9 September 2016
Obama appointed judge denies Standing Rock Sioux’s injunction request
Updated at 17:28:58 MDT. Judge Boasberg’s decision notwithstanding, the U.S. Department of Justice announced late today, in a story reported by the Washington Post, that:
“The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.”
Original story. Federal district court judge James Boasberg today denied, in a 59-page memorandum opinion, the Standing Rock Sioux’s request that he enjoin construction of the Dakota Access Pipeline pending resolution of the tribe’s lawsuit against the U.S. Army Corps of Engineers.
Boasberg, educated at Yale and Oxford, and a graduate of Yale’s law school, was appointed to the D.C. district in 2011 by President Barack Obama.
Boasberg’s long memorandum opinion lays out, in painstaking detail, the history of the dispute. I suspect he did so to establish the facts on which an appellate decision is based (the Associate Press reported today that the decision will be appealed). He begins:
“Since the founding of this nation, the United States’ relationship with the Indian tribes has been contentious and tragic. America’s expansionist impulse in its formative years led to the removal and relocation of many tribes, often by treaty but also by force.” Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001). This case also features what an American Indian tribe believes is an unlawful encroachment on its heritage. More specifically, the Standing Rock Sioux Tribe has sued the United States Army Corps of Engineers to block the operation of Corps permitting for the Dakota Access Pipeline (DAPL). The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now 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. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury 2 that would be prevented by any injunction the Court could issue. The Motion will thus be denied.
He concludes:
In seeking preliminary-injunctive relief here, the Standing Rock Sioux do not claim that a potential future rupture in the pipeline could damage their reserved land or water. Instead, they point to an entirely separate injury: the likelihood that DAPL’s ongoing construction activities – specifically, grading and clearing of land – might damage or destroy sites of great cultural or historical significance to the Tribe. (Page 51.)
It seems odd to me that the pipeline protesters in North Dakota are claiming that the pipeline’s crossing of the Missouri River will endanger the Standing Rock reservation’s supply of drinking water, yet the tribe did not raise that issue in its request for a preliminary injunction.