A few weeks ago, we noted that the U.S. District Court for the District of Columbia, in a decision reported on September 9, 2016, denied a motion for a preliminary injunction filed by the Standing Rock Sioux Reservation against the construction of the Dakota Access Pipeline through the lands of the Tribe. That case is Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al. The Tribe alleged that the Corps of Engineers, in its review of the permitting requirements triggered by the project, had failed to engage in the consultative process requirements of Section 106 of the National Historic Preservation Act (NHPA), but that District Court denied relief, holding that the Tribe largely refused to engage in such consultation. On September 9, 2016, the Tribe filed an emergency appeal with the U.S. Court of Appeals for the District of Columbia, and the DC Circuit responded by issuing an order to the pipeline to freeze work on the pipeline within 20 miles of Lake Oahe. This narrow work freeze, described as an administrative injunction, was intended to give the Court of Appeals sufficient opportunity to considered the Tribe’s motion for an injunction pending appeal.

On October 5, 2016, the Court of Appeals heard oral argument on the Tribe’s request, and on Friday, October 11, 2016, issued an Order dissolving the administrative injunction. The Court of Appeals determined that the Tribe had not “carried it’s burden of persuasion” to obtain this “extraordinary form of relief.” However, the Court of Appeals also noted that the consultative processes envisioned by Section 106 of the NHPA was intended to mediate these disputes, “but ours is not the final word” ; the Corps of Engineers must still consider whether to grant the pipeline an easement to continue its construction in a pipeline corridor through tribal lands through to Lake Oahe and its shorelines, and this decision will not be taken for several weeks. In the meantime, the pipeline has rights of access to the pipeline corridor where the Tribe alleges that additional historic sites are at risk, and the Court of Appeals concludes by expressing the wish that “we can only hope that the spirit of Section 106 may yet prevail.”