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Judge will not let North Dakota intervene in Dakota Access dispute

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Pipeline construction stopped (copy)

Construction of the Dakota Access Pipeline took place near St. Anthony at this site in 2016.

A federal judge will not allow the state of North Dakota to intervene in the lawsuit over the Dakota Access Pipeline.

The decision came in Friday’s order from U.S. District Judge James Boasberg, who also declined to grant the Standing Rock Sioux Tribe’s request to shut down the pipeline during an ongoing environmental review.

He denied North Dakota’s request “without prejudice,” which means the state could try to intervene again down the road. The attorney general’s office will watch how the case proceeds, said Troy Seibel, chief deputy attorney general for North Dakota.

Boasberg "didn’t feel as though he needed us to be in the case right now, but he left the door open for us to get into the case in the future," Seibel said.

The attorney general’s office had asked the judge to allow North Dakota to become a formal party in the tribal lawsuit, to defend the pipeline. State officials did not want Boasberg to side with Standing Rock and grant an injunction forcing the line to shut down.

Boasberg’s ruling allowing Dakota Access to continue operating came as a relief to North Dakota’s oil industry, as the line has the capacity to carry about half of the state’s daily oil output to market.

State officials were thrilled with that part of the ruling. They feared a shutdown would have led to job losses in the Bakken oil patch and a hit to tax revenue collected from oil production.

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Chief Deputy Attorney General Troy Seibel responds to questions about House Bill 1480 on Feb. 8 in front of the House Judiciary Committee.

“We think the judge got it right,” Seibel said. “We’re very pleased with the result.”

North Dakota Attorney General Wayne Stenehjem cited those economic factors in April when he made a pitch to Boasberg to allow the state to intervene.

The state argued the U.S. Army Corps of Engineers had abandoned its “previously vigorous defense” of the pipeline and could no longer represent North Dakota’s interest in keeping the line operating. The Corps is tasked with permitting the line’s Missouri River crossing just upstream of the Standing Rock Reservation.

The Corps had declined to challenge a recent court ruling affirming that it must complete a more thorough environmental study of the line, and it had indicated to Boasberg that it was still evaluating whether the line should be allowed to operate while a key permit is revoked. Boasberg rescinded the permit for the river crossing last year after ordering the the study, and the line is trespassing on federal property managed by the agency.

Standing Rock opposed North Dakota's request to intervene, characterizing it as "untimely" and a "belated motion."

Boasberg did not elaborate in his ruling on why he denied North Dakota’s request to intervene. Had he granted it, North Dakota would have assumed the same legal status as the pipeline operator, which intervened in the lawsuit shortly after it was filed.

Dakota Access operates the pipeline and is controlled by Texas-based Energy Transfer. The company has defended the line in court for years, a point Standing Rock raised when it asked Boasberg to deny the state's request.

Standing Rock sued the Corps over the pipeline in July 2016.

Boasberg has ordered the parties involved in the litigation to meet June 11 to go over the next steps they plan to take. His order denying Standing Rock’s shutdown request could be appealed.

Meanwhile, Energy Transfer plans to appeal the other ruling affirming the need for a new environmental review to the U.S. Supreme Court. The study is expected to wrap up in March 2022.

North Dakota has been active in the lawsuit over Dakota Access for a number of years, though not as a formal defendant. The state has submitted briefs in support of the pipeline, and it could do so again in the future.

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

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