Nicole Ducheneaux, Cheyenne River Sioux Tribe lead attorney.

Renae Ditmer

Nicole Ducheneaux, Cheyenne River Sioux Tribe lead attorney.

Judge Denies Cheyenne River Sioux Tribe’s Anti-DAPL Religious Freedom Argument

More legal efforts under way by Cheyenne River Sioux and other tribes to prevent the controversial pipeline

In a 38-page ruling issued on March 7, Judge James Boasberg of the D.C. District Court denied the Cheyenne River Sioux preliminary injunctive relief to halt the construction of the Dakota Access Pipeline (DAPL), saying the tribe cannot win its claims under the Religious Freedom Restoration Act (RFRA) because they came too late, and because the tribe “failed to show a substantial burden on its members’ religious exercise.”

This does not mean that the tribe cannot ultimately win on the merits of the RFRA, but the ruling does effectively put an end to stopping the completion of DAPL before oil is introduced into the pipeline, which is expected to happen as early as March 13.

According to Nicole Ducheneaux, lead attorney for the Cheyenne River Sioux Tribe (CRST), and Jan Hasselman, lead attorney for the Standing Rock Sioux Tribe (SRST), this effort was never meant to be more than a stop-gap measure while the meat of the case—the motion for a summary judgment by the SRST—is determined sometime in April.

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Boasberg’s ruling hinged on two legal principles and the type of motion entered on February 28: the doctrine of laches and the merits of the claims, and a motion for preliminary injunctive relief.

The doctrine of laches is, according to Boasberg, “designed to promote diligence and prevent enforcement of stale claims’ by those who have slumber[ed] on their rights.” In other words: You snooze, you lose when it comes to putting your claims in front of the court. Merit, on the other hand, is a measure of the validity of the claims given the facts presented to the court. In this case, both were made under the RFRA, which the judge had to use as a framework to decide whether he could grant a stop work order while the key legal complaint—the unlawful permitting of an easement for the DAPL—winds its way through the court.

In his opinion, Boasberg rejected both, stating that the Cheyenne River Sioux had waited two full years before raising RFRA concerns, and had “[referred] only generally to water as religiously significant and [focused] on the risk posed by spills or leaks and the possible harm to sacred sites from clearing, grading, and construction activities.” Further, he said the tribe never “[stated] that the mere presence of oil in a pipeline under the lake’s floor would render the Tribe’s members unable to perform religious ceremonies, nor did it mention the Black Snake.”

For its part, the Cheyenne River Sioux Tribe argued that it was still waiting for the U.S. Army Corps of Engineers to “[engage] in proper consultations,” which has yet to happen. Even then, given the four-year RFRA statute of limitations, the tribe believed it was clearly within its rights to raise those concerns on February 28.

Nevertheless, Hasselman and Ducheneaux are optimistic that the motion for summary judgment on the legality of the easement permit will ultimately prevail.

“The legality of the Trump administration’s reversal of the issuance of the easement has never been part of any motion,” Hasselman said during a press conference call after the ruling.

“The National Environmental Policy Act (NEPA) requires an EIS for any federal permit or action that has an environmental impact,” he added. “We do them all the time for dog parks, jet skis, water parks, etc., so it’s outrageous that digging a 30-inch crude oil pipeline that serves 30 million people, that this would not be the kind of thing that gets a full EIS.

“The last administration got this right; Trump overrode it. We think it’s unlawful,” he continued. Moreover, for Ducheneaux, “It’s a breach of the Corps’ trust responsibility. This was a wholesale Corps failure to consider tribe’s rights and laws as to how tribes can manage waters.”

While “obviously disappointing and troubling, [the current ruling] doesn’t change anything about the legal case,” according to Ducheneaux. During the press call, she expressed concern that people thought that the legal case is concluding. “That’s not the case,” she said.

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Judge Denies Cheyenne River Sioux Tribe’s Anti-DAPL Religious Freedom Argument

URL: https://indiancountrymedianetwork.com/news/politics/judge-denies-cheyenne-river-sioux-tribes-anti-dapl-argument/