Dakota Access: Cheyenne Tribe Alleges Religious Harm to Stop Flow of Oil
This morning, the Dakota Access litigation reconvened in federal District Court in Washington D.C. As we previously reported, following the Corps of Engineers' delivery of the long delayed easement to Dakota Access on February 8th, 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 construction of the Dakota Access pipeline. The Tribe alleged that the oil in the pipeline would render the water of Lake Oahe "impure" for religious rituals, and would thus substantially burden the Tribe's exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993. This Act provides that the government may not "substantially burden a person's exercise of religion" except in cases where the the government action is in the "furtherance of a compelling government interest."
Judge James Boasberg held a brief hearing on February 13th to consider the Cheyenne River Sioux Tribe's argument, but denied their request, and scheduled a new hearing for today. Judge Boasberg reasoned that the harm that the Cheyenne River Sioux Tribe was alleging would not be present until oil is introduced into the pipeline, and that the court would benefit from the parties' written briefs on the issues. At today's hearing, Judge Boasberg heard arguments from the Corps, Dakota Access and Cheyenne River Sioux Tribe. The Standing Rock Sioux Tribe had joined the Cheyenne River Sioux Tribe's motion, but did not participate in today's argument.
As a threshold matter, counsel for the Corps and Dakota Access urged the court to find that the Tribe's request was barred by the equitable doctrine of laches, a legal principle that provides that a party may not unreasonably delay in asserting a claim where the delay prejudices a defendant. In this case, the Corps and Dakota Access asserted that the Tribe had never previously made such a claim in the nearly two years of administrative proceedings leading up to the litigation, or in the litigation itself. In response, counsel for the Tribe could only point to indirect, tangential references to religious practices -- which appeared to be unrelated to the religious purity of the water of Lake Oahe -- in the administrative record.
Judge Boasberg questioned the three parties evenly, but seemed to have concerns about several of the Tribe's assertions. For example, he questioned why the Tribe asserted that the oil in the pipeline could render the water impure, when not even the pipeline, let alone the oil, will be in contact with the water. (The pipeline will be located underneath the lakebed of Lake Oahe.) He also questioned if the Cheyenne River Sioux considered other nearby oil pipelines to be similarly offensive to the Tribe's practice of their religion, and also inquired whether the Tribe could avoid the harm complained of by using an alternate supply of water.
Based on the line of questioning arising from the oral argument, it does appear that the Corps and Dakota Access have made a strong argument that the doctrine of laches should prevent the Tribe from raising this new issue at such a late date in the proceeding. It is possible that Judge Boasberg could thus deny the Tribe's request without reaching the merits of the issue. Even if he does get to the the merits of the Tribe's claim, it appears that Judge Boasberg has some concern about the sufficiency of the Tribe's claim. Judge Boasberg stated that he intends to issue his written decision within a week , and he ordered Dakota Access to provide him a construction status update every two days, apparently to ensure that he will issue his decision prior to oil being introduced into the pipeline.
Stay tuned for a Special Report on the Rover Pipeline condemnation litigation