Authorities remove the last remaining residents of the #NoDAPL encampment in North Dakota on February 24, 2017. Photo: Rob Wilson [GoFundMe]

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Cheyenne River Sioux Tribe waits for ruling on Dakota Access injunction

Tuesday, February 28, 2017

The Cheyenne River Sioux Tribe will have to wait another week to see whether a federal judge will put a stop to the Dakota Access Pipeline.

The tribe made a forceful argument in federal court in Washington, D.C., in hopes of derailing the controversial project. Attorney Nicole Ducheneaux, herself a Cheyenne River citizen, said the mere presence of the crude oil pipeline in the Missouri River will harm her people's way of life by rendering the water impure.

"Water is essential to life on the reservation," Ducheneaux said during a 90-minute hearing on Tuesday morning.

But Judge James E. Boasberg said he wasn't ready to rule on a preliminary injunction sought by the tribe. He promised a written decision next week, which happens to be around the same time that construction in North Dakota might be finished.

With that in mind, Boasberg ordered Dakota Access to provide advance notice of oil going into the pipeline. He did so even after an attorney for the firm said there was a "low likelihood" that work would be finished by March 6, the earliest possible date of completion.

"I'm asking you to give 48 hours notice," the judge told attorney David Debold.

The firm is already providing weekly status updates on construction activities and has given a range of March 6 to April 1 for dates of completion. After huddling in court with a top Dakota Access executive, Debold added that there was a "very high likelihood" that oil will be flowing before April 1, which would give the tribe, as well as other opponents, more time to fight the project in court.

The court actions represent the last resort for Cheyenne River as well as for the Standing Rock Sioux Tribe now that President Donald Trump has turned his back on them. His administration failed to consult with the tribes on a government-to-government basis before the final portion of the pipeline was approved.

Arguments made by the Department of Justice at the hearing underscored the change in Washington. Attorney Ben Schifman said the Cheyenne River Sioux Tribe failed to raise any concerns about its religious practices while the U.S. Army Corps of Engineers was reviewing the pipeline.

For the tribe to bring up religious concerns at this point in the litigation "is very problematic to the Corps ... and for the court's resources," Schifman said as he urged Boasberg to deny the injunction.

But if the injunction is denied, the fight still won't be over. Both Cheyenne River and Standing Rock have asked the judge to set aside the easement that was granted to Dakota Access earlier this month.

Briefing on that issue continues as construction crews work on the final portion at a site less than a half-mile from Standing Rock. A "pilot hole" has already been drilled under the Missouri River, according to a status update filed in court on Monday.

Crews are now "reaming" the hole, or making it bigger in order to accept a pipe that will transport oil through the river. The company and the Army Corps have both argued that the pipe, which will be 30 inches in diameter, won't impact the two tribes' treaty-guaranteed right to water in the Missouri.

"It doesn't even touch the water," Schifman of the Department of Justice said of the pipe.

Separate from the court fight, Standing Rock leaders are hoping to galvanize public support with Native Nations Rise in Washington. The event includes a symbolic camp near the Washington Monument starting on March 7 and concludes with a march to the White House on March 10.

Indian Country #NoDAPL Briefs:
Oglala Sioux Tribe (February 21, 2017)
Pueblo of Pojoaque / Association on American Indian Affairs / University of New Mexico School of Law Natural Resources and Environmental Law Clinic (February 21, 2017)
National Indigenous Women's Resource Center / 13 Tribes / 105 Non-Profit Organizations (February 21, 2017)
National Congress of American Indians / 34 Tribes / 11 Tribal Organizations / 2 Civil Rights Organizations (February 22, 2017)

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)