Dakota Access Pipeline – Page 7

Court Denies TRO to Prevent Publishing Dakota Access EIS Notice

January 19, 2017Sarah M Donnelly1 Comment

Download(PDF) DAPL motion and memorandum of law filed January 16, 2017:

Doc. 80 – Cross-Claimant Dakota Access, LLC’s Motion Under the All Writs Act to Prevent Publication of Environmental-Impact-Statement Notice in Federal Register, and Emergency Motion for Interim Relief Through a Temporary Restraining Order
Doc. 80-1 – Cross-Claimant Dakota Access, LLC’s Memorandum of Law Supporting Motion Under the All Writs Act to Prevent Publication of Environmental-Impact-Statement Notice in Federal Register, and Emergency Motion for Interim Relief Through a Temporary Restraining Order

From the District Court for the District of Columbia in the matter of Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 1:16-cv-01796-JEB:

“MINUTE ORDER: As explained in open court following today’s hearing, the Court ORDERS that Dakota Access’s 80 Motion for Temporary Restraining Order is DENIED and its Motion for Preliminary Injunction is WITHDRAWN WITHOUT PREJUDICE. Signed by Judge James E. Boasberg on 01/18/2017. (lcjeb3) (Entered: 01/18/2017)”

Download(PDF) Federal Register : Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC’s Request for an Easement To Cross Lake Oahe, North Dakota

Order from North Dakota Supreme Court Regarding Out of State Lawyers

January 18, 2017January 18, 2017Kate Fort1 Comment

Here. This order is issued after receiving more than 16,000 comments on the proposed temporary rule, which was in response to the large number of arrests during the DAPL protests late last year (and which are ongoing–law enforcement clashed with water protectors over the MLK weekend). The full order is worth reading, but here are the requirements:

In criminal cases pending in the South Central Judicial District arising from arrests made during the protests of the Dakota Access Pipeline between August 1, 2016 and until further order of this Court, a lawyer authorized to practice law in another state, and not disbarred, suspended or otherwise restricted from practice in any jurisdiction, may provide legal services in North Dakota on a temporary basis. The legal services must be provided on a pro bono basis, without payment or the expectation of payment of a fee. This Order does not prohibit a lawyer providing legal services under authority of this Order from being reimbursed from nongovernmental funds for actual expenses incurred while rendering services under this Order. The following requirements, processes and procedures shall apply:

1) The lawyer seeking pro hac vice admission must complete a form available through the Clerk of the Supreme Court and file it with the North Dakota State Board of Law Examiners;

2) The lawyer seeking pro hac vice admission must file the above referenced form with a certificate from his or her resident state licensing authority certifying the lawyer is admitted, currently licensed, eligible to practice and in good standing;

3) The lawyer seeking pro hac vice admission must associate with a licensed North Dakota lawyer as required under N.D. Admission Prac. R. 3. We excuse the requirement that the North Dakota associate lawyer appear in-person and remain in court for all proceedings unless the district judge presiding in the case enters an order, based on a case-specific reason, requiring the presence of the North Dakota associate lawyer;

4) The pro hac vice filing fee is waived;

5) Upon receipt of the completed form and required materials, the North Dakota State Board of Law Examiners will provide the lawyer seeking pro hac vice admission an identification number that must be included on all pleadings filed with any court regarding these matters;

6) Each business day the Clerk of the Supreme Court shall provide the Court Administrator for the South Central Judicial District with a listing of all lawyers who have been granted pro hac vice admission as provided in this Order;

7) Lawyers admitted pro hac vice must access the North Dakota Odyssey electronic case management system through the associate lawyer unless the associate lawyer does not subscribe to North Dakota’s Odyssey case management system. If the associate lawyer does not subscribe to Odyssey case management system, the lawyer admitted pro hac vice may email filings to the clerk of court;

8) The lawyer admitted pro hac vice under this Order is not by virtue of that admission limited in the number of appearances or representations he or she can make regarding these matters;

9) The lawyer admitted pro hac vice under this Order must remain licensed and in good standing in the lawyer’s state of licensure, and must verify in writing to the North Dakota State Board of Law Examiners no later than January 5, 2018, their licensure status and provide a listing of pending cases for which they are acting under this Order; and

10) Any allegations of misconduct by a lawyer admitted pro hac vice under this Order that is reported to the Disciplinary Board of North Dakota will be provided to the lawyer’s state of licensure, and may be grounds for revocation of pro hac vice admission under this Order.

Indian Law Firms’ Letter to N.D. Supreme Court Re DAPL Arrestees’ Right to Counsel

January 9, 2017Sarah M Donnelly

Downloads(PDF): 12.29.2016 – Comment Letter re Emergency Petition – Misc Attorneys an Firms across country, APB Co Comment Letter North Dakota Supreme Court December 2016

Link: “Debate generated by petition for expanded legal representation” by Caroline Grueskin from the Bismarck Tribune,

Previous posts: N.D. Supreme Court Accepting Comments Until December 30th on Proposed Temporary Rule to Allow Out of State Lawyers Practice, Petitioners Request Out-of-State Lawyers Be Allowed to Represent Protesters

N.D. Supreme Court Accepting Comments Until December 30th on Proposed Temporary Rule to Allow Out of State Lawyers Practice

December 20, 2016Kate Fort4 Comments

This temporary rule would allow out of state attorneys to practice in North Dakota so long as the “judicial emergency” (i.e., representing those water protectors who have been arrested) ends.

Notice here. Send comments to supclerkofcourt@ndcourts.gov

Anyone can and should comment. Generally speaking, comments from N.D. barred lawyers in support of this rule would be very helpful. Comments out-of-state lawyers who would practice under this rule would be also helpful. Short comments from non-lawyers in support of the rule would also be good, and especially from those who live in-state.

Proposed rule here.

A lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice, or otherwise restricted from practice in any jurisdiction may provide legal services in this jurisdiction on a temporary basis. The legal services must be assigned and supervised through the North Dakota Bar Association, which shall adopt an admission application substantially comporting with that used by the United States District Court for the District of North Dakota.

Petitioners Request Out-of-State Lawyers Be Allowed to Represent Protesters

December 15, 2016December 19, 2016Sarah M Donnelly1 Comment

Link: The Bismarck Tribune article by Caroline Grueskin

Download(PDF):

The unprecedented arrests at Standing Rock overextended available defense attorneys. Defendants are worried their civil rights are at risk and are asking the courts to allow out-of-state attorneys to defend them.

Excerpts of Tilton’s testimony, by topic:

On the reluctance of in-state attorneys:

[M]any licensed North Dakota criminal defense attorneys feel conflicted in taking these cases, either because the attorneys have close relations with law enforcement folk who are undertaking the arrests, or because the attorneys have personal interests in the pipeline construction industry, some of them directly with the DAPL. Other licensed North Dakota criminal defense attorneys have been reticent to take anti-DAPL protesters as clients because they live far distant from the South Central District courts where the cases will be tried. Some criminal defense attorneys have already maxed out their public defender contract allotments. Others have undertaken representation of one or a few DAPL protesters and are not interested in taking on more…

I have also personally talked with multiple persons charged as defendants in these anti-pipeline protests who have expressed extreme dissatisfaction with assigned attorneys given to them through the Indigent Defense Commission. Multiple defendants have complained that some public defender-assigned attorneys have been unwilling to take their phone calls, have not called them back, and have seemed uninterested in doing a thorough investigation of the factual circumstances of the arrests.

On the current caseload:

… I count 113 defendants as having requested an appointed attorney from the Indigent Defense office, but having been turned down.

… I count 40 individuals who are listed in the column “Returned Mail,” meaning that letters to them have been returned to the clerk’s office for some reason. All but 9 of these defendants also have “None” entered in the “Attorney” column, meaning that some of all of the remaining 31 people will not be getting notices from the court of from counsel.

[A]s of December 2, 2016, 264 defendants will be appearing pro se unless means are developed to provide them access to counsel.

On the cost:

In those discussions [with the North Dakota Commission on Legal Counsel for Indigents (CLCI)] I have learned that none of the $17 million in emergency funding sought by the governor has been attributed to the increased need for legal defense resources to guarantee the right to counsel for indigent defendants. Similarly, it appears none of the additional funds has been attributed to supplementing the already-stressed court personnel.

Oglala Sioux Tribe Preliminary Response to DAPL Easement

December 5, 2016December 5, 2016Sarah M Donnelly

Download(PDF): Re: Easement for Dakota Access Pipeline, Re: Request for Emergency Assistance

Links: SD Executive Order 2016-08

Sioux Tribes Request Precautionary Measures to Protect Against DAPL

December 5, 2016December 5, 2016Sarah M Donnelly

Download(PDF):

Filed on behalf of Standing Rock, Cheyenne River, and Yankton Sioux Tribes by the American Indian Law Clinic at Colorado Law, Earthjustice, and Fredericks, Peebles and Morgan LLP.

Measures requested:

Deny the easement allowing construction of the pipeline under the Missouri River at
Lake Oahe as soon as possible;
Complete a full environmental impact statement in formal consultation with the Tribes;
Establish clear rules requiring that indigenous peoples who may be affected by
government decisions have the opportunity for full and meaningful prior informed
consent within the meanings established in the UN Declaration on the Rights of
Indigenous Peoples and the jurisprudence of the Inter-American Court and this
Commission;
Establish clear rules ensuring full environmental and social assessment of activities that may affect indigenous peoples, with the full participation of the affected indigenous peoples;
Immediately take all actions necessary to guarantee the safety of those engaging in
peaceful prayer and protest concerning DAPL, and to ensure the full enjoyment of their rights to expression and assembly;
Any other action this Commission deems appropriate.