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Updates & Frequently Asked Questions

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

Update: January 18, 2017, 8:15AM PT
Today, the U.S. Court of Appeals for the D.C. Circuit dismissed the Standing Rock Sioux Tribe's appeal of the District Court's Sept. 9 denial of our preliminary injunction request. The Tribe did not oppose dismissal, as the injunction we were seeking on pipeline construction became effectively moot once construction was complete. We did ask the Appeals court to vacate the lower court's opinion, and the Appeals Court deferred that decision back to the District Court. Vacating the opinion means that it cannot serve as a precedent in this or other cases.
Update: January 17, 2017, 1:30PM PT

DAPL Attempts To Block Environmental Impact Statement

On Monday, Jan. 16, attorneys representing the Dakota Access Pipeline filed a motion for a temporary restraining order, asking the Court to block publication of the announcement about the Environmental Impact Statement in the Federal Register. (The announcement was published on Jan. 18, beginning a 32-day public comment period.)
In a statement in response, the Standing Rock Sioux Tribe said:
“DAPL is arguing that we must wait for the Court to decide whether or not the necessary easements have already been granted, a different lawsuit that both the Tribe and the Dept. of Justice (representing the Corps) have moved to have dismissed. The Army Corps has also issued statements that directly contradict DAPL’s claim. Dakota Access is clearly concerned that an EIS will seriously jeopardize their proposed project. While Dakota Access is seeking to block an EIS, the Tribe is confident that the fair and comprehensive process of an EIS will illustrate what the Tribe has been saying all along—Dakota Access cannot properly cross under Lake Oahe at the location immediately upstream of the Standing Rock reservation. The best way to analyze the alternative routes is through a full EIS.”

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.

DAPL Easement Not Granted: What Happens Next?

On Sunday, Dec. 4, the U.S. Army Corps of Engineers announced it would not grant an easement to allow the Dakota Access Pipeline to cross under Lake Oahe in North Dakota near the Standing Rock Sioux Tribe reservation. Instead, the Corps will prepare an Environmental Impact Statement for alternate routes. This pipeline has been the subject of peaceful protests by hundreds of tribes and others across the nation, and the Corps of Engineers’ historic decision is a huge victory for the rights of indigenous people and the cause of environmental justice.

What happens to the legal case against the Dakota Access Pipeline now?

The lawsuit Earthjustice filed on behalf of the Standing Rock Sioux Tribe said the Corps violated the National Historic Preservation Act, the National Environmental Policy Act, and other federal laws by ignoring the environmental and cultural impact of the pipeline when it approved a permit to allow the pipeline company to dig under Lake Oahe.
The decision to refuse to grant the easement necessary for the project, along with the announcement of an Environmental Impact Statement examining the impact of alternate routes, may make parts of that lawsuit unnecessary. However, we will wait and see how the decision plays out, especially under the incoming administration, before deciding how to proceed.

What are the next steps in the Environmental Impact Statement, and how long does that process normally take?

An Environmental Impact Statement (“EIS”) as required by the National Environmental Policy Act is a thorough community participation process involving several rounds of public input. This process could take a year or two to complete. The first step is to invite public comment on the scope of the EIS, what alternatives should be analyzed and what potential impacts should be studied. When that is decided, the draft EIS would be compiled, followed by another round of public comment before a final EIS is issued.
On behalf of the Standing Rock Sioux Tribe, we are ready and willing to fully engage in that public process.

Could President-Elect Trump reverse this decision after he is inaugurated?

Reversing this decision would be arbitrary, capricious and unlawful, and we would challenge it in court. The government has made a considered decision that this pipeline needs more review. There are important issues on the table concerning tribal treaty rights and environmental justice that the Corps decided need a full review.
Federal courts have established that federal agencies cannot arbitrarily change policies and ignore previous findings simply because a new president has taken office.
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. Read the news release.

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. 25, 2016

Federal officials announce 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. 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.

Dec. 4, 2016

The Dakota Access Corporation is not granted the easement needed for construction under Lake Oahe. The U.S. Army Corps of Engineers moves to prepare an Environmental Impact Statement for alternative routes. Read more.

Dec. 5, 2016

DAPL files a motion for summary judgment. Read the legal document.

Dec. 9, 2016

Tribal representatives testify at a hearing by the Inter-American Commission on Human Rights. The hearing examined the impact of extractive industries and projects on the human rights of indigenous peoples, focusing on the Dakota Access Pipeline and the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe.

Jan. 6, 2017

The Standing Rock Sioux Tribe files a motion with the U.S. District Court in Washington, D.C., asking District Judge James Boasberg to throw out Dakota Access’s lawsuit against the Army Corps of Engineers. The Department of Justice, which represents the Corps, files a similar motion.

Jan. 18, 2017

The scoping notice soliciting public comment on the Environmental Impact Statement process for the Dakota Access Pipeline is published in the Federal Register. The notice opens the public scoping phase and invites interested parties to identify potential issues, concerns, and reasonable alternatives that should be considered in an EIS. Comments from the public are being requested through Feb. 20.

Key Legal Documents: