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Judge Rules Dakota Access May Proceed, But Feds Order Pause

Construction of the Dakota Access pipeline, which would carry Bakken Shale crude oil, was given the go-ahead by a judge to proceed on Friday, but the Obama administration immediately stepped in and called a halt.

In a 58-page ruling, U.S. District Court Judge James Boasberg said the U.S. Army Corps of Engineers "has likely complied" with the National Historic Preservation Act to assess the impact that the $3.8 billion pipeline's construction could have on cultural sites in North Dakota, which have been protested by the Standing Rock Sioux tribe.

The tribe, Boasberg ruled, "has not shown it will suffer injury that would be prevented by any injunction the court could issue. The motion will thus be denied."

Last Tuesday he had rejected the tribe’s request for a temporary injunction, but sponsor Energy Transfer Partners LP (ETP) had voluntarily suspended construction activity because of protests (see Daily GPISept. 7). The case in U.S. District Court for the District of Columbia, is Standing Rock Sioux tribe, et al., v. U.S. Army Corps of Engineers, et al., No. 16-1534.

The Standing Rock Sioux in July had filed a lawsuit requesting a permanent injunction to prevent construction from moving forward, accusing the Corps of failing to consider whether the crude oil pipeline posed a threat to areas considered sacred by the tribe.

The tribe’s legal counsel said Friday it will appeal, and Boasberg on Friday scheduled a preliminary hearing for next week.

Following Boasberg’s ruling, the Obama administration stepped in and said construction would not proceed. It asked ETP to “pause all construction activity” within 20 miles east or west of Corps land bordering or under Lake Oahe, an area of dispute by the tribe. Federal officials want to determine whether to reconsider any previous decisions regarding the site.

In a joint statement, the Departments of Justice, Army and Interior said while they acknowledged the preliminary authorization work done by the Corps, "important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline specifically, and pipeline-related decision-making generally, remain."

The Corps "will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act or other federal laws. Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time."

Officials plan to "move expeditiously to make this determination, as everyone involved -- including the pipeline company and its workers -- deserves a clear and timely resolution."

The case "has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes' views on these types of infrastructure projects," the trio of federal agencies said.

"Therefore, this fall, we will invite tribes to formal, government-to-government consultations on two questions: within the existing statutory framework, what should the federal government do to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights; and should new legislation be proposed to Congress to alter that statutory framework and promote those goals.

"Finally, we fully support the rights of all Americans to assemble and speak freely. We urge everyone involved in protest or pipeline activities to adhere to the principles of nonviolence. Of course, anyone who commits violent or destructive acts may face criminal sanctions from federal, tribal, state, or local authorities.  The Departments of Justice and the Interior will continue to deploy resources to North Dakota to help state, local, and tribal authorities, and the communities they serve, better communicate, defuse tensions, support peaceful protest, and maintain public safety.

"In recent days, we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites.  It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”

Dakota Access is designed to carry up to 570,000 b/d of Bakken Shale oil across four states to an Illinois port. ETP expected to start up the pipeline in early 2017 and 90% of the clearing process in North Dakota has been completed. The project already is about halfway done.

North Dakota Gov. Jack Dalrymple on Thursday activated part of the state National Guard to help back-up civilian law enforcement dealing with a protest in the south-central part of the state along the construction route.

About a dozen guardsmen are to be deployed to a traffic control checkpoint in the protest area, and another 100 members of the Guard would be on standby, ready to respond if needed. Local law enforcement officials reported "unlawful acts and aggressive actions" taken by some protesters.

Dalrymple's action said "public safety as the top concern" ahead of Friday’s ruling. A coalition of pipeline supporters, the Midwest Alliance for Infrastructure Now (MAIN), applauded the governor's move, calling the atmosphere around the growing pipeline protest "emotionally charged and escalating." MAIN's Craig Stevens said the Guard would "maintain a peaceful environment."

Despite reports to the contrary from weary protesters, the head of the National Guard said troops would not patrol the protest encampment north of Cannon Ball, ND, near the Sioux reservation and the border between North and South Dakota. Representatives from various tribes around the nation and environmental activists have been joining the encampment over the past two weeks as legal filings have been flying between the Sioux tribe and ETP's Dakota Access Pipeline LLC unit.

"The Guard is not heading south," said Maj. Gen. Alan Dohrmann. "Its role here is to promote, like everyone else, public safety and to help out with law enforcement so we can free up officers with patrol cars to go down there and have a visible presence."

Up to 12 Guardsmen are to relieve law enforcement officers at a traffic control checkpoint on Highway 1806 about six miles south of Mandan that has been in place since mid-August, Dohrmann said. The checkpoint would be converted to a traffic information point, and the other 100 members of the Guard will be on standby alert.

Morton County and North Dakota Highway Patrol officials said hundreds of protesters were in and around the encampment about 35 miles south of Mandan, and 37 people had been arrested on charges including preventing arrest, disorderly conduct and criminal trespass at pipeline construction sites along Highway 1806.

Union workers and protesters have repeatedly squared off, each accusing the other side of infringing on its rights to protest or to work peacefully in building the pipeline. Stevens argued that none of the Sioux tribe's concerns are legitimate and said their issues were addressed earlier in the permitting process.

"The pipeline is sited along a long-utilized energy corridor that has undergone significant construction over the past few decades and of which state archeologists issued a 'no significant sites affected' determination several months ago," Stevens said. "The pipeline will not cross into the Standing Rock Sioux's reservation and, once operational, will be among the safest, most technologically advanced pipelines ever constructed."

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