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Dakota Access Protesters Shunted by Cops and Sioux Leader; Court Fight Likely

A new protesters encampment on private lands that resulted in the arrests Thursday of scores of people near the proposed water crossing for the Dakota Access Pipeline (DAPL) project was criticized by the leader of the Standing Rock Sioux Tribe that has led the fight against the 1,200-mile oil pipeline. The latest incident diverted attention from what the likely outcome will be given the Trump administration's green light for the controversial project.

While noting he hopes local law enforcement in south-central North Dakota will treat the 76 protesters arrested fairly and justly, Sioux Chairman Dave Archambault II said the new camp was not supported by the tribe, noting he has been encouraging the old camps to be disbanded on land that is prone to spring floods after record snowfalls this winter.

The latest encampment was on private lands owned by the sponsor of DAPL,Texas-based Energy Transfer Partners (ETP). Several hundred protesters have lingered on the original protest site on reservation lands, although they began to vacate this week so authorities can clean the site.

"The fight is no longer here [at the encampment], but in the halls and courts of the federal government," Archambault told news media.

Given the recent actions by President Trump and the U.S. Army Corps of Engineers (USACE) officials, it is unlikely that the fate of the $3.8 billion pipeline project, which is nearly all built, will be resolved outside of court, according to a knowledgeable, Houston-based energy attorney, Scott Marrs, regional managing partner for Texas at Akerman LLP.

"The interested parties all have vastly different ideas of what actions are required by the USACE for the issuance of permission to construct a pipeline through federal lands," Marrs told NGI's Shale Dailyon Friday. Marrs characterized the two sides' respective positions as sharply opposed:

DAPL backers believe the USACE's early determination of "no significant impact" for the pipeline project last July essentially approves the project's right-of-way under a dammed portion of the Missouri River called Lake Oahe. The Sioux tribes contend that because USACE later said an environmental impact statement (EIS) was needed that the environmental work must now be done.

"The EIS the Army called for in December last year is normally only required if the USACE's environmental assessment finds that the planned construction may have some significant impact, which did not happen in this case," Marrs said. "USACE has twice stated that the finding of 'no significant impact' was correct and lawful."

Neither the backers or the federal agency have responded to recent queries from Shale Daily, but Marrs speculated that one of three scenarios will play out:

  • The Trump administration's new Army secretary reviews the record and determines the original 'no significant impact' finding is the final approval needed, allowing immediate approval of the easement (right-of-way), making the subsequent actions by USACE moot;
  • The Army performs an EIS, but expedites the eventual approval, relying on the original environmental assessment and Trump's executive order on expedited approvals and his memorandum on DAPL; or
  • USACE, despite the Trump executive actions, performs a full-blown EIS, and DAPL's claims currently being litigated proceed to trial or are determined by a judge's summary judgment.

Even with all the recent actions by both sides, it is not clear that the situation will be cleanly resolved any time soon. On Friday, it still appeared that ETP and its supporters were facing more time and costs before the four-state pipeline begins moving large amounts of Bakken crude oil to market.

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