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‘Black snake prophecy’ at center of Dakota oil pipeline battle

UPDATED: Tue., Feb. 28, 2017

A sculpture stands at an encampment where protesters of the Dakota Access oil pipeline  gathered for months, Saturday, Nov. 26, 2016, near Cannon Ball, N.D. (James MacPherson / Associated Press)
A sculpture stands at an encampment where protesters of the Dakota Access oil pipeline gathered for months, Saturday, Nov. 26, 2016, near Cannon Ball, N.D. (James MacPherson / Associated Press)
By Andrew Harris Bloomberg

Citing religious rites and the dark prophecy of a “terrible black snake” that will bring harm to its people, a Sioux Indian tribe returned to court Tuesday in an eleventh-hour push to keep the Dakota Access pipeline from carrying its first crude oil.

The Washington hearing was held just days after the consortium constructing the conduit — Dakota Access led by Energy Transfer Partners — told the court the 1,172-mile pipeline could be in service any time between March 6 and April 1. All that remains to be completed is a span under Lake Oahe in North Dakota.

Energy Transfer’s $3.8 billion project has been a flash point for Native Americans and environmentalists on one side and the oil industry on the other. The industry has been bolstered by President Donald Trump’s reversal of Obama administration commitments to reconsider the route of the pipeline’s last link.

“The Lakota people believe that the pipeline correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction,” tribe lawyers said in court papers this month. They also claim the mere presence of the pipeline would make the lake water impure and unsuitable for use in their religious sacraments.

While the Cheyenne River Sioux’s claims arise from ancient ritual and lore, their legal arguments are grounded in the Religious Freedom Restoration Act, a 1993 law that allowed closely held companies to avoid providing contraception insurance to employees. The measure bars the government from substantially burdening a person’s religious freedom unless it’s for a compelling government interest and done in the least-restrictive way.

U.S. District Judge James E. Boasberg, a 2011 Obama administration appointee who has rejected previous attempts to block work on the pipeline, heard more than an hour of arguments from lawyers for the tribe, the pipeline builder and the U.S. He said he will aim to rule by March 7 and ordered the company to give him at least 48-hours notice before the pipeline is operational.

Attorneys for the government and Dakota Access contend the tribe waited too long to raise their religious-freedom argument. Lawyers for the consortium also say that it is not bound by the religious-freedom law.

“Dakota Access continues to have the greatest respect for the religious beliefs and traditions of Cheyenne River and the other tribes that have participated in the process,” company lawyers said in a Feb. 21 filing. “Cheyenne River’s last-ditch desperation pass comes after time has expired.”

In court, tribal lawyer Nicole Ducheneaux disputed that assertion, telling the judge that concerns about the pipeline’s impact on the tribe had been raised as long as two years ago, albeit not in the precise manner required by a court filing.

“They were on notice,” she said, adding that even if the religious-freedom allegations had been made at the inception of the lawsuit last year, “we would still be here today.”

The U.S. Army Corps of Engineers last year put the project on hold after Boasberg denied an initial bid to block construction in a case filed by another Sioux band, the Standing Rock. Last month, the corps said it would conduct an environmental-impact assessment of the pipeline path under the lake. Trump then ordered the Army to expedite its review, prompting it to abandon that plan and instead grant final approval for the project.

The president also urged fast-track review of TransCanada Corp.’s Keystone XL, another pipeline project blocked by Obama, which would carry Alberta crude to the Gulf of Mexico via a junction in Steele City, Nebraska. The Dakota Access conduit runs from northwestern North Dakota to a distribution center in Patoka, Illinois.

Tribal lawyers claim the Army Corps has found other routes that are less-intrusive. Dakota Access’s advocates counter other natural gas pipelines and power lines already cross the lake, and there are other crude oil pipelines in the region.

The pipeline “is the black slippery terror described in the Black Snake prophecy,” lawyers for the tribe said in court papers. “And the coming of the Black Snake is not without consequence in the Lakota religious worldview.”

From the bench Tuesday, Boasberg was skeptical of the tribe’s arguments. In its defense, Ducheneaux suggested that under the law, the court is required to avoid questioning the sincerity of the beliefs expressed.

The judge also pressed the tribe’s lawyer on the relative distance of the Cheyenne River reservation from that point where the pipeline traverses the lake bed — a distance Ducheneaux estimated to be between 50 to 70 miles — and its proximity to another pipeline just seven miles further north on the Missouri River.

Dakota Access attorney David Debold questioned the tribe’s emphasis on the waters of Lake Oahe, a man-made reservoir he said was created in 1950 as a bi-product of the construction of the Oahe Dam down river in South Dakota.

“They have not established that there’s no other place to go,” to get water, Debold said.

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