November 18, 2016 Articles

Dakota Access Pipeline Fight Shines Light on Historic Preservation and Energy Projects

A company developing such a project should always consider it will need to work closely with tribal leaders and historic-preservation officers.

By Courtney Scobie – November 18, 2016

The Standing Rock Sioux recently lost their latest court battle against the Army Corps of Engineers, related to the Dakota Access Pipeline in North Dakota. On October 9, 2016, the U.S. Court of Appeals for the D.C. Circuit denied the tribe an emergency injunction and dissolved an administrative injunction that had halted construction of the pipeline within 20 miles of Lake Oahe, the manmade lake bordering the Standing Rock Sioux reservation.

The tribe originally sought an injunction from the district court under the federal National Historic Preservation Act (NHPA). The tribe claimed that the operative nationwide permit from the Corps did not comply with the NHPA. The Corps previously halted any authorization of construction of the pipeline on Corps land bordering Lake Oahe in response to Standing Rock’s lawsuit. In response to the latest ruling, the Corps said it would continue to review the issues raised by the tribe and will not authorize any pipeline construction on Corps land bordering or under Lake Oahe. It also requested that Energy Transfer Partners, the company building the pipeline, “voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.” Meanwhile, in its per curiam order denying the emergency motion, the D.C. Court of Appeals encouraged both parties to work together in the spirit of section 106 of the NHPA, which was designed to address competing interests such as those presented by the pipeline. The controversy over the Dakota Access Pipeline is bringing to the fore the issue of historic preservation related to energy projects. 

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