ELKO — The U.S. Circuit Court of Appeals in Washington, D.C., is expected to decide late this week or early next week whether to block roughly 40 miles of Ruby Pipeline construction northwest of Winnemucca while considering litigation over the route.
The Summit Lake Paiute Tribe asked the court for the stay.
The court ordered a separate, temporary stay earlier this month to “give the court sufficient opportunity to consider the merits of the emergency motion for a stay pending judicial review ...,” the court order states.
The order also states the current stay “should not be construed in any way as a ruling on the merits of that motion.”
“It was very temporary,” said the tribe’s attorney, Colette Routel, said Monday.
She said the appeals court will act “most likely on Friday or Monday. It’s a quick turnaround.”
If the court grants the emergency stay while considering litigation, however, that “could be a year or year and a half time frame,” said Routel, an assistant professor at the William Mitchell College of Law in St. Paul, Minn.
El Paso spokesman Richard Wheatley said Monday the temporary order was a “routine response to an emergency motion seeking a preliminary injunction that the Summit Lake Paiute Tribe filed.”
He said the stay covers an area where El Paso Corp. doesn’t yet have a notice to proceed from the Federal Energy Regulatory Commission or the U.S. Bureau of Land Management, anyway.
“In areas not covered so far by a notice to proceed and construct, we’re continuing with cultural, environmental and/or archaeological site work to satisfy conditions for the granting of notices to proceed and construct under National Historic Preservation Act regulations,” Wheatley said.
“Pipeline construction continues in the majority of all areas where we have received notices to proceed and construct,” he said, adding that about 80 miles of the 680 miles aren’t approved yet.
The tribe had asked FERC to stop the project in the designed area Wheatley described as milepost 509.9 to 549.9, but FERC denied the motion, Routel said, clearing the way for the appeals.
She said the appeals court will look at the project “with fresh eyes. What happened in front of FERC was a formality.”
Wheatley said FERC responded to the appeals court on Jan. 19 saying the petition from the tribe should be denied, and Ruby also filed an opposition brief to the court as an intervenor in the Summit Lake tribe’s petition.
The Ruby Pipeline Project extends from Wyoming into Oregon, going through Elko County on the way, and workers have been laying pipe in this area for several months.
Routel said the Summit Lake Tribe doesn’t want any construction allowed along the contested area while the appeals court considered the litigation, and contends that the project broke federal laws and federal agencies didn’t do a proper environmental review.
“We want the court to find that the project violated federal laws and remand it to FERC and to BLM,” she said.
“The reality is they didn’t comply with federal laws. If it can get a stay, the tribe said it was willing to sit down at the table, but Ruby hasn’t come to the tribe about any issues,” Routel said.
The tribe proposes a couple of alternate routes for the pipeline, including one that follows a current right of way, she said.
The Summit Lake Tribe also filed an appeal in the 9th Circuit Court in San Francisco over the BLM’s approval of rights of way for the natural gas pipeline, and Routel said the appeals court has consolidated the Summit Lake appeals with appeals from environmental organizations.
Defenders of Wildlife also filed in the D.C. court and the court has consolidated the lawsuit with Summit Lake’s, she said.
According to documents filed with FERC before the appeals court action, the tribe also alleged safety problems on the pipeline as a reason to suspend pipeline activities, based on a fatality in Elko County, but Ruby Pipeline LLC stated that “there is simply no basis whatsoever for any suspension of any Ruby operations or activities.”