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Editorial: To understand Dakota Access Pipeline, understand 'laches'

You could choose "Monday," the day that oil could start to flow through the Dakota Access Pipeline.

You could choose "protest." Or "Trump."

But if we had to choose the one word that best sums up the conflict over the pipeline, it would be this one:

"Lache."

Never heard of it? Neither had we—until we read U.S. District Judge James Boasberg's opinion last week, in which the Obama appointee denied the Standing Rock and Cheyenne River Sioux tribes' request to stop construction of the pipeline's last link.

And Boasberg's opinion centers on that word, "lache." So let's take a look at this word, which is little-known outside of legal circles but hugely useful in its descriptive power.

A lache is the doctrine that "a legal right or claim will not be enforced if a long delay in asserting the right or claim has hurt the opponent as a sort of 'legal ambush,'" Law.com explains.

For example:

▇ "Knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title ... until Nat Neighbor has built a house," Law.com describes.

▇ "Tommy Traveler learns that his father has died, but waits four years to come forward until the entire estate has been distributed."

Now you can see where this is going.

The fundamental hole in the protesters' case is the fact that the tribes didn't raise their objections to the pipeline in time. That's not because the construction caught them by surprise. In his opinion in September, Boasberg documented the Army Corps' communications and the Standing Rock tribe's failure to answer letters, attend hearings and assert claims.

The pipeline's developers made hundreds of adjustments to other claims, so they likely would have tried to accommodate the tribe's, Boasberg suggested.

Boasberg used the same reasoning in denying the recent requests to block the pipeline.

"(A)lthough the Tribe learned of DAPL's proposed route in October 2014 ... 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," the judge wrote last week.

"The Court, accordingly, concludes that defendants have shown that the tribe inexcusably delayed in voicing its ... objection."

Now, here's the thing: North Dakotans watched the lengthy permitting process unfold, too. That's why so few residents sympathized with the protesters.

After all, isn't it better to block a 1,172-mile pipeline before the first mile is dug, rather than when a mere half-mile of construction remains?

Or so it seemed to residents, especially when courts affirmed that view.

"Because of the plaintiff's delay ... the Court concludes that the requested preliminary-injunctive relief is barred by laches," Boasberg concluded. That's why the pipeline got completed, and why the writing likely was on the wall even back when the protests began.

-- Tom Dennis for the Herald

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