On February 8, 2017 the Army Corps of Engineers granted an easement to Dakota Access, LLC, a subsidiary of Energy Transfer Partners, allowing the Dakota Access Pipeline to cross under the Missouri River at Lake Oahe in North Dakota.  The grant of the easement reverses the Corps’ prior findings and actions with regard to the pipeline.

As previously reported, the location of the pipeline’s planned crossing under the Missouri River is located about 0.5 mile upstream from the Standing Rock Sioux Tribe’s reservation.  Last December, the Corps had issued a memorandum and an accompanying statement stating that it would not be approving the easement under the Mineral Leasing Act and that additional analysis was needed “in light of the history of the Great Sioux Nation’s dispossessions of lands, the importance of Lake Oahe to the Tribe, our government-to-government relationship, and the statute governing easements through government property.”

The Corps then published on January 18, 2017 a Notice of Intent to Prepare an Environmental Impact Statement (NOI) on the requested easement seeking comments on the scope of the environmental impact statement.

Shortly thereafter, on January 24, 2017, the President issued a Memorandum to the Secretary of the Army directing the Secretary, among other things, to instruct the Assistant Secretary for Civil Works to: (i) review and approve in an expedited manner the request for the easement, (ii) consider whether to rescind or modify the Army’s December memorandum, (iii) consider whether the Environmental Assessment issued in July 2016 satisfied NEPA requirements, (iv) review and grant requests for waivers of notice periods related to the Corps’ real estate policies and regulations, and (v) issue any approved easements or rights-of-way immediately after notice is provided to Congress pursuant to the Mineral Leasing Act.

In response to the President’s Memorandum, on February 7, 2017, the Deputy Assistant Secretary of the Army for Installations, Housing, and Partnerships issued a letter to Congress stating that it intended to grant the easement with a thirty-year term and to waive its policy to wait fourteen days after Congressional notification before granting such an easement.  The Senior Official Performing the Duties of the Assistant Secretary for Civil Works additionally issued a Memorandum rescinding the December Memorandum and declaring that the NOI would be terminated.  The next day the Army granted the easement.  The company has been reported to have begun construction “immediately after receiving the easement.”

Earlier today the Cheyenne River Sioux Tribe filed three motions in the Federal District Court for the District of Columbia seeking a temporary restraining order to halt construction on the pipeline, a preliminary injunction directing the Corps to withdraw the easement, and permission to amend their original complaint to include, among other things, the addition of a Religious Freedom Restoration Act claim, and add facts and claims that arose since their original claim was filed in October 2016.  The Cheyenne River Sioux Tribe is an Intervenor-Plaintiff in a lawsuit that was filed by the Standing Rock Sioux Tribe in July 2016 against the Army and the company.  The court will be hearing oral argument on the Temporary Restraining Order on February 13, 2017, at 2:00 PM EST.