Oglala Sioux Tribe Suit against Army Corps

Here is the complaint in Oglala Sioux Tribe v. United States Army Corps of Engineers (D.D.C.):

Complaint

An excerpt:

This is a complaint for declaratory and injunctive relief to stop the construction and operation of the Dakota Access Pipeline (DAPL) until the Defendant United States Army Corps of Engineers (Corps) completes an environmental impact statement (EIS) that fully analyzes the impacts of the DAPL to the Tribe’s Treaty rights and rights in the Mni Wiconi Project as required by the National Environmental Policy Act (NEPA) and the Mineral Leasing Act (MLA).

Standing Rock Denounces Army Easement Announcement, Vows Court Challenge

Download(PDF): Press Release

Next steps for Tribe and allies:

  • The Tribe will challenge any easement decision on the grounds that the EIS was
    wrongfully terminated. The Tribe will demand a fair, accurate and lawful environmental impact statement to identify true risks to its treaty rights, including its water supply and sacred places.
  • The Tribe has asked the court for DAPL to disclose its oil spill and risk assessment
    records for full transparency and review by the public.
  • If DAPL is successful in constructing and operating the pipeline, the Tribe will seek to
    shut the pipeline operations down.
  • A Native Nations march on Washington is scheduled for March 10. The Standing Rock
    Sioux Tribe and tribes across the country invite allies in America and from around the
    world to join the march.

Dept. of Army Issues Notice to Congress of Intent to Grant Easement to Dakota Access

Here:

Dakota Access Pipeline Notification

News coverage.

Notice Filed in District Court Case

Exhibit 1 (Notice to Congress)

Exhibit 2 (Memorandum of Compliance with Presidential Memorandum)

Exhibit 3 (Notice of termination of EIS)

Water Protector Legal Collective is Hiring

Water Protector Legal Collective is hiring for three full time staff positions based in our North Dakota office: Executive Director, Defense Counsel Coordinator and Media Relations Coordinator.

These positions are available immediately and applications will be reviewed on a rolling basis. Indigenous applicants are encouraged to apply.

Full job descriptions and information about how to apply on our website, here: https://waterprotectorlegal.org/wplc-is-hiring/

NYTs Profile of One Mind Youth Movement

Here is “The Youth Group That Launched a Movement at Standing Rock.”

Lowering the Bar: “Bill Would Provide Immunity for Accidentally Running Over Protesters”

Here.

An excerpt:

Seems doubtful this would be constitutional if it were to pass (and no one else quoted in the report seemed too enthused about it). By his own admission, the bill is a response to the Dakota Access Pipeline protests, and so (although the language itself is neutral) it is arguably a content- or even viewpoint-based restriction because the intent is to deter a certain kind of speech. If so, it would be subject to strict scrutiny and almost certainly struck down. (Note that it doesn’t require the “obstructing” to be illegal, so far as I can tell.) Even if you consider it content-neutral, it would still have to pass the rational-basis test. And it’s hard to see what the rational basis for this would be, or at least I can think of reasons it’s irrational.

ACLU: “President Trump Says the Dakota Access Pipeline ‘Serves the National Interest,’ Yet It Threatens Indian Rights and the Drinking Water of 18 Million People”

Here.

The Atlantic on the Presidential Memorandum on DAPL and KXL

Here.

“It’s the flip-side of the question everyone was asking last year, ‘Why doesn’t Obama just put the kibosh on Dakota Access?’” said Sarah Krakoff, a professor of tribal and resources law at the University of Colorado Boulder. “Well, it’s not really his role. It’s the Army Corps’s role, and that’s still true today.”

“Trump can’t, with the stroke of a pen, just make the Dakota Access pipeline happen. He just can’t. He doesn’t have that authority. It’s his agency’s authority, and he can’t revoke the laws that the agency just found that it has to comply with,” she added.

She added too that the executive orders seemed to be written in a typical way. Instead of commanding agencies to ignore congressionally passed law, the orders request that they expedite or reconsider previous judgments. “Executive orders are legal orders—they’re law—but they can’t contravene legislative enactments. So an executive order can’t say, ‘Ignore the [National Environmental Policy Act] and give me a pipeline,’” she told me.

“If the federal law gives decision-making authority to a particular official, that official has to make the decision,” said John Leshy, a professor of real property law and a former general counsel to the U.S. Department of the Interior. “But there’s some murkiness about what the president can do. The decision maker can say no, and then the president can fire them and replace them with someone who would. But that takes time.”

Krakoff added that it would attract judicial suspicion if the Army Corps of Engineers suddenly decided that it didn’t have to make an environmental-impact statement for the Dakota Access pipeline after saying that it did just weeks ago.

“It would be hard for them to turn around on a dime and say, ‘We got this piece of paper from the president and now we don’t think that’s necessary,’” she said. “If the agency were to take a different route, legally, now, I would strongly suspect that that would be subject to litigation.”

Presidential Memorandum on the Dakota Access Pipeline

We spend a lot of time waiting for official documents to post to make sure the information out there about them is correct. Sarah and I were waiting all afternoon for an “official” link to this memorandum, and then I realized the link would be to the website of the White House Press Office. So. For the record, I personally saw the actual document first on Twitter from Lael Echo-Hawk (@laeleh), and then on Facebook from Bryan Newland, who had it from Nicole Willis. It does appear from the text that it will eventually be published in the Federal Record, probably tomorrow or the next day.

Here is the Memorandum (technically not an Executive Order. For the quick and easy explanation of the difference you can look here, but probably should know that President Obama’s actions in Bristol Bay, for example, were also a memorandums).

This Memorandum does not itself try to eliminate the Environmental Impact Statement (EIS) process for DAPL, but asks the U.S. Corps of Engineers to expedite it and to consider rescinding or modifying the December 4th Memorandum posted here.

Standing Rock’s press release in response is here.

More on the Revival of Keystone and DAPL

From The Hill:

Trump takes action to move forward with Keystone, Dakota Access pipelines