Court Denies Request for Temporary Restraining Order to Halt Construction of Dakota Access Pipeline

As we reported last week, the U.S. Army Corps of Engineers delivered an easement to Dakota Access, allowing Dakota Access to begin constructing the last segment of its pipeline under Lake Oahe in North Dakota. According to statements made yesterday by counsel for Dakota Access, work on the pipeline is progressing more quickly than expected, with the potential to have oil flowing within 30 to 45 days, not 83 days as indicated at the status hearing last week. 


Following the delivery of the easement, the Cheyenne River Sioux Tribe filed a motion in the District of Columbia District Court, requesting the court to issue a temporary restraining order to halt the newly-authorized construction under Lake Oahe. The Cheyenne River Sioux Tribe intervened in the case last August, and has generally followed the lead of the Standing Rock Sioux Tribe since then. But it requested the temporary restraining order last week to prevent the construction that it stated would "desecrate" the waters of Lake Oahe, and which would, assertedly, hinder the free exercise of their religion.  

At a previously scheduled status conference yesterday afternoon, Judge James Boasberg considered the Cheyenne River Sioux Tribe's oral presentation, which suggested that the harm that the Cheyenne River Sioux Tribe was complaining of was related to the eventual presence of oil within the pipeline. Judge Boasberg denied the motion, reasoning that the oil was not yet in the pipeline, and that the court would benefit from a full written briefing of the issues. To that end, he scheduled an oral argument on the Tribe's request for a preliminary injunction to prevent the flow of oil in the pipeline for February 27th. It appears that Judge Boasberg intends to rule on the Cheyenne River Sioux Tribe's request for a preliminary injunction before the pipeline will contain oil, as he ordered Dakota Access to provide him weekly construction progress reports in connection with his scheduling of the hearing. 


For its part, the Standing Rock Sioux Tribe's counsel notified Judge Boasberg that it intended to soon file a motion for summary judgment that would encompass all of the outstanding claims in the case, to include the Corps' decision to deliver the easement last week and the Corps' decision to not conduct the Environmental Impact Statement contemplated by the Corps in December. Judge Boasberg did not set a hearing date for this motion, but it will almost certainly be later that the February 27 hearing for the Cheyenne River Sioux Tribe's request for a preliminary injunction.