Case 1:16-cv-01534-JEB Document 32 Filed 09/05/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
)
)
STANDING ROCK SIOUX TRIBE,
)
)
Plaintiff,
)
)
v.
)
Case No. 1:16-cv-01534 (JEB)
)
UNITED STATES ARMY CORPS OF
)
ENGINEERS,
)
)
Defendant.
)
)
UNITED STATES ARMY CORPS OF ENGINEERS’ RESPONSE TO
PLAINTIFF’S AND INTERVENOR-PLAINTIFF’S
MOTIONS FOR TEMPORARY RESTRAINING ORDER
The United States Army Corps of Engineers (“Corps”) does not oppose Plaintiff Standing
Rock Sioux Tribe’s and Intervenor-Plaintiff Cheyenne River Sioux Tribe’s Motions for a
Temporary Restraining Order as to any additional construction work on the pipeline within 20
miles on either side of Lake Oahe in North Dakota until this Court rules on Plaintiff’s pending
Motion for Preliminary Injunction.
As set forth in the Corps’ Opposition to Plaintiff's Motion for Preliminary Injunction
[ECF No. 21], Plaintiff is unlikely to prevail on the merits of its claims for lack of tribal
consultation under Section 106 of the National Historic Preservation Act. The Corps fulfilled its
statutory responsibilities for areas within the Corps’ jurisdiction by engaging in national,
regional, and site-specific consultation. Beyond Lake Oahe itself, there were no preconstruction
notifications and thus no specific Corps authorizations within the area of the proposed temporary
restraining order (i.e., 20 miles in either direction of Lake Oahe). The Corps therefore believes

 Case 1:16-cv-01534-JEB Document 32 Filed 09/05/16 Page 2 of 4

that the majority of lands that would be the subject of the proposed temporary restraining order,
including the site described in the Mentz declaration, are not within the Corps’ jurisdiction.
Nonetheless, the Corps is aware that Dakota Access, LLC’s work near Lake Oahe has
been the subject of several recent confrontations. The Corps acknowledges that the public
interest would be served by preserving peace near Lake Oahe until the Court can render its wellconsidered opinion on Plaintiff's Motion for Preliminary Injunction. 1 The Corps therefore does
not oppose this short and discrete temporary restraining order.
Dated: September 5, 2016

Respectfully submitted,
JOHN C. CRUDEN
Acting Assistant Attorney General
Environment & Natural Resources Division
By:

/s/ Erica Zilioli

.

MATTHEW MARINELLI, IL Bar 6277967
U.S. Department of Justice
Natural Resources Section
P.O. Box 7611
Benjamin Franklin Station
Washington, DC 20044
Phone: (202) 305-0293
Fax: (202) 353-2021
matthew.marinelli@usdoj.gov
ERICA M. ZILIOLI, D.C. Bar 488073
U.S. Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, DC 20044
Phone: (202) 514-6390
Fax: (202) 514-8865
Erica.Zilioli@usdoj.gov
1

Intervenor-Plaintiff Cheyenne River Sioux Tribe also moves for a temporary restraining order
to prevent Dakota Access from “engaging with or antagonizing” protestors. ECF No. 31 at 1.
Although this matter is outside the scope of this lawsuit, the Corps would not oppose a
temporary restraining order on this basis in the interest of public safety.
2

 Case 1:16-cv-01534-JEB Document 32 Filed 09/05/16 Page 3 of 4

Attorneys for the United States Army Corps
of Engineers

OF COUNSEL:
MILTON BOYD
MELANIE CASNER
U.S. Army Corps of Engineers
Office of Chief Counsel
Washington, DC

3

 Case 1:16-cv-01534-JEB Document 32 Filed 09/05/16 Page 4 of 4

CERTIFICATE OF SERVICE
I hereby certify that, on the 5th day of September, 2016, a copy of the foregoing was filed
through the Court’s CM/ECF management system and electronically served on counsel of
record.

/s/ Erica Zilioli
Erica M. Zilioli

4

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