Tribes fighting the Dakota Access pipeline lose bid to immediately pause construction

A judge found no irreparable harm to the tribes if construction goes on.

ByABC News
February 13, 2017, 4:28 PM

— -- A federal judge denied a request by two tribes for a temporary restraining order to stop the building of the Dakota Access pipeline, finding there was no immediate irreparable harm to the tribes if construction continues.

Judge James E. Boasberg of the U.S. District Court for Washington, D.C., said he was not ruling on whether the pipeline is "a good or bad idea," but on whether its continued construction would cause "imminent harm."

The Cheyenne River Sioux and Standing Rock Sioux tribes were disappointed by the ruling but "not surprised," said Chase Iron Eyes, a Standing Rock Sioux member and a lead counsel for the Lakota People's Law Project.

"We know this fight is far from over," he said.

The court set another hearing for Feb. 27 on the tribes' request for a preliminary injunction that seeks to revoke an easement at Lake Oahe granted by the Army Corps of Engineers to pipeline builder Dakota Access LLC.

The Cheyenne River tribe, in a motion later joined by the Standing Rock Sioux, asked for the restraining order, claiming that the U.S. Army Corps of Engineers' grant of an easement for the pipeline to be built and operated at Lake Oahe was “entirely unlawful” and that the project’s crossing of the river violates the Tribes’ rights to free exercise of religion.

The pipeline would "desecrate the waters upon which the Cheyenne River Sioux tribal members rely for their most important religious practices" the tribe wrote in court papers prior to today's hearing in Washington, D.C.

The Standing Rock Sioux tribal chairman, Dave Archambault II, wrote it is “vitally important to our people that our rights be heard by this court before Dakota Access drills under Lake Oahe.”

But Dakota Access LLC argued in its brief that the tribe’s motion was “a last-ditch desperation throw to the end zone” that ”could not conceivably meet the required showing of irreparable harm needed to support a restraining order or preliminary injunction.”

Arguing against the claim that the project would violate the Cheyenne River tribe's religious freedom, Dakota Access attorney William S. Scherman said in today's brief that this allegation, which had not previously been raised in the lawsuit, comes far too late in the process.

While the company has ”the greatest respect for the religious beliefs and traditions of Cheyenne River and the other tribes,” there is no need for a restraining order to protect those interests, Scherman wrote.

The company further asserts that any further delays in completing the pipeline would cost it tens of millions of dollars, deprive the public of tax revenue, and require oil producers in North Dakota to continue shipping crude by less safe methods, according to the court documents.

When the Army Corps granted Dakota Access the easement for the pipeline to cross federally-owned land at Land Oahe, it reversed a December decision under the Obama administration to withhold the permission pending completion of an environmental impact statement, a process that could have taken years.

President Trump, in contrast, on his second weekday in office signed a presidential memorandum toward advancing approval of the pipeline crossing, declaring that its completion was in the national interest.

“I don’t even think it was controversial,” President Trump said of his decision during informal remarks at the White House last week. “I haven’t had one call. Usually if I do something, it’s like bedlam. I haven’t had one call, from anybody.”

“I think everybody is going to be happy in the end,” the president said.

Along with the pipeline owner, the Army Corps is also opposing the request for a restraining order, arguing that the tribes have failed to show any evidence of immediate harm that would result from the construction of the pipeline through which no oil will flow or at least another 53 days.

If the tribes are unsuccessful in their pursuit of the restraining order, they are expected to ask the judge to expedite their lawsuit challenging the pipeline so that it can be resolved before oil starts flowing.