On July 27, 2016, the Standing Rock Sioux Tribe (Standing Rock Tribe) filed this lawsuit in the U.S. District Court for the District of Columbia. The plaintiff sued the U.S. Army Corps of Engineers (Corps) 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 plaintiffs, represented by Earthjustice, sought declaratory and injunctive relief as well as attorneys’ fees and costs. The case was assigned to Judge James E. Boasberg.

The Standing Rock Tribe brought this action following federal actions relating to the Dakota Access Pipeline (DAPL), a 1,168-mile-long crude oil pipeline running from North Dakota to Illinois. The Standing Rock Tribe challenged the application of Nationwide Permit 12 that authorized discharges into federal waters without ensuring compliance with NHPA. The Standing Rock Tribe also challenged the issuance of multiple federal authorizations needed to construct the pipeline in certain designated areas along the pipeline route. 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 the court to preliminarily enjoin 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 DAPL, filed an unopposed motion to intervene as a defendant. The court granted this motion on August 8, 2016.

On August 10, 2016, another Native American tribe, the Cheyenne River Sioux Tribe (Cheyenne River Tribe), filed a motion to intervene in support of the Standing Rock Tribe. 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). Specifically, the Standing Rock Tribe sought a TRO on any additional construction work at the pipeline route for a length of approximately two miles west of Highway 1806 in North Dakota and a TRO on any additional construction work on the pipeline within 20 miles on either side of Lake Oahe. The Standing Rock Tribe argued that a TRO was necessary to prevent irreparable harm.

The Cheyenne River Tribe echoed the need for a TRO by filing their own motion for TRO, asking the court to prevent Dakota Access from harming and antagonizing members of the Tribe who are peacefully protesting at the site of construction.

On September 8, 2016, the Cheyenne River Tribe filed their first amended complaint, alleging similar violations under NEPA, the National Historic Preservation Act (NHPA), CWA, and the Rivers and Harbors Act. The Cheyenne River Tribe also 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 plaintiff’s motion for preliminary injunction because it found that the Standing Rock Tribe failed to demonstrate that the court could prevent damage to important cultural resources by enjoining the Corps’ issuance of DAPL-related permits. 205 F.Supp.3d 4. That same day, the plaintiff 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 defendant Corps. This cross-claim sought a judgment declaring that Dakota Access had the 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 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, Cheyenne River moved to dismiss Dakota Access’ cross-claim for lack of ripeness, as its claim challenges an agency action that was not yet final. In the alternative, Cheyenne River filed a cross-motion for the court to enter summary judgment against Dakota Access’ cross-claim on the grounds that the claim presented no genuine issue of material fact.

On February 9, 2017, the Cheyenne River Tribe moved for a preliminary injunction directing the defendant Corps to withdraw the easement/right-of-way permitting Dakota Access to drill an oil pipeline under federally-owned lands. On March 7, 2017, the court denied this motion, finding that the Cheyenne River Tribe 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 Cheyenne River Tribe appealed this decision to the District of Columbia Circuit but then voluntarily dismissed its own 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.

Meanwhile, newly inaugurated President Donald J. Trump took office. Within a few days of his inauguration, President Trump directed the Army to “review and approve” pipeline permits on an expedited basis. The Corps obeyed this direction, and on February 8, 2017, issued the easement and summarily terminated the EIS process. After the issuance, construction began. On February 14, 2017, the Standing Rock Tribe sought partial summary judgment on this matter, claiming that this easement decision, as well as the Corps’ July regulatory actions and accompanying NEPA analysis, was arbitrary, capricious, and contrary to law. On June 14, 2017, the court granted in part and denied in part this motion. 255 F.Supp.3d 101. Specifically, the court denied the motion as to the challenge to the Corps’ decision not to issue an environmental impact statement. The court also ordered that there be a hearing on the issue of vacatur. Additionally, the court remanded the matter to the defendant corps for further analysis.

On February 22, 2017, the Cheyenne River Tribe moved for partial summary judgment of several of its own claims, arguing that the defendant’s actions were similarly arbitrary, capricious, and unlawful. On June 14, 2017, the court denied this motion in part. 255 F.Supp.3d 101. Specifically, the court reached the same conclusions with regard to this motion as it did with regard to the Standing Rock Tribe’s motion.

In March 2017, the defendant Corps and Dakota Access filed two motions for partial summary judgment that are not available on the docket. On June 14, 2017, the court granted in part these motions. 255 F.Supp.3d 101.

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

On December 4, 2017, the court entered an order requiring that the parties coordinate to finalize an oil-spill response plan affecting Tribal resources and lands at Lake Oahe. 280 F.Supp.3d 187. The court also ordered Dakota Access, with input from the Tribes, to select a third-party independent expert engineering company to review easement conditions and regulations and to assess compliance with all such conditions as well as other integrity threats. Additionally, the court required Dakota Access to submit to the court bi-monthly reports regarding the matter.

In January 2018, defendants Corps and Dakota Access filed separate motions for partial summary judgment that are unavailable on the docket. On March 19, 2018, the court granted both of these motions. 301 F.Supp.3d 50.

As of July 16, 2018, Dakota Access has filed three status reports. The case is ongoing.

Jake Parker - 07/20/2018


compress summary