#NoDAPL Struggle Continues – Split Ruling on Restraining Order against Dakota Access Pipeline

DC court 906

Published September 6, 2016

WASHINGTON – This week I had the opportunity to stand in solidarity with the Standing Rock Sioux Tribe in their struggle against the Dakota Access Pipeline by attending an emergency hearing in US District Court in Washington D.C.

A few weeks ago I published a summary of this legal struggle which you can read here. This weekend the matter became both more pressing and violent. On Friday the Standing Rock Sioux Tribe submitted papers to the court identifying several locations along the pipeline route as home to significant native artifacts and sacred sites. One of these sites was about 2 miles west of the Missouri river, on the west side of Road 1806. Most of the protests have taken place in the space east of 1806, between that road and the river.

On Saturday the construction crews for Dakota Access Pipeline jumped to one of the sites identified by the tribe as sacred and began bulldozing the land, clearing away all vegetation and topsoil. This sparked a protest by both Natives and non-Natives who are concerned for that land. They quickly moved their protest to the area that was being bulldozed. (It should be noted that the land in question, east of 1806, is private land and Dakota Access hired private security guards to protect their crews.) During the ensuing protest, there were reports of guard dogs being released by the security guards and pepper spray being used on the protesters. This resulted in several injuries to both the protesters and the security guards.

1806On Sunday a Temporary Restraining Order was filed by the Standing Rock Sioux Tribe requesting that all construction on the Dakota Access Pipeline route be halted for 20 miles on either side of the Missouri River, which in that area is also known as Lake Oahe. This was to prevent any further destruction of sacred sites and lands.

On Monday, Judge James Boasberg called for an emergency hearing to be held on Tuesday, September 9, 2016.

Once both parties were present and the proceedings started, Judge Boasberg made it very clear he was there to discuss the temporary restraining order, and that he was not eager to discuss the violent clashes that took place over the weekend. Ideally, he hoped to broker a deal between Dakota Access and the Standing Rock Sioux by seeking to build upon what they seemed to already agree on (currently there is no construction taking place on the pipeline route east of road 1806). He asked both sides if they could agree to continue the halt on construction in that area.

Initially, the lawyers for Dakota Access indicated they would not be open to even such a basic agreement, based on principle. Later they conceded that if the Standing Rock Sioux would agree to cease all protests and “attacks and assaults” against Dakota Access Pipeline construction workers, they could agree to continue the “halt” on construction (quotations added because the area in question currently is not under construction).

However, during his concession, Mr. Leone, a lawyer for Dakota Access Pipeline was specific to point out that there were 700 workers actively involved in this project, the work was well sequenced, the land in question (west of 1806) was already cleared (brush removed and mowed) and if construction had not been interrupted/halted, the work would be near completion. In other words, Dakota Access had momentum and it was expensive to stop their progress.
Jan Hasselman, lawyer for Standing Rock Sioux expressing disappointment after judges ruling.

Jan Hasselman, lawyer for Standing Rock Sioux
expressing disappointment after judges ruling.

Mr. Hasselman, the lawyer for the Standing Rock Sioux, responded that this was not a compromise he could negotiate. He pointed out that in his argument Mr. Leone demonstrated an inability to distinguish between the Standing Rock Sioux Tribe and the protesters, both Native and non-Native, from the Standing Rock Sioux and many other tribes from around the country. He pointed out that the leaders of the Standing Rock Sioux Tribe were continually and publicly urging protesters to conduct themselves peacefully. And they had no authority or control over the protesters.

At last Judge Boasberg acknowledged that he could not broker an agreement and, therefore, was left to issue a decision. He opted to give a split decision. He granted, that by agreement, construction would halt east of road 1806 and extending 20 miles beyond the Missouri river. However, he would deny the request to halt the construction in the area west of 1806.

This ruling was a defeat of the Temporary Restraining Order filed by the Standing Rock Sioux. They had hoped to halt further destruction of their sacred sites west of 1806, the lands Dakota Access rushed to bulldoze after court papers were filed identifying them as sacred. Legally, Judge Boasberg ruled that the destruction can continue. Those sacred sites can be destroyed, at least until his final ruling is given before the end of the day on Friday, September 9.


Sometimes being Native and living in the United States is like watching a small child take a hammer to a set of fine china. Smiling proudly as they smash piece after piece because they are too young, immature, and ignorant to understand the value of what they are destroying.

– Mark Charles (Navajo)

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