On July 27, 2016, the Standing Rock Sioux Tribe filed this lawsuit in the U.S. District Court for the District of Columbia. The Tribe, represented by Earthjustice, sued the U.S. Army Corps of Engineers to block the Corps’ actions related to the Dakota Access Pipeline (a 1,168-mile crude oil pipeline running from North Dakota to Illinois). The Tribe sought injunctive and declaratory relief and attorneys’ fees and costs under the National Environmental Protection Act (NEPA), the National Historic Preservation Act (NHPA), the Clean Water Act (CWA), and the Rivers and Harbors Act (RHA). The case was assigned to Judge James E. Boasberg.

The Tribe challenged the application of Nationwide Permit 12, which authorized discharges into federal waters, but which was issued without meeting NHPA requirements. The Tribe also challenged the issuance of multiple federal authorizations that were needed to construct certain segments of the pipeline. The plaintiff alleged that these authorizations were made in violation of the CWA and its governing regulations and without compliance with NHPA and NEPA.

On August 4, 2016, the plaintiff moved for a preliminary injunction requiring the Corps to withdraw Nationwide Permit 12 as applied to the Dakota Access Pipeline and to withdraw verifications issued for the Dakota Access Pipeline to discharge in federally regulated waters at 204 sites along the pipeline route.

The following day, Dakota Access, LLC (the company authorized to construct the pipeline), filed an unopposed motion to intervene as a defendant. The court granted this motion on August 8, 2016.

On August 10, 2016, the Cheyenne River Sioux Tribe moved to intervene as plaintiff. The court granted this motion on August 19, 2016.

To prevent further destruction of sacred and culturally significant sites near Lake Oahe, North Dakota, the Standing Rock Tribe filed an emergency motion for a temporary restraining order (TRO). The Cheyenne River Tribe filed a separate motion for a similar TRO, additionally asking the court to enjoin Dakota Access from harming and antagonizing members of the Tribe who were peacefully protesting at the site of construction.

On September 8, 2016, the Cheyenne River Tribe filed an amended complaint with allegations similar to the complaint of the Standing Rock Tribe. Additionally, it alleged violations of the Fort Laramie Treaty of 1851, the Sioux Nation Treaty of 1868, and the Flood Control Act of 1944.

On September 9, 2016, the court denied the plaintiffs’ motion for preliminary injunction, finding that the plaintiffs had failed to demonstrate that the court could prevent damage to important cultural resources by enjoining the Corps’ issuance of pipeline-related permits. 205 F.Supp.3d 4. That same day, the plaintiffs appealed the court’s decision to the United States Court of Appeals for the District of Columbia Circuit. On January 18, 2017, the District of Columbia Circuit affirmed the decision of the lower court and dismissed the appeal.

On November 15, 2016, Dakota Access filed an answer to Cheyenne River Tribe’s first amended complaint that included crossclaims against the Corps. This cross-claim sought a judgment declaring that Dakota Access had legal right-of-way, within the meaning of the Mineral Leasing Act, to build and operate an oil pipeline beneath the federal land that borders Lake Oahe. On December 5, 2016, Dakota Access moved for summary judgment on this cross-claim.

On January 6, 2017, the Corps moved to dismiss Dakota Access’ cross-claim, arguing that Dakota Access did not plausibly allege that the United States Department of the Army had completed the administrative decision-making process required to grant Dakota Access an easement to install a pipeline under Corps-managed Federal land at Lake Oahe, pursuant to the Mineral Leasing Act.

On that same day, the Cheyenne River Tribe moved to dismiss Dakota Access’ cross-claim for lack of ripeness, as its claim challenged an agency action that was not yet final. In the alternative, it requested the court to enter summary judgment against Dakota Access’ cross-claim.

On February 9, 2017, the Cheyenne River Tribe moved for a preliminary injunction directing the Corps to withdraw the easement/right-of-way allowing Dakota Access to drill an oil pipeline under federally-owned lands. On March 7, 2017, the court denied this motion, finding that the Tribe had failed to show that the Corps’ decision to grant an easement to Dakota Access constituted a substantial burden on its members’ free exercise of religion. 239 F.Supp.3d 77. The Tribe appealed this decision to the District of Columbia Circuit but then voluntarily dismissed the appeal.

Also on February 9, 2017, the Cheyenne River Tribe moved for an ex parte TRO to halt construction and drilling of an oil pipeline under federally-owned lands.

In the meantime, President Donald Trump took office. Within days of his inauguration, President Trump directed the Corps to “review and approve” pipeline permits on an expedited basis. The Corps obeyed this direction, and on February 8, 2017, it issued the easement and summarily terminated the environmental impact statement process. After the permit was issued, construction began. On February 14, 2017, the Standing Rock Tribe sought partial summary judgment on this issue, claiming that this easement decision, as well as the Corps’ July regulatory actions and accompanying NEPA analysis, violated the Administrative Procedure Act. The Cheyenne River Tribe made a similar motion; the Corps and Dakota Access also moved for summary judgment (in two motions that are not available on the docket). In response to all of these motions, on June 14, 2017, the court found the Corps’ environmental analysis unlawful, and remanded the matter to the Corps for further analysis. 255 F.Supp.3d 101.

While those motions were pending, in March 2017 the court ordered that this case be consolidated with Yankton Sioux Tribe v. United States Army Corps of Engineers and Oglala Sioux Tribe v. United States Army Corps of Engineers.

The Cheyenne River Tribe filed a second amended complaint against Dakota Access and Corps on June 14, 2017, seeking additional declaratory relief. The Standing Rock Tribe filed a first amended complaint, alleging violations under the Mineral Leasing Act, the Fort Laramie Treaty, and the Flood Control Act.

On December 4, 2017, in order to mitigate the risk of potential oil spills during the pendency of the litigation, the court ordered the parties to coordinate to finalize a spill response plan for the tribal areas in dispute. 280 F.Supp.3d 187. The court also ordered Dakota Access, with input from the Tribes, to select a third-party independent expert to review conditions and assess the pipeline’s compliance. Finally, Dakota Access was required to submit bi-monthly reports to the court.

On March 19, 2018, the court dismissed the Tribes’ NHPA claims as moot (in light of the completed construction of the pipeline), and granted summary judgment to the Corps and Dakota Access on the treaty-based claims and the NEPA claims. 301 F.Supp.3d 50.

On December 12, 2018, the court entered judgment in favor of the Corps and Dakota Access on the plaintiffs’ RFRA claims (by the plaintiffs’ consent). The court also ruled that the Tribes could argue that their NHPA claims were not, in fact, moot.

On January 3, 2019, the court permitted the plaintiffs to file 4 supplemental complaints, alleging that the Corps’ decision to affirm its original decision (on remand) was arbitrary and capricious in violation of the Administrative Procedure Act, NEPA, and the Tribes’ treaty rights.

On March 25, 2020, the court granted partial summary judgment to the plaintiffs, ruling that the Corps had violated NEPA by determining that an environmental impact statement was unnecessary; it ordered the Corps to complete an environmental impact statement. Correspondingly, the court ordered the parties to brief the question of whether the original easement should be vacated during the pendency of this second remand. In the same order, the court granted summary judgment to the Corps and Dakota Access on the Tribes’ renewed NHPA claims and on the Oglala Tribe’s claims under the Mni Waconi Act of 1988.

In May 2020, the court received nearly a dozen amicus briefs. These included a brief from 14 states, another from 37 members of Congress, and a third brief from 28 federally recognized Indian tribes and related organizations.

On July 6, 2020, the court vacated the easement which had authorized construction of the pipeline under the Missouri River near Lake Oahe. It ordered that the pipeline must be closed and emptied by August 5, to remain closed until the Corps completed an Environmental Impact Statement (which was expected to take until 2021). Dakota Access immediately appealed to the D.C. Circuit; the district court denied a motion for stay on July 9, 2020.

On July 14, 2020, the D.C. Circuit (Judges Rogers, Griffith, and Pillard) issued an administrative stay of the district court’s order regarding closure of the pipeline.

On August 5, it denied the motion to stay the district court’s order vacating the original easement; however, although that ruling stood (and the pipeline was therefore not legally authorized), the D.C. Circuit found that the district court had not made the “findings necessary for injunctive relief” under the four-factor test in Winter v. Natural Resources Defense Council. The court therefore remanded to the district court for further consideration, indicating that the Corps must clarify its position on continued operation of the pipeline in view of the vacated easement, after which the district court could take further action as appropriate. As of August 26, 2020, further proceedings are pending in the district court.

Jake Parker - 07/20/2018
Gregory Marsh - 08/26/2020


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