On a day when America's attention was turned toward the arguments on President Donald Trump's immigration ban being presented at the Ninth Circuit Court of Appeals, the U.S. Army Corps of Engineers (USACE) issued a big decision. Acting Secretary of the Army Robert Speer announced on Wednesday February 7 that the USACE had approved the Lake Oahe easement necessary to complete the Dakota Access Pipeline (DAPL). He also stated that there would be no further environmental studies done, essentially removing any barriers keeping DAPL developer Energy Transfer Partners from expeditiously moving ahead with pipeline construction.
Speer’s statement appears to run counter to Army lead attorney Matthew Marinelli's contention on February 6 in D.C. District Court that the legal team did not yet know the timeline for making a decision on the Lake Oahe easement, although he thought he could likely respond to the court by February 10.
Marinelli said that the best he could do as of February 6 was to say that the USACE was parsing a portion of President Donald Trump's January 24 memorandum calling for the DAPL to proceed.
Speer’s announcement, along with the accompanying court filings, left observers wondering whether the Army Corps had been purposely misleading in court. To one legal expert, the timing of USACE's announcement of the Lake Oahe easement looked suspiciously like “dirty pool.”
Two things are less murky: Lawyers for the Standing Rock Sioux Tribe expect Energy Transfer Partners to restart work immediately. And the tribe plans to fight the easement on all available legal grounds.
Anticipating that the USACE would ultimately issue the Lake Oahe easement in response to Trump's memo, Jan Hasselman, a lawyer Standing Rock via the environmental law firm Earth Justice, said on February 6 in court that the tribe would challenge any illegal action. Chief among a host of filings on illegal contentions is the tribal position that the Lake Oahe easement could not be granted until a full environmental impact statement (EIS) had been completed, and not until tribes had been properly consulted.
Hasselman also argued that an issuance of an easement without an actual decision by the court would put DAPL construction into high gear. So he asked for reasonable notice—48 hours—on any action by the court, as well as for all parties to compile a complete administrative record so that the tribe could respond to any movement by the parties quickly and effectively. Judge James Boasberg, who is overseeing the case in D.C. District Court, granted this motion on February 6.
Critical to Hasselman was the need for a reasonable response period—at least 60 days—from the granting of any easement by Army. Boasberg was amenable to this, especially given DAPL lawyer David Debold’s assertion that it would probably take 83 days from the notice to Congress by the USACE for oil to begin flowing through the pipeline.
A third status hearing is scheduled for February 13 before Boasberg in D.C. District Court.
If USACE files a motion to dismiss the case, which is likely, Boasberg can ignore or deny the motion, or say nothing at all, in which case all parties will have to return to court on February 13. If that happens, Boasberg also has the option of issuing additional directives on requests already presented by the parties, or even issuing new directives. He had previously stated that the tribe had two complaints that still must be addressed if he were to issue a ruling, which he may opt to do. One, that the initial pipeline building process—digging into the land—violated the National Environmental Policy Act (NEPA), and two, given that the government had allowed this digging, that the ultimate danger would be the risk of fouling Lake Oahe and its watershed should the pipeline ever break.
If Boasberg accepts the Army's move for dismissal, all tribal complaints will go unaddressed.
The tribe can also file for an injunction to try to prevent construction as legal proceedings continue. Parties involved expect the tribe to do so.
Kyle Whyte, Timnick Chair in the Humanities and Associate Professor of Philosophy and Community Sustainability at Michigan State University, said in an interview after the easement had been granted that this case illustrates how tribes are so often not able to participate on equal footing in decisions with U.S. and corporate parties that seek to add more and more of their own projects and businesses on tribally significant lands and waters.
“While some people may claim that the pipeline is being constructed with every safety precaution in mind, that the builders accommodated cultural heritage over a hundred times, and the agency did its due diligence, none of these considerations account for the experience many tribes have of having their relations to water, different species and the environment constantly transformed according to decisions made by other people—people who are not concerned with respecting tribal cultures, economies and political self-determination,” Whyte said. “While some people repeat how the building process obeyed the ‘rule of law,’ they are only referring to U.S. rule of law.
“What about the indigenous legal order, indigenous reciprocal morality connecting humans, nonhumans and ecosystems?” he asked. “Where are they in this recent decision?"