WASHINGTON, Oct. 5, 2016 - An emotional dispute over an oil pipeline whose construction has allegedly harmed sacred Indian burial grounds was the subject of arguments in the D.C. Circuit Court of Appeals Wednesday.

The three judges on the panel had some pointed questions for Jan Hasselman, the lawyer for the Standing Rock Sioux Tribe who was asking them to enjoin construction near Lake Oahe in North Dakota. Their queries focused on the legal issues in the case, which involve the Army Corps of Engineers’ responsibilities under the National Historic Preservation Act and the Clean Water Act.

Opposing the tribe were lawyers for the federal government and Dakota Access Pipeline Co., which is nearing completion of the 1,172-mile pipeline from northwest North Dakota to east-central Illinois.

Hasselman and Miguel Estrada, the lawyer for Dakota Access, disagreed about whether construction had harmed sites sacred to the tribe or whether any such sites exist in the pipeline right of way. Estrada called “clearly erroneous” and “completely impossible” the assertion that sacred sites lie within the pipeline’s path.

Hasselman, however, said there were still sites that need to be examined by experts to determine what lies in the ground. He told the judges the tribe is looking for a “very narrow injunction in an undeniably special place.”

On Sept. 9, the federal district court in Washington, D.C., rejected the tribe’s request for an injunction, but the same day, the Obama administration said it would not authorize construction on Corps lands until it had taken another look at the matter. A week later, the D.C. Circuit issued an emergency stay of all activities for 20 miles on both sides of the Missouri River at Lake Oahe.

The area the tribe is concerned about totals about two miles of the pipeline’s path, on the west side of the lake, Hasselman said. “They’d like to get in and look for human remains,” he told the judges.

Tribal members and artifact experts cannot pinpoint exact locations where significant remains might lie, he said, but “every time they go out and look, they find things.”

Hasselman told the judges that the Corps did not look closely enough at areas other than streams and wetlands. “We need to look beyond the water’s edge, and they (tribal members) were never given the opportunity” to walk the pipeline right of way, he said.

Circuit Judge Thomas B. Griffith, however, said he did not think the Corps could be “faulted for failure to engage the tribe.” He also said he thought the tribe, which declined to participate in discussions with the Corps because it felt the area identified was too small, “just didn’t show up.”

Judge Janice Rogers Brown also said that the tribe could have sued earlier over the scope of the Corps’ consultation. “You did have a ripe case if your argument was about the scope of what they’re doing,” she said.

But Hasselman said that when the consultation was proceeding, the Corps had not taken “final agency action,” making any attempt at litigation premature.

The Justice Department’s James Maysonett, representing the Army Corps of Engineers, said the tribe’s legal case had not initially focused on the scope of the Corps’ authority beyond jurisdictional waters, but had “slowly transmogrified.”

He urged the court to reject the tribe’s injunction request, saying it had not shown that the scope of the Corps’ consultation was unlawful.

The judges did not say when they would issue a ruling, but they appeared to be mindful of the impact on workers. Dakota Access claims that further delays could cost it hundreds of millions of dollars.


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