On January 30, Judge James E. Boasberg of the District Court of Washington D.C. presided over a status hearing on Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (USACE). The hearing was held in response to confusion created by President Donald Trump’s January 24 memorandum that directed the Secretary of the Army to “review and approve in an expedited manner anything necessary” to operationalize the Dakota Access Pipeline (DAPL) as soon as possible.
Jo-Ellen Darcy, the Assistant Secretary of the Army for Civil Works, had on December 4 denied the final permit requiring an easement to construct the Dakota Access Pipeline. Her denial required a rigorous environmental impact statement with full public input and analysis to determine an alternate route for the pipeline.
In calling the status hearing, Boasberg said that he “didn't want to issue a ruling [and] then have to rule it moot in a few days because the government has taken a different step.” To avoid that, he requested a timeline from the USACE on when a decision would be made on how to implement Trump’s memo.
Though Matthew M. Marinelli, lead counsel for USACE, stated that USACE was “reviewing all portions of the memo,” its ability to do so was decidedly complicated by the loss of the Acting Secretary of the Army, whose resignation was effective January 30. He restated the Army’s previous opinion that February 20 for a “set/reset deadline” should allow sufficient time to respond to Boasberg's request. The “set/reset deadline” requires USACE, the Standing Rock Sioux Tribe, and the Cheyenne River Sioux Tribe to “file any reply briefs in support of their motions to dismiss or for summary judgment on Dakota Access’ cross-claim” on or before that date.
Boasberg, showing mild frustration at the political wrangling, asked when USACE “might know that you might know” when they would be able to provide a response timeline.
The judge clarified that by postponing—and by inference, perhaps not being able to respond—the current status stands: USACE is moving to dismiss the case and asking for a summary judgment and cross motion, while Dakota Access Pipeline’s position is that they can proceed and are moving for summary judgment only.
Marinelli stated that his preference was to postpone until all sides had more information, which Boasberg ultimately did. The judge also affirmed his preference for written notice by February 6 over another status hearing since USACE did not know when they would “have concrete information.”
David DeBold, lead counsel for Dakota Access Pipeline, preferred a written notice from USACE by February 3, countering, “A federal judge's order to make a timeline for response can be rather persuasive.”
Boasberg set a status hearing for February 6, joking, “depending on whatever happens over the weekends these days”—a reference to Trump’s weekend work, which has included controversial executive orders on immigration.
Boasberg also instructed Marinelli to produce all relevant information because until then, there could be no ruling on the pipeline.
DeBold also requested protection of 19 documents that Dakota Access Pipeline wanted shielded from the public until the hearing, which Boasberg granted.
Jan Hasselman, chief counsel for the Standing Rock Sioux, was then finally asked for input. Via teleconference from Seattle, Hasselman put forth his concern that in waiting for USACE to take action, the plaintiffs would be put into a position where they would be back in “emergency response mode.”
Hasselman expressed concern that given the lack of input from USACE, the Dakota Access Pipeline would be allowed to proceed with the construction and operationalization of the pipeline before the plaintiffs had an opportunity to respond. He requested a much longer waiting period beyond the normal 14 days required to Congress by USACE in case USACE granted the easement.
Boasberg said that though he could not imagine a scenario in which Dakota Access Pipeline could get oil running through the pipeline in 14 days time, he ordered DAPL to produce a detailed timeline that took all aspects of pipeline completion and start up into account and to present it on February 6 as well.
Many questions remained unanswered, the most critical of which: who in the Army can make a decision regarding Trump's order? If no one, does the order get turned back to Trump for the final decision? There are also questions for Indian country about how any ruling on Dakota Access Pipeline would affect tribes with resources given the spectrum of attitudes on resource development across tribes. The question of whether tribal consultation and consent can be overridden by a presidential executive order also remains. Tribal sovereignty and self-determination impacts have also been left unaddressed.
On the commercial development side, questions remain on whether developers will face the same fight from every tribe on resource development given the scope of tribal claims to land near reservations. Equally worrisome for investors is whether making investments in or near Indian country are worth the risk; for tribes seeking to develop resources, they agonize that investors will be scared away by this experience.
It’s an intricate puzzle Boasberg is now forced to solve through the unexpected filter of the Trump memo.