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Wednesday, May 29, 2024 | Back issues
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Tribe Takes Oil Pipeline Fight to DC Circuit

WASHINGTON (CN) - A three-judge appellate panel questioned whether the Army Corps of Engineers skirted its requirement to consult with the Standing Rock Sioux Tribe before greenlighting construction of the $3.8 billion Dakota Access oil pipeline.

The tribe has asked the U.S. Court of Appeals for the District of Columbia Circuit for a temporary injunction that would halt work on the pipeline in parts of North Dakota, where the tribe says sacred land will be harmed, while it appeals a lower court ruling last month refusing to block the four-state pipeline.

Shortly after that ruling, the appeals court temporarily stopped Energy Transfer Partners LP's work on a disputed portion of the pipeline near Lake Oahe in North and South Dakota while the government weighs the tribe's request to withdraw permits for the project.

That order stopped construction within 20 miles of the lake.

The U.S. Army Corps of Engineers is also deciding whether to grant an easement to allow Dakota Access to build under the lake.

Arguing on behalf of the tribe, Jan E. Hasselman with Earthjustice said the Army Corps of Engineers took a narrow view of its obligation to consult with the tribe about the pipeline's route and its impact to sites of historical and cultural significance.

The tribe never had an opportunity to survey the pipeline route, he told the judges.

"And that's the critical issue," Hasselman said.

The panel spent a good portion of the roughly 30 minutes Hasselman spoke trying to parse out his legal argument and get him to specify the area the tribe wants included in the injunction.

"If we're going to go with you, what does this injunction look like?" Circuit Judge Thomas B. Griffith asked, a question Hasselman had a difficult time answering.

Meanwhile, James A. Maysonett with the Justice Department argued on behalf of the Army Corps of Engineers.

Maysonett said the Corps engaged in "an extended effort to consult with the tribe," but he faltered when pressed by Circuit Judge Cornelia Pillard on whether the Corps engaged in the required two-prong consultation - the scope of the pipeline and potential impacts to sites of cultural or historic importance to the tribe.

Maysonett told the panel only one consultation was required, and that the Corps had met its obligation under the Historic Preservation Act. The panel, however, pressed him to define what constitutes a consultation, while Pillard reminded him that the regulation clearly requires two consultations.

Maysonett did not have a clear answer for the panel on that matter.

Dakota Access attorney Miguel A. Estrada told the judges that if allowed, the company will build right up to the Lake Oahe's edge before the Army Corps decides whether to grant the easement needed to finish the pipeline.

Estrada declined to comment after the hearing.

Hasselman said in an interview that "the judges asked good questions and we appreciate the time that they're giving this important case."

The panel did not indicate how or when it would rule.

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