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Cheyenne River Sioux Tribe Requests Stay on Court’s DAPL Religious Freedom Decision

The Cheyenne River Sioux files more motions to stop the Dakota Access Pipeline (DAPL) on religious-freedom grounds and will appeal the most recent decision.

Update, March 14, 10:30p.m. ET: Late today, March 14, the D.C. District Court denied lawyer Nichole Ducheneaux's request for an emergency injunction to preserve the Cheyenne River Sioux Tribe's religious rights pending appeal. Ducheneaux will now make the same request—for an emergency stay pending appeal—to the D.C. Circuit Court where the appeal will now be heard.

In her March 10 request, Ducheneaux asked the court for an immediate ruling. This did not happen in part due to the Army Corps' of Engineers (USACE) and Energy Transfer Partners (EPT) submission of opposition responses.

The tribe's original claim remains intact, however, and focused on the "ultimate harm to Tribal members’ free exercise of religion" that the introduction of oil into the Dakota Access Pipeline (DAPL) would result in based on the United States Army Corps of Engineers' (USACE) granting of an easement that allows the completion of the DAPL.

In response to what can only be described as a disappointing March 7 decision on the Cheyenne River Sioux Tribe’s request for an injunction to prevent desecration of waters in Lake Oahe by the Dakota Access Pipeline (DAPL), the tribe’s lawyer, Nichole Ducheneaux, filed a motion for a stay on March 10. In it, she asked the D.C. District Court for "an injunction until the [court] rules on the emergency motion for an injunction pending appeal that the tribe will file, if needed.” She concurrently filed a notice of appeal with the D.C. Circuit Court.

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Ducheneaux asked the court for an immediate ruling "in the event that the tribe needs to file an emergency motion” for appeal. As of March 14, the tribe was still awaiting a response. Oil is expected to flow through the Dakota Access Pipeline as early as March 20.

The Cheyenne River Sioux continues to focus on the "ultimate harm to tribal members’ free exercise of religion" that the introduction of oil into the DAPL would result in based on the United States Army Corps of Engineers' (USACE) granting of an easement that allows its completion.

In asking the court to "prevent the flow of oil through the pipeline," Ducheneaux reminded the court that this is fast becoming a reality that cannot be reversed spiritually for the tribe. In short, if the court allows construction to "continue during the appeals process, the last opportunity for Cheyenne River Sioux Tribe to defend its Tribal members’ free exercise of religion will be lost."

For this stay to be granted, the tribe argued that the court must weigh four factors: (1) the likelihood that the claim will succeed on its merits; (2) the likelihood that the tribe will be irreparably harmed; (3) whether others will be harmed as a result of the stay, and (4) "public interest in granting the stay.”

Because this motion is for a stay pending appeal, however, not only is the bar lower for determining whether the standards have been met, but district courts have also done so "even after denying a request for preliminary injunction," according to the filing. In this case the stay is requested "in order to preserve the status quo while the courts deliberated serious legal questions and the [Plaintiff] stands to suffer irreparable harm...during...deliberations."

Although Judge James Boasberg was unconvinced in his March 7 decision that the tribe would succeed on its merits—one bar he had established for his decision—the "serious legal questions" in which this case is embedded should tip the balance toward the stay, according to Ducheneaux.

Moreover, she argued, Boasberg had misapplied the doctrine of laches ("you snooze, you lose") because prior to February 8, the tribe's religious exercise rights were "not imminently threatened—and thus not ripe for injunctive relief when [USACE] approved the easement.”

Further, the court had held the tribe to "an unfair standing" in determining that the tribe's religious claims were not specific enough to succeed under the Religious Freedom Restoration Act (RFRA), which was the wrong standard, she tendered.