United States District Court, District of Columbia
E. BOASBERG United States District Judge.
last summer, the question of whether Dakota Access should
route its oil pipeline near the reservations of American
Indian tribes has engendered substantial debate both on the
ground in North and South Dakota and here in Washington. This
Court, meanwhile, has focused on the specific legal
challenges raised by the Standing Rock and Cheyenne River
Sioux Tribes in their efforts to block government permitting
of the pipeline. See Standing Rock Sioux Tribe v. U.S.
Army Corps of Engineers (Standing Rock I), 2016
WL 4734356 (D.D.C. Sept. 9, 2016).
start of 2017, that pipeline was nearly complete, save a
stretch - awaiting an easement - that was designed to run
under the bed of Lake Oahe, a federally regulated waterway
that forms part of the Missouri River and straddles North and
South Dakota. Upon assuming office, President Trump directed
an expedited approval process, and on February 8, the Army
Corps of Engineers issued the easement that permitted Dakota
Access to drill under the lake.
that the presence of oil in the pipeline under Lake Oahe will
cause irreparable harm to its members' religious
exercise, Cheyenne River responded with a Motion for
Preliminary Injunction, in which it argues that the
easement's grant violates the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb et seq.,
and requests that the Court enjoin the effect of the easement
and thus the flow of oil, which is expected to commence in
the next week or two. See ECF No. 156 (Status Report
of Dakota Access, Mar. 6, 2017). As the Court concludes that
the extraordinary relief requested is not appropriate in
light of both the equitable doctrine of laches and the
Tribe's unlikelihood of success on the merits, it will
deny the Motion.
Dakota Access Pipeline (DAPL) is a domestic-oil pipeline
designed to move more than half a million gallons of crude
oil across four states every day. Standing Rock I,
2016 WL 4734356, at *1. Its construction has sparked legal
challenges from several American Indian tribes: the Standing
Rock and Cheyenne River Sioux Tribes here, as well as others.
See Yankton Sioux Tribe v. U.S. Army Corps of
Engineers, No. 16-1796 (D.D.C., filed Sept. 8, 2016);
Oglala Sioux Tribe v. U.S. Army Corps of Engineers,
No. 17-267 (D.D.C., filed Feb. 11, 2017). The present action
originally sought, in principal part, to block permitting by
the Corps of the construction and operation of DAPL
underneath Lake Oahe, a federally regulated waterway created
by the Corps in 1958 via a dam constructed on the Missouri
River. Standing Rock I, 2016 WL 4734356, at *6. The
Lake Oahe crossing sits about half a mile north of the
Standing Rock Reservation and 73 miles north of the Cheyenne
River Reservation. Id.; ECF No. 127-3, Exh. 1. The
crossing, which will run under the lakebed but not through
the water itself, is the only portion of DAPL that is not yet
finished. See ECF No. 89-1 (Presidential Memorandum
of Jan. 24, 2017), § 1; Preliminary Injunction Oral
Argument Transcript (Feb. 28, 2017) at 9:22-10:2.
Court has previously discussed the permitting schemes for
construction activities in federally regulated waters and
documented the Corps' application of those schemes to
DAPL. See Standing Rock I, 2016 WL 4734356, at
*1-17. It thus will recap only the developments relevant to
the present Motion.
Access formally requested a permanent easement at Lake Oahe
in October 2014, see ECF No. 73-4 at 2, and
submitted an application for such an easement to the Corps in
June 2015. See ECF No. 73-5. On July 25, 2016, the
Corps granted permission under the Rivers and Harbors Act, 33
U.S.C. § 408, for DAPL's placement at Lake Oahe.
See ECF No. 73-7. The parties disagree as to whether
the Corps also at that time granted an easement pursuant to
the Mineral Leasing Act, 30 U.S.C. § 185. See
ECF No. 57 (Dakota Access Cross-Claim); ECF No. 66 (Dakota
Access Mot. for Summary Judgment); ECF No. 73 (Corps Mot. for
Summary Judgment). Two days later, the Standing Rock Sioux
Tribe filed this suit against the Corps for declaratory and
injunctive relief pursuant to the National Historic
Preservation Act, National Environmental Policy Act, Clean
Water Act, and the Rivers and Harbors Act. See ECF
No. 1 (Complaint), ¶¶ 128-212. Dakota Access
successfully moved to intervene in support of the Corps on
August 5, see ECF No. 7, and Cheyenne River joined
as a Plaintiff on August 10. See ECF No. 11.
Cheyenne River then filed its own Complaint, see ECF
No. 11-12, which it later amended on September 8.
See ECF No. 37. Like Standing Rock's Complaint,
Cheyenne River's pleadings stated claims under the NHPA,
NEPA, CWA, and RHA, as well as for breach of trust
responsibility, and violations of the Flood Control Act and
the Administrative Procedure Act. Id. at 38-55.
Significantly, neither Plaintiff asserted a count under the
Religious Freedom Restoration Act.
Tribes initially sought a preliminary injunction - based
solely on the NHPA - contending principally that the clearing
and grading of land along the pipeline route desecrated sites
sacred to them. On September 9, 2016, immediately after this
Court issued its Opinion denying that motion, see
Standing Rock I, 2016 WL 4734356, the Departments of
Justice, the Interior, and the Army issued a joint statement
explaining that because “important issues raised by the
Standing Rock Sioux Tribe and other tribal nations and their
members regarding the Dakota Access pipeline” remained,
“construction of the pipeline on Army Corps land
bordering or under Lake Oahe [would] not go forward”
until the Army could determine whether reconsideration of any
of its previous decisions regarding the Lake Oahe crossing
under NEPA or other federal laws was necessary. See
ECF No. 42-1 at 1.
months later, on November 14, 2016, Assistant Secretary of
the Army for Civil Works Jo-Ellen Darcy wrote to Dakota
Access and Standing Rock to explain that the Army had
completed the review called for on September 9 and had
“determined that additional discussion with the
Standing Rock Sioux Tribe and analysis [were]
warranted.” ECF No. 56-1 at 2. The Army invited
Standing Rock to engage in discussions concerning
“[p]otential conditions in an easement for the pipeline
crossing” and “[i]n light of such conditions,
whether to grant an easement for the pipeline to cross Lake
Oahe at the location currently proposed.” Id.
on December 4, Assistant Secretary Darcy issued a memorandum
to the Corps' Commander stating that the Army would
“not grant an easement to cross Lake Oahe at
the proposed location based on the current record.” ECF
No. 65-1, ¶ 12 (emphasis added). She directed a
“robust consideration of reasonable alternatives,
” which she thought would be “best accomplished .
. . by preparing an Environmental Impact Statement.”
Id. On January 18, 2017, Darcy published in the
Federal Register a notice of intent to prepare an EIS.
See 82 Fed. Reg. 5, 543 (Jan. 18, 2017).
government's position on the easement shifted
significantly, however, once President Trump assumed office.
A Presidential Memorandum issued on January 24, 2017,
directed the Secretary of the Army to instruct the Assistant
Secretary of the Army for Civil Works and the Corps “to
take all actions necessary and appropriate to . . . review
and approve in an expedited manner, to the extent permitted
by law and as warranted, and with such conditions as are
necessary or appropriate, requests for approvals to construct
and operate the DAPL, including easements or
rights-of-way” and to “consider, to the extent
permitted by law and as warranted, whether to rescind or
modify” the December 4 memorandum. See ECF No.
89-1, § 2. The Army completed a review, see ECF
No. 114-1 (Memorandum re: Dakota Access Pipeline; USACE
Technical & Legal Review for the Dep't of the Army,
Feb. 3, 2017), provided notice to Congress of its intent to
issue the easement, see ECF No. 95, and did so on
February 8. See ECF No. 96-1.
next day, Cheyenne River filed the present Motion for
Preliminary Injunction along with an Application for a
Temporary Restraining Order. See ECF No. 99. The
Tribe does not consistently describe the nature of the
requested injunctive relief. At points, it asks that the
Court direct the Corps “to withdraw the
easement.” Notice of Mot. at 1; ECF No. 98-12 (Text of
Proposed PI Order) at 1. It elsewhere asks the Court to
enjoin “the effect of the easement” and to enjoin
further construction by Dakota Access “in the area
described in the easement.” Mot. at 1; see also
id. at 2, 3-4. Because the impact of withdrawing the
easement or suspending its effect would presumably be the
same - halting any additional construction under and on
either side of Lake Oahe and preventing the flow of oil - the
Court need not parse the different terminology.
sole cause of action raised in the TRO and this Motion is the
Religious Freedom Restoration Act. Id.; ECF No. 98
(Mot.). Specifically, Cheyenne River contends:
The Lakota people believe that the mere existence of a crude
oil pipeline under the waters of Lake Oahe will desecrate
those waters and render them unsuitable for use in their
religious sacraments. . . . 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
Mot. at 2-3. Because Cheyenne River had not previously pled a
RFRA claim, it has also sought leave to file a Second Amended
Complaint. See ECF No. 97. For purposes of resolving
the present Motion, the Court assumes it will grant the
Tribe's motion for leave to amend, such that the RFRA
claim is properly before it.
Court held a hearing on the TRO on February 13. Finding that
no harm to religious exercise was imminent, as oil was not
yet set to flow through DAPL, the Court denied the
application. See Minute Order of Feb. 13, 2017; ECF
No. 119 (TRO Oral Argument Transcript, Feb. 13, 2017) at
29:20-30:19. It then set a compressed briefing schedule on
the instant Motion for Preliminary Injunction and heard
argument on February 28. It issues this Opinion on an
relief” is “an extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff
seeking a preliminary injunction must establish  that he
is likely to succeed on the merits,  that he is likely to
suffer irreparable harm in the absence of preliminary relief,
 that the balance of equities tips in his favor, and 
that an injunction is in the public interest.”
Id. at 20.
the Supreme Court's decision in Winter, courts
weighed the preliminary-injunction factors on a sliding
scale, allowing a weak showing on one factor to be overcome
by a strong showing on another. See, e.g.,
Davenport v. Int'l Bhd. of Teamsters, 166 F.3d
356, 360-61 (D.C. Cir. 1999). This Circuit, however, has
suggested that Winter should be read to abandon the
sliding-scale analysis in favor of a “more demanding
burden” requiring plaintiffs to independently
demonstrate both a likelihood of success on the merits and
irreparable harm. See Sherley v. Sebelius, 644 F.3d
388, 392-93 (D.C. Cir. 2011); Davis v. Pension Benefit
Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
Whether a sliding-scale analysis still exists or not, courts
in our Circuit have held that a failure to show a likelihood
of success on the merits alone is sufficient to defeat the
motion. Ark. Dairy Co-op Ass'n, Inc. v. USDA,
573 F.3d 815, 832 (D.C. Cir. 2009) (citing Apotex, Inc.
v. FDA, 449 F.3d 1249, 1253 (D.C. Cir. 2006)).
River seeks preliminary-injunctive relief to protect its
members' free exercise of religion, which it argues will
be compromised by the presence of crude oil in the Dakota
Access pipeline under Lake Oahe. See TRO Tr. at
9:10-12, 11:3-4. Because construction on that portion of the
pipeline is now underway and oil is likely to start flowing
through the completed pipeline in the next week or two,
see DA Mar. 6 Status Report, the Tribe asserts that
its members' rights are in imminent danger. It thus
insists that the Court must enjoin the effect of the easement
- namely, Dakota Access's ability to operate the pipeline
under Lake Oahe - while it weighs the merits of the
Tribe's RFRA claim.
response, the Corps and Dakota Access raise myriad arguments,
among them that the Tribe has not demonstrated a likelihood
of success on the merits both because its RFRA claim is
barred by laches and because it failed to show a substantial
burden on its members' religious exercise. The Court
largely agrees, concluding that laches bars the
preliminary-injunctive relief requested (but not the RFRA
claim itself) and that the Tribe's substantial-burden
position is unlikely to achieve success on the merits. Having
so decided, the Court need not consider the remaining three
factors of the preliminary-injunction analysis - irreparable
harm, balance of equities, and public interest - or
Defendants' other contentions.
is an equitable defense “‘designed to promote
diligence and prevent enforcement of stale claims' by
those who have ‘slumber[ed] on their
rights.'” Menominee Indian Tribe of Wisc. v.
United States, 614 F.3d 519, 531 (D.C. Cir. 2010)
(quoting Gull Airborne Instructions, Inc. v.
Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982)). As a
general matter, it applies “where there is (1) lack of
diligence by the party against whom the defense is asserted,
and (2) prejudice to the party asserting the defense.”
Id. (quotation marks and citation omitted). How a
court applies laches, however, turns on whether the relief
requested is legal or equitable, whether the legislature has
supplied a statute of limitations, and, if so, whether that
limitations period has run. See Petrella v.
Metro-Goldwin-Mayer, Inc., 134 S.Ct. 1962, 1973-74
Congress has provided a statute of limitations and a
plaintiff brings a claim for legal relief within the
time period, laches cannot be invoked to preclude
adjudication of the claim or to bar that type of relief.
Id. at 1967, 1974. Where a plaintiff brings a claim
for equitable relief within the time period,
conversely, “laches may bar at the very threshold the
particular relief requested” only if
“extraordinary circumstances” are present.
Id. at 1967; 1977-78 (citing Chirco v.
Crosswinds Communities, Inc., 474 F.3d 227 (6th Cir.
2007); New Era Publications Int'l v. Henry Holt &
Co., 873 F.2d 576, 584-85 (2d Cir. 1989)). Absent such
circumstances, a court may take account of the
plaintiff's delay at the remedial stage when determining
the appropriate injunctive relief. Id. at 1967;
subject to a four-year statute of limitations. See
28 U.S.C. § 1658; see also Garraway v. Lappin,
2012 WL 959422, at *3 (M.D. Penn. Mar. 21, 2012);
Al-Sadun v. DCFS, 2011 WL 1378638, at *3 (N.D. Ill.
Apr. 11, 2011); Pineda-Morales v. De Rosa, 2005 WL
1607276, at *8 (D.N.J. July 6, 2005); Jama v. U.S.
INS, 343 F.Supp.2d 338, 365 (D.N.J. 2004). Defendants do
not mention this statute or assert that extraordinary
circumstances are present here. The Court, consequently, does
not acquiesce in their position that laches bars the RFRA
claim in its entirety. See DA Opp. at 1, 10; Corps
Opp. at 10-15.
conclusion, however, does not mean that laches is an
irrelevant consideration here. On the contrary, a court
assessing whether to award the “extraordinary
remedy” of preliminary-injunctive relief,
Winter, 555 U.S. at 22, may determine whether laches
renders that relief inappropriate. See, e.g.,
Perry v. Judd, 840 F.Supp.2d 945, 953-55 (E.D. Va.
2012) (discussing whether laches precluded
preliminary-injunctive relief prior to undertaking
four-factor analysis). The Court will thus proceed to analyze
Defendants' contention that the Tribe delayed in filing
suit on its RFRA claim and thereby caused them prejudice.
Lack of Diligence
delay is not sufficient to warrant the application of laches.
Menominee Indian Tribe, 614 F.3d at 531. The
“party seeking relief” must have delayed
“inexcusably or unreasonably.”
Id. (quotation marks and citation omitted) (emphasis
added). As explained below, although the Tribe learned of
DAPL's proposed route in October 2014, when the Corps
solicited its input on the project, and the Corps issued some
of the authorizations necessary for Dakota Access to drill at
Lake Oahe in July 2016, Cheyenne River waited until February
2017 to voice its concern that, given the Black Snake
prophecy, the mere presence of oil in the pipeline would
impose a substantial burden on its members' religious
exercise and to seek to raise a RFRA claim.
accordance with the consultation process required by Section
106 of the NHPA, the Corps sent a letter to tribes, including
Cheyenne River, on October 24, 2014, with information about
the proposed DAPL project and maps illustrating its location
and nearby cultural sites. See ECF No. 127-5
(Declaration of Richard Harnois), ¶ 7. The letter
requested comments from the Tribe within 30 days of its
receipt. Id. Cheyenne River did not respond until
March 23, 2015. Id., ¶¶ 8-9, 12.
the next several months, the Corps invited the Tribe to weigh
in on DAPL, including via site visits and meetings.
Id., ¶¶ 12-30. Cheyenne River submitted
comments in person and via email, phone, and letter,
id., ¶ 30, some of which alerted the Corps in
general terms that DAPL might affect sacred sites, including
water. But the Tribe never asserted that the pipeline's
operation itself under Lake Oahe - absent any spill or
rupture - would somehow compromise the purity of the water
and pose a religious-exercise problem. See, e.g.,
ECF No. 115-2, Exh. B (Letter from Steve Vance to Richard
Harnois, Corps Sr. Field Archaeologist, Aug. 17, 2015) at 2
(“DAPL cannot address the [e]ffects to cultural and
historical resources, Sacred sites (water included),
Traditional Cultural Properties, Properties of Cultural or
Religious Significan[ce] to Tribe, etc., of the proposed
pipeline when they have not been properly
identified.”); ECF No. 115-2, Exh. C (Federal
Consultation with Tribes Regarding Infrastructure
Decision-Making, Oct. 27, 2016) at 145:15-17 (“Water is
sacred to us.”); Hanois Decl., ¶¶ 31-33; ECF
No. 143-1 (Transcript of NHPA Consultation Meeting, Feb.
18-19, 2016) at 3 (Steve Vance, Cheyenne River's Tribal
Historic Preservation Officer: ...