In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-01534 (December 4, 2017), Federal District Court Judge James Boasberg ordered the Dakota Access Pipeline’s (DAPL) owner, Dakota Access, LLC, the U.S. Army Corps of Engineers (the Corps) and the Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe (the Tribes) to “coordinate to finalize an oil-spill response plan affecting Tribal resources and lands at Lake Oahe.” In addition, Judge Boasberg ordered Dakota Access to submit bi-monthly reports to the court providing detailed information with respect to the segment of the DAPL crossing Lake Oahe, and to hire an independent, third-party engineering expert to conduct a compliance audit of the pipeline.

The order is the most recent development in a series of ongoing decisions regarding the DAPL. In June, Judge Boasberg determine that the Corps had failed to fully comply with the National Environmental Policy Act (NEPA) when it granted easements to DAPL over Lake Oahe. Subsequent to this decision, the Tribes asked the court to vacate DAPL’s permits, and to enjoin construction of the pipeline until the Corps rectified the deficiencies in its NEPA analysis. The court declined the Tribes request, finding that an injunction was not proper because there was a “significant likelihood” The Corps could fix the deficiencies in its NEPA analysis, and substantiate its original conclusion to grant the easement. The court’s decision left open, however, the possibility that it may impose other, interim conditions on the project while awaiting the Corps updated NEPA analysis. Following the court’s October ruling, in November, the TransCanada Keystone Pipelineleaked an estimated 210,000 gallons of crude oil near the boundaries of the Lake Traverse Reservation, home of the Sisseton Wahpeton Oyate Tribe in South Dakota. In highlighting the recent spill as evidence of the need for monitoring requirements, Judge Boasberg stated, “Although the Court is not suggesting that a similar leak is imminent at Lake Oahe, the fact remains that there is an inherent risk with any pipeline.” Judge Boasberg dismissed the defendant’s assertions that Plaintiff’s request for monitoring information was nothing more than an alternative request for injunctive relief.  Instead, the court found that the interim conditions were simply a means to ensure the court received up to-date and necessary information about the operations of the pipeline.  To ensure the court received this information, Judge Boasberg ordered the DAPL’s bi-monthly report to include, among other information, any updates regarding new integrity threats, any reportable incidents and any leaks or ruptures in the pipeline. Finally, the court ordered the parties’ oil spill response plan and compliance audit report be submitted to the court by April 1, 2018.The Corps anticipates completing its supplemental NEPA analysis by April 2018, at which point the court will determine whether the Corps has fully complied with NEPA.

View the Order here, which includes additional instructions about the Memo.