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Judge closes out Dakota Access lawsuit; future legal challenges still possible
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Judge closes out Dakota Access lawsuit; future legal challenges still possible

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A decal attached to an iron fence post with the words "No Spiritual Surrender" is one of the few visible remnants of the Dakota Access Pipeline protest camp that flourished in 2016 and 2017 on federal land north of Cannon Ball in Morton County.

The judge who for five years has presided over the Standing Rock Sioux Tribe’s fight against the Dakota Access Pipeline dismissed the case Tuesday but outlined a path for a future legal challenge to an ongoing environmental review, should the tribe seek to make one.

U.S. District Judge James Boasberg issued a brief order indicating that if the tribe plans to challenge the outcome of the study, expected to conclude in March 2022, it must do so in the form of a new lawsuit that would be assigned to his court. He left open the possibility of reopening the case should any previous orders he made concerning the pipeline be violated.

Boasberg answered the major lingering issues in the litigation in May when he ruled that the pipeline could keep operating. Standing Rock had asked him to issue an injunction forcing the line to stop pumping oil, but he concluded the tribe had failed to demonstrate a “likelihood of irreparable injury” from the line’s continued operation.

That was a significant setback for the tribe, which last year secured a separate shutdown order from Boasberg only to have it overturned on appeal. The ruling eased the anxiety of many Bakken producers who send their oil to market through the 1,200-mile line, and it came as a relief to state officials who feared a decline in oil tax revenue and jobs if the pipeline were forced to shut down during the environmental review.

Boasberg’s rulings over the years offered a mixed bag for both Standing Rock and pipeline supporters, including operator Energy Transfer and the U.S. Army Corps of Engineers, the agency tasked with permitting the line’s Missouri River crossing.

In the end, an appeals court upheld significant parts of his more recent rulings requiring that the Corps complete a new study of the line, a process known as an Environmental Impact Statement. The court also affirmed that he was right to have revoked the pipeline’s easement for the line’s Missouri River crossing just upstream from the Standing Rock Reservation, where tribal members are concerned about a potential oil leak.

Energy Transfer has said it plans to appeal those decisions to the U.S. Supreme Court, but it has not yet done so.

Standing Rock and other Sioux tribes fighting the pipeline had wanted Boasberg to keep the suit active. In a written update earlier this month, they told him the case “is not over” until the Corps finishes the Environmental Impact Statement and makes a final decision on whether to reissue the permit he revoked.

The tribes asked that Boasberg require the Corps and Energy Transfer to prepare monthly status reports on the review process and the company’s expansion plans for the pipeline. Energy Transfer is adding pump stations along the route to nearly double the line’s capacity so that it can carry up to 1.1 million barrels of oil per day.

The Corps and Energy Transfer, on the other hand, asked Boasberg to dismiss the case. The Corps said it will publish monthly updates about the review process on its website, which Boasberg referenced in Tuesday’s order. He will not require the Corps or pipeline company to file such updates with the court.

Standing Rock and several other Sioux tribes are participating in the Corps’ review, another factor Boasberg referenced in his decision.

Dakota Access has been operating since June 2017, drawing thousands of pipeline opponents to protest at its Missouri River crossing along the Standing Rock border during construction earlier that year and in 2016. The pipeline extends from the Bakken oil fields to Illinois, opening the door for North Dakota crude to travel via other lines farther south to refineries along the Gulf Coast and to export terminals.

Reach Amy R. Sisk at 701-250-8252 or amy.sisk@bismarcktribune.com.

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