Tribes battling Dakota Access win partial victory in dispute over federal documents
BISMARCK — American Indian tribes suing to shut down the Dakota Access Pipeline have won a partial victory in a dispute over government documents, though it’s unclear how useful the information might be to them as they prepare another demand for more environmental study of the project.
The federal judge in Washington, D.C., who is overseeing the years-long lawsuit also has set a late-summer deadline for final tribal arguments, though the case won’t be resolved for months afterward.
The four Dakotas Sioux tribes in February accused the Army Corps of Engineers of withholding dozens of documents that could bolster their case that the pipeline could unfairly impact them.
Many of the records that tribal attorneys alleged were missing relate to the pipeline’s crossing beneath the Lake Oahe reservoir on the Missouri River in the Dakotas, which the tribes rely on for drinking water, fishing and religious practices. Fears of a spill into the river sparked prolonged protests in 2016 and early 2017 that drew thousands of pipeline opponents from around the world to southern North Dakota.
The tribes in February alleged that the Corps produced a “fragmented and incomplete record” to justify its approval of the $3.8 billion pipeline that began moving North Dakota oil to Illinois in June 2017, omitting documents seen as key to the legal challenge of the Standing Rock, Cheyenne River, Yankton and Oglala Sioux.
Federal officials later gave the tribes some of the documents but said requests for dozens more were vague and overly broad and should be rejected.
U.S. District Judge James Boasberg ultimately ordered some additional documents turned over the tribes and gave the Corps a deadline of this Wednesday.
The tribes were seeking about 50 documents and ended up with fewer than half, according to Earthjustice attorney Jan Hasselman, who represents the Standing Rock Sioux. The records include drawings of the pipeline crossing at Lake Oahe.
Hasselman said he’s not sure how important the documents might be to the tribal case until he sees them, “but there were a couple things in there that look pretty intriguing.”
The lawsuit has lingered since July 2016. Boasberg has set an Aug. 16 deadline for the tribes to file their final argument for him to rule in their favor, with a Nov. 20 deadline for the last word from the Corps and Texas-based pipeline developer Energy Transfer.
Boasberg in June 2017 ruled that the Corps “largely complied” with environmental law when permitting the pipeline, but he ordered more study on tribal impacts. The Corps finished the work last fall and said it substantiated the agency’s earlier determination that the pipeline does not pose a higher risk of adverse impacts to minorities. The tribes are challenging that assertion.
“Standing Rock is planning on filing a serious, substantive challenge” by the mid-August deadline, Hasselman said. The tribe will ask for a full environmental impact study of the pipeline and for Boasberg to “shut down operations in the interim,” he said.
Should Boasberg decline, the tribe is likely to appeal.
“In the meantime, we’re gearing up for an election,” Hasselman said. “A new administration could well undo the Trump (administration) permits.”
Hasselman on Monday noted that Democratic presidential candidate Jay Inslee’s climate action plan calls for revoking federal permits for Dakota Access and effectively giving tribal nations veto power of major infrastructure projects that would impact them.
Inslee, who is governor of Washington state, also supports new safety restrictions there for oil shipped by rail. North Dakota officials say the new rules are a potential blow to the state's energy industry.