STANDING ROCK LITIGATION FAQ
(updated August 30, 2016)
Why did Standing Rock bring a lawsuit?
The Standing Rock Sioux Tribe is deeply concerned about the construction of a major crude-oil
pipeline that passes through their ancestral lands. There are two broad issues. First, the pipeline
would pass under the Missouri River (at Lake Oahe) just a half a mile upstream of the Tribe’s
reservation boundary, where a spill would be culturally and economically catastrophic. Second,
the pipeline would pass through areas of great cultural significance, such as sacred sites and
burials that federal law seeks to protect. A copy of the complaint, which initiates the litigation
process, can be found here.
Where was the case brought?
The Tribe filed the lawsuit in federal district court in Washington, D.C., where it was assigned to
U.S. District Judge James E. Boasberg. Judge Boasberg was appointed to the federal bench in
2011 by President Obama.
Who is the lawsuit against?
The Tribe sued the U.S. Army Corps of Engineers, which is the primary federal agency that
granted permits needed for the pipeline to be constructed. The focus of the lawsuit is that the
Army Corps took an illegally narrow view of its responsibilities to protect and engage the Tribe
when it granted the permits. The lawsuit alleges that the Corps violated multiple federal statutes,
including the Clean Water Act, National Historic Protection Act, and National Environmental
Policy Act, when it issued the permits. Shortly after the lawsuit was filed, the pipeline
company—Dakota Access, LLC—intervened in the lawsuit, making them a full party as well.
What was the hearing on August 24?
Normally, a federal court lawsuit against a federal agency takes a year or more to resolve.
However, the pipeline is already under construction and would be finished before the case can be
formally decided. So, shortly after filing the complaint, the Tribe asked the Court for a
preliminary injunction. A preliminary injunction is a request to the Court to preserve the status
quo until the issues can be fully resolved. In order to prevail, a party needs to show that they are
likely to win the lawsuit, and that they will be irreparably harmed without an injunction. The
Court must also find that the harm to the opposing party doesn’t outweigh the requesting party’s
harm, and an injunction is in the public interest.
A copy of the Tribe’s preliminary injunction motion can be found here. Declarations from the
Standing Rock Chairman, Dave Archambault II, and current and former Tribal Historic
Preservation Officers, explaining how the Tribe would be hurt by the loss of cultural and
religious sites, can be found here, here, and here
Has the Court decided the preliminary injunction?
No. The Judge announced during the hearing that he would issue a decision in around two
weeks from the date of the hearing. While media reports have said he would issue a ruling on
September 9, it could be anytime before or after that date.
What happens when the Court rules on the preliminary injunction?
The decision on the preliminary injunction is not a decision in the whole case – just on the
request for the preliminary injunction. Also, the injunction request only touched on some of the
legal issues, not all of them. So, whether the Judge grants the request or denies it, the lawsuit
will continue to move forward over the course of the next year.
The Judge set a scheduling conference for September 14, at which time the schedule for the
remainder of the case will be worked out. Normally, the next step is for the Army Corps to
produce an “administrative record” (i.e., all the documents that they reviewed in the course of
their decision), and the parties will file legal briefs explaining why the decision was lawful or
unlawful. The Court can take as much time as it chooses to make a decision once that is
complete, but the case is unlikely to be resolved before the end of the year.
How will the lawsuit affect construction at the site?
It depends on the Judge’s preliminary injunction decision. The filing of lawsuit alone doesn’t
affect the construction. An order by the Court would be necessary to do so. In the preliminary
injunction motion, the Tribe has asked for a halt to construction until it can survey the pipeline
route for cultural and heritage resources. Much of the pipeline route has already been cleared
and graded, so a question remains about how much remains to be surveyed at those sites. The
Judge has the authority to fashion a remedy that would enable construction in some places to
move forward while construction in other places is blocked.
Has the Corps issued all the permits necessary for the project to move ahead, including the
easement?
No. There is still one remaining authorization that has not been issued. Because the Corps owns
land on either side of Lake Oahe, Dakota Access must get an “easement” from the Corps to dig
the tunnel for the pipeline underneath federally owned lands. Under the law, the Corps must
give Congress notification of its intent to grant such an easement, and then wait 14 days after
giving notice before issuing the easement. As of August 30, 2016, Congressional notification
still has not happened—media reports to the contrary were incorrect. Dakota Access only needs
the easement for the drilling underneath Lake Oahe; it has permits to construct everything else,
such as the access road and pipeline route up to the Lake Oahe crossing site. We are asking the
Corps to hold off on issuing the easement until the issues in this case can be worked out.
Will the Tribe appeal the Judge’s decision if he rules against the Tribe?
If the Court denies the injunction request, it is possible to appeal that decision to the U.S. Court
of Appeals for the D.C. Circuit without waiting for the rest of the case to be decided. The Tribal
leadership will make a decision on whether to appeal after the Judge’s ruling comes out.
Can other Tribes participate in the lawsuit?
The federal court rules allow parties to “intervene” in the litigation if they have a sufficient stake
in the outcome. The Cheyenne River Sioux Tribe has been granted intervention already.
Alternatively, Tribes can submit an “amicus” or friend of the court brief without intervening as a
party. Friend of the court briefs would lend support for Standing Rock and offer additional
information or perspectives. Standing Rock expects to soon be able to refer interested Tribes to
a lawyer who will be able to coordinate a single friend of the court brief on behalf of multiple
Tribes.
What about the pipeline’s lawsuit?
Dakota Access filed an unrelated lawsuit in late July against the Chairman of the Standing Rock
Sioux Tribe, one of the Tribe’s elected officials, and several other individuals, most of whom are
not tribal members. Dakota Access claimed that these individuals were interfering with pipeline
construction unlawfully. That case is filed in federal court in Bismarck, North Dakota. A status
conference is scheduled in that lawsuit in September.