Wednesday, November 8, 2017

Shale Law in the Spotlight: UPDATE – Dakota Access Pipeline and its Current Legal Developments

Written by Chloe Marie – Research Fellow

This article provides an update on the latest legal developments related to the Dakota Access Pipeline. This article supplements the update that was posted to this blog in November 2016.

U.S. Army Corps of Engineers

On July 25, 2016, the U.S. Army Corps of Engineers granted Section 408 permission allowing the proposed Dakota Access pipeline project to cross federal lands administered by the Corps near Lake Oahe, North Dakota. This decision was accompanied by a Finding of No Significant Impact (FONSI) based on an Environmental Assessment (EA) issued on the same day. The Corps concluded that the proposed pipeline project “is not injurious to the public interest” and stated that it had “coordinated closely with Dakota Access to avoid, mitigate and minimize potential impacts of the [proposed project] so that the pipeline would not impair the usefulness of the projects and the impacts to the environment would be temporary and not significant.” The Corps thus “determined that preparation of an Environmental Impact Statement is not required.”

On September 9, 2016, however, the U.S. Department of Justice, together with the U.S. Department of Army and the Department of the Interior issued a joint statement declaring that, because of the importance of the legal issues, “the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.” On November 14, 2016, the Corps issued a statement indicating that “additional discussion and analysis” is needed to better understand whether to grant Dakota Access with an easement to access Corps-managed land near Lake Oahe.

Following this statement, on December 4, 2016, the Corps denied the grant of such easement in order to explore alternative routes for the Dakota Access pipeline crossing. Consequently, the Corps issued on January 18, 2017, a Notice of Intent to prepare an Environmental Impact Statement (EIS) in connection with Dakota Access, LLC’s request for an easement to cross Lake Oahe. The Notice of Intent informs that the Corps intends to prepare an Environmental Impact Statement (EIS) in order to identify the potential impacts of the easement on the environment and consider alternative routes.

President Donald Trump released on January 24, 2017, a Presidential Memorandum directing the Corps to consider whether to withdraw the Notice of Intent to prepare an EIS. As a result, on February 8, 2017, the Corps granted an easement to Dakota Access to install a portion of the pipeline below the Lake Oahe. The Press Release issued at that time states that “the granting of this easement follows the February 7th Secretary of the Army decision to terminate the Notice of Intent to Perform an Environmental Impact Statement and notification to Congress of the Army’s intent to grant an easement to Dakota Access for the Lake Oahe crossing.”

The Yankton Sioux Tribe and Oglala Sioux Tribe lawsuits

On September 8, 2016, the Yankton Sioux Tribe filed a complaint for injunctive and declaratory relief against the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service challenging, among other things, the Corps’ July 2016 EA and FONSI as well as the March 2012 Nationwide Permits. The complaint states that “of particular importance to [the Yankton Sioux Tribe] is the location where DAPL crosses the James River” before adding that “from time immemorial, the Yankton camped up and down the banks of the James River and as a consequence, burial, cultural, and historical sites remain along the James River that are at immediate risk of irreparable injury as a result of Defendants’ actions and Dakota Access, LLP’s planned activities.”

Later on, the Oglala Sioux Tribe also brought an action against the U.S. Army Corps of Engineers on February 11, 2017, alleging that the pipeline crossing at Lake Oahe would impair the Tribe’s water supply, part of the Mni Wiconi water pipeline. In addition, the Tribe asked the Court for a declaration that “the EA/FONSI are inadequate and that the Corps must complete an EIS that analyzes impacts to the Tribe’s Treaty rights and its rights in the Mni Wiconi Project as required by NEPA and the Mineral Leasing Act …”

On March 16, 2017, the U.S. District Court granted the Corps’ motion to consolidate Yankton Sioux Tribe v. U.S. Army Corps of Engineer, docket 1:16-cv-01796 and Oglala Sioux Tribe v. U.S. Army Corps of Engineers, docket no. 1:17-cv-00267 with Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, docket 1:16-cv-01534. All filings in these consolidated cases are now only made in the Standing Rock docket.

The Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe lawsuit

On August 10, 2016, the Cheyenne River Sioux Tribe filed a motion to intervene in support of the Standing Rock Sioux Tribe pointing out that the pipeline construction will take place on ancestral lands of the Cheyenne River Sioux Tribe, and thus the Corps should have consulted the Tribe. The U.S. District Court later granted such motion allowing the Cheyenne River to participate as a party in this ongoing litigation.

Since our last article dated November 2016 addressing the status of the Dakota Access pipeline project, Dakota Access filed a motion for summary judgment on December 5, 2016, seeking a declaration under the Declaratory Judgment Act that the Corps granted the company an easement to construct, operate and maintain the Dakota Access pipeline. Dakota Access argued that the Corps already received such easement on July 25, 2016, through Section 408 permission to cross federal lands at Lake Oahe and “that decision … is the grant of a right-of-way.” Dakota Access added that “nothing authorizes the Corps to invoke good policy after the process is complete, especially where the Corps agrees that every legal requirement was satisfied in reaching an earlier final decision.”

On January 6, 2017, the Standing Rock Sioux Tribe, together with the Cheyenne River Sioux Tribe and the Corps, filed motions to dismiss Dakota Access’ November 2016 cross-claim for failure to state a claim upon which relief can be granted. The Corps pointed out that the administrative decision-making process to grant an easement had yet to be completed under the Mineral Leasing Act. Both Tribes alleged that the Corps did not render a final decision as to the easement.

The Corps also opposed Dakota Access’ motion for summary judgment and both Tribes cross-moved for summary judgment. The Standing Rock Tribe essentially asked whether Dakota Access already obtained the right to construct the pipeline on Corps-managed lands near Lake Oahe under Section 185 of the Mineral Leasing Act while the Cheyenne River Tribe alleged that there was no genuine issue of material fact and that the Tribes were entitled to judgment as a matter of law.  The court subsequently denied this motion for summary for summary judgment as well as the cross-motions.

The Cheyenne River Sioux Tribe filed a motion for preliminary injunction and a temporary restraining order barring Dakota Access from construction and drilling under Lake Oahe following the easement issued by the Corps on February 8, 2017. The U.S. District Court, however, denied the Tribe’s motion for preliminary injunction on March 7, 2017, holding that “the extraordinary relief requested is not appropriate in light of both the equitable doctrine of laches and the Tribe’s unlikelihood of success on the merits.”

On February 14, 2017, the Standing Rock Tribe filed a motion for partial summary judgment requesting the Court to “hold unlawful and set aside” the granting of the easement and related permit decisions on the grounds that the Corps failed to prepare an EIS and thus violated the National Environmental Policy Act (NEPA), that such granting is “arbitrary, capricious, and contrary to law,” and that the Oahe crossing does not qualify for streamlined nationwide permit 12. A few days later, the Cheyenne River Tribe also filed a motion for partial summary judgment on February 22, 2017, asking the Court to declare that issuance of section 408 permission was made in violation of the Flood Control Act and Mineral Leasing Act, and that the Corps did not fulfill its duty to consult with the Tribe “in a meaningful way pre-decisionally on any action that has the potential to substantially affect trust resources or treaty rights.”

On June 14, 2017, the U.S. District Court granted in part and denied in part the Standing Rock Tribe’s Motion for Partial Summary Judgment, and granted in part and denied in part the Corps’ corresponding Cross-Motion for Partial Summary Judgment. In addition, the Court denied in part the Cheyenne River Tribe’s Motion for Partial Summary Judgment and granted in part the Corps’ and Dakota Access’ Cross-Motion for Partial Summary Judgment. The Court explained that the Corps failed to fully follow the NEPA process when it determined that the pipeline project would not have a significant environmental impact and asked parties to submit further briefing on the question whether or not the Corps’ EA should be vacated.

To this question, the U.S. District Court answered it in the negative in an Order & Memorandum Opinion dated October 11, 2017. The Court refused to halt further construction of the pipeline finding that the Corps’ would be able to justify its previous decision not to conduct a full environmental review. The Court, however, declared that “compliance with NEPA cannot be reduced to a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc.

Stay tuned for further legal developments!


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