A federal judge on Tuesday denied a request for a preliminary injunction to block construction of the Dakota Access pipeline (DAPL). The Cheyenne River Sioux Tribe claims that the pipeline, which stretches across tribal lands, threatens Lake Oahe, a sacred water supply used in many tribal religious ceremonies. Thus, the tribe members say, it violates their rights under the Religious Freedom Restoration Act (RFRA).
But the court disagreed, ruling the tribe couldn’t show there was any immediate risk of harm to their religious practices, and ordered construction of the pipeline to proceed. The decision sidesteps the RFRA argument in a mess of circular logic that suggests the court was more interested in finding a way to get the oil flowing through the pipeline than in considering the religious objections of the Sioux tribe.
In February, following the go-ahead from the Trump administration, the U.S. Army Corps of Engineers issued the final easement that would allow pipeline construction to move ahead across tribal lands and under Lake Oahe, just north of the Standing Rock Sioux reservation. The tribe sued and asked the court for an order immediately blocking the final phase of construction, arguing that once completed, the pipeline would desecrate waters sacred to the tribe.
Specifically, the tribe members described for the court their belief that the pipeline correlates with their Black Snake prophesy. According to the court filings, the Lakota people believe the Black Snake, which is prophesied to come into the Lakota homeland and cause destruction, is a likely reference to the pipeline. The contamination from the pipeline, the tribe alleges, will cause Lake Oahe to become unbalanced and make it impossible for the Lakota to use that water in their Inipi ceremony. Without access to that natural, unadulterated, and ritually pure water, the Lakota people cannot practice their religion, the complaint claims.
Vote for Rewire!
Rewire is competing for a CREDO grant this month and we need your vote. A few clicks is all it takes for you to help support evidence-based journalism on health, rights, and justice. Vote now to help us speak truth to power, as a matter of fact.
But Judge James E. Boasberg was unmoved by the tribe’s allegations and denied the temporary restraining order against DAPL construction last month. Tuesday’s ruling granting the preliminary injunction means the pipeline will move ahead as planned while the litigation challenging it proceeds.
In order for the tribe to get an injunction, the members needed to show (1) that they were likely to succeed on the merits of the case, (2) that they were likely to suffer irreparable harm in the absence of preliminary relief, (3) that it is more fair to grant the injunction than to deny it while the case is pending, and (4) that an injunction is in the public interest.
On Tuesday Boasberg sided with the federal government, who argued that the tribe was unlikely to succeed on the merits of the RFRA claim. However, the government said it wasn’t because the tribe couldn’t show the pipeline’s interference with their members’ religious practices; it was because the tribe had waited too long to raise the religious objections at all, and thus couldn’t meet the legal standard for the court granting their injunction.
The government relied on a legal defense known as laches to attack the tribe’s RFRA claim and argue the injunction should be denied. The laches defense is broadly supposed to prevent parties from sitting on claims they could make if doing so unfairly disadvantages the other party. Essentially, the laches doctrine says there is a point where it’s just not fair to spring a lawsuit or another legal claim, and if a party sleeps on those claims they lose the right to bring them.
That is exactly what the court and the federal government said the tribe did here. According to the court, the drawn-out fight over the pipeline’s placement put the tribe on notice that DAPL would run under Lake Oahe. And the tribe had already sued to block the pipeline—a case that is still pending—but had asserted different claims, such as violation of treaty rights. That was the time to raise a RFRA claim, the court ruled, not when the pipeline is almost completed. The fact that the tribe didn’t bring the RFRA claim earlier is so unfair to the government, apparently, that they can’t be allowed to bring it now.
Boasberg has created a Catch-22 for the tribe with that reasoning. In order for the tribe to claim that the religious rights of their members will be substantially burdened under RFRA, the tribe needs to show that the threat to those rights is real and not remote. The Obama administration had ordered an additional environmental assessment of the stretch of pipeline in question under the RFRA claim. The Trump administration reversed that order, which is what allowed the U.S. Army Corps to issue the final easement. Up until that point, it wasn’t certain when the pipeline would run through and under Lake Oahe, if at all; before then, the threat to the tribe’s religious practices was subject to change.
Had the tribe filed their RFRA claim prior to the easement being granted, the chances are very good the court would have thrown those claims out as being too hypothetical and remote.
The tribe is in an impossible spot with Boasberg’s analysis for another reason. RFRA contains a four-year statute of limitations. That means that a person who believes their religious rights have been violated under RFRA has four years from the time of that alleged violation to bring a claim. Four years.
In this case, the tribe made their RFRA claim one day after the threat to their religious practices became real. Under the RFRA statute of limitations the tribe has years left before they can no longer pursue their claim under the statute. Yet the court ruled they waited too long to raise a religious objection to the pipeline construction while also conceding the RFRA statute of limitations had not run out.
In the court’s logic, the laches defense should apply regardless of the specific statute of limitations because the tribe’s delay in voicing their religious objection removed the government’s opportunity to try and accommodate that objection. Had the government known earlier, it said, “they could have considered whether and how to accommodate this concern.” Rerouting the pipeline north of Lake Oahe, it said, “could have been ‘one possibility.'”
In other words, the government concedes here that there was likely a way of furthering its compelling interest in DAPL that would have restricted tribal religious rights less. This is exactly what the tribe argues in the RFRA claim—but what the court is rejecting because they took too long to raise it.
The tribe has the option of asking the D.C. Circuit Court of Appeals for an emergency stay of the ruling while they pursue an appeal. Meanwhile, individual tribe members have asked the court for permission to intervene in the lawsuit so they can assert their own individual RFRA claims. The court has not yet ruled on that request, though it is difficult to see the individual tribal members having more success under Judge Boasberg—if the tribe waited too long to raise their religious objections, according to the judge, then presumably so did the individual members.
It is difficult to argue that Tuesday’s ruling denying the tribe’s request for an injunction did anything but create a procedural shield to protect the government from a serious threat to DAPL. And that’s what makes the decision look and feel like more of a political ruling than a legal one.