Today saw four significant legal developments in the Dakota Access Pipeline campaign.
This afternoon, US District Court Judge James Boesberg denied Dakota Access Pipeline (DAPL) attorneys’ request for a Temporary Restraining Order, which sought to block publication in the Federal Register of the Army Corps’ Notice of Intent for an Environmental Impact Statement (EIS) on the Lake Oahe crossing.
This morning, the Army Corps of Engineers officially published a notice of intent in the federal register to prepare a partial EIS. This opens a formal scoping comment period lasting through February 20th, where the public and interested parties can give the Army Corps input on the scope of the EIS. The notice “invites interested parties to identify potential issues, concerns, and reasonable alternatives that should be considered in an EIS.”
The proposed scoping fails to include the entire length of the pipeline or downstream impacts of other tribes of the Great Sioux Nation. The Army Corps asks only for comments on 1) Alternative locations for the pipeline crossing the Missouri River; 2) Potential risks and impacts of an oil spill, and potential impacts to Lake Oahe, the Standing Rock Sioux Tribe's water intakes, and the Tribe's water, treaty fishing, and hunting rights; and 3) Information on the extent and location of the Tribe's treaty rights in Lake Oahe.
Also today, The US Circuit Court of Appeals dismissed the Standing Rock Sioux Tribe’s appeal of the September, 2016 US District Court decision to deny their request for a preliminary injunction that would have stopped construction of the Dakota Access Pipeline in order to protect a concentration of sacred archaeological sites. The appeal was dismissed as moot because the majority of the construction has already been completed on the sites in question.
The ND Supreme Court ruled today to partially grant a petition allowing non-North Dakota licensed lawyers to more easily represent the more than 600 water protectors facing criminal charges. The ruling did not change the requirements for a temporary state bar license, as the petitioners requested, but instead streamlines the existing process for ‘pro hac vice’ admission, which allows an out-of-state attorney to represent a client under a North Dakota associate attorney’s license. The ruling waives the normal filing fee as well as the requirement that that ND licensed lawyer appear in person and remain in court for all proceedings. Out of state attorneys representing water protectors in ND are required to provide services pro bono, but can be reimbursed for expenses.
Meanwhile, clashes continue in Standing Rock as law enforcement unleashed teargas and rubber bullets on water protectors who set up a tipi on Backwater bridge. Some riot police advanced to the encampments’ side of the barricade, snatching an unknown amount of water protectors.