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Trump administration opposes injunction against Dakota Access

Wednesday, February 22, 2017

Chairman Harold Frazier of the Cheyenne River Sioux Tribe. Photo: Oceti Sakowin Camp

The new Trump administration is opposing efforts to stop completion of the Dakota Access Pipeline.

Court papers filed on Tuesday register strong opposition to a preliminary injunction requested by the Cheyenne River Sioux Tribe. That's a change in course from just a few months ago, when the U.S. Army Corps of Engineers was calling on the wealthy backers of the pipeline to hold back on construction in North Dakota due to opposition in Indian Country.

But with Republican President Donald Trump in office, a different direction is emerging from the nation's capital. On the legal front, that includes former Sen. Jeff Sessions (R-Alabama), who was confirmed as Attorney General for the United States on February 8 despite concerns about his record on Indian issues.

The name appearing on the brief submitted by the Department of Justice is in fact a Sessions loyalist who is now leading the division that handles Indian law cases. But Jeff H. Wood, who is serving as an "acting" assistant attorney general, doesn't have much of record on tribal issues -- the biography from his former law firm instead touted his work on behalf of corporate interests.

The Department of Justice, under new leadership in Washington, D.C., claims the Cheyenne River Sioux Tribe failed to raise religious concerns as the U.S. Army Corps of Engineers reviewed the final portion of the Dakota Access Pipeline.

By quickly approving the final portion of Dakota Access, the Trump administration has already shown a desire to favor corporations. Tuesday's filing also makes clear that tribal objections -- even if they are based on "sincerely held religious beliefs" -- aren't enough to stop the pipeline from being completed.

"Without being made aware of Cheyenne River’s specific religious objection to granting the easement until after the easement was granted, the Corps could not meaningfully engage with Cheyenne River to discuss the tribe’s concerns," Tuesday's 44-page filing reads, arguing that the tribe failed to tell the Army Corps, through prior meetings and correspondence, of its belief that the pipeline will desecrate the waters in the Missouri River.

Despite acknowledging that tribal officials previously told the Army Corps that "water is sacred," the brief contends the information wasn't "sufficient" enough to bring religious concerns to the table as the agency considered whether or not to approve the final portion of the pipeline upstream from the Cheyenne River Sioux Reservation.

"Simply put, the Corps addressed the concerns Cheyenne River raised in the administrative process and cannot reasonably be required to address claims that were not raised in that process. Laches bars Cheyenne River from raising its RFRA claim now, only after the administrative process has concluded and the easement has been issued," the brief states in reference to the Religious Freedom Restoration Act.

The tribe will get a chance to respond to the claims next week. A hearing is taking place on February 28 at the federal courthouse in Washington, D.C.

The hearing comes as the wealthy backers of Dakota Access report significant progress on work at Lake Oahe in North Dakota. According to a status report filed in court on Tuesday, oil could be flowing as early as March 6, or barely a week after arguments on the injunction sought by the tribe.

Federal Register Notice:
Notice of Termination of the Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (February 17, 2017)

Prior Federal Register Notice:
Notice of Intent To Prepare an Environmental Impact Statement in Connection With Dakota Access, LLC's Request for an Easement To Cross Lake Oahe, North Dakota (January 18, 2017)

Dakota Access Pipeline Approval Documents:
Department of Justice Notice | Department of the Army Approval Memorandum | Notice of Termination of EIS for Dakota Access Pipeline | Easement Letter to Congressional Leadership

White House Documents:
Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017)
Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017)
Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017)
Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017)
Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017)
Press Release: President Trump Takes Action to Expedite Priority Energy and Infrastructure Projects (January 24, 2017)