Dakota Access Pipeline Project in Limbo Following Joint Statement and Court Action
On Friday September 9, 2016, the Department of Justice, the Department of the Army, and the Department of the Interior released a Joint Statement Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Joint Statement) stating that the Army will not authorize constructing the Dakota Access Pipeline Project (Dakota Access) on U.S. Army Corps of Engineers (Corps) land bordering or under Lake Oahe, North Dakota. Lake Oahe is a dammed section of the Missouri River managed by the Corps, located one-half mile upstream of the Standing Rock Sioux Tribe (Tribe) Reservation in North Dakota.
The Joint Statement comes within an hour of U.S. District Court Judge James E. Boasberg’s denial of the Tribe’s request to halt construction Dakota Access’s construction activities under Lake Oahe, which also issued on September 9. Judge Boasberg was presiding over a Motion for Preliminary Injunction filed by the Tribe against the Corps that challenged the Corps’ compliance with tribal consultation requirements under Section 106 of the National Historic Preservation Act (NHPA). Tribal consultation is triggered when an applicant applies for Clean Water Act (CWA) and Rivers and Harbors Act (RHA) permits from the Corps to fill and cross certain water bodies such as Lake Oahe. The 58-page Memorandum Opinion highlights the complexities and varying interests surrounding the regulatory requirements for water body crossings, which it ultimately found the Corps and Dakota Access had complied with during the permitting stage.
The Joint Statement does not elaborate on what authority the Corps intends to use to halt construction of Dakota Access. While the Corps has discretionary authority to remove, modify, or suspend a verification provided under its CWA Nationwide Permit permitting scheme, the Joint Statement does not refer to that authority, but instead refers to the National Environmental Policy Act (NEPA) and other federal laws. However, as Judge Boasberg’s Opinion points out, most of the Dakota Access pipeline is outside the scope of the Corps’ NEPA authority. The Joint Statement asks Dakota Access to voluntarily pause all construction activity within a 20-mile radius of Lake Oahe, including activities on lands that are not subject to the Corps’ jurisdiction. The Joint Statement also does not provide a timeline for any Corps actions related to the project or permitting process. It does state that the federal agencies “will invite tribes to formal government-to-government consultations on two questions,” asking for input on how to improve the tribal consultation process within the existing statutory framework, and whether new legislation should be proposed to Congress to alter that statutory framework to promote more meaningful consultations.
Judge Boasberg’s opinion and the Joint Statement underscore the contentious and sometimes adversarial relationships between the Corps, project proponents, and Indian Tribes on matters of cultural significance for tribal communities. This tension is evident in the protest currently surrounding the Dakota Access project, including the more than 4,000 protestors currently encamped and vowing to remain on land abutting the project’s path in North Dakota. This protest also appears to have swayed the federal government’s response in the Joint Statement, which offers full support for “the rights of all Americans to assemble and speak freely.” There may have been concerns that the court’s outcome would result in physical violence and property destruction, which may explain the Departments of Justice and Interior’s inclusion in the Joint Statement.