Opponents of the Dakota Access Pipeline gather Nov. 2023, in Bismarck ahead of a U.S. Army Corps of Engineers public meeting on an environmental impact statement. (Kyle Martin/ North Dakota Monitor)
WASHINGTON (North Dakota Monitor) – A federal judge dismissed the Standing Rock Sioux Tribe’s lawsuit against the U.S. Army Corps of Engineers seeking to shutter the Dakota Access Pipeline, finding that the tribe must wait until the Army Corps finishes a key environmental study to bring another legal challenge against the agency.
“No matter its frustration with Defendants’ sluggish pace, it is not yet entitled to a second bite at the apple,” U.S. District Judge James Boasberg wrote in a Friday order.
Standing Rock filed the lawsuit in October, arguing that Corps is violating federal law by allowing the pipeline to operate without an easement. The tribe also claimed that the Corps failed to properly study the environmental impacts of the Dakota Access Pipeline or require its developer to prepare adequate spill response plans, among other alleged violations.
The suit is a successor to a lawsuit the tribe filed against the same agency in 2016.
In that case, Boasberg in 2020 found the Army Corps had violated federal law by not conducting a full environmental impact study before granting an easement allowing the pipeline to cross underneath the Missouri River. He pulled the easement and ordered the Dakota Access Pipeline to be drained of oil pending the Army Corps’ completion of the study.
An appellate court in 2021 reversed Boasberg’s decision to shut down the pipeline, but did not reinstate the easement.
Boasberg wrote in a 2021 order following that decision that he could not shutter the pipeline because the tribe hadn’t sufficiently demonstrated that it posed an immediate threat of irreparable harm.
He noted in his Friday memo that “remarkably little” has changed in the four years since.
“Once more unto the breach, dear friends,” Boasberg wrote at the beginning of the order, quoting Shakespeare’s “Henry V”.
The Army Corps still has not finished the environmental impact study. It published a draft version of its report in late 2023. Once the study is complete, the Army Corps will use it to decide whether to grant the easement again.
One of the main arguments the tribe made in its 2024 lawsuit is that the Army Corps’ yearslong inaction on the Dakota Access Pipeline is a violation of federal law.
Boasberg wrote previously that, given the pipeline is operating on Army Corps land without proper authorization, the agency in the interim could have done something to enforce its property rights.
“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 his 2021 order.
But the Army Corps for now is not legally required to do anything but finish the environmental impact study, Boasberg stated in the Friday memo.
He said that other arguments Standing Rock raised in its complaint seek to relitigate issues that were already decided in the 2016 case, and that the legal landscape is not likely to change until the study is completed.
Boasberg noted that Standing Rock can file another lawsuit against the Corps once the study is published. The Army Corps of Engineers in legal filings also argued the tribe cannot sue the Corps over the easement when it had not yet made a final decision on the permit.
The tribe indicated last fall that it had new evidence to present related to the pipeline’s safety. The pipeline company has indicated previously it does not consider that information credible.
North Dakota, other states and pipeline owner Dakota Access intervened in the lawsuit on the side of the Corps. The intervenors called on the court to dismiss the case, arguing that the pipeline is important to the country’s economy, and that shutting it down would violate states’ rights and make road and rail transit less safe.
“The Dakota Access Pipeline has been operating safely for almost eight years now and is a critical piece of infrastructure for North Dakota and our nation’s energy security,” North Dakota Gov. Kelly Armstrong said in a statement regarding Boasberg’s decision.
“The Corps has failed to act and failed to protect the tribe,” Standing Rock Chairwoman Janet Alkire said in an October press conference announcing the lawsuit.
The pipeline, which spans more than 1,000 miles, carries crude oil from northwest North Dakota to Illinois. Its pathway includes unceded land recognized as the Sioux Nation’s in 19th century treaties signed by the U.S. government.
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