By: Mary Steurer
WASHINGTON (North Dakota Monitor) – The Standing Rock Sioux Tribe argues in new court documents that a federal judge was wrong to dismiss its latest lawsuit against the U.S. Army Corps of Engineers over the Dakota Access Pipeline.
Standing Rock filed the lawsuit, which seeks to shut the pipeline down, last October.
The tribe argues the Army Corps flouted federal law by allowing the Dakota Access Pipeline, also known as DAPL, to operate without an easement to cross Lake Oahe. Lake Oahe is a reservoir of the Missouri River that borders the Standing Rock Sioux Reservation that straddles the North Dakota-South Dakota state line.
U.S. District Court Judge James Boasberg dismissed the case in March, finding that the tribe was relitigating claims it already brought before his court in a previous lawsuit filed in 2016. At the time of the first suit, Standing Rock was leading a protest movement against the pipeline’s construction that brought thousands of demonstrators to rural south-central North Dakota.
The tribe disputed Boasberg’s dismissal in new arguments filed last week with the D.C. Circuit Court of Appeals.
“This appeal is a necessary step to hold the Corps accountable for its unlawful actions, to protect our people from the ongoing risks posed by DAPL, and to ensure that our sovereignty is respected,” Standing Rock Sioux Tribe Chair Steve Sitting Bear said in a Friday statement.
Standing Rock says Boasberg’s dismissal should be reversed because the Army Corps of Engineers’ yearslong inaction on the easement counts as a separate issue the courts haven’t ruled on yet.
“These are not challenges to past decisions but to the Corps’ ongoing violations of clear statutory duties,” the tribe wrote in court records.
The Army Corps initially granted the oil pipeline an easement in 2017, but Boasberg revoked it in 2020 after finding the agency had broken the law by not fully evaluating the pipeline’s environmental impacts.
Boasberg ordered the Corps to conduct a complete environmental impact study, which is still pending five years later. The agency published a draft in late 2023.
While the judge in court orders has been critical of the Army Corps’ failure to move faster, he said this isn’t something the tribe can sue over.
“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.
He said the tribe may file another lawsuit once the Army Corps finishes its environmental impact study and takes final action on the easement.
The tribe in the case claims the Army Corps violated a number of other federal laws related to the Dakota Access Pipeline, including that it hasn’t enforced regulatory standards for emergency spill response plans.
Standing Rock has said in court filings it has new evidence showing the pipeline is unsafe. The pipeline developer, Energy Transfer, has indicated previously it does not consider the information credible.
“We still need people to stand with us. People think Standing Rock ended when DAPL went online in 2017,” said Doug Crow Ghost, Standing Rock’s director of water resources.
The tribe also alleges that the Army Corps failed to investigate reports that sacred cultural sites were destroyed during the construction of the Dakota Access Pipeline, which it says is required under the National Historic Preservation Act. The pipeline company disputes that it desecrated cultural sites.
“These are old, untrue claims the Tribe continues to put out, trying to change the facts of the situation,” Energy Transfer said of the lawsuit in an email Tuesday to the North Dakota Monitor.
The Dakota Access Pipeline passes through unceded land recognized as belonging to the Sioux Nation in 19th century treaties with the U.S. government.
Several states, including North Dakota, have intervened in the lawsuit as defendants. The states have argued that shuttering the pipeline would harm the regional economy, make road and rail transit more dangerous and would violate states’ rights.
Dakota Access, the pipeline’s owner, also joined the lawsuit on the side of the Army Corps. Dakota Access is owned by subsidiaries and affiliates of Energy Transfer.
The federal government, intervening states and Dakota Access are expected to respond to the tribe’s arguments by early January.
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