Judge denies tribe’s request to block Dakota Access pipeline

Judge denies tribe’s request to block Dakota Access pipeline
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A federal judge on Tuesday denied a Native American tribe’s request to block the Dakota Access pipeline. 

The Cheyenne River Sioux tribe said the controversial oil pipeline project violates its religious freedom due to its placement under Lake Oahe. The tribe uses the lake for sacred ceremonies, and its lawyers argued that the mere presence of an oil pipeline under the lake desecrates the water and violates their religious freedom. 

But U.S. District Judge James Boasberg dismissed that argument on Tuesday.

"Cheyenne River’s religious-exercise claim ... involves a government action — granting an easement to Dakota Access to build and operate a pipeline — regarding the use of federal land — the land under Lake Oahe — that has an incidental, if serious, impact on a tribe’s ability to practice its religion because of spiritual desecration of a sacred site,” he wrote. 

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Boasberg, an Obama appointee, cited Supreme Court precedent that sets a higher bar for succeeding in a religious freedom case.  

“Just as the government’s tree cutting and road building in [that Supreme Court case] did not give rise to an actionable free exercise claim, neither does its easement-granting here likely violate” the law, he wrote. 

The tribe had requested an injunction against the final stage of construction on the 1,172-mile pipeline, which could move up to 570,000 barrels of oil a day between North Dakota and Illinois. 

Nicole Ducheneaux, the Cheyenne River Sioux Tribe’s lawyer, said the tribe hasn’t decided whether to appeal the decision. 

Tuesday's ruling came one day after Dakota Access developers said they could begin running oil through the pipeline as soon as next week.

Dakota Access and its industry supporters — as well as Army Corps regulators under both Presidents Obama and Trump — have defended the process of approving the pipeline. Officials say they took steps to ensure the project would be environmentally safe and preserve culturally important sites in the region, and they supported Boasberg’s decision on Tuesday. 

“Both Dakota Access and its parent company, Energy Transfer Partners, have continued to show a strong desire to accommodate landowner concerns and respect for culturally sensitive areas,” said Craig Stevens, a spokesman for the pro-pipeline Midwestern Alliance for Infrastructure Now coalition. 

“Going forward, we continue to appreciate Judge Boasberg’s careful consideration of this case and remain hopeful that the construction and operation of this pipeline will be completed in a safe and timely manner.”    

Opponents of the project — led by the Standing Rock Sioux Tribe — were unable to stop Dakota Access developers from building the pipeline under Lake Oahe, a large lake on the Missouri River. President Trump in January said the project should be allowed to move forward, reversing an earlier decision from the Obama administration. 

The tribes are now gearing up for a legal fight over the operation of the pipeline. They have asked Boasberg to rule on the legality of the process that approved the pipeline project last year. 

The Standing Rock Sioux have raised three concerns about the project as a whole: that it didn’t go through a full environmental impact review, that the federal government could be failing in its trust relationship with the tribe and that Trump’s administration acted too quickly to undo Obama’s orders.

The tribe has asked Boasberg to rule on the validity of the project based on those arguments. A hearing hasn’t been set for that motion, but Jan Hasselman, the Earthjustice lawyer representing the Standing Rock Sioux, said one could come in April, well after oil begins running through Dakota Access. 

Hasselman said the potential for oil to enter the pipeline next week is “disappointing and troubling.”

But, he said, “it does not change anything about the legal case. … If the pipeline comes into operation, the [judge] has already indicated that if he finds that the permits were issued contrary to law, he can order the pipeline turned back off, and that’s what we will be asking for.”

—Updated at 3:15 p.m.