Attorney says legal options dwindling for DAPL opponents

By Patrick C. Miller | March 15, 2017

After a federal judge ruled Tuesday that work on the Dakota Access Pipeline could continue in North Dakota, Troy Eid, a Denver attorney who specializes in Native American law, said pipeline opponents are running out of legal options.

“I think it’s fair to say that we’re at the end of litigation and it is highly unlikely that this project will be stopped by the courts,” said Eid, who co-chairs the Greenberg Traurig law firm’s American Indian law practice group and assists pipeline companies in mediating disputes with tribal governments.

“At this point in time, it would be very difficult to anticipate some judicial halt to the project,” he said, adding that he has no involvement with the Dakota Access Pipeline project.

A week ago, U.S. District Judge James Boasberg ruled against the Standing Rock and Cheyenne River Sioux tribes’ which sought to halt pipeline construction based on religious grounds. Yesterday, the judge refused the Standing Rock Sioux tribe’s request to stop the flow of oil into the pipeline while an appeal of his earlier ruling was underway.

“They (the court) could say in appeal that they’re going to order a halt to construction,” Eid said. “That’s not happened so far and it would be a fairly extraordinary thing to do. Having done this sort of work for many years, it would be rare for a court of appeals to reverse at this stage.”

Energy Transfer Partners, which is building the 1,172-mile-long, $3.8 billion Dakota Access Pipeline, said it expects to have oil in the pipeline next week. When completed, it will transport about a half million barrels of crude from western North Dakota to a terminal in Patoka, Illinois.

The last portion of the pipeline to be completed is the Missouri River crossing in south central North Dakota on U.S. Army Corps of Engineer land. The pipeline crosses under the Lake Oahe Reservoir a half mile north of the Standing Rock Sioux Reservation. For several months, the area became the scene of sometimes violent clashes between protesters and law enforcement.

The Obama administration blocked construction at the river crossing last September by denying Energy Transfer Partners the easement it needed from the Army Corps. In January, the Corps issued a notice for an environmental impact statement. However, the Trump administration reversed those decisions, allowing the work to proceed.  

Eid said one of the remaining issues to be resolved by the courts is a request from the Sioux tribes for a summary judgement to determine whether the Army Corps erred by not requiring an environmental impact state.

“I think it’s unlikely that it will be a successful argument,” he said, noting that the courts have previously given federal agencies broad deference in making such decisions.

Eid believes that to help avoid future conflicts on pipeline and other infrastructure projects, Congress should consider updating the National Historic Preservation Act passed in 1966. Rather than treating tribes as sovereign governments, he said the current law considers them the same as any group potentially affected.

“These projects take too long and tribes tend to be marginalized,” he explained. “There ought to be some kind of discussion about whether projects can move forward more quickly, but the tribes have more of a say in the projects earlier on in the process.”