Special Report: Tribe and Army Corps File Briefs Opposing Dakota Access's Motion

During a December 9th scheduling conference in the District Court for the District of Columbia, Judge James Boasberg set a briefing schedule to address Dakota Access's Motion for Summary Judgment, calling for the Army Corps of Engineers and the Standing Rock Sioux Tribe to file their briefs in response to Dakota Access's motion by January 6, 2017. On Friday, the Corps and the Tribe filed their responses, claiming that Dakota Access was incorrect in its characterization of the nature of the easement.  


Both the Tribe and the Corps noted that the Corps was still considering whether or not to issue the easement. In their view, there is no "final agency action" that Dakota Access may object to, and thus the issue is not "ripe" for judicial review. These filings were in accord with the schedule set by the court, and reveal no new issues. Judge Boasberg had set a deadline of January 31, 2017 for Dakota Access to file its Reply brief, but it is likely to file before that deadline. Judge Boasberg would then set a date for an oral argument, likely in late February.    


But, as we have previously reported, it may not come to that. One footnote in the Tribe's filing suggests a potential, perhaps even likely, endgame. The Tribe notes that "Energy Transfer Partners CEO Kelcy Warren told NBC News that the oil company is 100% sure that the pipeline will be approved" by a Trump administration, citing a November 12, 2016 NBC news report. More recently, on December 11, 2016, during a Fox News interview about the pipeline's future, Mr. Trump stated that "... I will tell you when I get to office, if it's not solved, I'll have it solved very quickly."


In this regard, it is clear that the Corps could quickly decide to reverse course, and issue the easement in question when the new Administration takes office -- although the Tribe will very likely continue its litigation challenging the Corps' July 2016 determinations authorizing Dakota Access to construct the pipeline. As we have previously reported, the Tribe's requests for injunctions to halt construction of the pipeline during the pendency of the litigation have been denied at both the DC Circuit Court of Appeals and the DC District Court for the District of Columbia, so it appears that the continuation of the litigation would not include enjoining construction while the litigation plays out.