MAIN

The Standing Rock Sioux Tribe (SRST) will face an uphill battle this week in its bid to seek a preliminary injunction against the Dakota Access Pipeline says New York University Law professor and frequent Forbes contributor Richard Epstein.

In an Oct. 3^rd column, Epstein makes a convincing case against the tribe, citing the myriad inaccuracies the complaint is built upon as well as the high bar one must satisfy to merit an injunction.

“At this point, it should be an easy matter to deny, especially on appeal, the preliminary injunction. The Tribe, in its papers, insists that some preliminary steps in the approval process were violated, but it makes no attempt to show that these errors, were not cured by the exhaustive process that followed and examined all of the perceived objections, and which, on numerous occasions altered the path of DAPL to respond to the comments from multiple entities by tracking closely with the path of the preexisting Northern Border pipeline.”

Epstein makes frequent reference to U.S. District Court Judge James Boasberg’s Sept. 9^th ruling and extensive opinion denying the SRST’s motion for the injunction, noting that:

“”The standard of review used by most [appellate] courts, including the federal court system, is an ‘abuse of discretion’ standard.” Under the received wisdom, “[a]n abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  No one could say that this standard is met in dealing with Judge Boasberg’s opinion, it is not likely that the plaintiff can succeed on the merits.”

At a broader level, Epstein says it clear that the SRST has no interest in resolving this dispute under current law, but rather seeks to rewrite the legal framework to its benefit.

“The clear record on this issue is that the Tribe has no interest in working out the particulars of these case, with either the states or the federal government, within the framework of the existing law. Instead, the Tribe is determined to use the current dispute to transform the law so that it can exert a veto right over the operation of the entire pipeline.”

Click here to read Epstein’s full analysis on where the case stands.

In quotes from his memorandum opinion, Judge Boasberg cemented the fact that the U.S. Army Corps of Engineers, as well as the Dakota Access Pipeline fulfilled their required consultation duties, and in many cases even exceeded what is required by law.

Not only were hundreds of miles surveyed for cultural artifacts by trained and certified archaeological experts in North Dakota, but the pipeline parallels an existing natural gas line, the Northern Border Pipeline. When that project was constructed in the 1980s, archaeological surveys were conducted and the project was approved for construction. Since Dakota Access will cross Lake Oahe along the same corridor, the impact on cultural and traditional sites is significantly mitigated by following existing infrastructure.