A federal judge said Tuesday that he'll decide within a week whether to temporarily halt construction of the final section of the Dakota Access pipeline over claims that it violates the religious rights of two Indian tribes.
U.S. District Judge James Boasberg told lawyers at a hearing that he wants to issue a ruling before oil begins flowing in the pipeline, which could be weeks away.
Boasberg is considering a request by the Standing Rock and Cheyenne River Sioux tribes to order the Army Corps of Engineers to withdraw permission to lay pipe under Lake Oahe in North Dakota. The pipeline has prompted months of protests and hundreds of arrests.
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The stretch under the Missouri River reservoir is the last piece of construction for the $3.8 billion pipeline, which would move oil through the Dakotas and Iowa to a shipping point in Illinois.
Tribal attorney Nicole Ducheneaux argued during the 1 ½ hour hearing that the mere existence of an oil pipeline under the reservoir that provides water to neighboring reservations violates their right to practice their religion, which relies on clean water.
Boasberg asked Ducheneaux how there could be a contamination issue if "the pipeline itself doesn't even touch the water."
"Can you claim a property interest in the land as well as the water?" he asked.
Ducheneaux said the judge appeared to be questioning the sincerity of the tribes' beliefs and stressed there was no other source of clean water available near the tribe's reservation.
American Indian activist Chase Iron Eyes, an outspoken opponent of the pipeline, attended the hearing and said afterward that "from the way that the judge was asking questions, it's clear that American or Western (courts) ... lack a place intellectually or spiritually to comprehend the sacred relationship between the original peoples of this hemisphere and the waters, the sacred sites and the lands in our hemisphere."
When they filed the lawsuit last summer, the tribes argued that the pipeline threatens Native American cultural sites and their water supply. Their religion argument is new, however, and both the Corps and the company building the pipeline, Energy Transfer Partners, argue that the delay in raising it is a reason for Boasberg to reject the argument.
Corps attorney Reuben Schifman said the tribes waited too long to raise the religion claims and argued that they haven't shown that the pipeline creates a "substantial burden" on their religious practices.
Representing the pipeline, lawyer David Debold noted that the lake has only existed since the 1950s and questioned how the purity of its water could be part of longstanding tribal religious beliefs.
Earlier this month, Boasberg declined the tribes' request to order an immediate halt to the pipeline construction, ruling that as long as oil wasn't flowing through the pipeline, there was no imminent harm to the tribes.
Boasberg's decision on the matter won't be the end of the court battle, as no final decision has been made on the merits of the tribes' overall claims. Both tribes also have asked Boasberg to overturn the federal permission for the Lake Oahe crossing and to bar the Corps from granting permission in the future. The judge won't rule until at least April.
Hundreds and sometimes thousands of pipeline opponents who sided with tribal opposition to the pipeline camped on federal land near the drill site for months, often clashing with police. There have been about 750 arrests in the region since August. Authorities last week closed the camp in advance of spring flooding season and set up roadblocks to prevent protesters from returning.
Work under Lake Oahe had been held up in the courts until President Donald Trump last month instructed the Corps to advance construction. The Army is involved because its engineering branch manages the river and its system of hydroelectric dams, which is owned by the federal government.
Texas-based Energy Transfer Partners began drilling under the lake Feb. 8. The pipeline could be operating as early as Monday and no later than early April, according to Scherman.