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The Standing Rock Sioux Tribe’s Litigation on the Dakota Access Pipeline

Update: December 2, 2016, 11:00AM PT

Tribes Ask International Human Rights Commission to Stop Violence Against Water Protectors at Standing Rock

The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe have requested the Inter-American Commission on Human Rights call on the United States to adopt precautionary measures to prevent irreparable harm to the Tribes, their members, and others resulting from the ongoing and imminent construction of the Dakota Access Pipeline, and from the harassment and violence being perpetrated against people gathered in prayer and protest in opposition to DAPL.
“Our people have tolerated this kind of treatment for over 200 years and enough is enough,” said David Archambault II, Chairman of the Standing Rock Sioux Tribe. “It is time the United States finally and consistent with its legal and international obligations fully recognize our right to be treated like human beings and as sovereign nations.”
Additionally, tribal representatives have been invited to testify at a hearing by the Inter-American Commission on Human Rights on December 9.
Update: November 29, 2016, 8:00AM PT

Standing Rock Sioux Tribe: Responds to Governor’s executive order; Calls on Army Corps to reaffirm their position of no forcible removal

In response to North Dakota Gov. Dalrymple's Nov. 28 executive order calling for mandatory evacuation of all campers located on U.S. Army Corps of Engineers lands (also known as the Oceti Sakowin camp), Standing Rock Sioux Tribe Chairman Dave Archambault II said, “This state executive order is a menacing action meant to cause fear, and is a blatant attempt by the state and local officials to usurp and circumvent federal authority. The USACE has clearly stated that it does not intend to forcibly remove campers from federal property.”
“If the true concern is for public safety then the Governor should clear the blockade and the county law enforcement should cease all use of flash grenades, high-pressure water cannons in freezing temperatures, dog kennels for temporary human jails, and any harmful weaponry against human beings … The State has since clarified that they won’t be deploying law enforcement to forcibly remove campers, but we are wary that this executive order will enable further human rights violations.”
Update: November 28, 2016, 2:30PM PT

Water Protector Legal Collective  Files Suit for Excessive Force Against Peaceful Protesters

An initiative of the National Lawyers Guild, the Water Protector Legal Collective has filed a lawsuit in U.S. District Court against Morton County, Morton County Sheriff Kyle Kirschmeier, and other law enforcement agencies for using excessive force against peaceful protesters near the Standing Rock protest camp on the night of November 20. The class action suit, filed on behalf of persons who were injured, seeks an immediate injunction preventing the Morton County Sheriff’s Department and other law enforcement from using impact munitions against protesters.
Earthjustice, representing the Standing Rock Sioux Tribe in litigation against the U.S. Army Corps of Engineers, is not involved in this class action lawsuit.
Update: November 26, 2016, 7:00PM PT

Army Corp Closes Public Access to Oceti Sakowin Camp on Dec. 5th

Federal officials announced on Friday that a decision had been made to close access to the entire area north of the Cannonball River including the Standing Rock protest campsite at Oceti Sakowin. They said the decision was made because of public safety concerns and that a 'free speech zone' to the south of Cannonball River would be created. Anyone on the closed land after Dec. 5 could be charged with trespassing.
Standing Rock Sioux Tribal Chair Dave Archambault II responded with this statement, “Our Tribe is deeply disappointed in this decision by the United States, but our resolve to protect our water is stronger than ever. We ask that all everyone who can appeal to President Obama and the Army Corps of Engineers to consider the future of our people and rescind all permits and deny the easement to cross the Missouri River just north of our Reservation and straight through our treaty lands.”
“It is both unfortunate and ironic that this announcement comes the day after this country celebrates Thanksgiving—a historic exchange of goodwill between Native Americans and the first immigrants from Europe. Although the news is saddening, it is not at all surprising given the last 500 years of the treatment of our people. We have suffered much, but we still have hope that the President will act on his commitment to close the chapter of broken promises to our people and especially our children.”
Update: November 22, 2016, 9:00AM PT

Standing Rock Sioux Tribe: Calls on President Obama to deny easement, investigate pipeline safety and protect tribal sovereignty

“The easement to build the unsafe Dakota Access Pipeline has not been granted. But under the cover of darkness North Dakota law enforcement continues to engage in unlawful and dehumanizing tactics to subdue peaceful water protectors with tear gas and water cannons,” said Standing Rock Sioux Tribal Chair Dave Archambault II.
“Live video footage on Facebook this Sunday night (Nov. 20) clearly document that North Dakota's law enforcement and government officials have sanctioned aggressive acts in failed attempts to disperse water protectors who have the right to demonstrate against and report on this failing project. It's time for President Obama to condemn these tactics and this pipeline.”
“Our culture, our children and our homelands have repeatedly been stolen from us. We are deeply saddened that despite the millions of Americans and allies around the world who are standing with us at Standing Rock, a single corporate bully—backed by U.S. government taxpayer dollars through a militarized law enforcement—continue to be sanctioned by aggressive, unlawful acts. President Obama, this cannot be your legacy.”
Update: November 15, 2016, 2:45PM PT

Standing Rock Sioux Tribe: ETP Lawsuit Reveals Desperation to Finish Troubled Project

Energy Transfer Partners, the company behind the Dakota Access Pipeline, has filed a lawsuit charging the U.S. Army Corp of Engineers has no right to delay easement to pipeline construction. “Dakota Access is so desperate to get this project in the ground that it is now suing the federal government on the novel theory that it doesn’t need an easement to cross federal lands,” said Standing Rock Sioux Tribal Chair Dave Archambault II. “They are wrong, and the lawsuit will not succeed. We are looking forward to discussing the easement with the Administration and explaining why it must be denied. They made bad decisions and are now facing the consequences.”
Update: November 14, 2016, 3:30PM PT

U.S. Army Corp of Engineers Delays DAPL Easement. Calls For Further Environmental Review. Corp says consulting with Standing Rock Sioux Tribe pivotal before final decision.

The U.S. Army Corp of Engineers today announced they are delaying an easement for the Dakota Access Pipeline project until it conducts further environmental review with the Standing Rock Sioux Tribe. The Corp noted that “construction on or under Corps land bordering Lake Oahe cannot occur because the Army has not made a final decision on whether to grant an easement.”
Standing Rock Sioux Tribal Chair Dave Archambault II said while the decision was not 100 percent what the Tribe had hoped for, it is clear President Obama is listening. “We are encouraged and know that the peaceful prayer and demonstration at Standing Rock have powerfully brought to light the unjust narrative suffered by tribal nations and Native Americans across the country,” Archambault said.
Update: November 3, 2016, 8:30AM PT

Pipeline Expert: Government Underestimated Risk of an Oil Spill from Dakota Access Pipeline.

An independent expert hired by the Standing Rock Sioux Tribe has found that the government’s Environmental Assessment of the Dakota Access pipeline’s environmental impact was inadequate. Richard Kuprewicz of Accufacts, Inc., a consulting firm that advises government agencies and industry about pipelines, found that the U.S. Army Corps of Engineers failed to address pipeline safety and the risk the pipeline poses to the waters of Lake Oahe and the Standing Rock Sioux Tribe, which draws its drinking water from that lake.
The failure of the Army Corps to adequately assess oil spill risks from the pipeline also raises significant questions about whether the Corp’s review is legally adequate. In light of Kuprewicz’s report and the deficiencies contained in the environmental assessment, Tribe Chairman Dave Archambault II asked for the government to reconsider its early decisions and disallow the easement for the pipeline crossing.

Why did the Standing Rock Sioux Tribe bring a lawsuit?

The Standing Rock Sioux Tribe is deeply concerned about the construction of a major crude-oil pipeline that passes through its ancestral lands. There are two broad issues. First, the pipeline would pass under the Missouri River (at Lake Oahe) just a half a mile upstream of the tribe’s reservation boundary, where a spill would be culturally and economically catastrophic. Second, the pipeline would pass through areas of great cultural significance, such as sacred sites and burial grounds that federal law seeks to protect.
The Tribe sued the U.S. Army Corps of Engineers, which is the primary federal agency that granted permits needed for the pipeline to be constructed. The lawsuit alleges that the Corps violated multiple federal statutes, including the Clean Water Act, National Historic Protection Act, and National Environmental Policy Act, when it issued the permits.

How will the lawsuit affect construction at the site?

The filing of the lawsuit alone doesn’t affect the construction. In a preliminary injunction motion, the Tribe had asked for a halt to construction until it can survey the pipeline route for cultural and heritage resources.
Much of the pipeline route has already been cleared and graded, so a question remains about how much remains to be surveyed at those sites. The Judge has the authority to fashion a remedy that would enable construction in some places to move forward while construction in other places is blocked.

Has the Corps issued all the permits necessary for the project to move ahead?

No. There is still one remaining authorization that has not been issued.
Because the Corps owns land on either side of Lake Oahe, Dakota Access must get an “easement” from the Corps to dig the tunnel for the pipeline underneath federally owned lands. Dakota Access only needs the easement for the drilling underneath Lake Oahe; it has permits to construct everything else, such as the access road and pipeline route up to the Lake Oahe crossing site.
Timeline of Events:
July 27, 2016

The Tribe files a lawsuit in federal district court in Washington, D.C., where it was assigned to U.S. District Judge James E. Boasberg.

August 4, 2016

The Tribe asks the Court for a preliminary injunction since the pipeline is already under construction and would be finished before the case could be formally decided.

August 24, 2016

Judge Boasberg holds a hearing on the motion in Washington, D.C. Over 500 people participated in an action outside the federal courthouse in support of the Tribe. The Judge indicated that he would rule in roughly two weeks.

Sept. 4, 2016

While the parties are awaiting the Court’s decision, Dakota Access bulldozed an area of the pipeline corridor filled with Tribal sacred sites and burials that had been identified to the Court just the previous day. Demonstrators trying to prevent the destruction of the sacred site were pepper sprayed and attacked by guard dogs (as documented by Amy Goodman and her Democracy Now camera crew.) The Tribe files an emergency motion for a temporary restraining order to block the construction until a decision is reached on the injunction motion.

Sept. 6, 2016

Judge Boasberg holds a hearing on the emergency motion for a temporary restraining order. The Judge issues a temporary restraining order for the pipeline corridor nearest the Missouri River but declines to halt construction on the portion of the pipeline route that had recently been identified as sacred tribal burial ground.

Sept. 9, 2016

The Court denies the Tribe’s motion for a preliminary injunction. Minutes later, three federal agencies—The Department of Justice, Department of the Army and Department of the Interior—issue a joint statement announcing that the federal agencies will halt any additional permitting and reconsider its past permits of the project. The statement states that while it appreciates the Court’s review, the government believes that the Tribe has raised some important issues worthy of additional consideration. It also called for a national review of the government’s approach to Tribal consultation for major fossil fuel projects.

Sept. 12, 2016

After filing an appeal of the District Court’s decision with the D.C. Circuit Court of Appeals, the Tribe files a request for an injunction pending appeal. The motion asks the Court to make the Government’s request for a voluntary pause on construction within 20 miles of Lake Oahe an enforceable requirement while the appeal process goes forward.

Sept. 16, 2016

The Court issues an order issuing an “administrative injunction … to give the court sufficient opportunity to consider the emergency motion for injunction pending appeal.” The court directed “that Dakota Access LLC be enjoined pending further order of the court from construction of the Dakota Access Pipeline for 20 miles on both sides of the Missouri River at Lake Oahe.”

Oct. 5, 2016

Oral arguments on the emergency motion for injunction are held at the Court of Appeals for the D.C. Circuit. A ruling was not issued, keeping the temporary halt to construction in place until the Court issues a decision.

Oct. 9, 2016

The D.C. Circuit issues a ruling denying the tribe’s request for an injunction pending appeal but emphasizes that it hoped that the “spirit of Section 106 [of the National Historic Preservation Act] may yet prevail” as the Court did not have the last word, and decisions still need to be made at the permit crossing at Lake Oahe. Both the appeal and the district court litigation will proceed, but the injunction covering work in the pipeline corridor has ceased.

Oct. 10, 2016

The Department of Justice, Department of the Army and Department of the Interior issue a joint statement following the court order which says in part: “The Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon. In the interim, the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe. We repeat our request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

Dakota Access has forcefully rejected the Government’s request for a voluntary pause, and continues to pursue construction ever closer to the Missouri River and the camps of protesters.

Oct. 20, 2016

The Army Corps conducts a site visit to the area bulldozed over Labor Day to determine whether Dakota Access violated federal law by knowingly damaging a tribal sacred site. Under federal law, if Dakota Access is found to have knowingly damaged a historic or cultural resource with the intent of sidestepping the National Historic Preservation Act, the Corps cannot issue the easement. No determination has been finalized.

Oct. 24, 2016

As confrontations between Tribal water protectors and an increasingly militarized construction effort heat up, Tribal Chairman Dave Archambault II calls on the Department of Justice to conduct an investigation into heavy-handed police tactics and violations of civil rights.

Nov. 2, 2016

Following comments from President Obama in an interview on Nov. 1, Tribal Chairman Dave Archambault II issues a statement, saying in part, “While the Army Corps of Engineers is examining this issue we call on the Administration and the Corps to issue an immediate ‘stop work order’ on the Dakota Access Pipeline.” Read the Tribe's full statement.

The statement below from the Chairman of the Standing Rock Sioux Tribe, Dave Archambault II, can be quoted in full or in part:

“We applaud President Obama’s commitment to protect our sacred lands, our water, and the water of 17 million others. While the Army Corps of Engineers is examining this issue we call on the Administration and the Corps to issue an immediate ‘stop work order’ on the Dakota Access Pipeline. And given the flawed process that has put our drinking water in jeopardy, we also urge the Administration to call for a full environmental impact study.

“The nation and the world are watching. The injustices done to Native people in North Dakota and throughout the country must be addressed. We believe President Obama and his Administration will do the right thing.”

“Earthjustice is honored to represent the Standing Rock Sioux Tribe in court as it seeks to protect its people’s sacred lands and water from the Dakota Access pipeline,” said Trip Van Noppen, president of Earthjustice, also in response to President Obama's Nov. 1 remarks. “We also want to reiterate the Chairman’s call for a full environmental impact statement. No such careful review has occurred to date. Considering all that’s at stake, that’s simply unacceptable.” Read Earthjustice's full statement.

Nov. 3, 2016

An independent expert hired by the Standing Rock Sioux Tribe (Richard Kuprewicz of Accufacts, Inc., a consulting firm that advises government agencies and industry about pipelines) finds that the government’s environmental assessment of the Dakota Access pipeline’s environmental impact was inadequate. In light of Kuprewicz’s report and the deficiencies contained in the environmental assessment, Tribe Chairman Archambault II asked for the government to reconsider its early decisions and disallow the easement for the pipeline crossing. Read the letter to Assistant Secretary Jo-Ellen Darcy. Read the Accufacts report.

Nov. 10, 2016

The Department of Justice announces in federal court that it will be announcing the next steps on a 'path forward' for the Dakota Access Pipeline crossing at Lake Oahe. Read the Tribe's statement.

Nov. 14, 2016

The U.S. Army Corp of Engineers announces they are delaying an easement for the Dakota Access Pipeline project until it conducts further environmental review with the Standing Rock Sioux Tribe. “We are encouraged and know that the peaceful prayer and demonstration at Standing Rock have powerfully brought to light the unjust narrative suffered by tribal nations and Native Americans across the country,” says Standing Rock Sioux Tribal Chair David Archambault II.

Nov. 15, 2016

Energy Transfer Partners, the company behind the Dakota Access Pipeline files a lawsuit charging the U.S. Army Corp of Engineers has no right to delay easement to pipeline construction.

Nov. 21, 2016

The Standing Rock Sioux Tribe issues a statement calling on President Obama to deny easement, investigate pipeline safety and protect tribal sovereignty. Read the Tribe's statement.

Nov. 28, 2016

The Water Protector Legal Collective, an initiative of the National Lawyers Guild, files a lawsuit in U.S. District Court against Morton County, Morton County Sheriff Kyle Kirschmeier, and other law enforcement agencies for using excessive force against peaceful protesters near the Standing Rock protest camp on the night of November 20. More details. (Earthjustice, representing the Standing Rock Sioux Tribe in litigation against the U.S. Army Corps of Engineers, is not involved in this class action lawsuit.)

Standing Rock Sioux Tribe Chairman Dave Archambault II responds to Gov. Dalrymple's Nov. 28 executive order calling for mandatory evacuation of all campers located on U.S. Army Corps of Engineers lands (also known as the Oceti Sakowin camp), saying, in part, "If the true concern is for public safety than the Governor should clear the blockade and the county law enforcement should cease all use of flash grenades, high-pressure water cannons in freezing temperatures, dog kennels for temporary human jails, and any harmful weaponry against human beings." Read the Tribe's full statement.

Dec. 2, 2016

The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe ask the Inter-American Commission on Human Rights to stop the violence against water protectors at Standing Rock. An official petition has been submitted to the IACHR.

Key Legal Documents: