The Dakota Access Pipeline (DAPL) project continues to be the subject of extensive news coverage and ongoing controversy. Last quarter’s Watch discussed U.S. District Judge Boasberg’s memorandum opinion denying the Standing Rock Sioux Tribe’s Motion for Preliminary Injunction, which was immediately followed by the joint decision by the Departments of the Army, Justice, and Interior to administratively halt portions of the DAPL project, to require additional consultation with the Standing Rock Sioux Tribe, and to require the Army Corps of Engineers’ (Corps) preparation of an environmental impact statement before proceeding with any further decision to authorize pipeline construction of the last segment of the line under Lake Oahe in the Dakotas. We provide here a brief summary of events that have occurred since our last report.

  • Executive Branch Update:
    • On December 4, 2016, Department of the Interior Solicitor Hilary Tompkins issued Solicitor’s Opinion No. M-37038 titled, “Tribal Treaty and Environmental Statutory Implications of the Dakota Access Pipeline,” in which the Solicitor discussed the extent of the Treaty rights of the Standing Rock and Cheyenne River Sioux Tribes, including federally reserved water rights and off-Reservation hunting and fishing rights. The Solicitor expressed the opinion, among others, that the Corps consider impacts of DAPL permitting decisions on these treaty rights.
    • In mid-January 2017, immediately prior to President Trump’s inauguration, the Departments of the Interior, Army and Justice issued their joint report, “Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions,” which reported on the nationwide government-to-government listening sessions and consultations that the Departments held in an effort to understand the perspectives of Native American leaders regarding existing federal consultation processes, programs and obligations.
    • On January 18, 2017, the Corps published a Notice of Intent to Prepare an Environmental Impact Statement (EIS) in the Federal Register. See 82 Fed. Reg. 5,543 (Jan. 18, 2017).
    • On January 24, 2017, President Trump issued a “Presidential Memorandum” to the Secretary of the Army directing the Secretary to “take all actions necessary and appropriate” to review and issue any federal approvals necessary for DAPL to proceed. While the January 24, 2017 Memorandum did not specifically order the Corps to halt the preparation of the EIS, it did order the Secretary and the Corps to consider withdrawing the Notice of Intent and to consider whether the prior environmental reviews that were undertaken satisfy the requirements of the National Environmental Policy Act (NEPA) and other federal laws, including the Endangered Species Act. A presidential memorandum, like an executive order, is binding on the executive branch.
    • On January 31, the acting Secretary of the Army instructed the Corps to grant the necessary easement to DAPL.
    • On February 7, 2017, the Department of the Army provided a notice of intent to approve the easement and provided notice that it was terminating the environmental review process.
  • Judicial Challenges:
    • As we previously reported, the Standing Rock Sioux Tribe filed a complaint in federal court seeking to halt the DAPL project.1 Since our last report:
      • On January 25, 2017, the day after President Trump issued his memorandum, discussed above, the Cheyenne River Sioux Tribe moved for both a temporary restraining order and a preliminary injunction on grounds that oil flowing through DAPL under Lake Oahe would violate the Tribe’s rights under the Religious Freedom Restoration Act (RFRA). This was the first time the Tribe raised a religious exercise claim under RFRA, although the Tribe previously had expressed that water was sacred and of religious and cultural importance – in the context of National Historic Preservation Act (NHPA) consultations and in previous pleadings.
      • On February 14, 2017, focusing on the fact that there was no current plan to flow oil through the line, Judge Boasberg denied the Cheyenne River Sioux Tribe’s motion for a temporary restraining order based on RFRA.
      • On Tuesday, February 15, 2017, the Standing Rock Sioux Tribe moved for partial summary judgment on its claims that the Corps violated NEPA by granting Dakota Access the easement and terminating the EIS process.
      • On February 22, 2017, the Cheyenne River Sioux Tribe filed a motion for partial summary judgment on failure to consult, violation of trust responsibility, and treaty rights grounds, among others.
      • On February 28, 2017, members of several Sioux tribes filed a motion to intervene in the Standing Rock Sioux Tribe’s challenge to the DAPL project, including in their intervention papers claims that President Trump acted beyond his lawful authority in advancing the project and alleging that he has or recently had stock in the parent company of Dakota Access, LLC.
      • On March 7, 2017, the federal court denied the Cheyenne River Sioux Tribe’s request for a preliminary injunction based on the Tribe’s recent assertion that construction of DAPL underneath Lake Oahe interferes with the Tribe’s right to exercise religion under RFRA. Generally, the court found (a) the assertions lacked merit or that the Tribe had not shown a likelihood of success on the merits and (b) the January, 2017 request for injunctive relief based on a RFRA claim was raised too late given that the Tribe learned of the proposed DAPL routing in October 2014 and that the Corps had issued certain authorizations for the line in July 2016.
    • Additional challenges to the DAPL project are occurring in other judicial venues.
      • On February 11, 2017, the Oglala Sioux Tribe filed suit against the Corps, in the United States District Court for the District of Columbia seeking declaratory and injunctive relief to stop construction of DAPL until the Corps completes an EIS.
      • On February 16, 2017, an Iowa state court judge ruled against several landowners and the Sierra Club, affirming the Iowa Utilities Board’s grant of a permit to Dakota Access LLC, which included the right to condemn an easement over the landowners’ properties.
      • A challenge to the project is pending before the North Dakota Public Service Commission regarding compliance with a Commission order governing discovery of cultural sites during construction. On January 31, 2017, the Commission denied Dakota Access’ motion to dismiss the complaint filed by Commission staff.
  • Economic Pressure:
    • The Seattle, Washington City Council voted to divest $3 billion of the city’s funds from Wells Fargo Bank, one of DAPL’s lenders.
    • Similarly, the Davis, California City Council voted to divest $125 million from Wells Fargo. The cities of Santa Monica and San Francisco, California have taken steps to divest from banks that finance DAPL. Citizens of Los Angeles have called upon the city council to divest from Wells Fargo.
    • Mayor Bill de Blasio of New York City sent a letter to 17 banks asking the banks to withdraw their financing of the project, citing the rights of the Standing Rock Sioux and impacts to the banks’ “reputations.”
  • Other Developments
    • On December 2, 2016, the Standing Rock, Cheyenne River, and Yankton Sioux Tribes requested the Inter-American Commission on Human Rights to “call on the United States to adopt precautionary measures to prevent irreparable harm to the Tribes . . . from the ongoing and imminent construction of” DAPL and stop “harassment and violence being perpetrated against people gathered in prayer and protest in opposition to DAPL.”2