The District of Columbia District Court denied a motion for permanent injunction from the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe over an ongoing case concerning an oil pipeline under Lake Oahe. The suit is being fought over an action taken by the United States Army Corps of Engineers in which they granted Dakota Access, LLP an easement to run a pipeline under Lake Oahe without producing a mandated Environmental Impact Statement (EIS). While the vacatur was granted, the present issue results from the plaintiff’s desire to go beyond vacatur and stop the flow of oil through the pipeline. “[A]lthough vacatur of the easement rendered the pipeline an encroachment on federal property, vacatur could not itself bring about the stoppage of oil,” the court explained.
The court denied the motion, arguing that the plaintiffs did not demonstrate that they would be harmed irreparably without a permanent injunction.
The opinion recounted that last year it had ruled that the United States Army Corps of Engineers had “violated federal law by failing to produce an Environmental Impact Statement before granting Defendant-Intervenor Dakota Access, LLP an easement to run the pipeline under Lake Oahe.” Following this statement, the court ordered that the easement must be vacated, and all oil must be removed from the pipeline. Once an EIS was completed, the court said, the pipeline could be refilled.
After this ruling, the court explained, the United States Army Corps of Engineers and Dakota Access appealed the decision, but the D.C Circuit Court of Appeals again confirmed that the “Corps should have prepared an EIS and that the easement was properly vacated in the interim.”
The D.C. Circuit added to their decision that in order to stop the oil flow through the pipeline, both tribes in the case must “demonstrate that – among other things – they will likely suffer irreparable harm in the absence of an order closing the pipeline.”
Since then, the court said the plaintiffs claim that “the pipeline has maintained operations as if none of these developments had occurred.” The plaintiffs have motioned for a permanent injunction, requesting “an order halting pipeline operations until the Corps completes its new EIS.”
The court denied this request, citing that the plaintiffs “have not carried their burden to demonstrate a likelihood of irreparable injury absent an injunction.” They held that both tribes must make an “evidentiary showing,” or the explicit harm done to them by the pipeline’s continued operations.
The plaintiffs are represented by the EarthJustice Legal Defense Fund, Patterson Earnhart Real Bird & Wilson LLP, Fredericks Peebles & Patterson, Hobbs, Straus, Dean & Walker LLP, Conly J. Schulte LLP, Barnhouse Keegan Solimon & West LLP, and Big Fire Law & Policy Group. The defendants are represented by the Department of Justice, Norton Rose Fulbright, Nossaman LLP, and Gibson, Dunn & Crutcher.