WASHINGTON (CN) – Attorneys sparred in court Tuesday about a Native American tribe’s religious objections to the oil pipeline being built by Dakota Access under a lake used for tribal rituals.
David Debold, of Gibson, Dunn & Crutcher, earned scorn from counsel for the Cheyenne River Sioux in inviting U.S. District Judge James Boasberg to focus on the sincerity of the tribe's religious beliefs.
"That's an area into which the court should not tread," said Nicole Ducheneaux, an attorney with Fredericks Peebles & Morgan.
Ducheneaux did not fight the judge, however, when Boasberg said the issue is actually one in which the court should "tread lightly."
Dakota Access, a subsidiary of Energy Transfer Partners, has been working to complete the last leg of the $3.8 billion pipeline after President Donald Trump reversed an order by the last administration that would have the Army Corps of Engineers conduct an environmental assessment and reconsider the route.
Tuesday’s hearing on the motion for a preliminary injunction comes after Boasberg denied the tribe's request for a temporary restraining order on Feb. 13, finding that continued construction of the pipeline does not pose any imminent threat.
Once the oil begins flowing through the pipeline beneath Lake Oahe in North Dakota, however, Ducheneaux says contamination of the waters used for sacred religious rituals will impose a burden on the tribe’s free exercise of religion.
Oil could begin flowing through the pipeline as soon as Monday, but Dakota Access attorney Debold told Boasberg – after conferring with his clients during the hearing – that it is more likely oil will not begin flowing until late March.
In its latest effort to stop completion of the nearly 1,200-mile, four-state pipeline, the tribe has invoked the Religious Freedom Restoration Act, a federal law that bars the government from infringing on religious freedoms absent a compelling government interest.
Cheyenne Sioux tribal chairman Harold Frazier warned at the last hearing on Feb. 13 that the threat of the pipeline ties into a tribal prophecy. “They say that someday a big black snake will come and destroy our way of life,” Frazier had said.
Dakota Access and the Army Corps of Engineers complained to Boasberg that it is too late now for the tribe to raise such claims.
"In an administrative process that has spanned more than two years, and litigation that has spanned some six months (and two different complaints by the tribe), this motion is literally the tribe’s first mention of RFRA or the supposed burden underlying its RFRA claim," the Army Corps of Engineers said in a reply brief, using the abbreviation for the Religious Freedom Restoration Act.
Ducheneaux countered that the tribe’s historic preservation officer, Steve Vance, did discuss religious implications with the Army, though not in a precise legal manner.
"They were on notice that there were religious concerns with this pipeline," Ducheneaux said.
Vance has petitioned the court to intervene in the case, which could bolster the tribe's chances for standing on the claims, if Boasberg allows it.
The Army has argued that since the tribe is not an individual, the court should deny its request for a preliminary injunction.
"Supreme Court precedent holds that a person’s religious beliefs cannot dictate the government’s use of federal property," the Army reply brief states. "That is exactly what the tribe seeks to do here."
During the hearing, Boasberg tried to tease out how the pipeline would render Lake Oahe ritually impure, given that the pipeline will not touch the water, but will instead run in the ground beneath the lake.
Boasberg pressed Ducheneaux about the limits of religious freedom when considering the government's ability to take action on federal land.
"Where do we draw the line," he asked.
Though the water will not be directly contaminated by the presence of the pipeline, provided there are no spills, Ducheneaux insisted the pipeline will still contaminate the water.
"The tribe does have a religious right to the water," she said.
Though no court has ever concluded that a right to ritually pure water exists, Ducheneaux said the purpose of a reservation is to have a full existence, and that includes spiritual life.
The government must understand that water is essential for that, she added.
Debold, the Dakota Access attorney, pushed back on that, claiming that the tribe has yet to prove that it has no other source of ritually pure water.
Questioning the validity of the tribe's religious ties to Lake Oahe, Debold also noted that the country's fourth-largest artificial reservoir did not exist until the 1950s, after construction of the Oahe Dam.
After more than an hour of arguments, Boasberg said he would issue a ruling by March 7. The court also ordered Dakota Access to give him 48 hours notice before the first crude oil starts flowing.
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