A temporary restraining order against Standing Rock Sioux Chairman David Archambault II and other tribal leaders was dissolved on Friday September 16 after a federal judge in Bismarck said it was redundant, since existing laws furnish the same restrictions.
The order had been in place since mid-August, when Dakota Access LLC sued Archambault and his cohorts for disrupting construction after they were arrested for trespassing.
Tim Purdon, the attorney representing Archambault and Standing Rock Sioux Tribal Council Member Dana Yellow Fat, had requested that the order be dissolved because it was “nothing more than an 'obey-the-law' injunction” and was so broad as to blur the line “between conduct that is protected by the First Amendment and that which risks violating the temporary restraining order,” the Bismarck Tribune reported.
“Enjoining a crime is superfluous as all persons are enjoined by the commands of our criminal laws,” wrote U.S. District Judge Daniel Hovland in a seven-page decision. “All persons are expected to live in accordance with local, state, federal, and tribal laws, and to conduct themselves in a civil, respectful, and law-abiding manner. Under these circumstances, the Court finds the Dataphase factors no longer favor Dakota Access’ motion and good cause no longer exists to keep the temporary restraining order in place. The named Defendants are currently being dealt with in the criminal justice system.”
At the same time, Hovland chastised those he termed “hooligans” who he said “constitute a very small percentage of the entire entourage” but are nonetheless preempting the interests of the tribe by engaging in “mindless and senseless criminal mayhem.”
He lashed out at those who were conducting civil disobedience by chaining themselves to construction equipment and trespassing on private property to stop construction.
“The Court fully recognizes the unlawful and violent protestors arrested to date constitute a very small percentage of the entire entourage,” Hovland wrote. “The Court also recognizes that many of the troublesome ‘peaceful protestors’ are from out-of-state who have political interests in the pipeline protest and hidden agendas vastly different and far removed from the legitimate interests of Native Americans of the Standing Rock Sioux Tribe who are actually impacted by the pipeline project. But for anyone to suggest the protests have been entirely peaceful and prayerful is less than forthright and ludicrous at best.”
Hovland cited the myriad television images and news stories that refuted claims of peaceful protest with “countless videos and photographs of the ‘peaceful’ protestors attaching themselves to construction equipment operated by Dakota Access; vandalizing and defacing construction equipment; trespassing on privately-owned property; obstructing work on the pipeline; and verbally taunting, harassing, and showing disrespect to members of the law enforcement community,” he said in his decision, citing also the financial losses incurred by the pipeline company and the State of North Dakota.
Purdon, a former U.S. Attorney, said that the tribe was pleased with the ruling.
“Chairman Archambault has really been the voice calling to make sure the protest themselves remain peaceful,” Purdon told the Bismarck Tribune.
So far, some 70 people have been arrested for direct action to stop the pipeline, including seven now facing felony charges. Hovland has not yet ruled on a motion to dismiss the overall lawsuit.
Purdon said the Dakota Access lawsuit stems from the premise that the company possessed the required permits needed to bore under the Missouri River, the tribe’s main water source, to construct the pipeline.
“Right now, they don’t have that right under the current set of facts, so the case should be dismissed,” he said.
In a statement issued last week, the U.S. Army Corps of Engineers said, “The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.”
A hearing scheduled for next week in the case has been canceled. Hovland has not ruled on a motion to dismiss the overall lawsuit.
Still pending is an answer from U.S. District Court in Washington D.C. on the tribe’s request for an injunction against further pipeline construction while it appeals the September 9 ruling of Judge James Boasberg. Though the federal government stepped in to halt some of the work, it could only ask for voluntary compliance on the part that had already been permitted.