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Colleagues Say Judge in Dakota Pipeline Case Is Even-Handed

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    Various anti-Dakota Access Pipeline activists took to the streets of Downtown Los Angeles. Beverly White reports for the NBC4 News at 11 p.m. on Wednesday, Feb. 8, 2017.

    (Published Thursday, Feb. 9, 2017)

    The federal judge who will decide whether oil flows through the disputed Dakota Access pipeline has shown sympathy for the historical plight of American Indians, but has also made clear that he doesn't think that should play a role in judicial decisions.

    U.S. District Judge James "Jeb" Boasberg is overseeing a lawsuit filed by the Standing Rock and Cheyenne River Sioux that could be their last hope of stopping the $3.8 billion pipeline to carry North Dakota oil to Illinois. The tribes argue the pipeline threatens drinking water and cultural sites. A hearing is scheduled Monday.

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    While the Washington, D.C.-based Boasberg cited in a previous ruling the historic exploitation of Indians in early America, he also told an attorney for the tribe last year he won't be influenced by phone calls from pipeline opponents to sway his opinion.

    That doesn't surprise Michael Kellogg, a law firm colleague of Boesberg's in the mid-1990s, or Virginia attorney Tim Heaphy, who once worked with Boasberg in the D.C. federal prosecutor's office.

    "He is not motivated by ideology or politics," Heaphy said.

    Boasberg has been appointed to judgeships by both Republican and Democratic presidents, showing he is respected by both conservatives and liberals, said a third colleague of Boasberg, 9th U.S. Circuit Court of Appeals Senior Judge Dorothy Nelson, for whom Boasberg once clerked.

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    Texas-based developer Energy Transfer Partners this week received approval from the Army Corps of Engineers to lay pipe under Lake Oahe, a Missouri river reservoir that's the tribes' water source. It's the final chunk of construction for the 1,200-mile pipeline. The Cheyenne River tribe has asked Boasberg to stop the work until the legal battle is resolved.

    Boasberg earned his law degree from Yale in 1990. He was appointed to his current post on the federal bench by President Barack Obama in 2011.

    In responding to questions in 2010 from then-Alabama U.S. senator and current U.S. Attorney General Jeff Sessions about his judicial philosophies, Boasberg agreed with another judge who had rejected Obama's call for empathy in a Supreme Court justice.

    "If empathy means sympathizing with one party such that a judge fails to follow the law, then I believe it should not play a role in a judge's consideration of a case," Boasberg said.

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    In a September ruling Boasberg wrote, "the tragic history of the Great Sioux Nation's repeated dispossessions at the hands of a hungry and expanding early America is well known."

    But he denied an attempt by the Standing Rock tribe to halt pipeline work, rejecting arguments that tribal officials hadn't been properly consulted and that cultural sites were in immediate peril.

    "Lake Oahe is of undeniable importance to the tribe, and the general area is demonstrably home to important cultural resources," Boasberg said. "Even here, though, the tribe has not met its burden to show that DAPL-related work is likely to cause damage."

    About the same time, Boasberg said his chambers had been flooded with calls about the pipeline. He urged Standing Rock attorney Jan Hasselman to remind his clients that "tallying calls for and against ... is not how our judicial system works."

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    Boasberg has been in the spotlight before. In 2012 he ruled that the Obama administration wouldn't have to turn over images of the body of al-Qaida leader Osama bin Laden, and last year he dismissed lawsuits arising from Democratic presidential candidate Hillary Clinton's use of a personal email server as secretary of state.