Rogue judge pushes on with destruction of the Standing Rock Sioux
Manuel Balce Ceneta/AP

“This pipeline represents a threat to the livelihoods and health of our Nation every day it is operational” said Mike Faith, the newly elected chair of the Standing Rock Sioux Tribe, recently.

Considering the fragility of the lives of Native Americans in the U.S., the people with the most severe health problems in the nation, we are talking about real destruction of both health and livelihood here at the hands of Big Oil.

The decision of  this one rogue judge to let the oil continue to flow through the Dakota Access Pipeline (DAPL)  while the U.S. Army Corps of Engineer drags out a supplemental environmental analysis is nothing short of destroying the health of and robbing the livelihoods of the Standing Rock Sioux people. This is in keeping with a legacy connected to genocide that began 500 years ago against the Indigenous of this hemisphere.

The destructive and murderous train set in motion centuries ago continues to run, this time with Judge Boasberg as conductor and his Oct. 11 ruling that the Dakota Access Pipeline could continue to pump oil pending an environmental review by the Army Corps of Engineers. The Standing Rock Sioux Tribe sued the Corps in July, 2016 contending that the pipeline destroyed sacred Indigenous sites and threatens the water quality of the Standing Rock Reservation that sits only a half-mile or less from where the pipeline crosses the Missouri River in North Dakota. The Tribe has consistently filed motions to stop the flow of oil while litigation is ongoing.

In the latest round of courtroom battles DAPL claimed that a pipeline shutdown would cause a major economic downturn. However, the court  found no basis for that assertion in its most recent ruling. The court instead  anchored its decision on the possibility that the Corps would be able to base its previous decision on pipeline approval, that the court found inadequate and  on other factors and refused to shut down the pipeline while the Army Corps goes forward with its review.  Boasberg is already  setting the stage for another DAPL win. A mere “possibility” that the Corps will prevail is enough to keep the pipeline open.

The judge’s decision followed the announcement by the Corps on Friday, Oct. 6 that it will probably take until next spring to complete an additional court-ordered environmental study of the pipeline. It was originally anticipated that the study would be completed by December, 2017. The Justice Department indicated it would take longer than expected to obtain spill modeling information from Energy Transfer Partners (ETP), the Texas-based developer that owns DAPL. Obviously, ETP is in no hurry to provide that information. The longer the process, the more this works in favor of the oil company. The Corps now anticipates that the review and analysis will not be completed until April 2, 2018. What a windfall for ETP, as it will rake in millions of dollars in the meantime from the deadly pipeline.

How convenient for DAPL when the judge chimed in a few days later, on Oct. 11, and confirmed that the oil can flow in the meantime. Consistently, Boasberg remains in the ideological hip pocket of the rapacious oil industry.

To recount this sordid trajectory of judicial misfeasance keep in mind that in June , 2017 Boasberg of the U.S. District Court for the District of Columbia ruled that the initial approval of DAPL failed to adequately consider its environmental consequences. He found deficient  particular parts of the initial study concerning “impacts of a spill on hunting rights, fishing rights and environmental justice” and ordered a supplemental environmental analysis to address those interests. The court ruled that the Army Corps had not fully complied with the environmental review laws before issuing permits to cross the Missouri River. The Corps was ordered to conduct a new analysis of issues found to be deficiently studied, in what is termed  a “remand” process.

Boasberg, at a status hearing on June 21,  ordered the attorneys, under a byzantine, convoluted  schedule, to submit new arguments over a two-month timeline to address the issue of whether the pipeline should remain operational pending the completion of the new environmental review.

It was expected that the judge would reach a decision sometime in September. Boasberg, who has been noted for stalling in this case, issued another determination on Oct. 11, agreeing with Energy Transfer Partners, that the pipeline should remain in operation and that the oil should continue to flow.

From a legal perspective, standard procedure is that in such an operation the flow of oil would be stopped by the court pending the additional environmental analysis. But, lickspittle, bootlicking Boasberg has turned the system upside down in order to wallow in the slimy muck of injustice with Big Oil.

Never mind that this is environmental disaster for the Indigenous of Standing Rock, never mind that the health problems of the Standing Rock Sioux will only be perilously exacerbated by the infamous pipeline as Boasberg carries on the work of the oil profiteers. Oil will continue to flow if this rogue jurist has his way.

Earthjustice, the environmental law firm representing the Tribe, intends to focus on  the remand process and show that the risks of an oil spill and the impacts on the Tribe are enough to require a full environmental impact statement (EIS), which would reopen the issue of an appropriate location for crossing the Missouri River.

In the meantime, the Standing Rock Sioux and the Cheyenne River Sioux Tribes have presented proposals to protect their water  supply pending the glacial movement of the court in reaching its next decision in the case. The tribes are requesting increased public reporting of pipeline issues such as repairs and establishment of an emergency spill response plan at the Lake Oahe  pipeline crossing of the Missouri  River. And they want it with tribal input.

Energy Transfer partners (ETP) and the Army Corps of Engineers are objecting to the proposals on the grounds that the tribes’ requests are unnecessary or unwarranted. Boasberg should make a timely decision on this  next courtroom bone of contention. Or will he simply wait until April with his characteristic foot-dragging deliberation.

But for now , absent mass struggle, Boasberg’s  belated decision next April will  most likely  be that since there is no palpable harm then let the oil  continue to flow ad infinitum. The  ongoing and increasing harm done after the original genocide continues.


Albert Bender
Albert Bender

Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war He is a consulting attorney on Indigenous sovereignty, land restoration, and Indian Child Welfare Act (ICWA) issues and a former staff attorney with Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Okla.