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Tribe, corps side against Dakota Access in court claim

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Winter camp

As dusk fell over the Oceti Sakowin camp in December, people in the protest camp made fires to get through the chilly night, children took one last sled run Facebook Hill and sounds of joy and celebration — “Mni Wiconi!” “Water is Life!”— were heard in the still cold air. 

A lawsuit that originally pitted the Standing Rock Sioux Tribe against the U.S. Army Corps of Engineers for improperly authorizing the Dakota Access Pipeline, now has both parties on the same side: They both are refuting the pipeline’s claim that it has all the necessary permission to bore under the Missouri River/Lake Oahe near the tribe’s reservation boundary.

The tribe and the corps filed briefs Friday in U.S. District Court in Washington, D.C., asking the judge to dismiss the pipeline’s suit against the corps, in which Dakota Access claims the agency had issued all the necessary permissions and permits to allow the company to proceed with the critical river crossing, which has been stalled for months at a huge expense to the company in undelivered crude oil contracts. 

Meanwhile, the company has staged drilling equipment within sight of the Oceti Sakowin encampment, where 700 to 1,000 anti-pipeline protesters remain despite Tribal Chairman Dave Archambault II’s request that they should leave.

Archambault made the request following the corps’ announcement Dec. 4 that it will not provide the easement while it recommended a complete environmental impact statement and a review of alternate routes, including one originally proposed 10 miles north of Bismarck. The chairman said the protest against the pipeline will be settled in court and protesters should leave for their safety given harsh winter conditions.

In its brief to the court, the corps says the pipeline’s claim should be dismissed.

“There is no signed document conveying to Dakota Access an easement to construct a pipeline under corps-managed land. The army is still considering (the) easement application,” the corps told federal Judge James Boasberg.

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The pipeline company says it has the necessary permission and cites various communications from the corps, including permission under its Section 408 authority and in the corps’ finding of no significant impact for the project in July.

The tribe’s attorney, Jan Hasselman, of Earth Justice, said Dakota Access is in a mess of its own making.

“Its own choices — including building a significant portion of the pipeline before it had any permits and refusing to voluntarily cease construction in the disputed area around Lake Oahe, as the government repeatedly requested — are responsible for its current predicament,” Hasselman told the court.

He concurred with the corps statement that it has not provided an easement under the Mineral Leasing Act, which is separate from its Section 408 authority.

Archambault said the Dakota Access suit is a bully tactic intended to violate the tribe's rights in the matter.

“It will not succeed. We look forward to working with the corps on an EIS that fully takes into account our history and our rights and are confident that the easement at Lake Oahe will ultimately be denied," he said.

The tribe is still awaiting publication of a notice of intent to prepare an EIS to be published in the Federal Register.

Boasberg stayed any action on the original lawsuit between the tribe and corps, pending the outcome of the cross claim filed by Dakota Access. 

(Reach Lauren Donovan at 701-220-5511 or lauren@westriv.com.)

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