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Courts Side With Developers in Pair of Dakota Access Pipeline Cases

Wednesday, October 25, 2017

Robert Kelsey

Associate Editor, Environmental Law Reporter

As reported in the Environmental Law Reporter’s Weekly Update this month, two cases involving the controversial Dakota Access Pipeline have been decided in the courts.

Chief among those cases was Standing Rock Sioux Tribe v. Dakota Access. In that case, a district court held that the Dakota Access pipeline could continue to operate while the U.S. Army Corps of Engineers corrects deficiencies in its environmental assessment for the project.

Dakota Access Pipeline

In a prior decision, the court held that the Corps failed to adequately consider what impacts a spill would have on the plaintiff tribe's fishing and hunting rights. Nor did the Corps adequately consider environmental justice and other concerns. In that decision, however, the court did not decide whether the pipeline should continue to operate while the deficiencies were addressed.

In the latest case, challengers of the pipeline argued that the pipeline should be shut down until these inadequacies were remedied. But the court disagreed, ruling that the errors identified in its prior opinion were not fundamental or incurable flaws in the Corps’ original analysis, and that the agency has a significant possibility of justifying its prior determinations on remand. 

As one could imagine, environmentalists and tribes are not happy with the decision. Danny Sheehan, Lakota People’s Law Project chief counsel, stated that the ruling “indicates that [Judge Boasberg] is going to grant a major degree of discretion to the Trump administration’s Army Corps of Engineers to disregard the elements of racial discrimination and protection for the Lakota's hunting and fishing rights.”  The tribes have not given up and plan to appeal the district court’s decision.

In the second case, Olin v. Dakota Access, a district court held that a group of North Dakota property owners could not sue contractors hired to negotiate easements for the Dakota Access pipeline for misrepresentation and fraud. The contractors were hired to obtain easements from property owners to secure a path for the Dakota Access pipeline. According to the property owners, the contractors told them that if they did not sign the easement agreements, their neighbors would lose their signing bonus and their land would be condemned through eminent domain, leaving them with "basically nothing." They alleged that the tactics were false, misleading, deceptive, and unfair, and that based on these misrepresentations, the property owners were coerced into signing the easement agreements. The contractors contended that the claims were barred by integration clauses contained in the easement agreements.

The court agreed with the contractors, holding there was no misrepresentation as the language used was “predictive.” Unlike misrepresentation of the past and present, predictions are not actionable. Further, the integration clauses rendered any reliance on prior promises unreasonable. The case was therefore dismissed.

By now, the protestors have mostly been removed and oil is flowing through the Dakota Access Pipeline. Nonetheless, controversies – and legal action – continue to flow.