MEMORANDUM OPINION
Since 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),
At the 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.
Fearing 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.
I. Background
The 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,
The 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,
Dakota 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.
The 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,
Two 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 “[potential conditions in an easement for the pipeline crossing” and “[i]n light of such conditions, whether to grant an easement for the pipe
Then, 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).
The 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.
The 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.
The 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 ceremony.
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.
II. Legal Standard
“[I]njunctive 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.,
Before 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,
III. Analysis
Cheyenne River seeks preliminary-in-junctive 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.
In 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 lach-es 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.
Laches is an equitable defense “ ‘designed to promote diligence and pre-yent enforcement of stale claims’ by those who have ‘slumber[ed] on their rights.’” Menominee Indian Tribe of Wisc. v. United States,
Where 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.,
RFRA is subject to a four-year statute of limitations. See 28 U.S.C. § 1658; see also Garraway v. Lappin,
That 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,
1. Lack of Diligence
Run-of-the-mill delay is not sufficient to warrant the application of laches. Menominee Indian Tribe,
In 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.
Over 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. gee, 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 [ejffects to cultural and historical resources, Sacred sites (water included), Traditional Cultural Properties, Properties of Cultural or Religious Signifiean[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.”); Ha-nois 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: “The water is the big thing. You know, we as tribes and Cheyenne River went on record and saying that water is a sacred object. If you look at the sacred site policy and that it says ‘other things’, it [doesn’t] say the water,... And here we are[,] this is it, I mean, when that’s gone we’re all. hurting.”).
■ In August arid September 2016,' a few weeks after the Corps granted some of the authorizations necessary for Dakota Access to drill under Lake Oahe, the Tribe filed its Complaint and Amended Complaint. In those pleadings, Cheyenne River continued to refer only generally to water as religiously significant and to focus on the risk posed by spills or leaks and the possible harm to sacred sites from clearing, grading, and construction activities. See, e.g„ ECF No. 11-12, ¶ 1 (“The construction and operation of the 'pipeline ... will damage and destroy sites of great historic, religious, and cultural significance to the Tribe.”); id., ¶42 (“The Tribe is greatly concerned with the possibility of oil spills and leaks from the pipeline should it be constructed and operated, particularly into waters that are of considerable economic, religious, and cultural importance to the Tribe.”); id.,' ¶ 74 (“[T]he cultural and religious significance of these waters cannot be overstated. An oil spill from the pipeline into Lake Oahe would cause an economic, public health and welfare, and cultural crisis of the greatest magnitude.”); id., ¶ 76 (“[T]he Lake Oahe crossing will take place in an area of great cultural, religious and spiritual significance to the Tribe. Construction of the pipeline ... would destroy burial grounds, sacred sites, and historically significant areas-on either side of Lake Oahe,”); ECF No. 37,- ¶ 2 (“The waters of the. Missouri River .:. are sacred to the.Lakota people of the Chey
A declaration from the Tribe’s Environmental Director/Research Specialist, filed in August 2016 with its motion to join Standing Rock’s NHPA preliminary-injunction motion, likewise did not state that the mere presence of oil in a pipeline under the lake’s floor would render the Tribe’s members unable to perform religious ceremonies, nor did it mention the Black Snake. See EOF No. 19-6 (Declaration of Dave Nelson). Instead, it explained that “numerous ... spiritual sites [exist] beneath the waters of the proposed DAPL pipeline crossing,” that “[t]he water of the Missouri river and its tributaries is an essential component of many traditional Lakota cultural and spiritual practices” and is “used in numerous traditional ceremonies,” and that construction of DAPL could harm the Tribe and its members because “the proposed use of explosives on the river bed ... has a high likelihood of destroying or irreversibly damaging ... spiritual sites,” construction operations could destroy plants, and “due to the presence of historic pollutants ... [,] construction and pipeline operation activities [could] contaminate the region’s water in such a way that would negatively impact the Tribe’s and its members’ ability to conduct traditional medicinal and spiritual ceremonies and practices.” Id., ¶¶ 5, 6, 9.
After the government announced in September 2016 that it intended to pause construction at the Lake Oahe crossing pending further review, Standing Rock explained in a letter to Assistant Secretary Darcy that “water itself plays a central role in the religious and cultural beliefs of the Tribe.” EOF No. 115-4, Exh. D (Letter from Standing Rock Sioux Tribe to Jo-Ellen Darcy, Sept. 22, 2016) at 5. To support that contention, it quoted part of a declaration from Standing Rock’s Chairman in which he discussed the risks to the Tribe’s religious practice from an oil spill: “Our Sundance, a spiritual ceremony sacred to us, is performed on the banks of the river. [When a pipeline leaks into Lake Oahe], [t]he source of life, as well as spiritual continuity, would be damaged.” Id. at 6 (emphasis added) (alterations in original) (quoting EOF No. 6-1 (Declaration of Dave Archambault II, Aug. 4, 2016), ¶ 12), (The unaltered declaration reads: “When the pipeline leaks, the Missouri river—the source of our drinking water, where we fish, swim, and conduct ceremonies—will be contaminated. Our Sundance, a spiritual ceremony sacred to us, is performed on the banks of the river. The source of life, as well as spiritual continuity, would be damaged.”). The letter then stated that “[t]he close connection between the waters of Lake Oahe and the religious practices of the Tribe implicate federal laws protecting Indian religious freedom,” quoted language from the American Indian Religious Freedom Act and RFRA, and noted, “The Final EA does not mention these laws.” Id.
For more than two years after becoming aware of DAPL’s proposed route, construction, and operation, then, Cheyenne River remained silent as to the Black Snake prophecy and its concerns about the presence of oil in the pipeline under Lake Oahe absent any issue of rupture, as well as about the possible applicability of RFRA. In an effort to explain its delay, the Tribe argues that the Corps never engaged in proper consultations and that it was told by the Corps that the review process announced by Assistant Secretary Darcy on December 4, 2016, “would be the vehicle by which they could express their concerns and press their rights with the
This explanation is unsatisfactory. In spite of an allegedly inadequate consultation process, the Tribe was still able to raise specific concerns about, for example, harm to water safety and burial sites, and to plead claims under the NHPA, NEPA, and other environmental statutes in its August and September filings. It is not clear what prevented Cheyenne River from also raising its specific religious-exercise concerns with the Corps or in its Complaints here. The Court, accordingly, concludes that Defendants have shown that the Tribe inexcusably delayed in voicing its RFRA objection.
2. Prejudice
Defendants argue, moreover, that they have suffered prejudice from Cheyenne River’s unjustified delay because had they been made aware of the Tribe’s specific religious objection to the Lake Oahe crossing earlier, they could have considered whether and how to accommodate this concern. See ECF No. 127 (Corps Opp.) at 11; ECF No. 124 (DA Opp.) at 10-11. The Corps represented at oral argument on the instant Motion that had it known of the Tribe’s beliefs during the permitting process, rerouting the pipeline north of Lake Oahe could have been “one possibility.” PI Tr. at 28:12-22. Indeed, Defendants previously modified the pipeline workspace and route more than a hundred times in response to cultural surveys and Tribes’ concerns regarding historic and cultural resources. See Standing Rock I,
At this point, however, the Corps has granted the permits and easement, and DAPL’s construction under Lake Oahe is days from completion. See DA Mar. 6 Status Report. Suspending the effect of the easement now would undercut the purpose behind the consultation obligations built into the Corps’ permitting processes, which aim to surface tribal concerns in a timely manner. Such injunctive relief would also, by delaying the flow of oil, impose significant costs on a private third party, Dakota Access. And if the Tribe were ultimately to prevail on the merits of its RFRA claim, rerouting the pipeline around Lake Oahe would be more costly and complicated than it would have been months or years ago, as doing so now requires not simply changing plans but abandoning part of a near-complete project and redoing the construction elsewhere. See, e.g., Daingerfield Island Protective Soc’y v. Lujan,
In asking the Court to grant a preliminary injunction suspending the effect of the easement and halting the construction and operation of the pipeline below Lake Oahe, Cheyenne River requests “an extraordinary and drastic remedy.” Munaf v. Geren,
B. Likelihood of Success on the Merits
The Court also believes the Tribe has failed to demonstrate a likelihood of success on the merits of its RFRA claim. Enacted in 1993, the Religious Freedom Restoration Act provides that the “Government shall not substantially burden a person’s exercise of religion” unless “it demonstrates that application of the burden ... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 20Q0bb-l. A person who brings a challenge under RFRA bears the initial burden of proving that (1) the Government’s policy or action implicates her religious exercise, (2) the relevant religious exercise is grounded in a sincerely held religious belief, and (8) the policy or action substantially burdens that exercise. See Holt v. Hobbs, — U.S. -,
1. Implicates Religious Exercise
Here, the religious exercise at issue is the performance of water-based ceremonies. Cheyenne River is composed of four bands of the Lakota people, see Mot. at 4, who “believe generally that water is sacred and that clean, pure water is an essential part of the Lakota way of life.” Id. at 7. Water plays a “specific, critical role in the practice of the Lakota sacred rites,” including the Hanbleceya (vision-questing), Wiwanyan Wacipi (birth and renewal), Is-nati Awiciliwanpi (coming of age for young women), Wiping of the Tears (conclusion of mourning), and Inipi (prayer and purification) ceremonies. |d at 7-8 (citing Declaration of Steve Vance (Jan. 30, 2017), ¶ 11a). According to Steve Vance, Cheyenne River’s Tribal Historic Preservation Officer, these ceremonies are an essential aspect of the Lakota religion; its adherents “cannot practice [their] religion without [their] ceremonies.” Vance Deck, ¶ 11a.
Defendants do not dispute that these sacred rites constitute religious exercise. Instead, they argue.that it is Dakota Access, not the government, whose actions implicate such exercise, thereby removing this case, from the protections of RFRA. See DA Opp, at 14-16; Corps Opp. at 24-27. They rely for that argument on Village of Bensenville v. Federal Aviation Administration,
Defendants contend that, as. in Bensen-ville, Dakota Access’s operating of the pipeline is the third-party, conduct that burdens Cheyenne River’s members’ free exercise of religion, and the Corps’ permitting is mere acquiescence. Whereas Ben-senville involved “the government’s regulation of a third party’s use of the third party’s land,” however, this case involves “the government’s use of its own land.” Id. at 67. The Corps and Dakota Access argue that the opinion’s logic regarding responsibility for the burden on religious exercise nonetheless applies here, see PI Tr. at 32:12-19, 49:19-50:4, but because the Court ultimately concludes that Cheyenne River is unlikely to succeed on the merits for other reasons, it need not resolve this dispute. It therefore assumes without deciding that the Corps’ action implicates the Tribe’s religious exercise.
2. Sincerely Held Religious Belief
Cheyenne River’s members believe that the water used in Lakota ceremonies, particularly the Inipi ceremony, must be “ritually pure.” Mot. at 9; see Vance Deck, ¶ 16 (water must be “pure, natural,” not “bottled” or “contaminated”); ECF No. 98-3 (Declaration of Marcella Gilbert), ¶ 6 (“Clean, undisturbed water is necessary in every eeremony.”); ECF No. 98-4 (Declaration of Russ Cournoyer), ¶ 7 (‘We cannot use ... water-that has been affected by artificial chemicals.”); ECF No. 98-5 (Declaration of Ron Black Bird), ¶ 9 (same). Tribe members further believe that the mere presence of oil in the Dakota Access Pipeline will contaminate the lake’s waters and render them unsuitable for use in their religious practices. See Vance Decl., ¶¶ 18-19; see also TRO Tr. at 9:9-12. According to Plaintiff, such desecration occurs whether or not the pipeline ruptures and the oil actually touches the water, and even though the pipeline itself never enters the lake’s waters but instead runs under the lakebed. The existence of the oil within the pipeline under the lake is enough. See PI Tr, at 9:22-10:2.
In addition to the religious significance attaching to water generally,' the Tribe ascribes particular meaning to the Missouri River, of which Lake Oahe is part. The Lakota chose to live near the Missouri “because of its importance to [their] existence.” Vance Deck, ¶ 11; Mot. at 9-10. As “other bodies of water important in [their] culture were removed from [their access]” by the United States, “such as waters in the Black Hills,” the Missouri took on even greater importance to the Tribe. See Vance Deck, ¶ 11. Vance states, “[The Missouri River] is important to our spirituality. It is an important source of our foods, medicines, water for drinking, and for living. It is the bloodline-and the lifeline of the people at this time, and we cannot live without it.” Id,
The Tribe contends in its Motion, moreover, that its members “must rely on Lake Oahe exclusively ... for the water they use in their religious ceremonies because Lake Oahe is the only , source of natural, pure,, uncontaminated water available to the people of the Cheyenne River Sioux Reservation.” Mot. at 13; see also Vance Deck-, ¶¶ 15-16. The Lakota also. contend
As the Corps and Dakota Access note, Lake Oahe is not untouched by manmade projects. See DA Opp. at 28; Corps Opp. at 4. DAPL’s crossing, for instance, runs parallel, at a distance of 22 to 800 feet, to a natural-gas pipeline that was built under the lake in 1982. Standing Rock I,
The Tribe acknowledges the presence of the natural-gas pipeline under Lake Oahe but explains that it does not believe that that pipeline burdens its religious practice. See Mot. at 43. The difference between the natural-gas pipeline and DAPL is that the Tribe believes that the crude oil that is proposed to flow through the latter is the fulfillment of a Lakota prophecy of “a Black Snake that would be coiled in the Tribe’s homeland and which would harm ... [and] devour the people.” Mot. at 19; see also Vance Deck, ¶ 18. According to Vance, the oil in DAPL, like the Black Snake, “is black, it is slippery, and it moves.” Id. As to the other oil pipelines upstream of Lake Oahe, Cheyenne River asserts that only Lake Oahe constitutes its “area of concern.” TRO Tr. at 14:24; see also id. at 15:3-5 (“[W]e’re not concerned about oil pipelines that may be somewhere above outside of waters that we own in Lake Oahe.”).
The record is not clear whether the Black Snake prophecy was made before or after Lake Oahe was created nearly 60 years ago. The Tribe’s brief contends that “Lakota religious adherents now in their 50s and 60s were warned of the Black Snake by their elders as children,” Mot. at 19; see also id. at 28, and Vance states that the prophecy was made “[l]ong ago.” Vance Deck, ¶ 18. Presumably, the prophecy was issued after Lake Oahe was created; otherwise, the presence of pipelines upstream of the lake, including one that crosses 7.5 miles to its north, would be hard to reconcile with the Tribe’s belief that DAPL alone is the Black Snake. See TRO Tr. 15:3-5.
“To qualify for RFRA’s protection, an asserted belief must be ‘sincere,’ ” not pretextual. Burwell v. Hobby Lobby Stores, Inc., — U.S. -,
Having so concluded, the Court now proceeds to consider whether the Tribe is likely to satisfy the third of its prima facie RFRA obligations: a substantial burden on its religious exercise.
3. Substantial Burden
RFRA does not define “substantial burden,” and the Supreme Court has not articulated a precise definition. This Circuit, however, has stated that “[a] substantial burden exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’ ” Kaemmerling v. Lappin,
Using that test, the Circuit rejected Ka-emmerling’s RFRA claim. The plaintiff, a federal prisoner, objected on religious grounds to the government’s extracting DNA information from a fluid or tissue sample taken from him by the’ Bureau of Prisons. Id. at 673, 678-79. The Circuit concluded that he had failed to allege facts sufficient to state a substantial burden cognizable under RFRA because the government’s actions did not “ ‘pressure [him] to modify his behavior and to violate his beliefs’” or require him to choose “between criminal sanction and personally violating his own religious beliefs.” Id. at 679-80 (quoting Thomas v. Review Bd.,
The government action here—ie., granting the easement to Dakota Access and thereby enabling the flow of oil beneath Lake Oahe—does not impose a sanction on the Tribe’s members for exercising their religious beliefs, nor does it pressure them to choose between religious exercise and the receipt of government benefits. Cheyenne River argues that whether it has been subjected to such sanction or pressure is irrelevant, see Reply at 14-16, and contends instead that it is sufficient for purposes of showing substantial burden that the effect of the government’s action is to prevent the Tribe’s members from performing required religious sacraments at Lake Oahe. See Mot. at 30-31; Reply at 14. That argument, however, is directly at odds with Supreme Court precedent.
Lyng v. Northwest Indian Cemetery Protective Association,
a. The Force of Lyng
In Lyng, “an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California” challenged under the Free Exercise Clause the United States Forest Service’s decision to build a six-mile segment of paved road and permit significant timber harvesting in a government-owned area considered sacred by several tribes. Id. at 442-43,
The Supreme Court acknowledged that the Forest Service’s decisions “would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs.” Id. at 449,
As should be evident from the language it used to discuss the impact on the tribe’s religious
exercise—e.g.,
“devastating” and “extremely grave,” id. at 451,
That Lyng was a Free Exercise, rather than a RFRA, case does not change its applicability here. RFRA was enacted in response to the Court’s decision in Employment Division v. Smith,
Lyng is a pre-Smith case. When drafting and debating RFRA, Congress expressly noted that RFRA did not undermine Lyng. The Senate Committee Report on RFRA explained:
The committee expects that courts will look to free exercise cases decided prior to Smith for guidance in determining whether the exercise of religion has been substantially burdened _And, while the committee expresses neither approval nor disapproval of that case law, pre-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government’s own property or resources. .
S. Rep. No. 103-111 at 8-9 (1993) (emphasis added).
As an example of a cáse falling into the latter category, the Report cited Lyng and recited its holding “that the construction of mining or timber roads over public lands which were sacred to the Native American religion did not constitute a burden on the Native Americans’ free exercise rights triggering the compelling interest test.” Id,' at 9 n.19. Although RFRA “is not a Codification of the result reached in any prior free exercise decision,” the Committee continued, it is “the restoration of the legal standard that was applied in those decisions.” Id, at 9; see also 139 Cong. Rec. S14461, at S14470 (Statement of Sen. Orrin Hatch, Oct. 27, 1993) (RFRA “does not effect [sic] Lyng .,., a case concerning the use and management of government resources, because ... the incidental impact on a religious practice does not ‘burden’ anyone’s free exercise of religion. In Lyng, the court ruled that the way in which government manages its affairs and uses its own property does not impose a burden on religious exercise.”).
Several circuit courts, including the D.C. Circuit, have cited Lyng approvingly when resolving a RFRA or RLUIPA claim. See, e.g., Priests for Life v. U.S. Dep’t of Health & Hum. Servs.,
In Navajo Nation v. U.S. Forest Service,
Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires.... No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government—let alone a government that presides over a nation with as many religions as the United States of America— could function were it required to do so.
Id. at 1063-64 (citing Lyng,
Just as the Ninth Circuit and other courts must follow Lyng until the Supreme Court instructs otherwise, this Court must do the same.
b. Cheyenne River’s Rebuttal
Cheyenne River offers several arguments as to why Lyng and Navajo Nation do not apply to the present case or are no longer good law. First, the Tribe attempts to distinguish those cases by arguing that the facts here are distinct and that its members are more analogous to prisoners than the plaintiffs in Lyng and its Ninth Circuit progeny are. Second, Plaintiff contends that recent Supreme Court decisions—Hobby Lobby and Holt—lessen Lyng’s force. Third, the Tribe asserts that its property interest in Lake Oahe dictates a different outcome from Lyng. None of these arguments is persuasive.
i. Factual Differences
The Tribe first posits that this case is factually distinct from Navajo Nation and
Relatedly, the Tribe also asserts that “unlike the plaintiffs in Navajo Nation, Snoqualmie, and Lyng, the resource that the Corps’ action is proposed to burden is the only one available to the Cheyenne River Sioux Tribe to practice its religion as the United States has systematically deprived the Tribe of access to other water sources as a function of its more than 200-yeariong campaign to dispossess the Lakota people of their aboriginal lands and resources.” Mot. at 34. Consequently, Cheyenne River argues, “the Tribe and its members here are more closely analogous to the prisoners whose only options in the exercise of their religion are closely controlled by the government.” Id.
The Court readily recognizes the sordid chronicle of the United States’ dispossessing the Lakota people of swaths of land, see, e.g., United States v. Sioux Nation,
The RLUIPA cases on which the Tribe relies, furthermore, offer little succor. Not only have inmates suffered a total loss of liberty, whereas the Tribe’s members have not, but the cases cited involved either a specific prohibition on a particular form of religious exercise or the imposition of a sanction or other collateral, non-religious harm in response to religious exercise. See, e.g., Native Am. Council of Tribes v. Weber,
Here, although the Tribe’s members may feel unable to use the water from Lake Oahe in their religious ceremonies once the pipeline is operational, there is no
ii. Recent Supreme Court Decisions
The Tribe next contends that Lyng and its Ninth Circuit progeny “are no longer good law” because of Hobby Lobby and Holt. See Mot. at 34; TRO Tr. 18:10-22. It offers two related arguments on this point. First, on the Tribe’s reading of the cases, Navajo Nation held that the government’s approval of the artificial snow could not constitute a substantial burden because its only effect was “on the Plaintiffs’ subjective, emotional religious experience,” Mot. at 35 (quoting Navajo Nation,
Hobby Lobby is not to the contrary. There, the Supreme Court concluded that the government mandate imposed a substantial burden because the owners of closely held corporations had to choose between providing insurance coverage to them employees for contraceptive methods that they believed to be abortifacients and incurring significant economic sanctions. See
Second, Cheyenne River argues that this Court is not bound by Lyng because, as explained by the Supreme Court in Hobby Lobby and Holt, Congress did not intend
-In Hobby Lobby, the Court discussed Congress’s intent to “effect a complete separation from First Amendment case law” with regard to the definition of “exercise of religion.”
The problem for Cheyenne River is that Hobby Lobby’s rejection of the premise that “RFRA did no more than codify th[e Supreme] Court’s pre-Smith Free Exercise Clause precedents” as they related to the concept of the “exercise of religion” makes no difference in this case. Id, at 2772. No one disputes that the Corps’ grant of the easement to Dakota Access implicates the Tribe’s religious exercise. The debate is instead about whether the action imposes a substantial burden on that exercise. Hobby Lobby nowhere suggested that the Supreme Court’s reasoning or conclusion in Lyng that the parties there did not prove substantial burden is no longer good law.
In Holt, the Supreme Court rejected the district court’s conclusion that the Department of Corrections’ ban on beards did not substantially burden a Muslim inmate’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, ... was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.”
Again, this break with certain pre-Smith cases simply does not matter here. Lyng’s substantial-burden inquiry did not turn on whether the affected tribal members were able to .engage in other forms of religious exercise. As previously noted, the Supreme Court would have reached the same result in Lyng—no substantial burden—had the construction of the road totally destroyed the affected tribe’s ability to practice its
iii. Tribe’s Property Interest
Cheyenne River last argues that this case diverges from Lyng and its Ninth Circuit progeny because whereas those cases “concerned sacred sites located on lands owned solely by the federal government and in which ... none of the plaintiffs could claim any cognizable property interest,” here, “the Tribe and its members enjoy an actual legal ownership interest in the waters of Lake Oahe.” Mot. at 33-34; see also TRO Tr. at 15:4-5, 16:24-25. The Court cannot agree. As the pipeline runs through the land under the lake, rather than the lake’s waters, the Court first discusses ownership of the land and then turns to the Tribe’s interest in the water.
In 1944, Congress passed the Flood Control Act, which “authorized the establishment of a comprehensive flood control plan along the Missouri River.” South Dakota v. Bourland,
The agreement between the Tribe and the United States to convey the land needed for the Oahe Dam, which created Lake Oahe, was memorialized in the Cheyenne River Oahe Act, Pub. L. No. 81-776, 68 Stat. 1191 (1954). That Act states that payment for the lands at issue was “in settlement of all claims, rights, and demands of said Tribe or allottees or heirs thereof arising out of the construction of the Oahe project.” Id. Section 10 addresses the Tribe’s continued use of the land and provides that it “shall have the right, without cost, to graze stock on the land between the water level of the reservoir and the exterior boundary of the taking area” and that the Tribe and its members “shall have, without cost, the right of free access to the shoreline of the reservoir including the right to hunt and fish in and on the aforesaid shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United States.”
The Supreme Court has since explained that, through the Flood Control and Cheyenne River Acts, Congress “clearly abrogated the Tribe’s ‘absolute and undisturbed use and occupation’ of these tribal lands.” Bourland,
The water rights reserved to Indians pursuant to Winters v. United States,
Cheyenne River asserts that the purpose of its Reservation, as set out in the 1851 and 1868 Fort Laramie Treaties and the Act of March 2,1889, is “to provide for self-sufficiency.” Mot. at 14. The Tribe, however, does not persuasively support the proposition that this purpose requires the federal government to refrain from permitting infrastructure projects on its own land when doing otherwise would render water reserved for the reservation’s use spiritually impure. In an effort to so argue, the Tribe quotes the Supreme Court’s observation in Arizona v. California,
The Court declines to embrace so broad a statement about the scope of Winters. When the Supreme Court spoke in Arizona of water sustaining life, it meant physical survival, not spiritual satisfaction. The Tribe’s Reply quoted selectively from the case, but the full sentence reads:
It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind—hot, scorching sands— and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised.
The other cases cited by the Tribe likewise hold only that the reserved water rights recognized in Winters extend to “the right to clean, safe water” and the “right to hunt, fish, and gather.” Mot. at 15 (citing Bourland,
In explaining its view on this issue, the Court notes that it is not deciding the Corps’ obligations under the Fort Laramie Treaties regarding oil-spill prevention or the Tribes’ rights to hunt, fish, oí gather on Reservation lands. Indeed; Cheyenne River has clearly stated that its “RFRA claim does not rely on the Corps’ trust duties to the tribe.” Reply at 9. Those trust issues are among the subjects raised in Standing Rock’s and Cheyenne River’s summary-judgment motions, see' ECF Nos. 117, 131, and the Court anticipates addressing them in that context.
* * *
For these reasons, the Court holds that Lyng likely prevents the Tribe from showing that the Corps’ decision to grant an easement to Dakota Access to operate an oil pipeline under Lake Oahe constitutes a substantial burden on its members’ free exercise of religion. The Tribe, accordingly; is unlikely to succeed on the merits of its RFRA claim.
IY. Conclusion
For the foregoing reasons, the Court will deny the Motion for Preliminary Injunction. A contemporaneous Order so stating will issue this day.