Judge rejects tribes’ request for injunction to halt DAPL work

By Patrick C. Miller | March 08, 2017

A U.S. district judge on Tuesday denied a request for a preliminary injunction to halt work on the Dakota Access Pipeline (DAPL), which is expected to carry crude by next week.

The lawsuit was filed by two Sioux tribes in the Dakotas whose reservations border the Lake Oahe Reservoir downstream from the site where the pipeline crosses the Missouri River in southcentral North Dakota. They asked the U.S. District Court for the District of Columbia for an injunction to halt work at the crossing site on U.S. Army Corps of Engineers land.

The Cheyenne River Sioux and Standing Rock Sioux tribes contended that the crossing 90 feet or more under the Missouri River violated the Religious Freedom Restoration Act because the presence of oil in the pipeline would cause irreparable harm to tribal members’ ability to exercise their religion. The Oahe Dam near Pierre, South Dakota, forms the manmade lake on the Missouri which stretches into North Dakota.

In a 38-page ruling, U.S. District Judge James Boasberg denied the injunction because “the extraordinary relief requested is not appropriate.” He said the tribes had waited too long to raise their religious objection and they were unlikely to succeed on the merits of their case.  

Boasberg wrote that halting construction would delay the flow of oil while imposing significant costs on Dakota Access LLC, the company building the pipeline. He noted that “rerouting the pipeline around Lake Oahe would be more costly and complicated than it would have been months or years ago, as doing so now requires not simply changing plans but abandoning part of a near-completed project and redoing the construction elsewhere.”

During 2014 and 2015 when the Corps of Engineers asked the tribes to submit comments on the proposed pipeline, Boasberg said they “never asserted that the pipeline’s operation itself under Lake Oahe—absent any spill or rupture—would somehow compromise the purity of the water and pose a religious-exercise problem.”

Craig Stevens, Midwest Alliance for Infrastructure Now (MAIN) Coalition spokesman, said, “Judge Boasberg’s thoughtful decision further demonstrates that both the Army Corps of Engineers and Dakota Access have fully complied with all established laws and regulations governing the permitting, installation, and operation of the Dakota Access Pipeline.”

The last phase of the $3.8 billion, 1,172-mile-long pipeline is the 1,100-foot crossing under the Missouri River. A status report filed by Dakota Access LLC with the court this week said the company was making “very good progress” boring under the river and could be ready to put oil in this section of the pipeline by next week. The pipeline—being built by Dallas-based Energy Transfer Partners—will carry about a half million barrels per day of Bakken crude from western North Dakota through South Dakota and Iowa to a terminal in Patoka, Illinois,

In September 2016—following a decision by Boasberg allowing Dakota Access Pipeline construction to continue—the Obama administration intervened to reconsider the Corps of Engineers easement required to complete the Missouri River crossing just north of the Standing Rock Sioux Reservation. Thousands of protesters flocked to camps near the construction site for demonstrations that sometimes turned violent.

The Corps announced in December that it would deny the river crossing permit. In January this year, the agency said it planned to conduct a full environmental impact statement (EIS), which would have further delayed the project by more than year.

The situation changed again when President Donald Trump took office in January and signed a presidential memorandum to conduct an expedited review of the easement. The Corps last month issued the easement and withdrew plans for an EIS, allowing construction to resume.

Stevens said Dakota Access made more than 140 modifications to the pipeline’s route in North Dakota, demonstrating its commitment to avoid potential cultural resources.

“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,” Stevens said. 

Despite Boasberg’s latest ruling, DAPL’s legal challenges are not over. The environmental organization EarthJustice last month filed a motion in the U.S. District Court for the District of Columbia on behalf of the Standing Rock Sioux Tribe seeking a summary judgement against the Corps of Engineers.  

According to EarthJustice, “The motion for summary judgment asks the judge to rule on major legal questions that have not yet been resolved during this case, including whether National Environmental Policy Act requirements have been met and whether the Corps’ actions violate the tribe’s treaty rights.”

“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,” Stevens said.