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Standing Rock, pipeline operator at odds over next steps in Dakota Access fight
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Standing Rock, pipeline operator at odds over next steps in Dakota Access fight

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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 Standing Rock Sioux Tribe is asking a federal judge to keep open its lawsuit against the Dakota Access Pipeline while an environmental study is underway, and it wants the line's operator to file monthly updates on the review.

Dakota Access and a federal agency say the case should be dismissed, and they argue they should not have to file regular updates with the court.

U.S. District Court Judge James Boasberg had asked the parties involved in the case to tell him the steps they planned to take after he declined to shut down the pipeline, and they all did so Friday by filing documents with the court. He ruled in May against Standing Rock's request for an injunction that would have required oil to stop flowing through the line during the review process, concluding that the tribe had not demonstrated a "likelihood of irreparable injury" from the line's continued operation.

Standing Rock and other Sioux tribes fighting the pipeline have not indicated whether they plan to appeal.

The U.S. Army Corps of Engineers is conducting the court-ordered review of the pipeline's Missouri River crossing. It expects to wrap up the process in March 2022. Boasberg revoked a key permit known as an easement for the line's river crossing last year, and the review will determine whether the Corps reissues it.

The tribes told Boasberg the case "is not over" until the Corps has made a final decision on the easement, and they asked that he maintain jurisdiction over the lawsuit in the meantime. The agency is still weighing what to do about the fact that the line is operating without a permit and could take action at some point, "which would likely spawn further litigation," the tribes said. They added they might need to seek relief from the court depending on the pace of the review.

The tribes suggested that once the Corps makes a decision on the easement, Boasberg could ask the parties for another update on any lingering issues they want the court to address.

Dakota Access, on the other hand, asked the judge to "terminate" the litigation by dismissing any additional claims in the case. Dakota Access is controlled by pipeline operator Energy Transfer.

Like the tribes, the company is looking ahead to how the fight over the line could play out once the Corps finishes the review.

It anticipates the tribes "may ultimately find fault" with how the Corps has conducted the review and "may be dissatisfied with the result that the Corps eventually reaches." If so, the company argued the tribes would need to raise a separate legal challenge if they want to fight the outcome.

The Corps has taken a similar position to the pipeline company, saying there is no claim left before the judge and "no case or controversy remains."

The tribes also want Boasberg to require that the Corps file monthly updates with the court on the status of the environmental review process and any safety violations along the pipeline route, among other topics.

The Corps is pushing back against that request. The agency said it will provide updates on the review process each month on its website and pointed out that three of the tribes, including Standing Rock, are active participants in the study already.

The tribes asked the judge to make Dakota Access submit monthly updates as well about its plans to increase the line's capacity. The pipeline can pump up to 570,000 barrels per day of oil from North Dakota to Illinois, but the company is in the process of building pump stations to boost the line's horsepower so that it could transport as much as 1.1 million barrels per day.

Dakota Access said the information the tribes seek does not pertain to any issues before the court.

The pipeline company indicated earlier this spring that it plans to challenge a ruling from federal appellate judges affirming the need for the environmental review to the U.S. Supreme Court. The appeal to the nation's highest court has not yet been submitted.

The lawsuit over the pipeline has been active for five years. The Standing Rock Reservation lies just downstream of where the line crosses under the Missouri River, and tribal members are concerned about the potential for an oil leak. Energy Transfer has long maintained that the pipeline is safe.

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

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