Court Victory in Hand, Dakota Access Line Readies for Oil

(Bloomberg) -- Energy Transfer Partners LP will soon send oil through its controversial Dakota Access pipeline, having defeated a Native American tribe's effort to prevent that on religious grounds.

Tuesday's ruling by U.S. District Judge James Boasberg in Washington, rejecting arguments made on behalf of the Cheyenne River Sioux, all but ensures the conduit will come on line after final construction and testing. Attorneys for the pipeline consortium have told the court crude could flow as soon as March 13.

This is at least the third time Boasberg, appointed in 2011 by former President Barack Obama, has denied a bid to block pipeline project progress. The ruling comes as Native American tribes across the country plan to march against the pipeline on Friday in Washington.

Dakota Access has become a symbol of President Donald Trump's support for oil pipelines blocked by Obama's administration. Its construction site near North Dakota's Lake Oahe served for months as a stage for demonstrations by Native Americans and environmentalists waging war against shale oil and gas projects. 

Boasberg rejected a last-minute argument made by the Cheyenne River band that the mere presence of oil in the pipeline under the man-made lake taints its waters and interferes with their sacred rites. The Sioux argued that the project violated their religious freedom and symbolized the “terrible black snake” in a Lakota prophecy that would bring destruction to their homeland.

Snake Prophecy

The tribe's “extraordinary” request to block the flow of oil was unlikely to succeed on the merits, Boasberg said in his decision. He found unsatisfactory the tribe's argument that the U.S. Army Corps of Engineers never engaged in proper consultations about the pipeline's path and noted the Sioux's silence on the Black Snake Prophecy for more than two years after becoming aware of the proposed route.

“The tribe is disappointed in the court's decision,” Cheyenne River's lawyer Nicole Ducheneaux said on a conference call with reporters. She said the decision demonstrated the American government's continued misunderstanding of Native American religious beliefs.

The $3.8 billion project connects shale-oil rich northwest North Dakota with a terminal 1,172 miles (1,886 kilometers) away in Patoka, Illinois. It's been embroiled in litigation since last July when another Sioux tribe, the Standing Rock, sued to prevent its construction across their historic lands and beneath water said to be sacred.

‘Big Oil'

While that initial Standing Rock effort failed, the Corps put a voluntary hold on construction while it reviewed the project anew. In the waning days of the Obama administration, the Corps said it would conduct another environmental impact review. That plan was abandoned in January by the new administration and the Corps approved construction last month.

“Trump and his friends at Big Oil have not won,” Standing Rock Chairman Dave Archambault said in an emailed statement. “While this preliminary ruling is disappointing, it's not surprising. The bigger legal battle is ahead –- we stand strong.”

Vicki Granado, a spokeswoman for Energy Transfer, didn't respond to phone and email requests for comment on the ruling.

Boasberg must still consider Standing Rock's claim that the U.S. abrogated treaty rights and improperly canceled its commitment to conduct an environmental impact review. No hearing date has been set as yet.

Oil Flow

Standing Rock's attorney Jan Hasselman called the decision to scrap the environmental assessment “outrageous,” on the conference call with Ducheneaux. Affected waterways serve 17 million people, Hasselman said, adding he'll ask the court to turn off any flow of oil as part of the relief sought by the tribe.

Ducheneaux declined to declare the religious freedom argument dead, but added the tribe has not yet decided whether it will appeal. It is undisputed that treaty rights promise the Standing Rock Sioux sufficient safe drinking water, Hasselman said.

The Cheyenne River reservation is in northern South Dakota, about 50 to 70 miles from where the pipeline crosses Lake Oahe. Standing Rock's reservation, to the north, is closer to the lake.

In addition to Dakota Access, Trump also urged the expediting of TransCanada Corp.'s Keystone XL pipeline project previously blocked by Obama. It would carry Alberta crude to the Gulf of Mexico via a junction in Steele City, Nebraska.

The case is Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-cv-1534, U.S. District Court, District of Columbia (Washington).

--With assistance from Meenal Vamburkar

To contact the reporter on this story: Andrew Harris in Washington at aharris16@bloomberg.net.

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Sophia Pearson, Joe Schneider