We’ve broken down the Memorandum Opinion of Judge Boasberg in the case Standing Rock Sioux Tribe, et al., v. U.S. Army Corps of Engineers, et al.
A few points to remember:
- The Standing Rock Sioux Tribe (SRST) and EarthJustice’s suit is entirely focused on National Historic Preservation Act requirements and does not have anything to do with irreparable ENVIRONMENTAL harm.
- SRST filed a motion for preliminary injunction claiming that the Corps failed to engage in consultation.
- DAPL utilized past cultural surveys, including from Northern Border, and the route was modified to avoid all 91 of these stone features and all but 9 of the other potentially eligible sites. By the time the company finally settled on a construction path, then, the pipeline route had been modified 140 times in North Dakota alone to avoid potential cultural resources
- Repeated attempts to engage SRST failed often because SRST failed to respond or engage while other tribes did respond to requests from the Corps
- Meetings between Chairman Dave Archambault and the Corps were frequently skipped or rescheduled.
Some of the court findings included that the Corps exceeded its NHPA obligations at many of the PCN sites, the Tribe, then, did not have an absolute right to participate in cultural surveying at every permitted undertaking, as it seems to argue, and General Permitting (NWP 12) is advantageous in a case like Dakota Access where the vast majority of the project will not occur on federal land.
It was the Standing Rock Sioux Tribe’s burden to point to the specific NWP 12 permitting that was likely to cause it injury. Standing Rock did not do so with regard to the permitting that has occurred outside of the PCN verified locations.
Therefore construction of the pipeline should continue as permitted.
The full memorandum can be found here. Here are a few of the key findings from the U.S. District Court for the District of Columbia:
- “SRST filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur.”
- Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 1 of 58
- “General permitting has obvious advantages over individual permitting…”
- Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 8 of 58
- “Dakota Access nevertheless also prominently considered another factor in crafting its route: the potential presence of historic properties. Using past cultural surveys, the company devised DAPL’s route to account for and avoid sites that had already been identified as potentially eligible for or listed on the National Register of Historic Places…Professionally licensed archaeologists conducted Class II cultural surveys, which are “focused on visual reconnaissance of the ground surface in settings with high ground visibility.” Id. In some places, however, the same archaeologists carried out more intensive Class III cultural surveys…these latter surveys required coordination with and approval by State Historic Preservation Officers.
- “Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 14 of 58
- “…the Corps reviewed extensive existing cultural surveys both within and outside the Lake Oahe project area to determine whether the work might affect cultural resources. Then, on October 24, the Corps sent out a letter to tribes, including the Standing Rock Sioux, with information about the proposed work and maps documenting the known cultural sites that the Corps had already identified…includ[ing] sites that the Corps considered to be outside the projected area of effect…No response was received from the Tribe.”
- “It was Standing Rock’s burden to point to the specific NWP 12 permitting that was likely to cause it injury. Standing Rock did not do so with regard to the permitting that has occurred outside of the PCN verified locations.”
- Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 54 of 58
Not only was due diligence completed by the Corps of Engineers for cultural, historical, and archaeological surveys, in many cases consultation and surveys exceeded what was required under Federal law. But most notably, this suit had nothing to do with the environmental impacts of the pipeline, which were also examined in thorough detail by the North Dakota Public Services Commission, the U.S. Army Corps of Engineers, and the U.S. Fish and Wildlife Service during the review process. All of the necessary permits were granted by those organizations so construction could commence.