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Dakota Access Court Date Set as Tribes Allege ‘Gamesmanship’ (1)

Sept. 17, 2020, 3:47 PM; Updated: Sept. 17, 2020, 7:52 PM

The D.C. Circuit will hear arguments Nov. 4 in the closely watched Dakota Access pipeline appeal, setting the stage for a ruling on the project’s fate in late 2020 or early 2021.

The court announced the argument date Thursday, a day after the Standing Rock Sioux, Cheyenne River Sioux, and other tribes filed their response to arguments that a federal judge overstepped when scrapped a key permit and ordered the oil pipeline to shut down.

In their latest filing at the U.S. Court of Appeals for the District of Columbia Circuit, lawyers for the tribes accused Dakota Access and the Army Corps of Engineers of legal “gamesmanship” and argued that District Judge James E. Boasberg wasn’t required to conduct additional legal analysis to support his shutdown order.

Boasberg in July vacated a federal easement for Dakota Access and ordered the oil pipeline to halt operations while the Army Corps of Engineers conducted a court-ordered environmental review. The D.C. Circuit later put the shutdown order on hold while it reviews the case, saying the lower court hadn’t applied the necessary legal test to issue the injunction. The easement is still canceled.

The shutdown, if had occurred, would have marked the first time a federal court forced a pipeline to halt operations because of violations of the National Environmental Policy Act.

Legal Test

But the tribes argued Wednesday that both sides’ legal briefs leading to the district court’s decision assumed that scrapping the contested federal easement would result in a pipeline shutdown.

“The vacatur analysis, by definition, assumes that the action authorized by a vacated government authorization would cease, as did the parties in the evidence and arguments they presented below,” the tribes told the D.C. Circuit.

And the fact that no party previously made a distinction between vacating the easement and shutting down the pipeline means they’ve now forfeited the argument that a shutdown order required an additional legal analysis, the tribes said. Dakota Access, in fact, used the anticipated economic impacts of a shutdown as an argument against vacating the easement, they argued.

“In other words, appellants strenuously argued the economic calamity of vacatur up until the point that the court granted one, then pivoted to assert that vacatur has no legal effect on operations at all,” Wednesday’s brief said. “This gamesmanship is not allowed.”

Encroachment

The tribes’ brief also lays out myriad arguments that go to the heart of the dispute: whether the Corps fully grappled with the pipeline’s potential impacts on Indigenous communities. The project passes within a half-mile of the Standing Rock Indian Reservation and crosses a dammed section of the Missouri River used for drinking water and fishing.

While the appeal is proceeding in the D.C. Circuit, the Corps is weighing what to do about the canceled easement. Without it, Dakota Access is officially encroaching on federal land. The agency must decide whether to force the removal of the project, or exercise its discretion to allow the pipeline to stay in place.

The tribes, meanwhile, have made a renewed bid in the district court for an injunction that factors in the legal test the D.C. Circuit said the lower court should have conducted.

Under a briefing schedule approved Thursday, the court won’t be ready to rule on the request until late December, at the earliest.

The appeal is Standing Rock Sioux Tribe v. Army Corps of Engineers, D.C. Cir., No. 20-5197, brief filed 9/16/20.

(Updates first section with additional reporting.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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