Court Rejects Request to Halt Construction of Dakota Access

Last week, the Cheyenne River Sioux Tribe requested the federal District Court for the District of Columbia to issue a preliminary injunction to halt construction of the Dakota Access Pipeline, arguing that allowing the flow of oil in the newly-constructed pipeline under Lake Oahe in North Dakota would substantially burden the Tribe's' practice of their religion, in violation of the  Religious Freedom Restoration Act. The Tribe specifically alleged that the presence of oil in the pipeline would render the water of Lake Oahe as "spiritually impure" and thus would hinder the Tribe's "ability to conduct traditional medicinal and spiritual ceremonies and practices." 

In a decision issued earlier today, Judge James Boasberg denied the Tribe's request, agreeing with the arguments raised by the the U.S Army Corps of Engineers and Dakota Access, who asserted that (1) the Tribe had unreasonably delayed in raising the claim; and (2) in any case, had failed to demonstrate that it would likely achieve success on the merits. Judge Boasberg found that the Tribe had failed to raise any specific religious-exercise concerns with the Corps during the two years that the Tribe has been aware of the route of the pipeline, that the delay would unfairly prejudice both the Corps and Dakota Access. 

Judge Boasberg also found that, while the presence of oil in the pipeline might present incidental effects on the Tribe's exercise of religious practices, the Tribe would not be able to sufficiently establish that the pipeline would impose a substantial burden on its religious practices.  

What's Next?

It is possible that the Tribe might appeal Judge Boasberg's ruling to the U.S. Circuit Court of Appeals for the D.C. Circuit. Our view is that today's opinion is well-reasoned and correct as to the law, and that any appeal to the D.C. Circuit would likely be unsuccessful. But other legal challenges still remain before the Judge Boasberg. In mid February, the Standing Rock Sioux Tribe filed a motion for partial summary judgment, raising two primary arguments that have not yet been addressed by the court:  

• That the Corps had failed to prepare an Environmental Impact Statement (EIS), in violation of the National Environmental Policy Act; and 
• That the Corps' grant of the easement to Dakota Access was contrary to law because the Corps failed to provide a "reasoned justification" for disregarding the findings that the Corps relied on in its December 5, 2015 decision to withhold the easement. 

The parties are in the process of submitting written briefs to the court on these issues, and an oral argument will likely be scheduled for late March or early April. Given the fast pace of construction that Dakota Access has recently reported to the court, it does not appear that the court will address these issues before construction is completed. As these are issues that the court has not yet considered, it is hard to predict how they might be ultimately be resolved. It appears that Judge Boasberg will have to decide the legitimacy of the Corps' actions -- in deciding to deliver the easement, and not to conduct an EIS -- while also evaluating the reasonableness of the two administrations' politically-charged actions.