The uncertainty in the case of Standing Rock Sioux Tribe vs. the Army Corps of Engineers has been mind-boggling in its confusion. A closer look at the transcripts from the status conference of September 16 offers some insight into the political maneuvering demonstrated by the Corps, and how even the Judge is forced to confront the language of "permits vs. easements."
A story of obfuscation begins on page 147 of the Monday December 5 filing by DAPL. In an email, Jan Hasselman, lead attorney for the Standing Rock Sioux Tribe, clarified that Dakota Access included the 32-page transcript in its 228-page exhibit with their motion. "We posted everything they filed," Hasselman explained in answer to a question as to how the exhibit ended up on the Internet. Usually a transcript will appear in the Case Docket first.
Judge Boasberg takes USACE to task for blindsiding him about the September 9 stop order from the Obama administration, which he suggest was planned in advance, since the press releases came out within a half hour of his 50-plus-page ruling that the project (DAPL) should go forward. The Judge makes it clear he has no stake in whether it goes forward or not, but that he spent a week working on his ruling to expedite things. He wants to know if they had already planned to overrule him, why did they not just tell him the Feds would go over his head in any case. Courtesy to the court would suggest a heads-up.
On page 147, click here an obviously frustrated Judge Boasberg, confronts the USACE attorneys.
"So my first question is: How did this happen? And how is this complying with your duty of candor to the tribunal when you knew, and apparently had known for some time, since the press release talks about coordination among several departments, that you would reverse your opinion, but waited until after my opinion issued? How can this happen?"
USACE stumbles all over itself, but does not offer a clear explanation, except to say that there is a difference between granting a permit, which it did, and granting an easement, which it has not. Note that the ruling that came out this past Sunday (December 4) is in regard to the easement not being granted pending an EIS (Environmental Impact Statement).
In another exchange, the Judge elaborates on his frustration.
"What I do have an opinion on is the way it has been handled and the way that I believe I have -- I won't say been misled -- but that I don't believe the filings have been fully truthful. I think there have been omissions, material omissions, that would have, had I been informed of them, caused different timetables or this to proceed on a different track. That's my concern."
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