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Dakota Access Could Flow Oil This Week; Court Rejects Native American Challenge

The contentious $3.8 billion, nearly 1,200-mile Dakota Access Pipeline project (DAPL) withstood another legal challenge over the weekend and its supporters indicated it could be flowing its first Bakken Shale crude oil supplies before the end of the week.

An appeals court last Saturday refused a request from two Native American tribes for an emergency order that would prevent oil from flowing through DAPL, which traverses North Dakota, South Dakota, Iowa and into a south-central Illinois transportation hub that will send the supplies to the East and Gulf Coasts.

A three-judge panel in the U.S. Court of Appeals for the District of Columbia Circuit denied a motion by the Standing Rock Sioux and Cheyenne River Sioux tribes, noting that they had failed to "satisfy the stringent requirements for an injunction pending appeal." As a result, DAPL could start operations while ongoing legal action by the tribes is pending.

Cross-motions by the tribes and the U.S. Army Corps of Engineers seeking a summary judgment could be resolved in the next three or four weeks, according to Christi Tezak, managing director at ClearView Energy Partners LLC. "While the litigation may continue, the pipeline would most likely be in service and delivering oil while the courts consider the merits of the Sioux' challenges and/or potential appeals," Tezak said.

The Midwest Alliance for Infrastructure Now (MAIN), which supports the project, said it "expects construction of the pipeline to be completed within the next few days and oil to move through the double-walled pipeline under the lake early [this coming] week."

"The courts' consistent support of the pipeline in these proceedings is the result of the company's and Army Corps of Engineers' dogged compliance with all applicable laws and regulations," said MAIN spokesperson Craig Stevens.  "Although it is frustrating that those opposing DAPL are using the courts in a seemingly endless attempt to thwart this lawful project, we are heartened that the judges have continued to rule on the merits."

Judge Patrick Millett, concurring with the denial of the two other judges on the court of appeals panel, Brett Kavanaugh and Robert Wilkins, noted that the tribes’ basis for seeking an injunction was tied solely to the Religious Freedom Restoration Act (RFRA), even though the district court had yet to decide whether it was going to allow the RFRA claim in the case. "That means that the tribe is asking this court to grant an injunction pending appeal on the basis of a legal claim that, at this procedural juncture, has not yet even been accepted as an issue in the litigation," Millett said.

"Further weighing against a grant of injunctive relief is the tribe's unexplained untimeliness in raising the religious freedom act preliminary-injunction claim."

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