North Dakota seeks to step into DAPL court fight ahead of ruling on shutdown

North Dakota has previously filed briefs as a supporter of Dakota Access in the years-long court dispute, but the state's request to intervene as a defendant marks an escalation of its involvement in the case.

The Dakota Access Pipeline in October 2016 while under construction. Tom Stromme / Bismarck Tribune
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BISMARCK — The state of North Dakota sought to intervene in the legal fight over the Dakota Access Pipeline on Monday, April 19, arguing that it can no longer trust President Joe Biden 's administration to adequately defend the state's interests in the dispute over the embattled project.

The move comes 10 days after Biden's U.S. Army Corps of Engineers said in a federal court hearing that it would not issue an immediate shutdown of the oil pipeline, though it left the door open for future enforcement action.

"North Dakota cannot be confident that the Federal Defendant will continue to be a zealous advocate for the continued and safe operation of DAPL," wrote Attorney General Wayne Stenehjem in the state's brief, noting that the Army Corps' statements on the pipeline in the status hearing earlier this month made it "untenable" for the state to remain on the sidelines.

Though North Dakota has previously filed briefs as a supporter of Dakota Access in the years-long court dispute, the state's request to intervene as a defendant marks an escalation of its involvement in the case.

"We were quite disappointed — I think everybody was — in the lack of a firm position by the Army Corps of Engineers," Stenehjem said. The attorney general noted that intervening in the case comes with its own expenses to the state but added that "the cost of not getting involved is far, far greater."


Two federal courts in the last year have agreed that Dakota Access is running without a key legal permit, though an appellate court decided earlier this year that it was up to the Army Corps to decide how to handle the pipeline's tenuous legal status.

The decision by the Democratic presidential administration not to intervene came as a disappointment to Indigenous and environmentalist opponents of the pipeline, and short-term relief to a North Dakota oil industry that has been on edge about the legal status of the pipeline for nearly a year.

The Army Corps' inaction means the fate of the pipeline is likely in the hands of U.S. District Judge James Boasberg, the same federal judge who ordered an immediate shutdown of the pipeline last summer. That order was overruled by a federal appellate court, but the tribes opposed to the pipeline filed a separate shutdown motion before Boasberg last fall.

Boasberg will have to decide whether to approve North Dakota's request. The Standing Rock Sioux Tribe is expected to file a response to updated arguments from operators of the pipeline, and Boasberg could issue a final verdict on the tribe's shutdown request in the coming weeks.

Dakota Access has been a flashpoint in debates over the country's energy and environmental future since protests over its construction near the Standing Rock reservation drew global attention in 2016 and 2017. Standing Rock argues that the pipeline's operations endanger their water supply at its Missouri River crossing just off their reservation.

The pipeline has the capacity to carry 570,000 barrels of oil a day from North Dakota's Bakken region to market around the country, and state regulators and pipeline operators have looked to nearly double that load over the next few years.

Readers can reach reporter Adam Willis, a Report for America corps member, at

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