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Tribe, Army Corps Challenge Dakota Access Pipeline Court Filings

The battle continued Friday among the federal government, the Standing Rock Sioux Tribe, and Energy Transfer Partners (ETP) over the stalled Dakota Access Pipeline (DAPL) project.

The focus remains on an easement from the U.S. Army Corps of Engineers (USACE) for the 1,200-mile oil pipeline's crossing under a dammed portion of the Missouri River that forms Lake Oahe in south-central North Dakota near the Standing Rock reservation.

While legal positions of the Native American tribe and the USACE are firmly set, an analysis released Monday by ClearView Energy Partners LLC said DAPL backers could eventually gain the easement without the additional environmental review that federal authorities announced in early December. By this scenario, the $3.8 billion project, which is 99% complete, could be in service by mid-year.

For now the fate of the project is in the hands of federal district Judge James Boasberg in the U.S. Federal District Court for the District of Columbia, but the judge has acknowledged that the Trump administration could take action that would "render certain issues moot," according to ClearView's analysis by Kevin Book, managing director.

Both the Standing Rock tribe and USACE last Friday filed documents with Boasberg asking him to dismiss DAPL's cross-claim and motion for summary judgement in the tribe's appeal of the Army Corps' earlier approval of a permit under Lake Oahe for the four-state pipeline project.

DAPL has until Jan. 31 to reply and is expected to do so much sooner, which then leaves USACE and the Standing Rock tribe 10 days to make their respective final filings. Boasberg then could schedule an oral argument or just issue a decision on the competing motions without any further argument.

As the ClearView analysis points out, the USACE's exhibits accompanying its court filing showed a difference of opinion among decision makers within the federal agency. One of the internal memos concluded that the underwater crossing could be accomplished with no significant environmental impact and that there were no viable alternatives to the Lake Oahe crossing.

"The dueling memoranda could provide the incoming administration with political cover to reverse course regarding the Dec. 4 [2016] decision withholding the [USACE] easement," Book said in his analysis, which noted that a subsequent opinion by another USACE official overrode the earlier conclusion.

Nevertheless, the tribe's latest filing argued that USACE "has not and could not have" issued the easement yet, and the Army Corps' subsequent decision to provide a full environmental impact statement was legally required and appropriate "in light of the history of the Sioux."

"DAPL's lawsuit is a desperate attempt to bully the [federal] government into getting the easement and violating Standing Rock's rights," said Dave Archambault II, chair of the Sioux tribe.

ClearView's analysis noted that the USACE Dec. 4, 2016 decision could be reversed, and Boasberg in subsequent public comments left that as a possibility. An ETP spokesperson in San Antonio said last week that if a USACE easement can be obtained, it will take 90 days to complete the under-the-lake crossing construction.

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