A federal judge on Friday denied an attempt by the Standing Rock Sioux Tribe to stop construction of the four-state Dakota Access oil pipeline near their North Dakota reservation, saying the tribe hadn't adequately shown the project will destroy "sites of cultural and historical significance."
But the Justice Department stepped in, saying U.S. Army Corps of Engineers would not authorize building the pipeline on Corps land until it reviews environmental issues surrounding the project.
The tribe had challenged the Army Corps of Engineers’ decision to grant permits at more than 200 water crossings for Dallas-based Energy Transfer Partners’ $3.8 billion pipeline, saying the project violates several federal laws, including the National Historic Preservation Act, and will harm water supplies. The tribe also says ancient sacred sites have been disturbed.
U.S. District Judge James Boasberg in Washington on Friday denied the tribe’s request for a temporary injunction. He ordered the parties to appear for a status conference Sept. 16.
In a lengthy ruling, the judge noted that since the USA's founding, its relationship with Indian tribes "has been contentious and tragic. America’s expansionist impulse in its formative years led to the removal and relocation of many tribes, often by treaty but also by force.”
Boasberg said he “does not lightly countenance any depredation of lands that hold significance to the Standing Rock Sioux” and that, given the federal government’s history with the tribe, “the Court scrutinizes the permitting process here with particular care."
But he concluded that the tribe "has not demonstrated that an injunction is warranted here.” The judge said he would issue an order denying the tribe's motion for a preliminary injunction.
Attorney Jan Hasselman with environmental group Earthjustice, who filed the lawsuit in July on behalf of the tribe, said in the days before the ruling that it would be challenged.
“We will have to pursue our options with an appeal and hope that construction isn’t completed while that (appeal) process is going forward,” he said. “We will continue to pursue vindication of the tribe’s lawful rights even if the pipeline is complete.”
In a statement issued Friday, the U.S. Department of Justice, the Department of the Army and the Department of the Interior said the tribe and other tribal nations had raised "important issues" around the Dakota Access pipeline specifically and pipeline-related decision-making generally. It said the administration wouldn't authorize construction 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."
In the interim, Justice asked the pipeline company to "voluntarily pause all construction activity within 20 miles east or west of Lake Oahe."
It also said the case "has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects." It said it would invite tribes to "formal, government-to-government consultations" on the federal government's role in tribal infrastructure projects. It also said the discussions would review whether Congress should propose new legislation on the issue.
The 1,172-mile project will carry nearly a half-million barrels of crude oil daily from North Dakota’s oil fields through South Dakota and Iowa to an existing pipeline in Patoka, Ill.
Thousands gathered Friday at the protest over the pipeline, which will cross the Missouri River near the Standing Rock Sioux reservation in southern North Dakota, the Associated Press reported. Judith LeBlanc, a member of the Caddo Nation in Oklahoma and director of the New York-based Native Organizers Alliance, said before the decision that she expected the protest to remain peaceful.
“There’s never been a coming together of tribes like this,” she said of Friday’s gathering of Native Americans, which she estimated could be the largest in a century. People came from as far as New York and Alaska, some bringing their families and children, and hundreds of tribal flags dotted the camp, along with American flags flown upside-down in protest.
A rally against the Dakota Access pipeline was scheduled for Friday afternoon at the North Dakota Capitol, and many of those gathered at the protest site were expected to make an estimated 45-mile trek.
State authorities announced this week that law enforcement officers from across the state were being mobilized at the protest site, some National Guard members would work security at traffic checkpoints and another 100 would be on standby. The Great Plains Tribal Chairman’s Association has asked the federal Justice Department to send monitors to the site because it said racial profiling is occurring.
Nearly 40 people have been arrested since the protest began in April, including tribal chairman Dave Archambault II, though none stemmed from Saturday’s confrontation between protesters and construction workers. Tribal officials said workers allegedly bulldozed sites on private land that Hasselman said in court documents was “of great historic and cultural significance.” Energy Transfer Partners denied the allegations.
Four private security guards and two guard dogs were injured, officials said, while a tribal spokesman said six people — including a child — were bitten by the dogs and at least 30 people were pepper-sprayed. The state’s Private Investigation and Security Board received complaints about the use of dogs and will look into whether the private security personnel at the site are properly registered and licensed, board attorney Monte Rogneby said Friday, adding that he would not name the firms.
On Thursday, North Dakota’s archaeologist said that piece of private land was not previously surveyed by the state would be surveyed next week and that if artifacts are found, pipeline work still could cease.
The company plans to have the pipeline completed this year. In court papers, ETP said stopping the project would cost it $1.4 billion the first year, mostly due to lost revenue in hauling crude.
“Investor appetite for the project could shift and financing may no longer be available,” the company said. “Construction of the entire project would cease and the project itself would be jeopardized.”