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Judge refuses to halt Dakota Access as pipeline nears completion

Tuesday, March 7, 2017

Teepees are seen near the Washington Monument in Washington, D.C., as part of Native Nations Rise, an event organized by the Standing Rock Sioux Tribe and opponents of the Dakota Access Pipeline. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

The battle against the Dakota Access Pipeline suffered another blow as a federal judge refused to halt construction on the controversial project.

In a 38-page decision issued on Tuesday, Judge James E. Boasberg said the Cheyenne River Sioux Tribe waited too long to seek an injunction based on religious grounds. So stopping the pipeline, which is all but complete except for a portion that crosses the Missouri River in North Dakota, wouldn't be fair to its wealthy backers or to the U.S. Army Corps of Engineers, the ruling stated.

"Only once Dakota Access had built up to the water’s edge and the Corps had granted the easement to proceed did Cheyenne River inform defendants that the pipeline was the realization of a long-held prophecy about a Black Snake and that the mere presence of oil in the pipeline under the lakebed would interfere with the tribe’s members’ ability to engage in important religious practices," Boasberg wrote in denying the injunction.

Boasberg also noted that the project is days away from completion. In a status report filed on Monday, Dakota Access said oil could be placed in the pipeline as soon as next week.

"Suspending the effect of the easement now would undercut the purpose behind the consultation obligations built into the Corps’ permitting processes, which aim to surface tribal concerns in a timely manner," Boasberg said as he questioned why the tribe didn't bring up religious concerns at various stages in the review process.

"Such injunctive relief would also, by delaying the flow of oil, impose significant costs on a private third party, Dakota Access," the judge added.

Teepees are seen on the National Mall in Washington, D.C., as part of Native Nations Rise, an event organized by the Standing Rock Sioux Tribe and opponents of the Dakota Access Pipeline. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Cheyenne River leaders have a right to appeal but the timing leaves them with few options. But Chairman Dave Archambault II of the Standing Rock Sioux Tribe said the ruling wasn't a setback because both tribes are still pursuing other ways to stop the pipeline, which was approved barely three weeks after President Donald Trump took office.

“Trump and his friends at Big Oil have not won. Today’s ruling does not hurt the strength of our legal arguments challenging the illegal easement approved by the Trump administration,” Archambault said in a press release on Tuesday. “While this preliminary ruling is disappointing, it’s not surprising. It is very difficult to get an injunction in a case like this. The bigger legal battle is ahead – we stand strong.”

Both tribes are seeking to set aside the easement that the Army Corps granted to Dakota Access, enabling construction at a site less than a half-mile from the Standing Rock Sioux Reservation. The decision, which was announced on February 7, was made without consulting either tribe.

Trump himself paved the way for the pipeline by issuing a pro-development memorandum only four days after being sworn in as the 45th president of the United States. He also owned stock in Dakota Access and one of the firm's business partners though his transition team said he divested after winning the Republican nomination last summer.

“The Trump administration’s issuance of the easement violates both of these legal requirements. If the pipeline goes into operation before then, it should not affect the legal proceeding,” said Jan Hasselman, an attorney from the non-profit Earthjustice who is representing Standing Rock. “If the judge rules that the permits are illegal, he can shut the pipeline operation down.”

In addition to the legal battle, Standing Rock leaders are in Washington, D.C., this week for Native Nations Rise. The event opened on Tuesday with symbolic camp near the Washington Monument, where indigenous activists like Dallas Goldtooth and Judith LeBlanc huddled on the grounds of the National Mall.

Amid teepees labeled with "Mni Wiconi" and "Water Is Life," volunteers were preparing to build a sacred fire that will burn throughout four days of blessings, speeches and presentations aimed at drawing attention to the struggles facing Standing Rock and other indigenous communities. The event culminates with a march on Friday from Army Corps headquarters to the White House.