-to-block-a-pipeline.html.

[10] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 2016 U.S. Dist. LEXIS 121997, at *1-2, *38, *58 (D.D.C. Sept. 9, 2016).

[11] Id. at *3.

[12] Id. at *14, *15, *17.

[13] Id. at *16.

[14] Id. at *49.

[15] Id. at **52-53.

[16] Joint Statement from the Justice Department, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps Engineers (Sep. 9, 2016), https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing.

[17] Id.

[18] Earth Justice, Frequently Asked Questions On Standing Rock Litigation, https://earthjustice.org/features/faq-standing-rock-litigation.

[19] Mot. for Inj. Pending Appeal, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-5259 (D.C. Cir. Sept. 12, 2016).

[20] Earth Justice, Frequently Asked Questions On Standing Rock Litigation, https://earthjustice.org/features/faq-standing-rock-litigation.

[21] Steve Horn, Weeks Before Dakota Access Pipeline Protests Intensified, Big Oil Pushed for Expedited Permitting, Desmog (Sept. 9, 2016, 3:49 PM), https://www.desmogblog.com/2016/09/08/dakota-access-pipeline-big-oil-nationwide-permit-12.

[22] Amazon Watch, Solidarity from the Amazon to Standing Rock (Sept. 14, 2016), https://amazonwatch.org/news/2016/0914-solidarity-from-the-amazon-to-standing-rock.