The Sacred Stone camp was emptied out, packed up, and hauled off long ago. Oil has been flowing through the fully-operational Dakota Access Pipeline for two months. The legal fight between the Standing Rock Sioux Tribe and both the Army Corps of Engineers and Energy Transfer Partners, the company that owns the pipeline, continues. A ruling on Wednesday offered limited hope to the protesters when Judge James Boasberg ruled that the federal permits authorizing the pipeline to cross the river did not adequately consider native hunting and fishing rights.
“Although the Corps substantially complied with [the National Environmental Policy Act] in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial,” Boasberg wrote.
In his 91-page decision, Boasberg rejected many of the tribes’ other arguments, finding that the “the Corps’ decision on July 25, 2016, and February 3, 2017, not to issue an [Environmental Impact Statement] largely complied with NEPA” and rejected an argument that the decision violated the trust-responsibility that the federal government has with respect to treaty lands.
The one exception was the evaluation of the impacts of an oil spill on Standing Rock’s wildlife. Although the tribe had alerted the Corps to its fishing- and hunting-related concerns, these issues were not adequately addressed by the environmental assessment, Boasberg ruled.
“[T]he [Environmental Assessment] offered only a cursory nod to the potential effects of an oil spill,” Boasberg wrote, “stating simply that ‘[t]he primary issue related to impacts on the aquatic environment from operation of the Proposed Action would be related to a release from the pipeline.’ It never explained, though, what those effects would be.”
He found that the assessment was similarly lacking in its consideration of how the construction itself could affect wildlife populations. The tribe had argued that some of its members rely on hunting and fishing for sustenance.
Boasberg, however, made clear that the remaining issues are relatively small and the Corps complied with statute. “Aside from the discrete issues that will be the subject of the remand, the Court concludes that the Corps complied with its statutory responsibilities,” he wrote.
The court ordered the Corps to reevaluate portions of its environmental analysis. The parties will appear again in court on Wednesday to present a proposed schedule. For the time being, oil will continue to flow through the pipeline as the parties discuss their options.
The decision was praised by environmentalist groups and native rights activists who saw it as a vindication.
“This case is not over but today’s decision demonstrates what tribal leaders have said from the beginning,” said NCAI President Brian Cladoosby, president of the National Congress of American Indians in a statement. “These projects must include tribes early in the process so the negative impacts to our lands, waters, and sacred places can be avoided. Environmental justice demands that the rights of tribes are respected.”
Dallas Goldtooth, organizer of a national anti-pipeline campaign run by the Indigenous Environmental Network, agreed.
“This is a huge victory for the tribal nations of the Oceti Sakowin, Water Protectors around the world and for the Indigenous leaders who led organizing efforts to stop the Dakota Access Pipeline,” Goldtooth said, adding that he hoped this would be the first step toward shutting down the pipeline altogether.
Energy Transfer Partners, the company that owns and operates the pipeline, is not a party in this suit, but released a statement of its own emphasizing that oil would continue to flow as the court works through the explanation and review process.
“Pipeline operations can and will continue as this limited remand process unfolds,” the company said in a statement. “It is important to note that while Judge Boasberg asked the Corps to provide greater substantiation for its conclusions, the Court did not find the prior determinations to be erroneous. Per the Court’s order, there will be further briefing on whether the Corps’s determinations should continue or be vacated while the Corps reconsiders the issues on remand.
“Dakota Access believes the record supports the fact that the Corps properly evaluated both issues, and that the record will enable the Corps to substantiate and reaffirm its prior determinations.”
Craig Stevens, a spokesman for Grow America’s Infrastructure Now, expressed confidence that the Corps will quickly satisfy the judge’s concern but questioned the impact that the constant threat of litigation has on infrastructure development: “In his decision, Judge Boasberg disposed of nearly all of the Tribes’ claims and the handful that remain do nothing to impact the ongoing operation of the pipeline nor do they undermine the work of the more than 8,000 individuals across the four states who built it. The Dakota Access Pipeline remains one of the safest – if not the safest – pipeline ever constructed. And while we have little doubt that the Corps will ultimately be successful in satisfying the Court’s concerns, tonight’s decision continues the public saga of the project and jeopardizes ongoing infrastructure investment. Our nation is in dire need of infrastructure improvements, but unfortunately the threat of extended litigation and lost investment could quash the private capital required to build these large scale projects.”
This is the third legal challenge the Standing Rock tribe has brought against the pipeline. Previous cases arguing that pipeline construction threatened historic cultural sites and that oil flowing through the pipeline would desecrate sacred waters were ruled against the tribe.
The Standing Rock tribe had argued that the Army Corps of Engineers’ final approval of the easement needed to cross the river was an “arbitrary and capricious” change in policy that violated the trust rights the federal government has with respect to tribal lands.
