Federal Appeals Court Rules to Allow DAPL Construction

Update – The Department of Justice, Department of the Army, and Department of the Interior released this joint statement on the morning of Monday, October 10:

We appreciate the D.C. Circuit’s opinion.

We continue to respect the right to peaceful protest and expect people to obey the law.

The Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon. In the interim, the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe. We repeat our request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

We also look forward to a serious discussion during a series of consultations, starting with a listening session in Phoenix on Tuesday, on whether there should be nationwide reform on the Tribal consultation process for these types of infrastructure projects.

Washington, DC- A panel of federal judges on the U.S. Court of Appeals D.C. Circuit ruled to deny the Standing Rock Sioux Tribe’s request for an injunction to stop construction of the Dakota Access Pipeline (DAPL). Lawyers representing the tribe had argued that DAPL construction presented a threat to ancient sacred burial sites in the area, a condition which the federal appeals court contends has not been met.

The two page ruling seems to support Dakota Access, LLC resuming some construction activity in the areas within 20 miles of Lake Oahe (near the town of Cannon Ball, ND) while reiterating that the federal government still has jurisdiction over whether the pipeline construction under the Missouri River will be allowed to fully proceed:

But ours is not the final word. A necessary easement still awaits government approval – a decision [Army] Corps [of Engineers] counsel predicts is likely weeks away; meanwhile, Intervenor DAPL has rights of access to the limited portion of pipeline corridor not yet cleared – where the tribe alleges additional historic sites are at risk. We hope that the spirit of Section 106 may yet prevail.

The court’s comment about “the spirit of Section 106” refers to a piece of federal law governing permitting processes for projects which could potentially affect historical sites. According to the Advisory Council on Historic Preservation (ACHP), the federal agency overseeing this process,

Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. The historic preservation review process mandated by Section 106 is outlined in regulations issued by ACHP.

At today’s hearing, Tribal Chairman Dave Archambault II insisted that the people of Standing Rock and those who have joined them will continue to stand against DAPL:

“Millions of people across the country and world, more than 300 federally-recognized tribes, members of Congress and dozens of city governments across the country stand with the Standing Rock Sioux Tribe in opposition to the Dakota Access Pipeline. We stand together in peaceful prayer and solidarity because this pipeline threatens the lives of the more than 17 million people who rely on the Missouri River for their water. This pipeline has already destroyed the burial places of our Lakota and Dakota ancestors. If construction continues, our people stand to lose even more of our sacred places and cultural objects.

The Obama administration and all federal agencies have a trust responsibility to uphold the treaty rights of the Standing Rock Sioux Tribe. The U.S. Army Corps of Engineers approved the pipeline without consulting with our tribe. The approval of this pipeline by the U.S. Army Corps of Engineers is a violation of our treaty rights and we will not stop fighting until our lands, people, water and sacred places are permanently protected.”

The Standing Rock Sioux Tribe issued an official statement responding to the Court’s ruling.

“We call on Dakota access to heed the government’s request to stand down around Lake Oahe,” said Jan Hasselman, lead attorney from Earthjustice, which is representing the Tribe. “The government is still deciding whether or not Dakota access should get a permit. Continuing construction before the decision is made would be a tragedy given what we know about the importance of this area.”

In the proceedings leading up to the court denying the Standing Rock Sioux Tribe’s requested injunction, a federal judge initially ruled against the injunction on September 9, only to have the federal government step later that same day and ask that DAPL construction within 20 miles of Lake Oahe be voluntarily suspended. Just over a week later, on September 17, a federal appeals court (the same court which issued today’s ruling) ruled to temporarily halt DAPL construction within the same area near Lake Oahe.

The court issued its ruling Sunday evening as most media attention was focused on a highly anticipated controversial presidential debate. The ruling in favor of DAPL construction comes just days after Morton County Sheriff Kyle Kirchmeier’s announcement that he would be bringing teams from Sheriff departments around the country to North Dakota in an effort to more effectively prevent water protectors from being able to access DAPL construction sites.

Water protectors from the encampments in North Dakota have carried out around half a dozen caravan actions in the last week, driving to and from different DAPL sites. Law enforcement has responded to these repeated caravans (which at times are made up of over 100 vehicles) by circulating unconfirmed accusations about water protectors planning to burn equipment.

Law enforcement has also been closing public roads preemptively when they expect water protector convoys to be heading in a certain direction, a move which American Civil Liberties Union of North Dakota policy director Jennifer Cook called “highly problematic and…not a proper use of law enforcement resources” in an email to North Dakota news website Inforum.

Unicorn Riot will continue to regularly provide direct updates about resistance to the Dakota Access Pipeline.

Continue to follow our media on Twitter, Facebook, and our website for more information surrounding the ongoing struggles to protect the Missouri and Mississippi Rivers.

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