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Temporary Restraining Order of Dakota Access Pipeline Construction Denied

A motion for a temporary restraining order to halt construction of the Dakota Access Pipeline was denied while more lawsuits are soon to be filed.

Thirteen was not a lucky number for the Cheyenne River Sioux Tribe. On February 13 before a nearly full courtroom of the D.C. District Court that included Cheyenne River Sioux Tribal Chairman Harold Frazier, Judge James E. Boasberg denied the tribe's February 8 motion for a temporary restraining order to permanently halt construction involving the Dakota Access Pipeline (DAPL).

Expedited, however, due to the potential substantial burden that operation of the Dakota Access Pipeline might impose on Cheyenne River Sioux religious practice as well as the United States Army Corps of Engineers' (USACE) abrogation of its fiduciary duty as a trustee of tribal land and water, was the tribe's request for a hearing on a preliminary injunction filed the same day was granted a hearing on February 27.

Citing The Prophecy of the Black Snake – which Frazier described as "a black, slippery, oozing threat that would change the way of life of the Lakota people forever," as well as the Religious Freedom Restoration Act (RFRA), lead attorney for the tribe, Nicole Ducheneaux, argued in court that filling the Dakota Access Pipeline with oil would "render the water [of Lake Oahe] ritually impure."


Under RFRA, Ducheneaux told the court that the government cannot "substantially burden a person's exercise of religion" unless the burden "is in furtherance of a compelling governmental interest," and "is the least restrictive means of furthering that...interest." She contended that the government cannot meet either exception, especially since it was the government itself that restricted the tribe's use of water to Lake Oahe, the headwaters of the Cheyenne River.

"Our argument is that the mere granting of the easement has threatened constitutional harm, and that the constitutional harm is sufficient to establish irreparable harm, and we will continue to make that argument," Ducheneaux told the court.

"Given the vacillation of the government and DAPL, and the uncertainty it has produced, we thought it wiser to move sooner rather than later," Ducheneaux added.

Although Boasberg ruled that it was too early to grant a temporary restraining order since oil is not yet flowing in the pipeline, he set the date for the court to hear the tribe's motion for preliminary injunction for February 27. Any opposition to this motion is due by February 21, and all replies are due by February 24.

The Cheyenne River Sioux Tribe had filed these separate motions in response to what they saw as the likely potential that oil would be in the pipeline long before the 60-80 days Dakota Access Pipeline lawyer David Debold had claimed in a February 6 hearing before the court. On that day, Boasberg had ordered USACE and Dakota Access Pipeline to produce timelines for both the approval of the easement and the completion of the pipeline. Both were rendered moot given the Army's February 7 announcement that it would immediately approve the Lake Oahe easement.

Debold told the court that the pipeline was unexpectedly remarkably ahead of schedule – with completion perhaps only 30 days out – due to strong drilling conditions over the past week. This revelation further damaged what little trust the tribal plaintiffs had in information supplied to them by Dakota Access Pipeline. In consideration of this, Boasberg ordered Dakota Access Pipeline to produce an update on the project's progress – specifically the date oil would flow through the pipeline – every Monday (Tuesday if there's a Monday holiday) until further notice.

Stating that, "Now no reasonable amount of time is ascertainable [for oil flowing through the pipeline] since last week the best possible case was 60 days," lead attorney for the Standing Rock Sioux Tribe, Jan Hasselman, stated that he would be filing a motion for a partial summary judgment on an expedited basis by February 14.

"In the next day or so we will be filing an injunction for summary more injunctions or temporary relief,” Hasselman told the court. “We're asking the judge to declare the Trump administration's action in granting the permit illegal, arbitrary and capricious. We're asking him to find as a matter of law, that the environmental impact statement (EIS) was required, and that the tribes' treaty rights required a more thoughtful approach than the one that they were given by this administration." All opposition to this motion is due no later than March 7, with any replies due by March 21.


Boasberg stated that he was concerned about the "ambitious timeline...and very compressed schedule" offered by Dakota Access Pipeline. Hasselman echoed this concern. "These are weighty issues,” he said. “We don't want to be judged in such an accelerated fashion. We want to prevent flow.”

Matthew Marinelli, lead counsel for USACE, joined in this concern, reminding the court that the Oglala Sioux and others were in the midst of filing other cases, and that the government would prefer that all be heard prior to February 27 if possible.

Marinelli also informed the court that he would be going on family leave as of February 25, with lawyer Ben Shiftman replacing him, and that Shiftman would need adequate time to prepare. Hasselman told Boasberg that the lawyers for the impacted Sioux tribes were working on reducing the redundancy in the cases in order to reduce the burden on the court.

This is where the timing of upcoming hearings becomes a bit murky, and it will only be clarified once the docket is published in its entirety. Boasberg gave the government a two-week extension to oppose the motion for a protective order, although the date for that hearing has not been established unless it is heard February 27 along with the motion for preliminary injunction. He also granted the defendants a 30-day extension to respond to the tribes' motions to amend the complaint, again with no date specified when that clock starts, although it is assumed to be as the motions are filed. Finally, Boasberg also ordered the government to produce an administrative record by March 10, further muddying the judicial timeline since the plaintiffs would like to have the record in hand prior to the February 27 hearing.

C.J. Clifford, from the Pine Ridge Agency, came all the way from South Dakota to be at the hearing. In an interview, he expressed concern that Boasberg had previously claimed to have little knowledge of Indian law. In Clifford's opinion, "If he would be an honest person, he should be recusing himself and hand it to somebody that...a judge that understands it, that at least knows their history...."

After the hearing, Frazier expressed disappointment in the ruling that denied a temporary restraining order. "It was pretty tough," he said. "One thing that we do know is that our water is our life, it is life," he continued, "...and any damage to that water will completely destroy us entirely."