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Oil Pipeline Appeals Court Case Narrowed; Protesters Stop Construction

Contrasting action took place on the North Dakota plains and inside a federal appellate court in Washington, DC, on Wednesday, and none of it resolved the controversy surrounding the $3.8 billion, four-state Dakota Access oil pipeline project now under construction.

During oral arguments, which took less than two hours, judges and plaintiff Standing Rock Sioux Tribe's attorney attempted to narrow the scope of the injunction against the nearly 1,200-mile pipeline project, but there were no conclusions reached by the courts. Meanwhile in North Dakota, Native American protesters shut down six construction sites along the pipeline route.

An attorney for the tribe, Jan Hasselman, told the three-judge appellate court panel that the injunction being requested has been narrowed to a small piece of the pipeline route, which he described as an "undeniably special place of great historical, ceremonial and religious importance to the Standing Rock Sioux."

Outside the court, Standing Rock Sioux Chairman Dave Archambault II called the protesters "water protectors" and defended their shutting down construction sites as trying to block pipeline construction that "threatens the lives of more than 17 million people who rely on the Missouri River for their water."

Spurring a protest encampment in south-central North Dakota near the Sioux reservation that is being called the largest gathering of Native American tribes in a century, protesters now vow not to leave until the "pipeline is defeated," and they plan to stay all winter.

In the Washington, DC, courtroom, judges Cornelia T.L. Pillard, Janice Rogers Brown and Thomas Griffith spent most of the session peppering attorneys from the tribe, U.S. Army Corps of Engineers and Dakota Access Pipeline LLC with questions about whether the Native Americans should have raised their objections earlier, why the USACE didn't do more to reach out to the tribe, and why the pipeline company insists on building right up to the river crossing, which is still in need of an easement currently being reassessed by the federal agency.

Both the U.S. government and the pipeline's backers oppose the tribe's request for a continuation of the work stoppage. The pipeline is otherwise nearly complete and its backers have spent $2.5 billion already. However, government agencies last month announced that they wouldn't allow construction on government land bordering or under Lake Oahe until completing a reassessment of their own decision-making surrounding the pipeline, which is expected to take weeks.

In Wednesday's oral argument, Pillard sought answers about the required USACE consultation with the tribe, along with a clearer definition of the boundaries for where the tribe wants work stopped. "If we're going to issue an injunction we need to say where it stops," said Pillard, noting that she was "flummoxed" trying to understand some of the tribe lawyer's arguments.

Brown suggested that the tribe should have filed its underlying lawsuit before July, although Hasselman argued that the tribe had to wait until the project was fully permitted before it could file its legal objections.

Griffith questioned Dakota Access about why it wouldn't halt work near the lake until it gets the federal government's permission to continue construction on government land bordering and under the lake.

Various industry-backed organizations weighed in Wednesday on the pipeline project being pursued by a unit of Texas-based Energy Transfer Partners.

"Even the appellate court pointed out that the Standing Rock Sioux tribe refused to engage several times with the Army Corps and Dakota Access LLC," said a Midwest Alliance for Infrastructure Now coalition spokesperson.

Robin Rorick, midstream group director for the American Petroleum Institute, said "shovel-ready" major infrastructure projects, such as Dakota Access "are essential to accommodating our country's demands for energy and creating jobs."

Energy Equipment and Infrastructure Alliance CEO Toby Mack in a letter signed by 18 national trade associations and labor unions urged President Obama to direct his federal agencies to release the easement needed for Dakota Access to complete the water crossing under Lake Oahe in the Missouri River.

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