A federal judge this week initially rejected a claim brought by the Cheyenne River Sioux Tribe that construction of the Dakota Access pipeline (DAPL) through tribal lands violates their religious beliefs under the Religious Freedom Restoration Act (RFRA). The ruling, which allows construction of the pipeline to continue, sets up what may be the next key test of the Burwell v. Hobby Lobby decision.
On February 7, the U.S. Army Corps of Engineers notified Congress that it was moving forward with construction. This followed an executive order issued in late January by President Donald Trump ordering the project’s completion. The tribe sued to block construction the next day, arguing that the pipeline—which, as currently planned, would run through tribal lands and under Lake Oahe—will desecrate sacred water.
Ruling from the bench against the request to halt the project with a temporary restraining order (TRO), Judge James Boasberg said the tribe had not shown the pipeline would cause immediate harm to their religious practices. Boasberg ordered a hearing on the tribe’s request for a permanent injunction blocking construction from taking place before oil begins flowing through the pipeline. That hearing will also more fully examine whether the pipeline would negatively affect the tribe’s religious practices.
That hearing is tentatively scheduled for February 27.
Roe is gone. The chaos is just beginning.
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Undergirding the tribe’s RFRA claim is the Hobby Lobby case, in which the U.S. Supreme Court held that many businesses could avoid complying with the birth control benefit in the Affordable Care Act. In that case, attorneys for Hobby Lobby successfully argued that complying with that benefit would violate the religious beliefs of its owners. Furthermore, the attorneys for Hobby Lobby argued, because the government had created both exemptions and an accommodation process for some institutions to avoid complying with the benefit, there was another, more reasonable way for the government to meet its interest in providing comprehensive health care coverage through the ACA. So far, that “reasonable” way has not been nailed down. (And if Republicans carry through with their promise to repeal Obamacare, which includes doing away with the contraception benefit, it may not matter anyway.)
Little Sisters of the Poor, a nonprofit that runs nursing homes, also sued to block the benefit. But unlike Hobby Lobby, the Little Sisters, as a religiously affiliated nonprofit, did not ever have to comply with the benefit. All they had to do was to notify the government that they were a religiously affiliated institution that objected on religious grounds to complying, and the federal government would take care of the rest in terms of contraception coverage. But the Little Sisters argued that even the act of notifying the government of their objection substantially burdened their religious rights and thus violated RFRA because it “triggered” contraception coverage for others. This, they said, made the nuns complicit in the “sin” of facilitating access to birth control.
Thanks in large part to the Hobby Lobby decision, the Little Sisters have been mostly successful in getting courts to agree that the mere possibility of a third party accessing contraception is enough of a burden on their religious beliefs to make a claim under RFRA.
By contrast, this is how the Cheyenne River Sioux Tribe’s lawyers described the nature of the burden the pipeline would place on their religious beliefs in court documents submitted along with their request for a TRO:
The Lakota people believe that the pipeline correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction. The Lakota believe that the very existence of the Black Snake under their sacred waters in Lake Oahe will unbalance and desecrate the water and render it impossible for the Lakota to use that water in their Inipi ceremony. Without access to natural, unadulterated, and ritually pure water, the Lakota people cannot practice their religion. As Lake Oahe is the only natural, unadulterated, and ritually pure water available to the Tribe—a trust resource for which the United States owes the Tribe a fiduciary duty—desecration of these waters represents a substantial burden on the Tribe’s religious exercise. The United States cannot meet its burden of demonstrating that a compelling governmental interest justifies siting this pipeline under these sacred waters owned by the Tribe. And as the Corps has considered a litany of alternatives to placing the pipeline at this location under Lake Oahe, it cannot meet its burden of demonstrating that the crossing of the pipeline under Lake Oahe is the least restrictive means of furthering any governmental interest.
Because of the initial nature of Boasberg’s ruling, there’s no developed analysis explaining how the tribe’s claim—that the pipeline will contaminate the sacred waters it would run directly underneath—is not a burden on religious rights, when the Little Sisters completing a form for legal accommodation to the birth control benefit was. This is also frustrating, given the fact federal case law exists recognizing RFRA claims made by members of a variety of faiths, asserting many different types of burdens on their religious practice. With a case of this significance, the parties and the public deserve the benefit of Boasberg showing his work and detailing the basis for his conclusion, even on an request for a temporary order like this one was.
Judge Boasberg will have the opportunity to do so when he issues a ruling on the tribe’s permanent injunction request after that hearing.
Until that next hearing and order happens, construction of the pipeline moves forward. Meanwhile, the governor of North Dakota signed an emergency order this week mandating a February 22 deadline for protesters to leave the Oceti Sakowin protest camp at the pipeline site or be forcibly removed.