The Standing Rock Sioux on Tuesday lost another legal challenge to the Dakota Access pipeline, leaving the tribe with few remaining avenues as the project moves within days of being ready to deliver oil.
U.S. District Court Judge James A. Boasberg turned down a request for a preliminary injunction filed by the tribe and the Cheyenne River Sioux, ruling that their claim based on the Religious Freedom Restoration Act was unlikely to succeed.
A status report filed by Energy Transfer Partners with the court said the final ream pass at Lake Oahe is expected to be finished this week, meaning oil can begin flowing as early as March 13.
Standing Rock Chairman Dave Archambault II called the ruling “disappointing, but not surprising,” adding that he was confident that the tribe would prevail in its ongoing lawsuit.
“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,” Mr. Archambault said in a statement.
The tribes had argued that running the pipeline below Lake Oahe would desecrate the water used in religious ceremonies, which must be “ritually pure,” even though the pipe runs underground and does not come in contact with the water.
In his 38-page opinion, Judge Boasberg said the tribe’s argument “does not persuasively support the proposition that this purpose requires the federal government to refrain from permitting infrastructure projects on its own land when doing otherwise would render water reserved for the reservation’s use spiritually impure.”
He pointed out that several other infrastructure projects already cross the lake, including a 1982 natural-gas pipeline that runs underneath, an overhead electric utility line, three vehicle bridges and a railroad bridge, and a wastewater-treatment plant that discharges into a tributary that then flows through the Standing Rock reservation into Lake Oahe.
The tribes also argued that the Dakota Access oil pipeline would fulfill the “black snake prophecy,” even though Lake Oahe itself is man-made, built 60 years ago.
“Presumably, the prophecy was issued after Lake Oahe was created; otherwise, the presence of pipelines upstream of the lake, including one that crosses 7.5 miles to its north, would be hard to reconcile with the Tribe’s belief that DAPL alone is the Black Snake,” the opinion said.
Judge Boasberg pointed out that the proposed route was disclosed by the U.S. Army Corps in Engineers as part of its review in October 2014, but it was not until last month that the tribes made a claim based on religion.
“For more than two years after becoming aware of DAPL’s proposed route, construction, and operation, then, Cheyenne River remained silent as to the Black Snake prophecy and its concerns about the presence of oil in the pipeline under Lake Oahe absent any issue of rupture, as well as about the possible applicability of RFRA,” the judge said.
The Standing Rock Sioux has fought the 1,172-mile, four-state pipeline, although its previous arguments were based mainly on the project’s risk to water quality. Energy Transfer Partners has insisted that the state-of-the-art pipeline is safe.
After issuing in July an easement for the final 1,100-foot stretch under Lake Oahe, the Obama administration delayed and then revoked the permit. The corps then reissued the easement in January after President Trump signed a memorandum to expedite the project.
The tribe has called for a full Environmental Impact Statement and “careful consideration” of tribal treaties before the easement is issued.
Delaying the pipeline based on a last-minute argument would “impose significant costs on a third party,” he said, namely Energy Transfer Partners, the company building the $3.8 billion pipeline, which the judge described as “days from completion.”
“Indeed, Defendants previously modified the pipeline workspace and route more than a hundred times in response to cultural surveys and Tribes’ concerns regarding historic and cultural resources,” the opinion said. “The Corps also imposed additional construction conditions on DAPL in response to tribal positions regarding environmental safety.”
Chase Iron Eyes, a leading pipeline foe, said that if there is a spill, the corps and the judge “will have oil and blood on their hands, and we will not let them forget it.”