CONSOL,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:16−cv−01534−JEB

STANDING ROCK SIOUX TRIBE v. UNITED STATES ARMY CORPS OF ENGINEERS Assigned to: Judge James E. Boasberg Cases: 1:16−cv−01796−JEB
1:17−cv−00267−JEB
Case in other court: USCA, 16−05259
17−05043 Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 07/27/2016 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: U.S. Government Defendant

STANDING ROCK SIOUX TRIBE

represented by Jan Hasselman EARTHJUSTICE 810 Third Avenue Suite 610 Seattle, WA 98104 206−343−7340 Fax: 206−343−1526 Email: jhasselman@earthjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephanie Kathleen Tsosie EARTHJUSTICE 810 Third Avenue Suite 610 Seattle, WA 98104 206−343−7340 Fax: 206−343−1526 Email: stsosie@earthjustice.org PRO HAC VICE

Patti A. Goldman EARTHJUSTICE 810 Third Avenue Suite 610 Seattle, WA 98104 (206) 343−7340 Fax: (206) 343−1526 Email: pgoldman@earthjustice.org ATTORNEY TO BE NOTICED

Plaintiff
YANKTON SIOUX TRIBE 16cv1796

represented by Jeffrey S. Rasmussen PATTERSON EARNHART REAL BIRD & WILSON LLP 357 S. McCaslin Blvd. Suite 200 Louisville, CO 80027 303−926−5292 Fax: 303−926−5293 Email: jrasmussen@nativelawgroup.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer S. Baker

Plaintiff ROBERT FLYING HAWK 16cv1796, Chairman of the Yankton Sioux Tribe Business and Claims Committee
Plaintiff OGLALA SIOUX TRIBE 17cv267

PATTERSON EARNHART REAL BIRD & WILSON LLP 357 S. McCaslin Blvd. Suite 200 Louisville, CO 80027 303−926−5292 Fax: 303−962−5293 Email: jbaker@nativelawgroup.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rollie Wilson PATTERSON EARNHART REAL BIRD & WILSON LLP 601 Pennsylvania Ave., NW, South Bldg. Suite 900 Washington, Suite 900 Washington, DC 20004 202−340−8232 Fax: 202−639−8238 Email: rwilson@nativelawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Ann Marks FREDERICKS PEEBLES & PATTERSON LLP 401 9th Street, NW Suite 700 Washington, DC 20004 (202) 450−4887 Fax: (202) 450−5106 Email: pmarks@ndnlaw.com TERMINATED: 05/17/2019
represented by Jeffrey S. Rasmussen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer S. Baker (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rollie Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Ann Marks (See above for address) TERMINATED: 05/17/2019
represented by Michael L. Roy HOBBS, STRAUS, DEAN & WALKER, LLP 1899 L Street, NW Suite 1200

V. Intervenor Plaintiff CHEYENNE RIVER SIOUX TRIBE
Intervenor Plaintiff STEVE VANCE

Washington, DC 20036 (202) 822−8282 Fax: (202) 296−8834 Email: mroy@hobbsstraus.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Conly John Schulte FREDERICKS PEEBLES & MORGAN LLP 1900 Plaza Drive Louisville, CO 80027 (303) 673−9600 Fax: (303) 673−9839 Email: cschulte@ndnlaw.com (Inactive) TERMINATED: 02/28/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph V. Messineo FREDERICKS PEEBLES & MORGAN LLP 3610 North 163rd Plaza Omaha, NE 68116 (402)−333−4053 Fax: (402)−333−4761 Email: jmessineo@bigfirelaw.com TERMINATED: 09/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole E. Ducheneaux Big Fire Law & Policy Group LLP 1404 Fort Crook Road South Bellevue, NE 68005 United Sta 531−466−8725 Email: nducheneaux@bigfirelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracey A. Zephier Cheyenne River Sioux Tribe Attorney General PO Box 590 Eagle Butte, SD 57625 (605) 964−6686 Fax: (605) 964−1160 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patricia Ann Marks (See above for address) TERMINATED: 05/17/2019
represented by Joseph V. Messineo (See above for address)

V.
Defendant
UNITED STATES ARMY CORPS OF ENGINEERS

TERMINATED: 09/16/2019 LEAD ATTORNEY PRO HAC VICE
Nicole E. Ducheneaux (See above for address) LEAD ATTORNEY
represented by Matthew M. Marinelli U.S. DEPARTMENT OF JUSTICE Environment and Natural Resources Division Matthew Marinelli 4 Constitution Square 150 M Street, NE, Room 3.123 Washington, DC 20002 202−305−0293 Email: Matthew.Marinelli@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reuben S. Schifman DEPARTMENT OF JUSTICE Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC 20044 (202) 305−4224 Email: reuben.schifman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amarveer Singh Brar U.S. DEPARTMENT OF JUSTICE Environment & Natural Resources Division P.O. Box 7611 Washington, DC 20044−7611 (202) 305−0479 Email: amarveer.brar@usdoj.gov TERMINATED: 11/14/2019
Brian Matthew Collins U.S. DEPARTMENT OF JUSTICE ENRD P.O. Box 7611 Washington, DC 20044 (202) 305−0428 Fax: (202) 305−0506 Email: brian.m.collins@usdoj.gov ATTORNEY TO BE NOTICED
Erica M. Zilioli U.S. DEPARTMENT OF JUSTICE Envionment & Natural Resources Division P.O. Box 7611 Washington, DC 20044 (202) 514−6390 Fax: (202) 514−8865 Email: erica.zilioli@usdoj.gov

V. Intervenor Defendant DAKOTA ACCESS LLC

ATTORNEY TO BE NOTICED
represented by Kimberly Hope Caine NORTON ROSE FULBRIGHT US LLP 799 9th Street, NW Suite 1000 Washington, DC 20001 (202) 662−0394 Fax: (202) 662−4643 Email: kim.caine@nortonrosefulbright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan M. Glen NOSSAMAN LLP 816 Congress Avenue Suite 970 Austin, TX 78701 (512) 813−7973 Fax: (512) 651−0770 Email: aglen@nossaman.com TERMINATED: 03/25/2019
David Debold GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington, DC 20036−5306 (202) 955−8551 Fax: (202) 530−9682 Email: ddebold@gibsondunn.com ATTORNEY TO BE NOTICED
Miguel A. Estrada GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington, DC 20036−5306 (202) 955−8257 Fax: (202) 530−9616 Email: mestrada@gibsondunn.com ATTORNEY TO BE NOTICED
Robert D. Comer NORTON ROSE FULBRIGHT US LLP 1200 17th Street Suite 1000 Denver, CO 80202 (303) 801−2700 Fax: (393) 801−2777 Email: bob.comer@nortonrosefulbright.com PRO HAC VICE ATTORNEY TO BE NOTICED
William S. Scherman GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington, DC 20036−5306 (202) 887−3510 Fax: (202) 530−9557

Intervenor Defendant DONALD J. TRUMP Individually and in his official capacity as President TERMINATED: 06/20/2017 Intervenor Defendant U.S. ARMY CORPS OF ENGINEERS
Movant LAKOTA PEOPLES LAW OFFICE
Movant LAW PROFESSORS AND PRACTITIONERS
Movant 18 FEDERALLY RECOGNIZED INDIAN TRIBES AND TRIBAL ORGANIZATIONS
Movant LAKOTA PEOPLE'S LAW PROJECT
Amicus GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION

Email: wscherman@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Matthew M. Marinelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick Michael Sullivan Dickinson Wright PLLC 1825 I St NW Suite 900 Washington, DC 20006 (503) 659−6929 Email: psullivan@dickinson−wright.com TERMINATED: 10/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William John Snape , III WASHINGTON COLLEGE OF LAW 4300 Nebraska Ave, NW Washington, DC 20016 (202) 536−9351 Fax: (415) 436−9683 Email: wsnape@wcl.american.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, CO 80302 (303) 447−8760 Email: mcampbell@narf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel P. Sheehan THE ROMERO INSTITUTE 540 Sand Dollar Drive La Selva Beach, CA 95076 (831) 763−9110 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joel William West Williams NATIVE AMERICAN RIGHTS FUND 1514 P Street, NW

Amicus OGLALA SIOUX TRIBE
Amicus ASSOCIATION ON AMERICAN INDIAN AFFAIRS
Amicus PUEBLO OF POJOAQUE
Amicus UNIVERSITY OF NEW MEXICO SCHOOL OF LAW NATURAL RESOURCES AND ENVIRONMENTAL LAW CLINIC Amicus NATIONAL INDIGENOUS WOMENS RESOURCE CENTER AND ADDITIONAL AMICI

Washington, DC 20005 (202) 785−4166 Email: williams@narf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard A. Guest NATIVE AMERICAN RIGHTS FUND 1514 P Street, NW (Rear) Suite D Washington, DC 20005 (202) 785−4166 Fax: (202) 822−0068 Email: richardg@narf.org TERMINATED: 07/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Lee Campbell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael L. Roy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth Lohah Homer HOMER LAW CHARTERED 1730 Rhode Island Avenue, NW Suite 501 Washington, DC 20036 (202) 955−5601 Fax: (202) 955 5605 Email: ehomer@homerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth Lohah Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth Lohah Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mary Kathryn Nagle PIPESTEM LAW FIRM PC 320 S Boston Ave Suite 1705

Amicus NATIONAL CONGRESS OF AMERICAN INDIANS
Amicus AFFILIATED TRIBES OF NORTHWEST INDIANS
Amicus ALASKA INTER−TRIBAL COUNCIL Amicus GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION
Amicus INTER TRIBAL ASSOCIATION OF ARIZONA
Amicus

Tulsa, OK 74103 202−407−0591 Email: mknagle@pipestemlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Riyaz A. Kanji KANJI & KATZEN, PLLC 303 Detroit Street Suite 400 Ann Arbor, MI 48104 (734) 769−5400 Fax: (734) 769−2701 Email: rkanji@kanjikatzen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Lee Campbell (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION OFFICERS
Amicus NATIONAL INDIAN EDUCATION ASSOCIATION
Amicus NATIONAL INDIAN GAMING ASSOCIATION
Amicus UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY PROTECTION FUND, INC.
Amicus AMERICAN CIVIL LIBERTIES UNION
Amicus FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY
Amicus 34 FEDERALLY RECOGNIZED INDIAN TRIBES
Amicus SARA JUMPING EAGLE
Amicus LADONNA BRAVE BULL ALLARD

represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Riyaz A. Kanji (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall 2515 Cliffbourne Place NW Washington, DC 20009 617−953−0161 Email: oliverbhall@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus VIRGIL TAKEN ALIVE
Amicus CHEYENNE GARCIA
Amicus WILLIAM WILD BILL LEFT HAND
Amicus MAXINE BRINGS HIM BACK−JANIS
Amicus KATHY WILLCUTS
Amicus CRYSTAL COLE
Amicus RUSSELL VAZQUEZ
Amicus THOMAS E. BARBER, SR.
Amicus TATEOLOWAN GARCIA
Amicus CHANI PHILLIPS

represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY

Amicus WASTEWIN YOUNG
Amicus NORTH DAKOTA PETROLEUM COUNCIL
Amicus AMERICAN PETROLEUM INSTITUTE
Amicus AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS Amicus ASSOCIATION OF OIL PIPE LINES
Amicus CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA Amicus

ATTORNEY TO BE NOTICED
represented by Oliver B. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by A. Kent Mayo BAKER BOTTS, LLP The Warner Building 1299 Pennsylvania Avenue, NW Suite 1300 Washington, DC 20004−2400 (202) 639−1122 Email: kent.mayo@bakerbotts.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell CROWLEY FLECK PLLP P.O. Box 759 1667 Whitefish Stage Road Kalispell, MT 59901 406−752−6644 Email: gsnell@crowleyfleck.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Hyler Coburn STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036 (202) 429−8063 Fax: (202) 261−0565 Email: dcoburn@steptoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Hyler Coburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Hyler Coburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Hyler Coburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

NATIONAL ASSOCIATION OF MANUFACTURERS
Amicus BIG VALLEY BAND OF POMO INDIANS OF THE BIG VALLEY RANCHERIA
Amicus CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION Amicus FORT BELKNAP INDIAN COMMUNITY
Amicus HOONAH INDIAN ASSOCIATION
Amicus MICCOSUKEE TRIBE OF INDIANS OF FLORIDA
Amicus NEZ PERCE TRIBE
Amicus PASCUA YAQUI TRIBE
Amicus RAMAPOUGH LENAPE NATION
Amicus

David Hyler Coburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire GREENBERG TRAURIG, LLP 1750 Tysons Boulevard Suite 1000 McLean, VA 22102 (703) 749−1300 Fax: (703) 749−1301 Email: sklairem@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RED CLIFF BAND OF LAKE SUPERIOR CHIPPEWA INDIANS
Amicus ROSEBUD SIOUX TRIBE
Amicus SAN CARLOS APACHE TRIBE
Amicus SENECA NATION
Amicus SWINOMISH INDIAN TRIBAL COMMUNITY
Amicus WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH)
Amicus AMERICANS FOR INDIAN OPPORTUNITY
Amicus INDIAN LAW RESOURCE CENTER
Amicus TRIBAL LAW AND POLICY INSTITUTE
Amicus STATE OF NORTH DAKOTA

represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael R. Sklaire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew A. Sagsveen ND OFFICE OF ATTORNEY GENERAL 500 N. 9th Street Bismarck, ND 58501−4509 (701) 328−3640

Amicus HESS CORPORATION
Amicus CONSUMER ENERGY ALLIANCE
Amicus NORTH DAKOTA FARM BUREAU
Amicus NORTH DAKOTA GRAIN DEALERS ASSOCIATION
Amicus NORTH DAKOTA GRAIN GROWERS ASSOCIATION

Email: masagsve@nd.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ragan Naresh KIRKLAND & ELLIS LLP 1301 Pennsylvania Ave, NW Washington, DC 20004 (202) 389−5267 Fax: (202) 389−5200 Email: ragan.naresh@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Miller BUCHANAN INGERSOLL & ROONEY, PC 1700 K Street, NW Suite 300 Washington, DC 20006 202−452−7935 Email: amy.miller@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Michael Dec BAKER BOTTS, LLP 700 K Street NW Washington, DC 20001 202−639−7817 Email: Adam.Dec@bakerbotts.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Michael Dec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Michael Dec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell (See above for address) LEAD ATTORNEY

Amicus SOUTH DAKOTA CORN GROWERS ASSOCIATION
Amicus SOUTH DAKOTA FARM BUREAU FEDERATION
Amicus SOUTH DAKOTA SOYBEAN ASSOCIATION
Amicus STATE OF INDIANA
Amicus STATE OF MONTANA
Amicus STATE OF ALABAMA
Amicus STATE OF ARKANSAS

ATTORNEY TO BE NOTICED
represented by Adam Michael Dec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Michael Dec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Michael Dec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant S. Snell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher OFFICE OF THE INDIANA ATTORNEY GERNERAL 302 West Govern ment Center South, Fifth Floor Indianapolis, IN 46204 (317) 232−6255 Email: tom.fisher@atg.in.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Amicus STATE OF IOWA
Amicus STATE OF KANSAS
Amicus STATE OF KENTUCKY
Amicus STATE OF LOUISIANA
Amicus STATE OF NEBRASKA
Amicus STATE OF OHIO
Amicus STATE OF SOUTH DAKOTA
Amicus STATE OF TEXAS
Amicus STATE OF UTAH

Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus STATE OF WEST VIRGINIA
Amicus MEMBERS OF CONGRESS
Amicus BOLD ALLIANCE
Amicus CENTER FOR BIOLOGICAL DIVERSITY Amicus DAKOTA RURAL ACTION
Amicus FRIENDS OF THE EARTH
Amicus HONOR THE EARTH
Amicus SAVE OUR ILLINOIS LAND
Amicus SIERRA CLUB
Amicus 350.ORG

represented by Thomas Molnar Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Stewart Eubanks , II EUBANKS & ASSOCIATES, LLC 2601 S. Lemay Ave. Fort Collins, CO 80525 (970) 703−6060 Email: bill@eubankslegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut SIERRA CLUB 50 F Street, NW 8th Floor Washington, DC 20001 (202) 548−4584 Fax: (202) 547−6009 Email: karimah.schoenhut@sierraclub.org ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by

Amicus MIDWEST ALLIANCE OF SOVEREIGN TRIBES Amicus 28 FEDERALLY RECOGNIZED INDIAN TRIBES Cross Claimant DAKOTA ACCESS LLC
V. Cross Defendant UNITED STATES ARMY CORPS OF ENGINEERS
Date Filed # Docket Text

Karimah Schoenhut (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Lee Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kimberly Hope Caine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan M. Glen (See above for address) TERMINATED: 03/25/2019
David Debold (See above for address) ATTORNEY TO BE NOTICED
Miguel A. Estrada (See above for address) ATTORNEY TO BE NOTICED
Robert D. Comer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
William S. Scherman (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew M. Marinelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Matthew Collins (See above for address) ATTORNEY TO BE NOTICED
Erica M. Zilioli (See above for address) ATTORNEY TO BE NOTICED

07/27/2016 07/27/2016
07/27/2016
07/27/2016 07/29/2016 08/01/2016 08/04/2016 08/04/2016

1 COMPLAINT for Declaratory and Injunctive Relief against UNITED STATES ARMY CORPS OF ENGINEERS ( Filing fee $ 400 receipt number 0090−4619146) filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to US Army Corps of Engineers)(Goldman, Patti) (Entered: 07/27/2016)
2 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jan Hasselman, :Firm− Earthjustice, :Address− 705 Second Avenue, Suite 203, Seattle, WA 98104. Phone No. − (206)343−7340. Fax No. − (206)343−1526 Filing fee $ 100, receipt number 0090−4619367. Fee Status: Fee Paid. by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration of Jan Hasselman ISO Mtn for Admission Pro Hac Vice, # 2 Text of Proposed Order Plaintiff's Proposed Order Granting Mtn to Appear Pro Hac Vice)(Goldman, Patti) (Entered: 07/27/2016)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Stephanie Tsosie, :Firm− Earthjustice, :Address− 705 Second Avenue, Suite 203, Seattle, WA 98104. Phone No. − (206)343−7340. Fax No. − (206)343−1526 Filing fee $ 100, receipt number 0090−4619381. Fee Status: Fee Paid. by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration of Stephanie Tsosie ISO Mtn for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Goldman, Patti) (Entered: 07/27/2016)
Case Assigned to Judge James E. Boasberg. (jd) (Entered: 07/28/2016)
4 SUMMONS (1) Issued Electronically as to UNITED STATES ARMY CORPS OF ENGINEERS. (Attachment: # 1 Consent Forms)(jd) (Entered: 07/29/2016)
MINUTE ORDER: The Court ORDERS that: 1) Plaintiff's 2 Motion for Admission Pro Hac Vice of JAN HASSELMAN is GRANTED; and 2) Plaintiff's 3 Motion for Admission Pro Hac Vice of STEPHANIE TSOSIE is GRANTED. Signed by Judge James E. Boasberg on 8/1/16. (lcjeb1) (Entered: 08/01/2016)
5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction, MOTION for Hearing Expedited Hearing Requested by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order Granting Motion for Preliminary Injunction, # 2 Text of Proposed Order Granting Request for Expedited Hearing)(Hasselman, Jan) (Entered: 08/04/2016)
6 LARGE ADDITIONAL ATTACHMENTS by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration of Dave Armabault II In Support of Mtn for PI, # 2 Declaration of Jon Eagle Sr In Support of Mtn for PI, # 3 Declaration of Jan Hasselman In Support of Mtn for PI, # 4 Exhibit 1 to Decl of J Hasselman, # 5 Exhibit 2 to Decl of J Hasselman, # 6 Exhibit 3 Part 1 to Decl of J Hasselman, # 7 Exhibit 3 Part 2 to Decl of J Hasselman, # 8 Exhibit 3 Part 3 to Decl of J Hasselman, # 9 Exhibit 3 Part 4 to Decl of J Hasselman, # 10 Exhibit 4 to Decl of J Hasselman, # 11 Exhibit 5 to Decl of J Hasselman, # 12 Exhibit 6 to Decl of J Hasselman, # 13 Exhibit 7 to Decl of J Hasselman, # 14 Exhibit 8 to Decl of J Hasselman, # 15 Exhibit 9 to Decl of J Hasselman, # 16 Exhibit 10 to Decl of J Hasselman, # 17 Exhibit 11 to Decl of J Hasselman, # 18 Exhibit 12 to Decl of J Hasselman, # 19 Exhibit 13 Part 1 to Decl of J Hasselman, # 20 Exhibit 13 Part 2 to Decl of J Hasselman, # 21 Exhibit 13 Part 3 to Decl of J Hasselman, # 22 Exhibit 13 Part 4 to Decl of J Hasselman, # 23 Exhibit 13 Part 5 to Decl of J Hasselman, # 24 Exhibit 13 Part 6 to Decl of J Hasselman, # 25 Exhibit 13 Part 7 to Decl of J Hasselman, # 26 Exhibit 13 Part 8 to Decl of J Hasselman, # 27 Exhibit 13 Part 9 to Decl of J Hasselman, # 28 Exhibit 14 to Decl of J Hasselman, # 29 Exhibit 15 to Decl of J Hasselman, # 30 Exhibit 16 to Decl of J Hasselman, # 31 Exhibit 17 to Decl of J Hasselman, # 32 Exhibit 18 to Decl of J Hasselman, # 33 Exhibit 19 to Decl of J Hasselman, # 34 Exhibit 20 to Decl of J Hasselman, # 35 Exhibit 21 to Decl of J Hasselman, # 36 Exhibit 22 to Decl of J Hasselman, # 37 Exhibit 23 to Decl of J Hasselman, # 38 Exhibit 24 to Decl of J Hasselman, # 39 Exhibit 25 to Decl of J Hasselman, # 40 Exhibit 26 to Decl of J Hasselman, # 41 Exhibit 27 to Decl of J Hasselman, # 42 Exhibit 28 to Decl of J Hasselman, # 43 Exhibit 29 to Decl of J Hasselman, # 44 Exhibit 30 to Decl of J Hasselman, # 45 Exhibit 31 to Decl of J Hasselman, # 46 Exhibit 32 to Decl of J Hasselman, # 47 Exhibit 33 to Decl of J Hasselman, # 48 Exhibit 34 to Decl of J Hasselman, # 49 Exhibit 35 to Decl of J Hasselman, # 50 Exhibit 36 to Decl of J Hasselman, # 51 Exhibit 37 to Decl of J Hasselman, # 52 Exhibit 38 to Decl of J Hasselman, # 53 Exhibit 39 to Decl of J Hasselman, # 54 Exhibit 40 to Decl of J Hasselman, # 55 Exhibit 41 to Decl of J Hasselman, # 56 Exhibit 43 to Decl of J Hasselman, # 57 Exhibit 44 to Decl of J Hasselman, # 58 Exhibit 45 to Decl of J

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Hasselman, # 59 Exhibit 46 to Decl of J Hasselman, # 60 Exhibit 47 to Decl of J Hasselman, # 61 Exhibit 48 to Decl of J Hasselman, # 62 Exhibit 49 to Decl of J Hasselman, # 63 Exhibit 50 to Decl of J Hasselman, # 64 Exhibit 51 to Decl of J Hasselman, # 65 Exhibit 52 to Decl of J Hasselman, # 66 Exhibit 53 to Decl of J Hasselman, # 67 Exhibit 54 to Decl of J Hasselman, # 68 Text of Proposed Order Granting Motion for Preliminary Injunction, # 69 Text of Proposed Order Granting Request for Expedited Hearing)(Hasselman, Jan) Modified on 8/5/2016 (ztd). (Entered: 08/04/2016)
NOTICE OF ERROR re 6 Motion for Preliminary Injunction; emailed to jhasselman@earthjustice.org, cc'd 4 associated attorneys −− The PDF file you docketed contained errors: 1. In the future, please use the event Large Additional Attachments found under Other Documents. (ztd, ) (Entered: 08/05/2016)
7 Unopposed MOTION to Intervene in Support of Defendant by DAKOTA ACCESS LLC (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Proposed Responsive Pleading, # 4 Text of Proposed Order, # 5 Disclosure Statement)(Caine, Kimberly) (Entered: 08/05/2016)
8 NOTICE of Appearance by Kimberly Hope Caine on behalf of DAKOTA ACCESS LLC (Caine, Kimberly) (Entered: 08/05/2016)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− William J. Leone, :Firm− Norton Rose Fulbright US LLP, :Address− 666 Fifth Avenue, New York, NY 10103. Phone No. − 212−318−3000. Fax No. − 212−318−3400 Filing fee $ 100, receipt number 0090−4630102. Fee Status: Fee Paid. by DAKOTA ACCESS LLC (Attachments: # 1 Declaration)(Caine, Kimberly) (Entered: 08/05/2016)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Robert D. Comer, :Firm− Norton Rose Fulbright US LLP, :Address− 1200 17th Street, Suite 1000, Denver, CO 80202. Phone No. − 303−801−2700. Fax No. − 393−801−2777 Filing fee $ 100, receipt number 0090−4630120. Fee Status: Fee Paid. by DAKOTA ACCESS LLC (Attachments: # 1 Declaration)(Caine, Kimberly) (Entered: 08/05/2016)
MINUTE ORDER granting Unopposed 7 Motion to Intervene on behalf of Dakota Access, LLC. Signed by Judge James E. Boasberg on 8/8/16. (lcjeb2) (Entered: 08/08/2016)
MINUTE ORDER granting 9 Motion for Leave to Appear Pro Hac Vice of WILLIAM J. LEONE. Signed by Judge James E. Boasberg on 8/8/16. (lcjeb2) (Entered: 08/08/2016)
MINUTE ORDER granting 10 Motion for Leave to Appear Pro Hac Vice of Robert D. Comer. Signed by Judge James E. Boasberg on 8/8/16. (lcjeb2) (Entered: 08/08/2016)
MINUTE ORDER: The Court ORDERS that a conference call in Chambers is hereby set for Monday, August 8, 2016, at 3 p.m. EST to discuss scheduling. The Court ORDERS that parties shall dial into Chambers' toll−free conference−call number, (877) 402−9753, at this time. Chambers will contact the parties separately via email with the dial−in code. Signed by Judge James E. Boasberg on 8/8/16. (lcjeb2) (Entered: 08/08/2016)
MINUTE ORDER: As discussed in today's conference call, the Court ORDERS that any opposition to the preliminary−injunction motion shall be filed by August 18, 2016, with any reply due by August 22, 2016, and a hearing shall be set for August 24, 2016, at 2:00 p.m. in Courtroom 19. Signed by Judge James E. Boasberg on 8/8/16. (lcjeb2) (Entered: 08/08/2016)
Minute Entry for proceedings held before Judge James E. Boasberg: Telephone Conference held on 8/8/2016. (ad) (Entered: 08/09/2016)
Set/Reset Deadlines/Hearings: Any opposition to the preliminary−injunction motion shall be filed by 8/18/2016, with any reply due by 8/22/2016, and a hearing shall be set for 8/24/2016, at 2:00 PM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 08/09/2016)
11 MOTION to Intervene in Support of Plaintiff by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration Steve Vance, # 2 Exhibit 1 to Vance Decl, # 3 Exhibit 2

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to Vance Decl, # 4 Exhibit 3 to Vance Decl, # 5 Exhibit 4 to Vance Decl, # 6 Exhibit 5 to Vance Decl, # 7 Declaration Chairman Harold Frazier, # 8 Exhibit 1 to Frazier Decl, # 9 Exhibit 2 to Frazier Decl, # 10 Exhibit 3 to Frazier Decl, # 11 Declaration Joye Braun, # 12 Exhibit Text of Proposed Complaint, # 13 Text of Proposed Order, # 14 Exhibit Disclosure Statement)(Schulte, Conly) (Entered: 08/10/2016)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nicole E. Ducheneaux, :Firm− Fredericks Peebles & Morgan LLP, :Address− 3610 North 163rd Plaza, Omaha, NE 68116. Phone No. − 402−333−4053. Fax No. − 402−333−4761 Filing fee $ 100, receipt number 0090−4634821. Fee Status: Fee Paid. by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration Nicole Ducheneaux, # 2 Text of Proposed Order)(Schulte, Conly) (Entered: 08/10/2016)
MINUTE ORDER granting 12 Motion for Admission Pro Hac Vice of NICOLE E. DUCHENEAUX. Signed by Judge James E. Boasberg on 8/11/16. (lcjeb2) (Entered: 08/11/2016)
MINUTE ORDER: The Court ORDERS that if Dakota Access opposes the 11 Motion to Intervene, it shall file such opposition by August 15, 2016. Signed by Judge James E. Boasberg on 8/11/16. (lcjeb2) (Entered: 08/11/2016)
Set/Reset Deadlines: Dakota Access' opposition, if any, to 11 Motion to Intervene due by 8/15/2016. (tg) (Entered: 08/11/2016)
13 NOTICE of Appearance by Erica M. Zilioli on behalf of UNITED STATES ARMY CORPS OF ENGINEERS (Zilioli, Erica) (Entered: 08/11/2016)
14 MOTION for Leave to File to File Supplemental Declaration in Support of Motion for Preliminary Injunction by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Exhibit 1 Declaration of Tim Mentz, Sr., # 2 Text of Proposed Order)(Hasselman, Jan) (Entered: 08/11/2016)
15 NOTICE of Appearance by Matthew M. Marinelli on behalf of UNITED STATES ARMY CORPS OF ENGINEERS (Marinelli, Matthew) (Entered: 08/11/2016)
MINUTE ORDER granting Plaintiff's 14 Motion for Leave to File Supplemental Declaration in Support of Motion for Preliminary Injunction. Signed by Judge James E. Boasberg on 8/12/16. (lcjeb2) (Entered: 08/12/2016)
16 SUPPLEMENTAL Declaration to re 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction MOTION for Hearing Expedited Hearing Requested filed by STANDING ROCK SIOUX TRIBE. (td) (Entered: 08/12/2016)
17 Memorandum in opposition to re 11 MOTION to Intervene in Support of Plaintiff filed by DAKOTA ACCESS LLC. (Attachments: # 1 Text of Proposed Order)(Caine, Kimberly) (Entered: 08/15/2016)
18 REPLY to opposition to motion re 11 MOTION to Intervene in Support of Plaintiff filed by CHEYENNE RIVER SIOUX TRIBE. (Schulte, Conly) (Entered: 08/16/2016)
19 MOTION for Joinder by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration Robert Walters, # 2 Declaration Chairman Harold Frazier, # 3 Exhibit 1 to Frazier Declaration, # 4 Exhibit 2 to Frazier Declaration, # 5 Declaration Melvin Garreau, Sr., # 6 Declaration Dave Nelson)(Schulte, Conly) (Entered: 08/16/2016)
20 MOTION for Leave to File Excess Pages in Opposition to Plaintiff's Motion for Preliminary Injunction by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Caine, Kimberly) (Entered: 08/17/2016)
MINUTE ORDER: Given the accelerated timetable for the Court to prepare for this proceeding, the Court ORDERS that the 20 Motion for Excess Pages is DENIED. Signed by Judge James E. Boasberg on 8/18/2016. (lcjeb1) Modified on 8/19/2016 to include the word "Minute Order" within the entry (ad). (Entered: 08/18/2016)
21 Memorandum in opposition to re 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction MOTION for Hearing Expedited Hearing Requested filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, #

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6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Declaration Declaration of Joel Ames, # 18 Declaration Declaration of Martha Chieply and accompanying exhibits 1 through 16, # 19 Declaration Declaration of Richard Harnois and accompanying exhibits 1 through 5, # 20 Declaration Declaration of Jonathan Shelman)(Zilioli, Erica) (Entered: 08/18/2016)
22 Memorandum in opposition to re 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction MOTION for Hearing Expedited Hearing Requested filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit A1, # 3 Exhibit B, # 4 Exhibit B1, # 5 Exhibit B2, # 6 Exhibit B3, # 7 Exhibit B4, # 8 Exhibit B5, # 9 Exhibit B6, # 10 Exhibit B7, # 11 Exhibit C, # 12 Exhibit C1, # 13 Exhibit C2, # 14 Exhibit C3, # 15 Exhibit C4, # 16 Exhibit C5, # 17 Exhibit C6, # 18 Exhibit C7, # 19 Exhibit C8, # 20 Exhibit C9, # 21 Exhibit C10, # 22 Exhibit C11, # 23 Exhibit D, # 24 Exhibit E, # 25 Exhibit F, # 26 Exhibit G, # 27 Exhibit H, # 28 Exhibit I, # 29 Exhibit J, # 30 Exhibit K, # 31 Exhibit L, # 32 Exhibit M, # 33 Exhibit N, # 34 Exhibit O, # 35 Exhibit P, # 36 Exhibit Q, # 37 Exhibit R, # 38 Exhibit S, # 39 Exhibit T, # 40 Exhibit U, # 41 Exhibit V, # 42 Exhibit W, # 43 Exhibit X, # 44 Text of Proposed Order)(Caine, Kimberly) (Entered: 08/18/2016)
MINUTE ORDER: The Court ORDERS that: 1) The Cheyenne River Sioux Tribe's 11 Motion to Intervene is GRANTED, and the CRST may participate as a party in this litigation; 2) Given the compressed timetable for the Preliminary Injunction, the fact that Defendants' Opposition briefs have already been filed, and the comprehensiveness of the briefing by the Standing Rock Sioux Tribe, however, the CRST may not participate in the preliminary−injunction briefing or hearing; and 3) The CSRT's 19 Motion for Joinder, accordingly, is DENIED. Signed by Judge James E. Boasberg on 8/19/2016. (lcjeb1) (Entered: 08/19/2016)
23 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Alan M. Glen, :Firm− Nossaman LLP, :Address− 816 Congress Ave., Ste. 970, Austin, TX 78701. Phone No. − 512−813−7943. Fax No. − 512−651−0770 Filing fee $ 100, receipt number 0090−4644415. Fee Status: Fee Paid. by DAKOTA ACCESS LLC (Attachments: # 1 Declaration In Support of Motion for Admission of Attory Pro Hac Vice)(Quarles, Steven) (Entered: 08/19/2016)
MINUTE ORDER granting 23 Motion for Leave to Appear Pro Hac Vice of ALAN M. GLEN. Signed by Judge James E. Boasberg on 8/19/2016. (lcjeb1) (Entered: 08/19/2016)
24 REPLY to opposition to motion re 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction MOTION for Hearing Expedited Hearing Requested filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Declaration of Jan Hasselman ISO Reply re Motion for Preliminary Injunction, # 2 Exhibit 55, # 3 Exhibit 56, # 4 Exhibit 57, # 5 Exhibit 58, # 6 Exhibit 59, # 7 Exhibit 60, # 8 Exhibit 61, # 9 Exhibit 62, # 10 Exhibit 63, # 11 Exhibit 64)(Hasselman, Jan) (Entered: 08/22/2016)
MINUTE ORDER: The Court ORDERS that at tomorrow's hearing, Plaintiff may have 25 minutes for its initial argument, Defendants may jointly have 30 minutes, and Plaintiff may have 5 minutes for rebuttal. No witnesses may be called. Signed by Judge James E. Boasberg on 8/23/2016. (lcjeb1) (Entered: 08/23/2016)
25 MOTION for Leave to File Supplemental Declaration of Joey Mahmoud by DAKOTA ACCESS LLC (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Caine, Kimberly) (Entered: 08/23/2016)
MINUTE ORDER: The Court ORDERS that Dakota Access' 25 Motion for Leave to File Supplemental Declaration is DENIED. Signed by Judge James E. Boasberg on 8/24/2016. (lcjeb1) (Entered: 08/24/2016)
26 ANSWER to Complaint by DAKOTA ACCESS LLC.(Caine, Kimberly) (Entered: 08/24/2016)
MINUTE ORDER: The Court ORDERS that a status conference will be held on September 14, 2016, at 2 P.M. Plaintiffs may appear by telephone. Signed by Judge James E. Boasberg on 8/24/2016. (lcjeb1) (Entered: 08/24/2016)

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Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 8/24/2016 re 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction. 5 Motion for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction, HEARD and TAKEN UNDER ADVISEMENT. A Status Conference is set for 9/14/2016, at 2:00 PM, in Courtroom 19, before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (ad) (Entered: 08/24/2016)
27 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 8−24−16; Page Numbers: 1−62. Date of Issuance:9−1−16. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 9/22/2016. Redacted Transcript Deadline set for 10/2/2016. Release of Transcript Restriction set for 11/30/2016.(Griffith, Lisa) (Entered: 09/01/2016)
28 NOTICE of Appearance by Alan M. Glen on behalf of DAKOTA ACCESS LLC (Glen, Alan) (Entered: 09/01/2016)
29 MOTION for Leave to File Supplemental Declaration by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration Supplemental Declaration of Tim Mentz, Sr., # 2 Exhibit 1 to Supp'l Declaration, # 3 Exhibit 2 to Supp'l Declaration, # 4 Exhibit 3 to Supp'l Declaration, # 5 Exhibit 4 to Supp'l Declaration)(Hasselman, Jan) (Entered: 09/02/2016)
30 Emergency MOTION for Temporary Restraining Order by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration Declaration of Tim Mentz In Support of TRO, # 2 Declaration Declaration of Jan Hasselman In Support of TRO, # 3 Text of Proposed Order)(Hasselman, Jan) (Entered: 09/04/2016)
31 MOTION for Temporary Restraining Order by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration Nicole Ducheneaux, # 2 Text of Proposed Order)(Schulte, Conly) (Entered: 09/04/2016)
MINUTE ORDER: The Court ORDERS that a hearing on Plaintiff's TRO shall take place on September 6, 2016, at 3:00 p.m., in Courtroom 19. Signed by Judge James E. Boasberg on 9/05/2016. (ad) (Entered: 09/05/2016)
Set/Reset Hearing: A hearing on Plaintiff's TRO is set for 9/6/2016, at 3:00 PM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 09/05/2016)
32 RESPONSE re 30 Emergency MOTION for Temporary Restraining Order , 31 MOTION for Temporary Restraining Order filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Zilioli, Erica) (Entered: 09/05/2016)
33 MOTION for Leave to Appear to Appear Telephonically by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 09/06/2016)
MINUTE ORDER: The Court GRANTS Cheyenne River's 33 Motion for Leave to Appear Telephonically. Signed by Judge James E. Boasberg on 9/6/2016. (lcjeb1) (Entered: 09/06/2016)
34 RESPONSE re 30 Emergency MOTION for Temporary Restraining Order , 31 MOTION for Temporary Restraining Order , 29 MOTION for Leave to File Supplemental Declaration filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(Caine, Kimberly) (Entered: 09/06/2016)

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35 REPLY to opposition to motion re 31 MOTION for Temporary Restraining Order filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration Ducheneaux, # 2 Exhibit 1 to Ducheneaux Decl, # 3 Declaration Chairman Harold Frazier)(Ducheneaux, Nicole) (Entered: 09/06/2016)
Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 9/6/2016 re 30 Emergency MOTION for Temporary Restraining Order filed by STANDING ROCK SIOUX TRIBE, 31 MOTION for Temporary Restraining Order filed by CHEYENNE RIVER SIOUX TRIBE. (Order forthcoming). (Court Reporter Patricia Kaneshiro−Miller.) (tg) (Entered: 09/06/2016)
MINUTE ORDER: The Court ORDERS that Plaintiff's 29 Motion for Leave to File Supplemental Declaration is GRANTED. Signed by Judge James E. Boasberg on 9/6/2016. (lcjeb1) (Entered: 09/06/2016)
MINUTE ORDER: As explained at today's hearing, the Court ORDERS that Plaintiffs' [30, 31] Motions for Temporary Restraining Order are GRANTED IN PART and DENIED IN PART. As agreed by Defendants, the Court ORDERS that no construction activity on the DAPL may take place between Highway 1806 and 20 miles to the east of Lake Oahe. Construction activity to the west of Highway 1806 may proceed. Signed by Judge James E. Boasberg on 9/6/2016. (lcjeb1) (Entered: 09/06/2016)
36 SUPPLEMENTAL Declaration to re 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction MOTION for Hearing Expedited Hearing Requested filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Exhibit)(td) (Entered: 09/07/2016)
MINUTE ORDER: As the Court will now be in trial on another matter on September 14, 2016, it ORDERS that the status conference set for that date is VACATED and RESET for September 16, 2016, at 2:00 p.m. The Court apologizes for any inconvenience. Signed by Judge James E. Boasberg on 9/7/2016. (lcjeb1) (Entered: 09/07/2016)
Set/Reset Hearings: The Status Conference set for 9/14/2016, at 2:00 PM, is hereby VACATED and RESCHEDULED for 9/16/2016, at 2:00 PM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 09/07/2016)
37 AMENDED COMPLAINT against CHEYENNE RIVER SIOUX TRIBE filed by CHEYENNE RIVER SIOUX TRIBE.(Ducheneaux, Nicole) Modified on 9/12/2016 (td). Modified on 10/20/2016 (znmw). (Entered: 09/08/2016)
38 ORDER DENYING 5 Motion for Preliminary Injunction. Signed by Judge James E. Boasberg on 9/9/2016. (lcjeb1) (Entered: 09/09/2016)
39 MEMORANDUM OPINION re 38 Order on Motion for Preliminary Injunction. Signed by Judge James E. Boasberg on 9/9/2016. (lcjeb1) (Entered: 09/09/2016)
40 ENTERED IN ERROR. . . . .NOTICE of Appeal to US Court of Appeals DC Circuit by STANDING ROCK SIOUX TRIBE re 38 Order on Motion for Preliminary Injunction, 5 MOTION for Preliminary Injunction and Memo in Support of Motion for Preliminary Injunction MOTION for Hearing Expedited Hearing Requested, 39 Memorandum & Opinion (Attachments: # 1 Exhibit Order)(Hasselman, Jan) Modified on 9/12/2016 (td). (Entered: 09/09/2016)
41 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 38 Order on Motion for Preliminary Injunction, 39 Memorandum & Opinion by STANDING ROCK SIOUX TRIBE. Filing fee $ 505, receipt number 0090−4668363. Fee Status: Fee Paid. Parties have been notified. (Attachments: # 1 Exhibit Order)(Hasselman, Jan) (Entered: 09/09/2016)
42 MOTION Injunction Pending Appeal by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE (Attachments: # 1 Exhibit 1, # 2 Declaration of Thomas F King PhD, # 3 Text of Proposed Order)(Hasselman, Jan) (Entered: 09/09/2016)
43 RESPONSE re 42 MOTION Injunction Pending Appeal filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Zilioli, Erica) (Entered: 09/09/2016)

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USCA Case Number 16−5259 for 41 Notice of Appeal to DC Circuit Court, filed by STANDING ROCK SIOUX TRIBE. (zrdj) (Entered: 09/12/2016)
MINUTE ORDER: The Court ORDERS that Plaintiff's 42 Motion for Injunction Pending Appeal is GRANTED IN PART and DENIED IN PART. With the consent of both Defendants, the terms of the Temporary Restraining Order issued September 6, 2016, are REINSTATED until the status conference on September 16, 2016. The Motion is otherwise DENIED. Signed by Judge James E. Boasberg on 9/12/2016. (lcjeb1) (Entered: 09/12/2016)
NOTICE OF CORRECTED DOCKET ENTRY: re 40 Notice (Other), was entered in error and counsel refiled said pleading as docket entry no. 41 . (td) (Entered: 09/12/2016)
44 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date9/9/16 re USCA Case Number 16−5259, 41 Notice of Appeal to DC Circuit Court,. (td) (Entered: 09/12/2016)
MINUTE ORDER: As each Plaintiff in a civil suit is not entitled to its own separate Complaint, the Court ORDERS that Intervenor Plaintiff's 37 First Amended Complaint is STRICKEN. Signed by Judge James E. Boasberg on 9/12/2016. (lcjeb1) (Entered: 09/12/2016)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) The Corps' response to Plaintiffs' Complaint is due on October 11, 2016; 2) The Corps shall file the administrative record by November 10, 2016; and 3) The parties shall appear for a status hearing on November 10, 2016, at 2:00 p.m. Signed by Judge James E. Boasberg on 9/16/2016. (lcjeb1) (Entered: 09/16/2016)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 9/16/2016. Attorneys Ducheneaux, Pieper, Hasselman, Schulte, and Goldman appeared via telephone. (The Corps' response to Plaintiffs' Complaint is due on 10/11/2016; The Corps shall file the administrative record by 11/10/2016). A Status Conference is set for 11/10/2016, at 2:00 PM, in Courtroom 19, before Judge James E. Boasberg. (Court Reporter Patricia Kaneshiro) (ad) (Entered: 09/16/2016)
45 MOTION for Reconsideration of Minute Order Striking Amended Complaint by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 09/19/2016)
MINUTE ORDER: Intervenor−Plaintiff Cheyenne River seeks 45 reconsideration of the Court's Order striking its Amended Complaint. For purposes of judicial efficiency, the Court continues to believe that proceeding with one, rather than two, Complaints is preferable. As Cheyenne River points out that Standing Rock will shortly seek amendment of its Complaint, see Mot. at 5−6, the Court believes the wiser course is for the two Plaintiffs to file one Amended Complaint, setting forth the separate (or joint) claims each wishes to make. If either Plaintiff believes it would somehow be prejudiced by such a course of action, the Court ORDERS that it may file a pleading by September 30, 2016, articulating such prejudice. Signed by Judge James E. Boasberg on 9/23/2016. (lcjeb1) (Entered: 09/23/2016)
Set/Reset Deadline: If either Plaintiff believes it would somehow be prejudiced by such a course of action, the Court ORDERS that it may file a pleading by 9/30/2016, articulating such prejudice. (ad) (Entered: 09/23/2016)
46 RESPONSE to Minute Order filed 9/23/16,,, Concerning Amended Complaint by CHEYENNE RIVER SIOUX TRIBE. (Ducheneaux, Nicole) Modified on 10/3/2016 (td). (Entered: 09/30/2016)
47 ANSWER to Complaint by UNITED STATES ARMY CORPS OF ENGINEERS.(Zilioli, Erica) (Entered: 10/11/2016)
48 ORDER: The Court ORDERS that: 1) Intervenor−Plaintiff Cheyenne River Sioux Tribe's 45 Motion for Reconsideration is GRANTED; 2) Cheyenne River's Amended Complaint 37 is FILED; and 3) Defendants shall respond to Cheyenne River's Amended Complaint by December 19, 2016. Signed by Judge James E. Boasberg on 10/19/2016. (lcjeb1) (Entered: 10/19/2016)

10/19/2016 10/26/2016
10/26/2016
11/08/2016 11/08/2016 11/08/2016 11/09/2016 11/10/2016 11/10/2016

Set/Reset Deadline: Defendants shall respond to Cheyenne River's Amended Complaint by 12/19/2016,. (ad) (Entered: 10/19/2016)
49 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on September 16, 2016; Page Numbers: 1−36. Date of Issuance:October 26, 2016. Court Reporter/Transcriber Patricia Kaneshiro−Miller, Telephone number 202−354−3243, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the cou rt reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 11/16/2016. Redacted Transcript Deadline set for 11/26/2016. Release of Transcript Restriction set for 1/24/2017.(pk) (Entered: 10/26/2016)
50 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on September 6, 2016; Page Numbers: 1−37. Date of Issuance:October 26, 2016. Court Reporter/Transcriber Patricia Kaneshiro−Miller, Telephone number 202−354−3243, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the cour t reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 11/16/2016. Redacted Transcript Deadline set for 11/26/2016. Release of Transcript Restriction set for 1/24/2017.(pk) (Entered: 10/26/2016)
51 NOTICE of Appearance by Miguel A. Estrada on behalf of DAKOTA ACCESS LLC (Estrada, Miguel) (Entered: 11/08/2016)
52 NOTICE of Appearance by William S. Scherman on behalf of DAKOTA ACCESS LLC (Scherman, William) (Entered: 11/08/2016)
53 NOTICE of Appearance by David Debold on behalf of DAKOTA ACCESS LLC (Debold, David) (Entered: 11/08/2016)
54 MOTION for Extension of Time to Lodge Portion of Administrative Record by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Marinelli, Matthew) (Entered: 11/09/2016)
55 NOTICE of Lodging Administrative Record by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit 1 − Certifications, # 2 Exhibit 2 − Admin. Record Index)(Zilioli, Erica) (Entered: 11/10/2016)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) The parties shall return for a further status hearing on December 9, 2016, at 10:30 a.m.; 2) In the interim, they shall review the administrative record and meet and confer in an attempt to resolve any disputes regarding completeness or confidentiality; and 3) The Government's 54 Motion for Extension of Time is DENIED as moot. Signed by Judge James E. Boasberg on 11/10/2016. (lcjeb1, ) (Entered: 11/10/2016)

11/10/2016 11/14/2016 11/15/2016 11/15/2016 11/15/2016 11/15/2016 11/15/2016 11/15/2016 11/16/2016 11/18/2016
11/18/2016
11/20/2016

Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 11/10/2016. A further Status Conference is set for 12/9/2016, at 10:30 AM, in Courtroom 19, before Judge James E. Boasberg. (Court Reporter Elizabeth Saint−Loth) (ad) (Entered: 11/10/2016)
56 NOTICE Regarding Recently Issued Public Documents by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit 1 − Letter, # 2 Exhibit 2 − Statement)(Zilioli, Erica) (Entered: 11/14/2016)
57 ANSWER to 37 Amended Complaint , CROSSCLAIM against UNITED STATES ARMY CORPS OF ENGINEERS by DAKOTA ACCESS LLC. Related document: 37 Amended Complaint filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Exhibit A)(Scherman, William) (Entered: 11/15/2016)
58 MOTION to supplement the administrative record on an expedited basis by DAKOTA ACCESS LLC (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Scherman, William) (Entered: 11/15/2016)
MINUTE ORDER: The Court ORDERS that if the Government opposes Dakota Access's 58 Motion to Supplement, it shall file such Opposition by November 18, 2016. Signed by Judge James E. Boasberg on 11/15/2016. (lcjeb1) (Entered: 11/15/2016)
Set/Reset Deadline: If the Government opposes Dakota Access's 58 Motion to Supplement, it shall file such Opposition by 11/18/2016. (ad) (Entered: 11/15/2016)
59 MOTION to Expedite Consideration of Cross−Claim by DAKOTA ACCESS LLC (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Scherman, William) (Entered: 11/15/2016)
MINUTE ORDER: In the event the Government opposes Dakota Access's 59 Motion to Expedite, the Court ORDERS that it shall file such Opposition by November 21, 2016. Signed by Judge James E. Boasberg on 11/15/2016. (lcjeb1) (Entered: 11/15/2016)
Set/Reset Deadline: In the event the Government opposes Dakota Access's 59 Motion to Expedite, the Court ORDERS that it shall file such Opposition by 11/21/2016. (ad) (Entered: 11/16/2016)
60 TRANSCRIPT OF STATUS CONFERENCE before Judge James E. Boasberg held on 11−10−2016; Page Numbers: 1 − 29. Date of Issuance:11−18−2016. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202−354−3242, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/9/2016. Redacted Transcript Deadline set for 12/19/2016. Release of Transcript Restriction set for 2/16/2017.(Saint−Loth, Elizabeth) (Entered: 11/18/2016)
61 Memorandum in opposition to re 58 MOTION to supplement the administrative record on an expedited basis filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit October 2014 letter, # 2 Exhibit Standard Form 299 Application, # 3 Exhibit August 11, 2016 B. Comer letter, # 4 Exhibit August 11, 2016 E. Zilioli email, # 5 Exhibit October 2008 Policy Guidance)(Marinelli, Matthew) (Entered: 11/18/2016)
62 REPLY to opposition to motion re 58 MOTION to supplement the administrative record on an expedited basis filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Scherman, William) (Entered: 11/20/2016)

11/21/2016 11/22/2016 12/02/2016 12/04/2016 12/05/2016 12/07/2016 12/09/2016
12/09/2016 12/09/2016
12/14/2016

63 Memorandum in opposition to re 59 MOTION to Expedite Consideration of Cross−Claim filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 11/21/2016)
64 REPLY to opposition to motion re 59 MOTION to Expedite Consideration of Cross−Claim filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 11/22/2016)
MINUTE ORDER: The Court ORDERS that the parties may present argument on Intervenor's [58−59] Motions at the status hearing currently set for December 9, 2016. Signed by Judge James E. Boasberg on 12/2/2016. (lcjeb1) (Entered: 12/02/2016)
65 NOTICE Regarding Recently Issued Public Document by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit December 4, 2016 Army Memorandum)(Marinelli, Matthew) (Entered: 12/04/2016)
66 MOTION for Summary Judgment by DAKOTA ACCESS LLC (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Scherman, William) (Entered: 12/05/2016)
67 STATUS REPORT by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Ducheneaux, Nicole) (Entered: 12/07/2016)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) Dakota Access's 58 Motion to Supplement the Administrative Record is DENIED WITHOUT PREJUDICE to be renewed in the event that it believes additional records are required to respond to the Government's forthcoming brief; 2) The Government shall nonetheless make good−faith efforts to begin compiling the documents sought by Dakota Access, and it shall also supplement the Administrative Record by January 6, 2017, with all documents concerning the easement that were created on or before July 25, 2016; 3) Dakota Access's 59 Motion to Expedite is DENIED IN PART, given the announced briefing schedule; 4) The Government shall file a combined Opposition to Dakota Access's Motion for Summary Judgment and any Motion to Dismiss by January 6, 2017; 5) The Tribes shall file any Opposition(s) by that same date; 6) Dakota Access shall file its combined Opposition and Reply by January 31, 2017; 7) The Government and the Tribes shall file any Replies within 10 days of Dakota Access's filing; 8) The Court shall notify the parties of a date for oral argument if it requires one; and 9) The Government shall promptly notify the Court should it change its position regarding the easement. Signed by Judge James E. Boasberg on 12/09/2016. (lcjeb3) (Entered: 12/09/2016)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 12/9/2016. (Court Reporter Lisa Griffith) (nbn) (Entered: 12/09/2016)
68 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 12−9−16; Page Numbers: 1−23. Date of Issuance:12−9−16. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 202−354−3247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/30/2016. Redacted Transcript Deadline set for 1/9/2017. Release of Transcript Restriction set for 3/9/2017.(Griffith, Lisa) (Entered: 12/09/2016)
69 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Joseph V. Messineo, :Firm− Fredericks Peebles & Morgan LLP, :Address− 3610 North 163rd Plaza, Omaha, NE 68116. Phone No. − 402−333−4053. Fax No. − 402−333−4761 Filing fee $ 100, receipt number 0090−4776916. Fee Status: Fee Paid. by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration of Joseph Messineo, # 2 Text of

12/15/2016 12/15/2016 12/15/2016 12/16/2016 12/16/2016
12/16/2016 01/06/2017
01/06/2017 01/06/2017 01/06/2017

Proposed Order)(Schulte, Conly) (Entered: 12/14/2016)
MINUTE ORDER denying without prejudice 69 Motion for Admission Pro Hac Vice of JOSEPH V. MESSINEO for failure to comply with LCvR 83(d)(4). The declaration does not state whether the attorney has been disciplined by any bar, and if the attorney has been disciplined by any bar, the circumstances and details of the discipline. Signed by Judge James E. Boasberg on 12/15/2016. (lcjeb1) (Entered: 12/15/2016)
70 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Joseph v. Messineo, :Firm− Fredericks Peebles & Morgan LLP, :Address− 3610 North 163rd Plaza, Omaha, NE 68116. Phone No. − 402−333−4053. Fax No. − 402−333−4761 Fee Status: No Fee Paid. by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration of Joseph Messineo, # 2 Text of Proposed Order)(Schulte, Conly) (Entered: 12/15/2016)
MINUTE ORDER granting 70 Motion for Admission Pro Hac Vice of JOSEPH V. MESSINEO. Signed by Judge James E. Boasberg on 12/15/2016. (lcjeb1) (Entered: 12/15/2016)
71 Joint MOTION to Hold in Abeyance Claims of Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Zilioli, Erica) (Entered: 12/16/2016)
72 ORDER: (1) The 71 Joint Motion to Hold Claims in Abeyance is GRANTED. (2) The U.S. Army Corps of Engineers' response to the Cheyenne River Sioux Tribe's Amended Complaint and all briefing regarding the Standing Rock Sioux Tribe's and Cheyenne River Sioux Tribe's claims in this case shall be held in abeyance until the resolution of Dakota Access's pending motion for summary judgment and any motion to dismiss Dakota Access's cross−claim filed by the U.S. Army Corps of Engineers on or before January 6, 2017. (3) The parties shall file a status report and proposal for resolving this matter within 14 days of the resolution of that motion for summary judgment and motion to dismiss. Signed by Judge James E. Boasberg on 12/16/2016. (lcjeb3) (Entered: 12/16/2016)
Set/Reset Deadlines: Any motion to dismiss Dakota Access's cross−claim filed by the U.S. Army Corps of Engineers on or before 1/6/2017. (nbn) (Entered: 12/20/2016)
73 MOTION to Dismiss And Memorandum in Opposition to Dakota Access, LLC's Motion for Summary Judgment by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Memorandum in Support of Motion to Dismiss and in Opposition to Dakota Access, LLC's Motion for Summary Judgment, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 8a, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Text of Proposed Order)(Marinelli, Matthew) (Entered: 01/06/2017)
74 MOTION to Dismiss and Opposition to Motion for Summary Judgment and Cross−Motion for Summary Judgment by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Statement of Facts, # 2 Declaration Nicole Ducheneaux, # 3 Exhibit A to Ducheneaux Decl, # 4 Exhibit B to Ducheneaux Decl, # 5 Exhibit C to Ducheneaux Decl, # 6 Exhibit D to Ducheneaux Decl, # 7 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 01/06/2017)
75 Memorandum in opposition to re 66 MOTION for Summary Judgment , Cross Motion for Summary Judgment and Motion to Dismiss filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Statement of Facts, # 2 Declaration Nicole Ducheneaux, # 3 Exhibit A to Ducheneaux Decl, # 4 Exhibit B to Ducheneaux Decl, # 5 Exhibit C to Ducheneaux Decl, # 6 Exhibit D to Ducheneaux Decl, # 7 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 01/06/2017)
76 Cross MOTION for Summary Judgment , Opposition to Motion for Summary Judgment and Motion to Dismiss by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Statement of Facts, # 2 Declaration Nicole Ducheneaux, # 3 Exhibit A to Ducheneaux Decl, # 4 Exhibit B to Ducheneaux Decl, # 5 Exhibit C to Ducheneaux Decl, # 6 Exhibit D to Ducheneaux Decl, # 7 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 01/06/2017)

01/06/2017 01/06/2017
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01/17/2017 01/17/2017
01/17/2017 01/17/2017 01/17/2017 01/18/2017 01/18/2017 01/18/2017 01/18/2017 01/18/2017

77 MOTION to Dismiss, CROSS MOTION for Summary Judgment filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Hasselman, Jan) Modified event title on 1/9/2017 (znmw). (Entered: 01/06/2017)
78 Memorandum in opposition to re 66 MOTION for Summary Judgment and In Support of Motion to Dismiss and Cross−Motion for Summary Judgment filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Declaration of Jan Hasselman, # 2 Exhibit 1−6 to Decl of J Hasselman, # 3 Exhibit 7−14 to Decl of J Hasselman, # 4 Exhibit 15−17 to Decl of J Hasselman, # 5 Exhibit 18−21 to Decl of J Hasselman)(Hasselman, Jan) (Entered: 01/06/2017)
79 Memorandum in opposition to re 66 MOTION for Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (See Docket Entry 73 to view document). (znmw) (Entered: 01/09/2017)
80 MOTION for Preliminary Injunction , Emergency MOTION for Temporary Restraining Order by DAKOTA ACCESS LLC (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order for Temporary Restraining Order, # 4 Text of Proposed Order for Preliminary Injunction)(Scherman, William) (Entered: 01/16/2017)
81 NOTICE OF SUPPLEMENTAL AUTHORITY by DAKOTA ACCESS LLC (Scherman, William) (Entered: 01/17/2017)
MINUTE ORDER: The Court ORDERS that a conference call with Chambers is hereby set for today, January 17, 2017 at 4:30 p.m. EST to discuss scheduling for the TRO motion. The Court ORDERS that the parties shall dial into Chambers' toll−free conference−call number, 877−402−9753, at that time. Chambers will contact the parties via email with the dial−in code. Signed by Judge James E. Boasberg on 1/17/2017. (lcjeb2) (Entered: 01/17/2017)
82 Memorandum in opposition to re 80 MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 01/17/2017)
MINUTE ORDER: As discussed in today's conference call, the Court ORDERS that the parties shall appear in person or by telephone at a hearing on Dakota Access's Application for TRO on January 18, 2017, at 3:00 p.m., in Courtroom 19. Signed by Judge James E. Boasberg on 1/17/17. (lcjeb2) (Entered: 01/17/2017)
Set/Reset Hearings: TRO Hearing set for 1/18/2017 at 3:00 PM in Courtroom 19 before Judge James E. Boasberg. (zlsj) (Entered: 01/17/2017)
83 RESPONSE re 80 MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration Nicole Ducheneaux, # 2 Exhibit A to Ducheneaux Decl, # 3 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 01/18/2017)
84 REPLY to opposition to motion re 80 MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 01/18/2017)
85 Memorandum in opposition to re 80 MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit, # 2 Exhibit)(Marinelli, Matthew) (Entered: 01/18/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 1/18/2017 re 80 MOTION for Preliminary Injunction Emergency MOTION for Temporary Restraining Order filed by DAKOTA ACCESS LLC. (Order forthcoming). (Court Reporter Lisa Griffith) (tg) (Entered: 01/18/2017)
MINUTE ORDER: As explained in open court following today's hearing, the Court ORDERS that Dakota Access's 80 Motion for Temporary Restraining Order is DENIED and its Motion for Preliminary Injunction is WITHDRAWN WITHOUT PREJUDICE. Signed by Judge James E. Boasberg on 01/18/2017. (lcjeb3) (Entered: 01/18/2017)

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01/26/2017 01/30/2017
01/30/2017 02/01/2017 02/01/2017 02/01/2017

88 MANDATE of USCA as to 41 Notice of Appeal to DC Circuit Court, filed by STANDING ROCK SIOUX TRIBE. USCA Case Number 16−5259. (Attachments: # 1 order filed January 18, 2017)(zrdj) (Entered: 01/23/2017)
86 REPLY to opposition to motion re 66 MOTION for Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration)(Scherman, William) Modified links on 1/23/2017 (znmw). (Entered: 01/20/2017)
87 Memorandum in opposition to re 77 MOTION to Dismiss MOTION for Summary Judgment, 74 MOTION to Dismiss and Opposition to Motion for Summary Judgment and Cross−Motion for Summary Judgment, 73 MOTION to Dismiss And Memorandum in Opposition to Dakota Access, LLC's Motion for Summary Judgment, 76 Cross MOTION for Summary Judgment , Opposition to Motion for Summary Judgment and Motion to Dismiss filed by DAKOTA ACCESS LLC. (See Docket Entry 86 to view document). (znmw) (Entered: 01/23/2017)
89 NOTICE by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit)(Marinelli, Matthew) (Entered: 01/24/2017)
MINUTE ORDER: Given the 89 Notice just filed by the Corps, the Court ORDERS that the parties shall appear for a status hearing on January 30, 2017, at 11:00 a.m. to discuss its impact on the pending motions. Signed by Judge James E. Boasberg on 1/25/2017. (lcjeb3) (Entered: 01/25/2017)
Set/Reset Hearings: Status Conference set for 1/30/2017 at 11:00 AM in Courtroom 19 before Judge James E. Boasberg. (nbn) (Entered: 01/25/2017)
90 Unopposed MOTION for Extension of Time to File Response/Reply by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Marinelli, Matthew) (Entered: 01/26/2017)
MINUTE ORDER granting 90 Consent Motion for Extension of Time to File. The Court ORDERS that the United States Army Corps of Engineers, the Standing Rock Sioux Tribe, and the Cheyenne River Sioux Tribe shall file any reply briefs in support of their Motions to Dismiss or for Summary Judgment on Dakota Access's Cross−Claim on or before February 20, 2017. Signed by Judge James E. Boasberg on 1/26/2017. (lcjeb3) (Entered: 01/26/2017)
Set/Reset Deadlines: United States Army Corps of Engineers, the Standing Rock Sioux Tribe, and the Cheyenne River Sioux Tribe shall file any reply briefs in support of their Motions to Dismiss or for Summary Judgment on Dakota Access's Cross−Claim on or before 2/20/2017. (nbn) (Entered: 01/26/2017)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that the parties shall appear for a further status hearing on February 6, 2017, at 11:30 a.m., at which time the Government will provide an update on any decisionmaking regarding the easement, and Dakota Access will provide an estimated timeline from their potential receipt of an easement through the commencement of oil flow through the pipeline. Signed by Judge James E. Boasberg on 1/30/2017. (lcjeb3) (Entered: 01/30/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 1/30/2017. Status Conference set for 2/6/2017 at 11:30 AM in Courtroom 19 before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (nbn) (Entered: 01/30/2017)
91 NOTICE Regarding Recently Issued Public Document by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit 1)(Zilioli, Erica) (Entered: 02/01/2017)
92 MOTION for Protective Order by DAKOTA ACCESS LLC (Attachments: # 1 Declaration of William S. Scherman, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Scherman, William) (Entered: 02/01/2017)
93 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DAKOTA ACCESS LLC (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A)(Scherman, William) (Entered: 02/01/2017)

02/03/2017 02/03/2017 02/06/2017 02/06/2017 02/07/2017 02/08/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017
02/09/2017

MINUTE ORDER: The Court ORDERS that 93 Dakota Access's sealed Motion for Leave to File Under Seal an unredacted version of Exhibit A to its Motion for a Protective Order is GRANTED. Signed by Judge James E. Boasberg on 2/3/2017. (lcjeb3) (Entered: 02/03/2017)
94 SEALED DOCUMENT filed by DAKOTA ACCESS LLC. re 92 MOTION for Protective Order filed by DAKOTA ACCESS LLC, Minute Order on Sealed Motion for Leave to File Document Under Seal. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 02/06/2017)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that the parties shall appear for a further status hearing on February 13, 2017, at 2:00 p.m. in Courtroom 19. Signed by Judge James E. Boasberg on 2/6/2017. (lcjeb3) (Entered: 02/06/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 2/6/2017. A further Status Conference set for 2/13/2017 at 02:00 PM in Courtroom 19 before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (nbn) (Entered: 02/06/2017)
95 NOTICE Regarding Recently Issued Public Documents by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Marinelli, Matthew) (Entered: 02/07/2017)
96 NOTICE of Recently Issued Public Document by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit 1)(Zilioli, Erica) (Entered: 02/08/2017)
97 MOTION to Amend/Correct 37 Amended Complaint by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 02/09/2017)
98 MOTION for Preliminary Injunction by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Text of Proposed Order)(Ducheneaux, Nicole) Modified text per counsel on 2/9/2017 (td). (Entered: 02/09/2017)
99 Ex Parte MOTION for Temporary Restraining Order by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Affidavit, # 13 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 02/09/2017)
100 NOTICE of Appearance by Reuben S. Schifman on behalf of UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 02/09/2017)
101 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 12−9−16; Page Numbers: 1−23. Date of Issuance:2−9−17. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/2/2017. Redacted Transcript Deadline set for 3/12/2017. Release of Transcript Restriction set for 5/10/2017.(Griffith, Lisa) (Entered: 02/09/2017)
102 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 1−18−17; Page Numbers: 1−30. Date of Issuance:2−9−17. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a

02/09/2017 02/09/2017 02/09/2017

href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/2/2017. Redacted Transcript Deadline set for 3/12/2017. Release of Transcript Restriction set for 5/10/2017.(Griffith, Lisa) (Entered: 02/09/2017)
103 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 1−30−17; Page Numbers: 1−20. Date of Issuance:2−9−17. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/2/2017. Redacted Transcript Deadline set for 3/12/2017. Release of Transcript Restriction set for 5/10/2017.(Griffith, Lisa) (Entered: 02/09/2017)
104 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 2−6−17; Page Numbers: 1−22. Date of Issuance:2−9−17. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/2/2017. Redacted Transcript Deadline set for 3/12/2017. Release of Transcript Restriction set for 5/10/2017.(Griffith, Lisa) (Entered: 02/09/2017)
105 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 8−24−16; Page Numbers: 1−62. Date of Issuance:2−9−17. Court Reporter/Transcriber Lisa W GRIFFITH, Telephone number 2023543247, Tape Number: Lisa_Griffith@dcd.uscourts.gov. Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due

02/09/2017 02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/11/2017 02/11/2017 02/11/2017 02/13/2017 02/13/2017 02/13/2017 02/13/2017
02/13/2017

3/2/2017. Redacted Transcript Deadline set for 3/12/2017. Release of Transcript Restriction set for 5/10/2017.(Griffith, Lisa) (Entered: 02/09/2017)
MINUTE ORDER: The Court ORDERS that it will hear argument on Intervenor Plaintiff Cheyenne River Sioux Tribe's 99 Motion for Temporary Restraining Order at the status hearing on February 13, 2017, at 2:00 p.m. Signed by Judge James E. Boasberg on 2/9/17. (lcjeb3) (Entered: 02/09/2017)
106 MOTION for Leave to File Amended Complaint by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Exhibit First Amended Complaint, # 2 Text of Proposed Order Proposed Order)(Hasselman, Jan) (Entered: 02/10/2017)
107 Joinder 99 in Motion for Temporary Restraining Order by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration Second Declaration of Dave Archambault, II)(Hasselman, Jan) Modified per Chambers on 2/16/2017 (td). (Entered: 02/10/2017)
108 NOTICE of Appearance by GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION (Guest, Richard) Modified event title on 2/13/2017 (znmw). (Entered: 02/10/2017)
109 MOTION for Leave to File Amicus Curiae Brief by GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION (Attachments: # 1 Amicus Curiae Brief)(Guest, Richard) (Entered: 02/10/2017)
110 NOTICE of Appearance by Joseph V. Messineo on behalf of STEVE VANCE (Messineo, Joseph) (Entered: 02/11/2017)
111 MOTION to Intervene by STEVE VANCE (Attachments: # 1 Exhibit Complaint, # 2 Text of Proposed Order, # 3 Declaration Joseph Messineo)(Messineo, Joseph) (Entered: 02/11/2017)
112 NOTICE of Appearance by Nicole E. Ducheneaux on behalf of STEVE VANCE (Ducheneaux, Nicole) (Main Document 112 replaced on 2/13/2017) (znmw). (Entered: 02/11/2017)
113 Memorandum in opposition to re 99 Ex Parte MOTION for Temporary Restraining Order filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William) (Entered: 02/13/2017)
114 RESPONSE re 99 Ex Parte MOTION for Temporary Restraining Order filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Schifman, Reuben) (Entered: 02/13/2017)
115 AFFIDAVIT re 99 Ex Parte MOTION for Temporary Restraining Order by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Ducheneaux, Nicole) (Entered: 02/13/2017)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) CRST's 99 TRO Application is DENIED; 2) Dakota Access shall provide an update on February 21, 2017, and every Monday thereafter as to the likely date that oil will begin to flow beneath Lake Oahe; 3) The Court will hold a hearing on CRST's Motion for Preliminary Injunction on February 27, 2017, at 2:00 p.m.; 3) Oppositions to such Motion shall be due by February 21, 2017, with any Reply due by February 24, 2017; 4) SRST's Motion for Partial Summary Judgment shall be filed by February 14, 2017, with Oppositions due by March 7, 2017, and any Reply due by March 21, 2017; 5) The Government may have a two−week extension to oppose Dakota Access's Motion for Protective Order; and 6) Defendants may have a 30−day extension to respond to the Tribes' Motions to Amend Complaint. Signed by Judge James E. Boasberg on 2/13/2017. (lcjeb3) (Entered: 02/13/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference/Motion Hearing held on 2/13/2017. Oral arguments heard, and Motion for TRO Application 99 , is DENIED in open Court. Motion for Leave to File Brief 109 , GRANTED in open court. Motion for Partial Summary Judgment due by 2/14/2017.

02/14/2017 02/14/2017 02/14/2017
02/14/2017 02/15/2017 02/15/2017

Response to Motion for Partial Summary Judgment due by 3/7/2017. Reply to Motion for Partial Summary Judgment due by 3/21/2017. Oppositions to CRST's Motion for Preliminary Injunction due by 2/21/2017. Replies due by 2/24/2017. Motion Hearing set for 2/27/2017 at 02:00 PM in Courtroom 19 before Judge James E. Boasberg. (Court Reporter Lisa Moreira) (nbn) Modified on 2/14/2017 to take off party named for opposition. (nbn). (Entered: 02/14/2017)
MINUTE ORDER: The Court ORDERS that the 109 Motion of the Great Plains Tribal Chairmans' Association for Leave to File Brief as Amicus Curiae is GRANTED. Signed by Judge James E. Boasberg on 2/14/2017. (lcjeb3) (Entered: 02/14/2017)
116 AMICUS BRIEF by GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION. (td) (Entered: 02/14/2017)
117 MOTION for Partial Summary Judgment by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Memorandum in Support of SRST's Motion for Partial Summary Judgment, # 2 Declaration of Jan Haselman ISO SRST's Motion for Partial Summary Judgment, # 3 Exhibit 1 to J Hasselman Decl, # 4 Exhibit 2 to J Hasselman Decl, # 5 Exhibit 3 to J Hasselman Decl, # 6 Exhibit 4 to J Hasselman Decl, # 7 Exhibit 5 to J Hasselman Decl, # 8 Exhibit 6 to J Hasselman Decl, # 9 Exhibit 7 to J Hasselman Decl, # 10 Exhibit 8 to J Hasselman Decl, # 11 Exhibit 9 to J Hasselman Decl, # 12 Exhibit 10 to J Hasselman Decl, # 13 Exhibit 11 to J Hasselman Decl, # 14 Exhibit 12 to J Hasselman Decl, # 15 Exhibit 13 to J Hasselman Decl, # 16 Exhibit 14 to J Hasselman Decl, # 17 Exhibit 15 to J Hasselman Decl, # 18 Exhibit 16 to J Hasselman Decl, # 19 Exhibit 17 to J Hasselman Decl, # 20 Exhibit 18 to J Hasselman Decl, # 21 Exhibit 19 to J Hasselman Decl, # 22 Exhibit 20 to J Hasselman Decl, # 23 Exhibit 21 to J Hasselman Decl, # 24 Exhibit 22 to J Hasselman Decl, # 25 Exhibit 23 to J Hasselman Decl, # 26 Text of Proposed Order)(Hasselman, Jan) (Entered: 02/14/2017)
118 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Richard B. Kuprewicz)(Hasselman, Jan) (Entered: 02/14/2017)
MINUTE ORDER: The Court ORDERS that Plaintiff Standing Rock Sioux Tribe's 118 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 2/15/2017. (lcjeb3) (Entered: 02/15/2017)
119 TRANSCRIPT OF STATUS CONFERENCE/MOTION HEARING before Judge James E. Boasberg held on February 13, 2017; Page Numbers: 1−45. Date of Issuance:February 15, 2017. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number 202−354−3187, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or p urchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

02/15/2017

Redaction Request due 3/8/2017. Redacted Transcript Deadline set for 3/18/2017. Release of Transcript Restriction set for 5/16/2017.(Moreira, Lisa) (Entered: 02/15/2017)
120 SEALED DOCUMENT (Declaration of Richard B. Kuprewicz) filed by STANDING ROCK SIOUX TRIBE. re Order on Sealed Motion for Leave to File Document Under Seal. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 02/15/2017)

02/15/2017 02/15/2017 02/15/2017 02/15/2017 02/16/2017 02/16/2017 02/21/2017 02/21/2017 02/21/2017 02/21/2017
02/21/2017
02/21/2017
02/21/2017
02/21/2017 02/22/2017

121 MOTION for Extension of Time to File Response/Reply Opposition to Dakota Access Motion for Protective Order by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Hasselman, Jan) (Entered: 02/15/2017)
MINUTE ORDER: The Court ORDERS that, given Dakota Access's agreement that its Cross−Claim should be held in abeyance, no further briefing on such Cross−Claim need be filed until further Order of the Court. Signed by Judge James E. Boasberg on 2/15/2017. (lcjeb3) (Entered: 02/15/2017)
MINUTE ORDER granting 121 Motion for Extension of Time to File. The Court ORDERS that any opposition to Dakota Access's Motion for a Protective Order shall be due on or before March 1, 2017. Signed by Judge James E. Boasberg on 2/15/2017. (lcjeb3) (Entered: 02/15/2017)
Set/Reset Deadlines: Any opposition to Dakota Access's Motion for a Protective Order shall due by 3/1/2017. (nbn) (Entered: 02/16/2017)
MINUTE ORDER: At the request of counsel, the Court ORDERS that the hearing on CRST's Motion for Preliminary Injunction set for February 27, 2017, at 2:00 p.m. is VACATED AND RESET for February 28, 2017, at 11:00 a.m. Signed by Judge James E. Boasberg on 2/16/17. (lcjeb2) (Entered: 02/16/2017)
Set/Reset Hearings: Motion Hearing set for 2/28/2017 at 11:00 AM in Courtroom 19 before Judge James E. Boasberg. (nbn) (Entered: 02/17/2017)
122 NOTICE of Appearance by Michael L. Roy on behalf of OGLALA SIOUX TRIBE (Roy, Michael) (Entered: 02/21/2017)
123 STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 02/21/2017)
124 RESPONSE re 98 Ex Parte MOTION for Preliminary Injunction filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William) (Entered: 02/21/2017)
125 MOTION for Leave to File Brief as Amici Curiae in Support of Plaintiff Standing Rock Sioux Tribe's Motion for Partial Summary Judgment by ASSOCIATION ON AMERICAN INDIAN AFFAIRS, PUEBLO OF POJOAQUE, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW NATURAL RESOURCES AND ENVIRONMENTAL LAW CLINIC (Attachments: # 1 Exhibit Brief of Amici Curiae)(Homer, Elizabeth) (Entered: 02/21/2017)
126 MOTION for Leave to File Amicus Brief in Support of Plaintiff Standing Rock Sioux Tribe's Motion for Partial Summary Judgment by OGLALA SIOUX TRIBE (Attachments: # 1 Text of Proposed Order granting leave to file amicus brief, # 2 Amicus Brief in Support of Plaintiff Standing Rock Sioux Tribe's Motion for Partial Summary Judgment, # 3 Declaration of Michael L. Roy, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4)(Roy, Michael) (Entered: 02/21/2017)
127 Memorandum in opposition to re 98 Ex Parte MOTION for Preliminary Injunction filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Zilioli, Erica) (Entered: 02/21/2017)
128 MOTION for Leave to File Amici Curiae in Support of Plaintiff Standing Rock Sioux Tribe's Motion for Partial Summary Judgement by NATIONAL INDIGENOUS WOMENS RESOURCE CENTER AND ADDITIONAL AMICI (Attachments: # 1 Exhibit Amicus Curiae Brief, # 2 Exhibit Exhibit A)(Nagle, Mary) (Entered: 02/21/2017)
129 NOTICE of Appearance by Mary Kathryn Nagle on behalf of NATIONAL INDIGENOUS WOMENS RESOURCE CENTER AND ADDITIONAL AMICI (Nagle, Mary) (Entered: 02/21/2017)
MINUTE ORDER: The Court ORDERS that the 128 Motion of the National Indigenous Women's Resource Center and Additional Amici for Leave to File Brief as Amicus Curiae is GRANTED. Signed by Judge James E. Boasberg on 2/22/2017. (lcjeb3) (Entered: 02/22/2017)

02/22/2017 02/22/2017 02/22/2017
02/22/2017 02/22/2017 02/22/2017 02/22/2017 02/22/2017 02/22/2017 02/22/2017 02/23/2017 02/23/2017
02/23/2017

130 MOTION for Leave to File Brief Amici Curiae by National Congress of American Indians, et al. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Memorandum in Support Proposed Brief Amici Curiae, # 3 Declaration Declaration of Riyaz Kanji)(Kanji, Riyaz) (Entered: 02/22/2017)
MINUTE ORDER: The Court ORDERS that the 126 Motion of the Oglala Sioux Tribe for Leave to File Brief as Amicus Curiae is GRANTED. Signed by Judge James E. Boasberg on 2/22/2017. (lcjeb3) (Entered: 02/22/2017)
MINUTE ORDER: The Court ORDERS that the 125 Motion of the Association on American Indian Affairs, Pueblo of Pojoaque, and University of New Mexico School of Law Natural Resources and Environmental Law Clinic for Leave to File Brief as Amicus Curiae is GRANTED. Signed by Judge James E. Boasberg on 2/22/2017. (lcjeb3) (Entered: 02/22/2017)
MINUTE ORDER: The Court ORDERS that the 130 Motion of the National Congress of American Indians, et al., for Leave to File Brief as Amicus Curiae is GRANTED. Signed by Judge James E. Boasberg on 2/22/2017. (lcjeb3) (Entered: 02/22/2017)
131 MOTION for Partial Summary Judgment by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 02/22/2017)
132 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by CHEYENNE RIVER SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit, # 2 Exhibit)(Ducheneaux, Nicole) (Entered: 02/22/2017)
133 MOTION to Expedite by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 02/22/2017)
136 AMICUS BRIEF by NATIONAL INDIGENOUS WOMENS RESOURCE CENTER AND ADDITIONAL AMICI. (Attachments: # 1 Exhibit A)(znmw) (Entered: 02/24/2017)
137 AMICUS BRIEF by ASSOCIATION ON AMERICAN INDIAN AFFAIRS, PUEBLO OF POJOAQUE, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW NATURAL RESOURCES AND ENVIRONMENTAL LAW CLINIC. (znmw) (Entered: 02/24/2017)
138 AMICUS BRIEF by OGLALA SIOUX TRIBE. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(znmw) (Entered: 02/24/2017)
MINUTE ORDER: The Court ORDERS that Plaintiff−Intervenor Cheyenne River Sioux Tribe's 132 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 2/23/2017. (lcjeb3) (Entered: 02/23/2017)
MINUTE ORDER granting 133 Intervenor−Plaintiff Cheyenne River Sioux Tribe's Unopposed Motion for Expedited Briefing Schedule on the Tribe's 131 Motion for Partial Summary Judgment. The Court ORDERS that any opposition shall be due on or before March 23, 2017, and that Cheyenne River Sioux Tribe's reply shall be due on or before April 6, 2017. Signed by Judge James E. Boasberg on 2/23/2017. (lcjeb3) (Entered: 02/23/2017)
134 AMICUS BRIEF by NATIONAL CONGRESS OF AMERICA INDIANS, UNITED SOUTH AND EASTER TRIBES SOVEREIGNTY PROTECTION FUND, INC., NATIONAL INDIAN GAMING ASSOCIATION, NATIONAL INDIAN EDUCATION, ASSOCIATION, NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION OFFICERS, INTER TRIBAL ASSOCIATION OF ARIZONA, GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION, FRED T. KOREMATZU CENTER FOR LAW AND EQUALITY, AMERICAN CIVIL LIBERTIES UNION, 34 FEDERALLY RECOGNIZED INDIAN TRIBES (Attachments: # 1 Declaration Declaration of Riyaz A. Kanji, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Kanji, Riyaz) Modified event title and filers on 2/24/2017 (znmw). (Entered: 02/23/2017)

02/23/2017 02/23/2017 02/24/2017 02/24/2017 02/24/2017 02/25/2017 02/27/2017 02/27/2017 02/27/2017
02/28/2017
02/28/2017
03/01/2017 03/01/2017 03/01/2017 03/01/2017

Set/Reset Deadlines: Opposition due by 3/23/2017. Replies due by 4/6/2017. (nbn) (Entered: 02/23/2017)
135 SEALED DOCUMENT filed by CHEYENNE RIVER SIOUX TRIBE. re Order on Sealed Motion for Leave to File Document Under Seal. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 02/23/2017)
139 Memorandum in opposition to re 111 MOTION to Intervene by Steve Vance filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Brar, Amarveer) (Entered: 02/24/2017)
140 REPLY to opposition to motion re 98 Ex Parte MOTION for Preliminary Injunction − SRST's Reply In Support of CRST's Motion for PI − filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 02/24/2017)
141 REPLY to opposition to motion re 98 Ex Parte MOTION for Preliminary Injunction filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration Nicole Ducheneaux)(Ducheneaux, Nicole) (Entered: 02/24/2017)
142 Memorandum in opposition to re 111 MOTION to Intervene filed by DAKOTA ACCESS LLC. (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 02/25/2017)
143 AFFIDAVIT of Steve Vance in Support of Preliminary Injunction by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Exhibit)(Ducheneaux, Nicole) (Entered: 02/27/2017)
144 STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 02/27/2017)
145 MOTION to Intervene by Sara Jumping Eagle, LaDonna Brave Bull Allard, Virgil Taken Alive, Cheyenne Garcia, William Lefthand, Maxine Brings Him Back−Janis, Kathy Willcuts, Crystal Cole, Russell Vazquez, Thomas E. Barber, Sr, Tatolowan Garcia, Chani Phillips, Wastewin Young (Attachments: # 1 Exhibit Proposed Intervenors' ComplaintComplaint, # 2 Exhibit Declarations, # 3 Exhibit Janis Exhibit)(Hall, Oliver) (Entered: 02/27/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 2/28/2017 re 98 Ex Parte MOTION for Preliminary Injunction filed by CHEYENNE RIVER SIOUX TRIBE. Oral arguments heard and motion taken under advisement. Written ruling forthcoming. (Court Reporter Lisa Griffith) (nbn) (Entered: 02/28/2017)
MINUTE ORDER: As agreed by the parties at today's hearing, the Court ORDERS that the following motions are DENIED WITHOUT PREJUDICE, given that Dakota Access's Cross−Claim is currently moot: 1) Dakota Access's 66 Motion for Summary Judgment, 2) The Corps' 73 Motion to Dismiss, 3) Cheyenne River's 74 Motion to Dismiss, 4) Cheyenne River's 76 Cross Motion for Summary Judgment, and 5) Standing Rock's 77 Motion to Dismiss and Cross Motion for Summary Judgment. Signed by Judge James E. Boasberg on 2/28/2017. (lcjeb3) (Entered: 02/28/2017)
146 RESPONSE re 92 MOTION for Protective Order filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Zilioli, Erica) (Entered: 03/01/2017)
147 MOTION for Extension of Time to File Response/Reply as to 111 MOTION to Intervene by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Messineo, Joseph) (Entered: 03/01/2017)
148 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by UNITED STATES ARMY CORPS OF ENGINEERS (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Zilioli, Erica) (Entered: 03/01/2017)
149 Memorandum in opposition to re 92 MOTION for Protective Order filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 03/01/2017)

03/01/2017
03/02/2017
03/02/2017 03/02/2017 03/02/2017 03/02/2017
03/02/2017 03/03/2017 03/03/2017 03/03/2017
03/03/2017 03/06/2017 03/06/2017 03/07/2017 03/07/2017 03/07/2017 03/08/2017

150 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Confidential − SRST's and CRST's Opposition to Mtn for Protective Order)(Hasselman, Jan) (Entered: 03/01/2017)
MINUTE ORDER granting 147 Motion for Extension of Time to File. The Court ORDERS that the Cheyenne River Sioux Tribe's Reply to Defendants' Opposition to Steve Vance's Motion to Intervene shall be due by March 6, 2017. Signed by Judge James E. Boasberg on 3/2/2017. (lcjeb3) (Entered: 03/02/2017)
MINUTE ORDER: The Court ORDERS that the Corps' 148 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 3/2/2017. (lcjeb3) (Entered: 03/02/2017)
MINUTE ORDER: The Court ORDERS that the Cheyenne River Sioux Tribe's 150 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 3/2/2017. (lcjeb3) (Entered: 03/02/2017)
Set/Reset Deadlines: Answer due by 3/6/2017. (nbn) (Entered: 03/02/2017)
151 SEALED DOCUMENT (Exhibit A) filed by UNITED STATES ARMY CORPS OF ENGINEERS. re Minute Order on Sealed Motion for Leave to File Document Under Seal, 146 Response to motion filed by UNITED STATES ARMY CORPS OF ENGINEERS. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 03/02/2017)
152 SEALED OPPOSITION filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE re 92 MOTION for Protective Order (ztd) (Entered: 03/02/2017)
153 MOTION for Extension of Time to File Response/Reply as to 117 MOTION for Partial Summary Judgment by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 03/03/2017)
154 RESPONSE re 153 MOTION for Extension of Time to File Response/Reply as to 117 MOTION for Partial Summary Judgment filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 03/03/2017)
MINUTE ORDER granting 153 Motion for Extension of Time to File. The Court ORDERS that the Corps shall file its Opposition and Cross−Motion to Plaintiff Standing Rock Sioux Tribes Motion for Partial Summary Judgment on or before March 14, 2017. Signed by Judge James E. Boasberg on 3/3/2017. (lcjeb3) (Entered: 03/03/2017)
Set/Reset Deadlines: The Corps shall file its Opposition and Cross−Motion to Plaintiff Standing Rock Sioux Tribes Motion for Partial Summary Judgment by 3/14/2017. (nbn) (Entered: 03/06/2017)
155 REPLY to opposition to motion re 111 MOTION to Intervene filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Exhibit)(Ducheneaux, Nicole) (Entered: 03/06/2017)
156 STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/06/2017)
157 ORDER DENYING 98 Motion for Preliminary Injunction. Signed by Judge James E. Boasberg on 3/7/2017. (lcjeb3) (Entered: 03/07/2017)
158 MEMORANDUM OPINION re 157 Order on Motion for Preliminary Injunction. Signed by Judge James E. Boasberg on 3/7/2017. (lcjeb3) (Entered: 03/07/2017)
159 RESPONSE re 117 MOTION for Partial Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman, # 2 Text of Proposed Order)(Scherman, William) (Entered: 03/07/2017)
160 Unopposed MOTION for Extension of Time to File Response/Reply as to 145 MOTION to Intervene by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Zilioli, Erica) (Entered: 03/08/2017)

03/08/2017 03/09/2017
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03/13/2017
03/13/2017 03/13/2017 03/13/2017 03/13/2017 03/13/2017 03/14/2017 03/14/2017

161 REPLY to opposition to motion re 92 MOTION for Protective Order filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/08/2017)
MINUTE ORDER granting 160 Motion for Extension of Time to File. The Court ORDERS that all responses to the 145 Motion to Intervene filed by Sara Jumping Eagle, et al., shall be due on or before March 27, 2017. Signed by Judge James E. Boasberg on 3/9/2017. (lcjeb3) (Entered: 03/09/2017)
Set/Reset Deadlines: All responses to the 145 Motion to Intervene filed by Sara Jumping Eagle, et al., due by 3/27/2017. (nbn) (Entered: 03/09/2017)
162 MOTION for Leave to File Declaration of William R. Perry by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Exhibit Declaration of William R. Perry)(Hasselman, Jan) (Entered: 03/10/2017)
MINUTE ORDER: The Court ORDERS that Standing Rock's 162 Motion for Leave to File Declaration of William R. Perry is GRANTED. Signed by Judge James E. Boasberg on 3/10/2017. (lcjeb3) (Entered: 03/10/2017)
163 RESPONSE re 162 MOTION for Leave to File Declaration of William R. Perry filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/10/2017)
164 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 158 Memorandum & Opinion, 157 Order on Motion for Preliminary Injunction by CHEYENNE RIVER SIOUX TRIBE. Filing fee $ 505, receipt number 0090−4873021. Fee Status: Fee Paid. Parties have been notified. (Ducheneaux, Nicole) (Entered: 03/10/2017)
165 MOTION Injunction Pending Appeal by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 03/10/2017)
166 DECLARATION of William R. Perry re 149 Memorandum in Opposition by STANDING ROCK SIOUX TRIBE. (znmw) (Entered: 03/13/2017)
MINUTE ORDER: If Defendants oppose Plaintiff CRST's 165 Motion for Injunction Pending Appeal, the Court ORDERS that they shall file such opposition by March 14, 2017. Signed by Judge James E. Boasberg on 3/13/2017. (lcjeb3) (Entered: 03/13/2017)
MINUTE ORDER: Given that the Court denied the CRST's Motion for Preliminary Injunction on grounds unrelated to standing, the Court ORDERS that those individuals who have sought to intervene as Plaintiffs, see ECF Nos. 111, 145, shall file a Notice by March 20, 2017, indicating whether they still wish to intervene and, if so, why their claims are not sufficiently represented by the existing Plaintiffs. Defendants may respond to such Notice by March 27, 2017, indicating their position on intervention. Signed by Judge James E. Boasberg on 3/13/2017. (lcjeb3) (Entered: 03/13/2017)
167 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 164 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 03/13/2017)
Set/Reset Deadlines: Individuals who have sought to intervene as Plaintiffs, see ECF Nos. 111 , 145 , shall file a Notice by by 3/20/2017. Defendants may respond to such Notice by by 3/27/2017. (nbn) (Entered: 03/13/2017)
Set/Reset Deadlines: Opposition due by 3/14/2017. (nbn) (Entered: 03/13/2017)
168 Memorandum in opposition to re 165 MOTION Injunction Pending Appeal filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/13/2017)
169 STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/13/2017)
170 Memorandum in opposition to re 165 MOTION Injunction Pending Appeal filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Brar, Amarveer) (Entered: 03/14/2017)
171 ORDER denying 165 Motion for an Injunction Pending Appeal. Signed by Judge James E. Boasberg on 3/14/2017. (lcjeb3) (Entered: 03/14/2017)

03/14/2017
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172 Memorandum in opposition to re 117 MOTION for Partial Summary Judgment and Cross Motion for Partial Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Text of Proposed Order)(Schifman, Reuben) (Entered: 03/14/2017)
173 CROSS MOTION for Partial Summary Judgment by UNITED STATES ARMY CORPS OF ENGINEERS. (See Docket Entry 172 to view document). (znmw) (Entered: 03/15/2017)
174 Unopposed MOTION to Consolidate Cases by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Brar, Amarveer) (Entered: 03/15/2017)
USCA Case Number 17−5043 for 164 Notice of Appeal to DC Circuit Court, filed by CHEYENNE RIVER SIOUX TRIBE. (td) (Entered: 03/17/2017)
MINUTE ORDER: The Court ORDERS that: (1) The Corps' 174 Unopposed Motion to Consolidate Cases is GRANTED; (2) The cases Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 16−1534; Yankton Sioux Tribe v. United States Army Corps of Engineers, 16−1796; and Oglala Sioux Tribe v. United States Army Corps of Engineers, 17−267, SHALL BE CONSOLIDATED; (3) All filings in these consolidated cases shall be made only in the first−filed case, 16−1534; and (4) The Clerk is directed to administratively close any of the open cases that are being consolidated. Signed by Judge James E. Boasberg on 3/16/2017. (lcjeb3) (Entered: 03/16/2017)
175 MOTION for Extension of Time to File Response/Reply as to 173 MOTION for Partial Summary Judgment and 159 Opposition Brief by STANDING ROCK SIOUX TRIBE (Hasselman, Jan) (Entered: 03/16/2017)
176 Memorandum in opposition to re 175 MOTION for Extension of Time to File Response/Reply as to 173 MOTION for Partial Summary Judgment and 159 Opposition Brief filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/16/2017)
MINUTE ORDER granting 175 Motion for Extension of Time to File. The Court ORDERS that Standing Rock shall file its brief in support of its summary judgment motion and in opposition to the Corps' cross−motion and Dakota Access' opposition on or before March 28, 2017. Signed by Judge James E. Boasberg on 3/17/2017. (lcjeb3) (Entered: 03/17/2017)
Set/Reset Deadlines: Brief in support of its summary judgment motion and in opposition to the Corps' cross−motion and Dakota Access' opposition on or before 3/28/2017. (nbn) (Entered: 03/17/2017)
177 RESPONSE TO ORDER OF THE COURT re Order,, filed by STEVE VANCE. (Messineo, Joseph) (Entered: 03/20/2017)
178 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DAKOTA ACCESS LLC (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 03/20/2017)
179 STATUS REPORT [REDACTED] by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/20/2017)
180 RESPONSE TO ORDER OF THE COURT re Order,, filed by SARA JUMPING EAGLE. (Hall, Oliver) (Entered: 03/21/2017)
MINUTE ORDER: The Court ORDERS that Dakota Access's 178 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 3/21/2017. (lcjeb3) (Entered: 03/21/2017)
181 ADMINISTRATIVE RECORD of Lodging Administrative Record by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit, # 2 Exhibit)(Schifman, Reuben) Modified event title on 3/22/2017 (znmw). (Entered:

03/21/2017 03/23/2017
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03/28/2017

03/21/2017)
182 SEALED DOCUMENT (Status Report) filed by DAKOTA ACCESS LLC. (This document is SEALED and only available to authorized persons.)(znmw) (Entered: 03/22/2017)
183 RESPONSE re 131 MOTION for Partial Summary Judgment and Cross Motion for Partial Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Schifman, Reuben) (Entered: 03/23/2017)
184 NOTICE of Joinder re 186 Cross Motion for Summary Judgment by DAKOTA ACCESS LLC (Scherman, William) Modified to add link on 3/24/2017 (znmw). (Entered: 03/23/2017)
185 RESPONSE re 131 MOTION for Partial Summary Judgment and CROSS−MOTION for Partial Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman, # 2 Text of Proposed Order)(Scherman, William) (Entered: 03/23/2017)
186 CROSS MOTION for Partial Summary Judgment by UNITED STATES ARMY CORPS OF ENGINEERS. (See Docket Entry 183 to view document). (znmw) (Entered: 03/24/2017)
187 CROSS MOTION for Partial Summary Judgment by DAKOTA ACCESS LLC. (See Docket Entries 184 and 185 to view documents). (znmw) (Entered: 03/24/2017)
188 RESPONSE re 106 MOTION for Leave to File Amended Complaint, 97 MOTION to Amend/Correct 37 Amended Complaint filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 03/27/2017)
189 Memorandum in opposition to re 145 MOTION to Intervene filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Brar, Amarveer) (Entered: 03/27/2017)
190 REPLY re 177 Response to Order of the Court filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Brar, Amarveer) Modified event title on 3/28/2017 (znmw). (Entered: 03/27/2017)
191 STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/27/2017)
192 Memorandum in opposition to re 145 MOTION to Intervene filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William) (Entered: 03/27/2017)
193 Memorandum in opposition to re 106 MOTION for Leave to File Amended Complaint, 97 MOTION to Amend/Correct 37 Amended Complaint filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William) (Entered: 03/27/2017)
194 REPLY re 177 Response to Order of the Court filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William) (Entered: 03/27/2017)
195 RESPONSE re 173 MOTION for Partial Summary Judgment and Reply re 159 Opposition Brief filed by Intervenor Dakota Access, LLC filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Declaration (Second) of Richard B. Kuprewicz, # 2 Declaration of Elliott Ward, # 3 Declaration (Second) of Jan Hasselman, # 4 Exhibit 24, # 5 Exhibit 25, # 6 Exhibit 26, # 7 Exhibit 27, # 8 Exhibit 28)(Hasselman, Jan) (Entered: 03/28/2017)
196 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Pl's Opp to Mtn for PSJ and Reply ISO Mtn for PSJ, # 2 Declaration of Elliott Ward)(Hasselman, Jan) (Entered: 03/28/2017)

03/28/2017 03/31/2017 04/03/2017
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197 REPLY to opposition to motion re 117 MOTION for Partial Summary Judgment filed by STANDING ROCK SIOUX TRIBE. (See Docket Entry 195 to view document). (znmw) (Entered: 03/29/2017)
198 MOTION for Extension of Time to File Response/Reply in Opposition to Cross−Motions for Summary Judgment and Reply in Support of Motion for Summary Judgment by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 03/31/2017)
MINUTE ORDER granting 198 Motion for Extension of Time to File. Cheyenne River Sioux Tribe shall file its reply in support of its motion for summary judgment and opposition to cross−motions filed by the Corps and Dakota Access on or before April 13, 2017. Signed by Judge James E. Boasberg on 4/3/2017. (lcjeb3) (Entered: 04/03/2017)
Set/Reset Deadlines: Reply due by 4/13/2017. (nbn) (Entered: 04/03/2017)
199 REPLY to opposition to motion re 97 MOTION to Amend/Correct 37 Amended Complaint filed by CHEYENNE RIVER SIOUX TRIBE. (Ducheneaux, Nicole) (Entered: 04/03/2017)
200 REPLY to opposition to motion re 106 MOTION for Leave to File Amended Complaint filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 04/03/2017)
201 REPLY to opposition to motion re 173 MOTION for Partial Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit R, # 2 Exhibit S, # 3 Exhibit T)(Schifman, Reuben) (Entered: 04/04/2017)
202 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DAKOTA ACCESS LLC (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Declaration of William S. Scherman)(Scherman, William) (Entered: 04/04/2017)
203 REPLY to opposition to motion re 173 MOTION for Partial Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William) (Entered: 04/04/2017)
MINUTE ORDER: The Court ORDERS that Defendant−Intervenor Dakota Access's 202 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 4/5/2017. (lcjeb3) (Entered: 04/05/2017)
204 SEALED REPLY TO OPPOSITION filed by DAKOTA ACCESS LLC re 173 MOTION for Partial Summary Judgment (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of William S. Scherman)(znmw) (Entered: 04/06/2017)
205 ORDER granting in part and denying in part 92 Dakota Access's Motion for Protective Order. The Court ORDERS that Dakota Access shall submit to the Court a modified protective order consistent with the accompanying Memorandum Opinion. Signed by Judge James E. Boasberg on 4/7/2017. (lcjeb3) (Entered: 04/07/2017)
206 MEMORANDUM OPINION re 205 Order on Dakota Access's Motion for Protective Order. Signed by Judge James E. Boasberg on 4/7/2017. (lcjeb3) (Entered: 04/07/2017)
207 REPLY to opposition to motion re 131 MOTION for Partial Summary Judgment filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 04/13/2017)
208 RESPONSE re 186 MOTION for Partial Summary Judgment, 187 MOTION for Partial Summary Judgment filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 04/13/2017)
209 JOINT APPENDIX of Administrative Record Citations by DAKOTA ACCESS LLC, STANDING ROCK SIOUX TRIBE, UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix, # 8 Appendix, # 9 Appendix, #

04/14/2017
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10 Appendix, # 11 Appendix, # 12 Appendix, # 13 Appendix, # 14 Appendix, # 15 Appendix, # 16 Appendix, # 17 Appendix, # 18 Appendix)(Hasselman, Jan) (Entered: 04/14/2017)
210 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Appendix Portion of Joint Appendix Subject to Protective Order, # 2 Appendix Portion of Joint Appendix Subject to Protective Order)(Hasselman, Jan) (Entered: 04/14/2017)
MINUTE ORDER granting 210 Standing Rock Sioux Tribe's Sealed Motion for Leave to File Documents Under Seal. Signed by Judge James E. Boasberg on 4/17/2017. (lcjeb3) (Entered: 04/17/2017)
211 SEALED DOCUMENT (Portions of Joint Appendix) filed by STANDING ROCK SIOUX TRIBE. re 209 Joint Appendix, filed by DAKOTA ACCESS LLC, STANDING ROCK SIOUX TRIBE, UNITED STATES ARMY CORPS OF ENGINEERS. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 2)(znmw) (Entered: 04/18/2017)
212 ERRATA to Joint Appendix of Administrative Record Citations by STANDING ROCK SIOUX TRIBE 209 Joint Appendix, filed by DAKOTA ACCESS LLC, STANDING ROCK SIOUX TRIBE, UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit Attachment 1, # 2 Exhibit Attachment 2)(Hasselman, Jan) (Entered: 04/19/2017)
213 REPLY to opposition to motion re 187 MOTION for Partial Summary Judgment filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 04/20/2017)
214 REPLY to opposition to motion re 131 MOTION for Partial Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 04/20/2017)
MINUTE ORDER: The Court ORDERS that Standing Rock Sioux Tribe's 196 Sealed Motion for Leave to File Document Under Seal is GRANTED. Signed by Judge James E. Boasberg on 4/21/2017. (lcjeb3) (Entered: 04/21/2017)
215 SEALED OPPOSITION filed by STANDING ROCK SIOUX TRIBE re , 173 MOTION for Partial Summary Judgment, 186 MOTION for Partial Summary Judgment, 187 MOTION for Partial Summary Judgment and In Support of 117 MOTION for Partial Summary Judgment (ztd) (Entered: 04/21/2017)
216 MOTION to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration of William S. Scherman)(Scherman, William) (Entered: 04/21/2017)
217 ANSWER to Complaint by the Oglala Sioux Tribe by UNITED STATES ARMY CORPS OF ENGINEERS.(Brar, Amarveer) (Entered: 04/28/2017)
218 JOINT APPENDIX by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix)(Ducheneaux, Nicole) (Entered: 05/04/2017)
219 RESPONSE re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 05/04/2017)
220 MOTION Supplement Administrative Record and Consider Documents Outside The Administrative Record by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration of Joseph Messineo, # 2 Exhibit to Messineo Decl, # 3 Exhibit to Messineo Decl, # 4 Exhibit to Messineo Decl, # 5 Exhibit to Messineo Decl, # 6 Exhibit to Messineo Decl, # 7 Exhibit to Messineo Decl, # 8 Exhibit to Messineo Decl, # 9 Declaration of Rollie Wilson, # 10 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 05/04/2017)
221 NOTICE of Adding Documents to the November 10, 2016 and March 21, 2017 Administrative Records by UNITED STATES ARMY CORPS OF ENGINEERS

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(Attachments: # 1 Affidavit Certificate)(Brar, Amarveer) (Entered: 05/05/2017)
222 RESPONSE re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by OGLALA SIOUX TRIBE. (Roy, Michael) (Entered: 05/05/2017)
223 RESPONSE re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Marinelli, Matthew) (Entered: 05/05/2017)
224 MOTION for Extension of Time to File Response/Reply as to 220 MOTION Supplement Administrative Record and Consider Documents Outside The Administrative Record by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 05/11/2017)
225 REPLY to opposition to motion re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of David Debold)(Scherman, William) (Entered: 05/12/2017)
229 MANDATE of USCA as to 164 Notice of Appeal to DC Circuit Court, filed by CHEYENNE RIVER SIOUX TRIBE. USCA Case Number 17−5043. (Attachments: # 1 order filed May 15, 2017)(zrdj) (Entered: 05/18/2017)
MINUTE ORDER GRANTING 224 Motion for Extension of Time to File Response/Reply. The Court ORDERS that Defendant United States Army Corps of Engineers shall file its Opposition to Cheyenne River Sioux Tribe's Motion to Supplement the Administrative Record on or before May 25, 2017. Signed by Judge James E. Boasberg on 5/16/2017. (lcjeb1) (Entered: 05/16/2017)
Set/Reset Deadlines: Defendant United States Army Corps of Engineers shall file its Opposition to Cheyenne River Sioux Tribe's Motion to Supplement the Administrative Record by 5/25/2017. (nbn) (Entered: 05/16/2017)
226 Unopposed MOTION to Intervene by DAKOTA ACCESS LLC (Attachments: # 1 Proposed Responsive Pleading, # 2 Proposed Answer, # 3 Text of Proposed Order, # 4 Corporate Disclosure Statement)(Scherman, William) (Entered: 05/17/2017)
MINUTE ORDER granting Unopposed 226 Motion to Intervene by Dakota Access, LLC. Signed by Judge James E. Boasberg on 5/17/2017. (lcjeb3) (Entered: 05/17/2017)
227 ANSWER to Complaint by DAKOTA ACCESS LLC.(znmw) (Entered: 05/18/2017)
228 Corporate Disclosure Statement by DAKOTA ACCESS LLC identifying Corporate Parents/Affiliates DAKOTA ACCESS HOLDINGS, LLC, PHILLIPS 66 DAPL HOLDINGS LLC, BAKKEN PIPELINE INVESTMENT LLC, BAKKEN HOLDINGS COMPANY, LLC, LAGRANGE ACQUISITION, L.P., SUNOCO PIPELINE, L.P., PHILLIPS 66 DE HOLDINGS 20A LLC, PHILLIPS 66 DE HOLDINGS 20B LLC, PHILLIPS 66 DE HOLDINGS 20C LLC, PHILLIPS 66 DE PRIMARY LLC, PHILLIPS 66 DE HOLDINGS 20D LLC, PHILLIPS 66 PROJECT DEVELOPMENT, INC., ENERGY TRANSFER PARTNERS, L.P., ENERGY TRANSFER EQUITY, L.P., SUNOCO LOGISTICS PARTNERS L.P., PHILLIPS 66 COMPANY for DAKOTA ACCESS LLC.. (znmw) (Entered: 05/18/2017)
230 REPLY to opposition to motion re 145 MOTION to Intervene filed by THOMAS E. BARBER, SR, LADONNA BRAVE BULL ALLARD, MAXINE BRINGS HIM BACK−JANIS, CRYSTAL COLE, CHEYENNE GARCIA, TATEOLOWAN GARCIA, SARA JUMPING EAGLE, WILLIAM WILD BILL LEFT HAND, CHANI PHILLIPS, VIRGIL TAKEN ALIVE, RUSSELL VAZQUEZ, KATHY WILLCUTS, WASTEWIN YOUNG. (Hall, Oliver) (Entered: 05/24/2017)
231 RESPONSE re 220 MOTION Supplement Administrative Record and Consider Documents Outside The Administrative Record filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Scherman, William) (Entered: 05/25/2017)

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232 RESPONSE re 220 MOTION Supplement Administrative Record and Consider Documents Outside The Administrative Record filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Schifman, Reuben) (Entered: 05/25/2017)
233 MOTION for Extension of Time to File Response/Reply by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 05/26/2017)
MINUTE ORDER granting 233 Motion for Extension of Time to File. The Court ORDERS that Cheyenne River Sioux Tribe's reply in support of its Motion to Supplement the Administrative Record and Alternative Motion to Consider Documents Outside the Administrative Record shall be due by June 8, 2017. Signed by Judge James E. Boasberg on 5/26/2017. (lcjeb3) (Entered: 05/26/2017)
Set/Reset Deadlines: Reply due by 6/8/2017. (nbn) (Entered: 05/31/2017)
234 NOTICE Regarding Submission of Protective Order by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit)(Schifman, Reuben) (Entered: 06/06/2017)
235 Protective Order signed by Court. Signed by Judge James E. Boasberg on 6/7/2017. (lcjeb3) (Entered: 06/07/2017)
236 ADMINISTRATIVE RECORD Notice of Lodging Updated Administrative Record by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit)(Schifman, Reuben) Modified event title on 6/9/2017 (znmw). (Entered: 06/08/2017)
237 REPLY to opposition to motion re 220 MOTION Supplement Administrative Record and Consider Documents Outside The Administrative Record filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration of Joseph Messineo)(Ducheneaux, Nicole) (Entered: 06/08/2017)
MINUTE ORDER: The Court ORDERS that Cheyenne River's 97 Motion for Leave to Amend is GRANTED, and its Second Amended Complaint is deemed FILED. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
MINUTE ORDER: The Court ORDERS that Standing Rock's 106 Motion for Leave to Amend is GRANTED, and its First Amended Complaint is deemed FILED. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
238 ORDER. The Court ORDERS that: (1) Plaintiff Standing Rock Sioux Tribe's 117 Motion for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART; (2) Defendant U.S. Army Corps of Engineers' 172 corresponding Cross−Motion for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART; (3) Plaintiff−Intervenor Cheyenne River Sioux Tribe's 131 Motion for Partial Summary Judgment is DENIED IN PART; (4) Defendant U.S. Army Corps of Engineers' and Defendant−Intervenor Dakota Access LLC's 183 , 184 and 185 corresponding Cross−Motions for Partial Summary Judgment are GRANTED IN PART; (5) The matter is REMANDED to the Corps for further analysis as set forth in the Opinion; and (6) The parties shall appear on June 21, 2017, at 2:30 PM for a status conference to discuss further scheduling in the case. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) Modified to add event title on 6/15/2017 (znmw). Modified on 6/15/2017 (zlsj). (Entered: 06/14/2017)
239 MEMORANDUM OPINION re 238 Order on Cross−Motions for Partial Summary Judgment. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
MINUTE ORDER: The Court ORDERS that Steve Vance's 111 Motion to Intervene is GRANTED, and his Complaint is deemed FILED. The Court further ORDERS that he shall comply with all filing deadlines applicable to the Cheyenne River Sioux Tribe. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
MINUTE ORDER: The Court is prepared to grant Sara Jumping Eagle et al.'s 145 Motion to Intervene provided that the scope of their Complaint is coterminous with the

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06/19/2017

current Complaints in the case. As Movant−Intervenors' [145−1] Proposed Complaint adds President Trump as a defendant and seeks relief beyond that sought by the Standing Rock and Cheyenne River Sioux Tribes, such intervention would unduly expand the scope of the case. If Movant−Intervenors wish to proceed against President Trump, either individually or in his official capacity, they must file a separate action. If they wish to join this case under the conditions stated herein, the Court will grant their Motion to Intervene. They shall file a notice by June 20, 2017, indicating their position. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
MINUTE ORDER: In its 220 Motion to Supplement the Administrative Record and Alternative Motion to Consider Documents Outside the Administrative Record, Cheyenne River makes two separate arguments. First, the Tribe asks that six documents be included in the administrative record. There is a dispute about whether these documents were properly before the Corps when it made its permitting decisions, and thus whether they should be included in the administrative record. As the Court has reviewed the documents and concluded that they would not change the outcome in its 239 Opinion on the various Cross−Motions for Summary Judgment, the Court need not resolve this procedural question and therefore DENIES the Motion to Supplement. Second, and in the alternative, the Tribe asks that the Court consider eight extra−record documents. The Court DENIES the Motion to Consider Documents Outside the Administrative Record for the same reasons given in its 239 Opinion regarding Standing Rock's request that the Court consider extra−record evidence. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
MINUTE ORDER: The Court ORDERS that Dakota Access shall be prepared at the status hearing on June 21, 2017, to address whether it wishes to proceed with its 216 Motion to Compel Prompt Completion of the Administrative Record. Signed by Judge James E. Boasberg on 6/14/2017. (lcjeb3) (Entered: 06/14/2017)
240 SECOND AMENDED COMPLAINT against DAKOTA ACCESS LLC, UNITED STATES ARMY CORPS OF ENGINEERS filed by CHEYENNE RIVER SIOUX TRIBE.(znmw) (Entered: 06/15/2017)
241 FIRST AMENDED COMPLAINT against DAKOTA ACCESS LLC, UNITED STATES ARMY CORPS OF ENGINEERS filed by STANDING ROCK SIOUX TRIBE.(znmw) (Entered: 06/15/2017)
242 Intervenor COMPLAINT filed by STEVE VANCE.(znmw) (Entered: 06/15/2017)
Set/Reset Hearings: Status Conference set for 6/21/2017 at 02:30 PM in Courtroom 19 before Judge James E. Boasberg. (nbn) (Entered: 06/16/2017)
Set/Reset Deadlines: Notice Regarding Intervention due by 6/20/2017. (nbn) (Entered: 06/16/2017)
243 MOTION for Leave to Appear Telephonically for Status Conference on 6/21/17 at 2:30 p.m. by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Schulte, Conly) (Entered: 06/19/2017)
244 MOTION for Leave to Appear Telephonically for Status Conference on 6/21/17 at 2:30 p.m. by YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Baker, Jennifer) (Entered: 06/19/2017)
245 MOTION for Leave to Appear Telephonically (Jeffrey S. Rasmussen) for the Status Conference on 6/21/17 at 2:30 p.m. by YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Baker, Jennifer) (Entered: 06/19/2017)
246 NOTICE in Response to Court Order by THOMAS E. BARBER, SR, LADONNA BRAVE BULL ALLARD, MAXINE BRINGS HIM BACK−JANIS, CRYSTAL COLE, CHEYENNE GARCIA, TATEOLOWAN GARCIA, SARA JUMPING EAGLE, WILLIAM WILD BILL LEFT HAND, CHANI PHILLIPS, VIRGIL TAKEN ALIVE, RUSSELL VAZQUEZ, KATHY WILLCUTS, WASTEWIN YOUNG re Order,,, Set/Reset Hearings (Hall, Oliver) (Entered: 06/19/2017)
MINUTE ORDER: The Court ORDERS that 244 Yankton Sioux Tribe's Motion for Leave to Appear by Telephone at the June 21, 2017, status hearing is GRANTED. Signed by Judge James E. Boasberg on 6/19/2017. (lcjeb3) (Entered: 06/19/2017)

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MINUTE ORDER: The Court ORDERS that 243 Cheyenne River Sioux Tribe's Motion for Leave to Appear by Telephone at the June 21, 2017, status hearing is GRANTED. Signed by Judge James E. Boasberg on 6/19/2017. (lcjeb3) (Entered: 06/19/2017)
MINUTE ORDER: The Court ORDERS that 245 Yankton Sioux Tribe's Motion for Leave to Appear by Telephone at the June 21, 2017, status hearing is GRANTED. Signed by Judge James E. Boasberg on 6/19/2017. (lcjeb3) (Entered: 06/19/2017)
MINUTE ORDER: Given the 246 Notice submitted by Intervenors Sara Jumping Eagle et al., the Court ORDERS that their 145 Motion to Intervene is GRANTED and their proposed Complaint is deemed FILED, but President Donald Trump is DISMISSED WITHOUT PREJUDICE as a Defendant. Attorney Bruce Afran may appear telephonically on behalf of Intervenors at the status hearing on June 21, 2017. Signed by Judge James E. Boasberg on 6/19/2017. (lcjeb3) (Entered: 06/19/2017)
248 Intervenor COMPLAINT filed by WILLIAM WILD BILL LEFT HAND, KATHY WILLCUTS, CHEYENNE GARCIA, LADONNA BRAVE BULL ALLARD, CRYSTAL COLE, CHANI PHILLIPS, WASTEWIN YOUNG, TATEOLOWAN GARCIA, VIRGIL TAKEN ALIVE, THOMAS E. BARBER, SR, SARA JUMPING EAGLE, MAXINE BRINGS HIM BACK−JANIS.(td) (Entered: 06/20/2017)
247 MOTION for Leave to Appear to Appear Telephonically by STEVE VANCE (Attachments: # 1 Text of Proposed Order)(Messineo, Joseph) (Entered: 06/20/2017)
MINUTE ORDER: The Court ORDERS that 247 Steve Vance's Motion for Leave to Appear by Telephone at the June 21, 2017, status hearing is GRANTED. Signed by Judge James E. Boasberg on 6/20/2017. (lcjeb3) (Entered: 06/20/2017)
249 Joint MOTION for Briefing Schedule by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 06/20/2017)
NOTICE OF ERROR re 245 Motion for Leave to Appear ; emailed to jbaker@ndnlaw.com, cc'd 76 associated attorneys −− The PDF file you docketed contained errors: 1. Please note on future filings, that one attorney can not file on behalf of another. All attorneys must use their own passwords for their filings. (ztd, ) (Entered: 06/20/2017)
250 NOTICE of Opposition to Joint Motion to Set a Briefing Schedule by YANKTON SIOUX TRIBE re 249 Joint MOTION for Briefing Schedule (Baker, Jennifer) (Entered: 06/20/2017)
251 Memorandum in opposition to re 249 Joint MOTION for Briefing Schedule filed by YANKTON SIOUX TRIBE. (See docket entry no. 250 to view document.) (td) (Entered: 06/21/2017)
MINUTE ORDER: As discussed at the June 21, 2017, status hearing, the 249 Joint Motion for Briefing Schedule is GRANTED. The Court ORDERS that: (1) Opening briefs of no more than 20 pages each shall be submitted by July 17, 2017, by Defendant United States Army Corps of Engineers and Intervenor Defendant Dakota Access; (2) Responses of no more than 40 pages in total shall be submitted by August 7, 2017, by Plaintiff Standing Rock Sioux Tribe and Intervenor Plaintiff Cheyenne River Sioux Tribe; (3) Any other Intervenor or Consolidated Plaintiff may file a brief up to 10 pages by August 7, 2017, dealing only with issues not raised by Standing Rock and Cheyenne River; (4) Replies of no more than 10 pages each shall be submitted by August 17, 2017, by the Corps and Dakota Access; (5) Sur−replies of no more than 20 pages in total shall be submitted by August 28, 2017, by Standing Rock and Cheyenne River; and (6) Any other Intervenor or Consolidated Plaintiff may file a sur−reply up to 5 pages by August 28, 2017, dealing only with issues not raised by Standing Rock and Cheyenne River. Signed by Judge James E. Boasberg on 6/20/2017. (lcjeb3) (Entered: 06/21/2017)
MINUTE ORDER: As discussed at today's status conference, the Court ORDERS that: 1) Defendants need not respond to any of the Complaints until further Order of the Court; 2) All briefing on counts not covered in the Court's last Memorandum Opinion shall be stayed until further Order of the Court; and 3) The parties shall submit a joint status report containing a proposed briefing schedule within 14 days after the issuance of an Order on the remedies question. Signed by Judge James E. Boasberg on

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6/21/2017. (lcjeb3) (Entered: 06/21/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 6/21/2017. Oral discussions in regard to 249 Joint Motion for Briefing Schedule, heard and Motion GRANTED. Order forthcoming. (Court Reporter Pat Kaneshiro−Miller) (nbn) (Entered: 06/21/2017)
252 SUPPLEMENTAL MEMORANDUM to re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 06/28/2017)
253 MOTION for Briefing Schedule with respect to Dakota Access' Supplemental Brief by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 07/03/2017)
MINUTE ORDER: The Court ORDERS that if Dakota Access opposes the Corps' 253 Motion for Briefing Schedule, it shall file such Opposition by July 7, 2017. Signed by Judge James E. Boasberg on 7/5/2017. (lcjeb3) (Entered: 07/05/2017)
Set/Reset Deadlines: Dakota Access Opposition To 253 Motion For Briefing Schedule due by 7/7/2017. (mac) (Entered: 07/05/2017)
254 RESPONSE re 253 MOTION for Briefing Schedule with respect to Dakota Access' Supplemental Brief filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 07/06/2017)
MINUTE ORDER GRANTING 253 Motion for Briefing Schedule. The Court ORDERS that Defendant United States Army Corps of Engineers shall file its supplemental memorandum regarding Intervenor Defendant Dakota Access's 216 Motion to Compel on or before July 24, 2017. Signed by Judge James E. Boasberg on 7/7/17. (lcjeb2) (Entered: 07/07/2017)
Set/Reset Deadlines: Defendant United States Army Corps of Engineers shall file its supplemental memorandum regarding Intervenor Defendant Dakota Access's 216 Motion to Compel on or before 7/24/2017. (znbn) (Entered: 07/07/2017)
255 NOTICE OF WITHDRAWAL OF APPEARANCE as to GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION. Attorney Richard A. Guest terminated. (Guest, Richard) (Entered: 07/13/2017)
256 NOTICE of Appearance by Joel William West Williams on behalf of GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION (Williams, Joel) (Entered: 07/13/2017)
257 MOTION for Leave to File Brief as Amicus Curiae in Opposition to Vacatur on Remand by NORTH DAKOTA PETROLEUM COUNCIL (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Exhibit A − amicus brief)(Mayo, A.) (Entered: 07/17/2017)
258 Memorandum Brief Regarding Remedy by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) Modified text not a Motion on 7/18/2017 (td). (Entered: 07/17/2017)
259 MOTION for Leave to File as Amici Curiae in Support of Dakota Access, LLC's Brief on Vacatur by THE AMERICAN PETROLEUM INSTITUTE, AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, THE ASSOCIATION OF OIL PIPE LINES, THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, THE NATIONAL ASSOCIATION OF MANUFACTURERS (Attachments: # 1 Exhibit A − Proposed Amicus Brief, # 2 Declaration of David Murk in Support of Amici Curiae Brief, # 3 Text of Proposed Order)(Coburn, David) (Entered: 07/17/2017)
260 MEMORANDUM Brief Regarding Remedy by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) Modified text on 7/18/2017 (td). (Entered: 07/17/2017)
MINUTE ORDER: The Court ORDERS that the 257 Motion of the North Dakota Petroleum Council for Leave to File Brief as Amicus Curiae is GRANTED. Signed by Judge James E. Boasberg on 7/20/17. (lcjeb2) (Entered: 07/20/2017)

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MINUTE ORDER: The Court ORDERS that if any party opposes the 259 Motion for Leave to File Amicus brief, it shall file such Opposition by July 27, 2017. Signed by Judge James E. Boasberg on 7/20/17. (lcjeb2) (Entered: 07/20/2017)
Set/Reset Deadlines: Opposition due by 7/27/2017. (nbn) (Entered: 07/20/2017)
261 AMICUS BRIEF by NORTH DAKOTA PETROLEUM COUNCIL. (znmw) (Entered: 07/21/2017)
262 NOTICE of Appearance by Matthew Lee Campbell on behalf of GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION (Campbell, Matthew) (Entered: 07/21/2017)
263 RESPONSE re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 07/24/2017)
264 RESPONSE re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 07/24/2017)
265 RESPONSE re 216 MOTION to Compel Prompt Completion of the Administrative Record filed by CHEYENNE RIVER SIOUX TRIBE. (Ducheneaux, Nicole) (Entered: 07/24/2017)
266 Memorandum in opposition to re 257 MOTION for Leave to File Brief as Amicus Curiae in Opposition to Vacatur on Remand filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Declaration)(Ducheneaux, Nicole) (Entered: 07/25/2017)
267 REPLY to opposition to motion re 259 MOTION for Leave to File as Amici Curiae in Support of Dakota Access, LLC's Brief on Vacatur filed by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF OIL PIPE LINES, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS. (Attachments: # 1 Exhibit A − Proposed Amended Amici Curiae Brief, # 2 Declaration of David Murk in Support of Amici Curiae Brief)(Coburn, David) (Entered: 07/26/2017)
268 NOTICE of Appearance by Patrick Michael Sullivan on behalf of LAKOTA PEOPLES LAW OFFICE (Sullivan, Patrick) (Entered: 08/04/2017)
269 MOTION for Leave to File Amicus Brief by Law Professors (Attachments: # 1 Exhibit Brief)(Snape, William) (Entered: 08/07/2017)
270 MOTION for Leave to File Amici Curiae Brief by GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION, NATIONAL CONGRESS OF AMERICAN INDIANS, 18 FEDERALLY RECOGNIZED INDIAN TRIBES AND TRIBAL ORGANIZATIONS (Attachments: # 1 Exhibit)(Campbell, Matthew) (Entered: 08/07/2017)
271 MOTION for Leave to File Amicus Curiae Brief by LAKOTA PEOPLES LAW OFFICE (Attachments: # 1 Exhibit)(Sullivan, Patrick) (Entered: 08/07/2017)
272 MEMORANDUM Brief Regarding Remedy by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Declaration of Richard Kuprewicz − Second, # 2 Declaration of Richard Kuprewicz − Third, # 3 Declaration of Dave Archambault II − Third, # 4 Declaration of Donald Holmstrom, # 5 Declaration of Ian Goodman)(Hasselman, Jan) Modified to add text on 8/8/2017 (znmw). (Entered: 08/07/2017)
273 MOTION for Extension of Time to File Intervenors' Brief on Remedy by THOMAS E. BARBER, SR, LADONNA BRAVE BULL ALLARD, MAXINE BRINGS HIM BACK−JANIS, CRYSTAL COLE, CHEYENNE GARCIA, TATEOLOWAN GARCIA, SARA JUMPING EAGLE, WILLIAM WILD BILL LEFT HAND, CHANI PHILLIPS, VIRGIL TAKEN ALIVE, RUSSELL VAZQUEZ, KATHY WILLCUTS, WASTEWIN YOUNG (Attachments: # 1 Exhibit Intervenors' Brief on Remedy)(Hall, Oliver) Modified event title on 8/10/2017 (znmw). (Entered: 08/09/2017)

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274 RESPONSE re 273 MOTION for Extension of Time to File Intervenors' Brief on Remedy filed by DAKOTA ACCESS LLC. (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 08/10/2017)
275 REPLY to opposition to motion re 273 MOTION for Extension of Time to File Brief on Remedy filed by THOMAS E. BARBER, SR, LADONNA BRAVE BULL ALLARD, MAXINE BRINGS HIM BACK−JANIS, CRYSTAL COLE, CHEYENNE GARCIA, TATEOLOWAN GARCIA, SARA JUMPING EAGLE, WILLIAM WILD BILL LEFT HAND, CHANI PHILLIPS, VIRGIL TAKEN ALIVE, RUSSELL VAZQUEZ, KATHY WILLCUTS, WASTEWIN YOUNG. (Hall, Oliver) (Entered: 08/11/2017)
276 REPLY re 258 MOTION on Remedy filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Marinelli, Matthew) (Entered: 08/17/2017)
277 REPLY re 260 Memorandum on Remedy filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 08/17/2017)
278 MOTION for Leave to File Reply to Response by Jumping Eagle Intervenors by DAKOTA ACCESS LLC (Attachments: # 1 Exhibit Proposed Reply)(Scherman, William) (Entered: 08/22/2017)
MINUTE ORDER: The Court ORDERS that: 1) The American Petroleum Institute, et al.'s 259 Motion to file as Amici Curiae is GRANTED, and the brief at ECF No. 267−1 is deemed FILED; 2) The Law Professors' 269 Motion, the Great Plains Tribal Chairman's Association, et al.'s 270 Motion, and the Lakota Peoples Law Office's 271 Motion to file as Amici Curiae are GRANTED, and their briefs are deemed FILED; 3) Intervenors' 273 Motion for Extension is GRANTED; and 4) Dakota Access's 278 Motion for Reply is DENIED. Signed by Judge James E. Boasberg on 8/25/17. (lcjeb1) (Entered: 08/25/2017)
279 AMICUS BRIEF by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF OIL PIPE LINES, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS. (Attachments: # 1 Declaration of David Murk in Support of Amici Curiae Brief)(znmw) (Entered: 08/28/2017)
280 REPLY to opposition to motion re 258 MOTION on Remedy filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 08/28/2017)
281 NOTICE of Revised Schedule for Remand by UNITED STATES ARMY CORPS OF ENGINEERS (Marinelli, Matthew) (Entered: 10/06/2017)
282 MOTION for Protective Order Revised Protective Order by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Proposed Order)(Hasselman, Jan) (Entered: 10/06/2017)
MINUTE ORDER GRANTING 282 Motion to Amend Protective Order. The Court ORDERS that the Revised Protective Order shall govern the handling of all protected information. So ORDERED by Judge James E. Boasberg on 10/06/2017. (lcjeb2) (Entered: 10/06/2017)
283 ORDER: The Court ORDERS that remand following the Court's prior 239 Memorandum Opinion shall be WITHOUT vacatur. The parties shall appear for a status conference on October 18, 2017, at 11:30 a.m. to discuss a further schedule in this case. Signed by Judge James E. Boasberg on 10/11/2017. (lcjeb2) (Entered: 10/11/2017)
284 MEMORANDUM OPINION re 283 Order regarding vacatur. Signed by Judge James E. Boasberg on 10/11/2017. (lcjeb2) (Entered: 10/11/2017)
Set/Reset Hearings: Status Conference set for 10/18/2017 at 11:30 AM in Courtroom 19 before Judge James E. Boasberg. (nbn) (Entered: 10/11/2017)

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285 MOTION for Leave to Appear Telephonic ally at the October 18, 2017, Status Conference Regarding Scheduling by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Baker, Jennifer) (Entered: 10/16/2017)
MINUTE ORDER: The Court GRANTS Yankton Sioux Tribe's 285 Motion for Leave to Appear Telephonically for the October 18, 2017 status conference. So ORDERED by Judge James E. Boasberg on 10/17/17. (lcjeb1) (Entered: 10/17/2017)
MINUTE ORDER: As discussed in today's status conference, the Court ORDERS that: 1) Each Defendant may file a separate response of up to 10 pages by November 1, 2017, to the Tribes' request for the imposition of alternative measures during remand; 2) Standing Rock and Cheyenne River may each file a reply of up to 15 pages by November 15, 2017; 3) Other Plaintiffs may each file a reply of up to 5 pages by the same date; 4) Defendants' obligation to file Answers shall continue to be held in abeyance until further Order of the Court; 5) Should any Plaintiff wish to file an additional motion for summary judgment prior to the completion of the remand, it must first file a brief Notice with the Court indicating the grounds for its motion and the time by which it could be filed and then obtain Court approval of the filing; and 6) The Government shall file status reports regarding the progress of the remand by December 1, 2017, February 1, 2018, and April 2, 2018. So ORDERED by Judge James E. Boasberg on 10/18/17. (lcjeb1) (Entered: 10/18/2017)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 10/18/2017. Order issued. (Court Reporter Lisa Griffith) (nbn) (Entered: 10/18/2017)
Set/Reset Deadlines: Responses due by 11/1/2017. Replies due by 11/15/2017. Joint Status Report due by 12/1/2017 Joint Status Report due by 4/2/2018. Joint Status Report due by 2/1/2018. (nbn) (Entered: 10/20/2017)
286 NOTICE OF WITHDRAWAL OF APPEARANCE as to LAKOTA PEOPLES LAW OFFICE. Attorney Patrick Michael Sullivan terminated. (Attachments: # 1 Declaration Declaration of Lanny A. Sinkin)(Sullivan, Patrick) (Entered: 10/24/2017)
287 RESPONSE re 272 Memorandum, Response to Plaintiffs' Request for Imposition of Remand Conditions filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit)(Schifman, Reuben) (Entered: 11/01/2017)
288 MEMORANDUM by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 11/01/2017)
289 MOTION for Leave to File a Motion for Partial Summary Judgment by YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Baker, Jennifer) Modified event title on 11/13/2017 (znmw). (Additional attachment(s) added on 11/13/2017: # 2 Motion for Partial Summary Judgment, # 3 Exhibit A to Motion for Partial Summary Judgment, # 4 Exhibit B to Motion for Partial Summary Judgment, # 5 Exhibit to Motion for Partial Summary Judgment, # 6 Text of Proposed Order − Motion for Partial Summary Judgment) (znmw). (Entered: 11/10/2017)
290 ENTERED IN ERROR..... MOTION for Summary Judgment by Robert Flying Hawk and by YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Memorandum in Support, # 4 Exhibit Exhibit A, # 5 Exhibit Exhibit B, # 6 Exhibit Exhibit C)(Baker, Jennifer) Modified on 11/13/2017 (znmw). (Entered: 11/10/2017)
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 290 MOTION for Summary Judgment by Robert Flying Hawk and was entered in error as a separate entry; the motion has been added to Docket Entry 289 MOTION for Leave to File and will be refiled by the Clerk's Office when leave to file is granted. (znmw) (Entered: 11/13/2017)
MINUTE ORDER: The Court ORDERS that the Yankton Sioux Tribe's 289 Motion for Leave to File is GRANTED, and its Motion for Summary Judgment is hereby FILED. So ORDERED by Judge James E. Boasberg on 11/13/2017. (lcjeb2) (Entered: 11/13/2017)

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292 MOTION for Partial Summary Judgment by YANKTON SIOUX TRIBE, ROBERT FLYING HAWK (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(znmw) Modified to add filer on 1/29/2018 (znmw). (Entered: 11/14/2017)
291 NOTICE of Attachment to 272−4 Declaration of D. Holstrom by STANDING ROCK SIOUX TRIBE re 272 Memorandum, (Hasselman, Jan) (Entered: 11/14/2017)
293 REPLY re 272 Memorandum Reply In Support of Imposition of Remand Conditions filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Text of Proposed Order)(Hasselman, Jan) Modified to add link on 11/16/2017 (znmw). (Entered: 11/15/2017)
294 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 10−18−17; Page Numbers: 1−21. Date of Issuance:11−16−17. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/7/2017. Redacted Transcript Deadline set for 12/17/2017. Release of Transcript Restriction set for 2/14/2018.(Griffith, Lisa) (Entered: 11/16/2017)
295 First MOTION for Extension of Time to File Response/Reply as to 292 MOTION for Partial Summary Judgment (Expedited) by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Marinelli, Matthew) (Entered: 11/16/2017)
MINUTE ORDER: The Court ORDERS that if the Yankton Sioux Tribe opposes Defendant's 295 Motion for Extension, it shall file such opposition by November 20, 2017. So ORDERED by Judge James E. Boasberg on 11/16/2017. (lcjeb3) (Entered: 11/16/2017)
Set/Reset Deadlines: Opposition Motions due by 11/20/2017. (lsj) (Entered: 11/17/2017)
296 MOTION for Briefing Schedule by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 11/20/2017)
297 RESPONSE re 295 First MOTION for Extension of Time to File Response/Reply as to 292 MOTION for Partial Summary Judgment (Expedited) filed by DAKOTA ACCESS LLC. (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 11/20/2017)
298 SUPPLEMENTAL MEMORANDUM to re 293 Reply to Document, filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 11/20/2017)
299 RESPONSE re 295 First MOTION for Extension of Time to File Response/Reply as to 292 MOTION for Partial Summary Judgment (Expedited) filed by YANKTON SIOUX TRIBE. (Baker, Jennifer) (Entered: 11/20/2017)
300 RESPONSE re 296 MOTION for Briefing Schedule filed by CHEYENNE RIVER SIOUX TRIBE, STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 11/21/2017)
301 RESPONSE re 296 MOTION for Briefing Schedule filed by OGLALA SIOUX TRIBE. (Roy, Michael) (Entered: 11/21/2017)

11/27/2017
11/27/2017 12/01/2017 12/04/2017
12/04/2017 12/04/2017 12/06/2017 12/14/2017 12/15/2017
12/19/2017 12/19/2017

MINUTE ORDER: The Court ORDERS that: 1) The Corps' 295 Motion for Extension is GRANTED, and any opposition to the Yankton Sioux Tribe's 292 Motion for Partial Summary Judgment shall be due by January 10, 2018; 2) Dakota Access's 296 Motion for Briefing Schedule is GRANTED IN PART and DENIED IN PART; 3) Should any other Plaintiff choose to file a motion for summary judgment prior to the completion of the remand, such motion shall be filed by January 16, 2018, with any opposition due by March 15, 2018, and any reply by April 1, 2018; and 4) Within 30 days following the completion of remand, all parties shall submit a joint status report and proposed schedule for post−remand briefing. So ORDERED by Judge James E. Boasberg on 11/27/2017.(lcjeb2) (Entered: 11/27/2017)
Set/Reset Deadlines: Opposition to the Yankton Sioux Tribe's 292 Motion for Partial Summary Judgment due by 1/10/2018. Summary Judgment motions due by 1/16/2018. Response to Motion for Summary Judgment due by 3/15/2018. Reply to Motion for Summary Judgment due by 4/1/2018. (nbn) (Entered: 11/28/2017)
302 STATUS REPORT Regarding Remand by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 12/01/2017)
303 ORDER: The Court ORDERS that: (1) The parties shall coordinate to finalize an oil−spill response plan, which they shall submit to the Court by April 1, 2018; (2) Dakota Access, with input from the Tribes, shall select an independent auditor to review easement conditions and regulations, and the results of such audit shall be filed with the Court by April 1, 2018; and (3) Dakota Access shall submit to the Court bi−monthly reports on the conditions at Lake Oahe. Signed by Judge James E. Boasberg on 12/4/2017. (lcjeb2) (Entered: 12/04/2017)
304 MEMORANDUM OPINION re 303 Order On Interim Conditions. Signed by Judge James E. Boasberg on 12/4/2017. (lcjeb2) (Entered: 12/04/2017)
Set/Reset Deadlines: The parties shall coordinate to finalize an oil−spill response plan due by 4/1/2018. Dakota Access, with input from the Tribes, shall select an independent auditor to review easement conditions and regulations, and the results of such audit shall be filed with the Court by 4/1/2018. (nbn) (Entered: 12/04/2017)
305 RESPONSE re 302 Status Report of Army Corps of Engineers' Regarding Remand filed by YANKTON SIOUX TRIBE. (Attachments: # 1 Exhibit Ex 1 − 9/25/17 Letter from ACOE, # 2 Exhibit Ex 2 − 9/29/17 Response to ACOE, # 3 Exhibit Ex 3 − 10/5/17 Letter from ACOE, # 4 Exhibit Ex 4 − 10/6/17 Letter to DOJ, # 5 Exhibit Ex 5 − 11/27/17 3rd Letter from ACOE)(Baker, Jennifer) (Entered: 12/06/2017)
306 REPLY re 305 Response to Document, Yankton Sioux Tribe and Robert Flying Hawk's Response to the Army Corps' Status Report Regarding Remand filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit Exhibit One)(Brar, Amarveer) (Entered: 12/14/2017)
307 Unopposed MOTION to Unseal Document 118 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) filed by STANDING ROCK SIOUX TRIBE, 195 Response to motion, filed by STANDING ROCK SIOUX TRIBE, 203 Reply to opposition to Motion filed by DAKOTA ACCESS LLC, 196 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) filed by STANDING ROCK SIOUX TRIBE, 132 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by CHEYENNE RIVER SIOUX TRIBE (This document is SEALED and only available to authorized persons.) filed by CHEYENNE RIVER SIOUX TRIBE by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Hasselman, Jan) (Entered: 12/15/2017)
308 ORDER GRANTING 307 Motion to Unseal Documents. Signed by Judge James E. Boasberg on 12/19/2017. (lcjeb2) (Entered: 12/19/2017)
309 ENTERED IN ERROR. . . . . SURREPLY to re 302 Status Report of the Army Corps' Reply to the Yankton Sioux Tribe and Robert Flying Hawk's Response to the Army Corps Status Report Regarding Remand filed by YANKTON SIOUX TRIBE. (Baker, Jennifer) Modified on 12/20/2017 (td). (Entered: 12/19/2017)

12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/20/2017
12/21/2017
12/29/2017 01/02/2018 01/02/2018 01/10/2018
01/10/2018 01/10/2018
01/10/2018 01/10/2018 01/17/2018 01/19/2018 01/22/2018

310 Declaration of Richard B. Kuprewicz by STANDING ROCK SIOUX TRIBE. (td) Modified on 12/20/2017 (td). (Unsealed pursuant to 308 ) (Entered: 12/19/2017)
311 Declaration of Steve Martin by CHEYENNE RIVER SIOUX TRIBE. (unsealed pursuant to 308 ) (td) (Entered: 12/20/2017)
312 Declaration of Elliott Ward by STANDING ROCK SIOUX TRIBE. (Unsealed pursuant to 308 ) (td) (Entered: 12/20/2017)
313 Declaration of Hakan Bekar re 308 Order on Motion to Unseal Document by CHEYENNE RIVER SIOUX TRIBE. (td) (Entered: 12/21/2017)
NOTICE OF ERROR re 309 Surreply; emailed to jbaker@ndnlaw.com, cc'd 89 associated attorneys −− The PDF file you docketed contained errors: 1. Leave to file not yet requested and/or granted, 2. You must file a Motion for Leave to File a Surreply. (ztd, ) (Entered: 12/20/2017)
314 MOTION for Leave to File Surreply to the Army Corps' Reply to the Yankton Sioux Tribe and Robert Flying Hawk's Response to the Army Corps' Status Report Regarding Remand by YANKTON SIOUX TRIBE (Attachments: # 1 Exhibit Exhibit 1 − Surreply)(Baker, Jennifer) (Entered: 12/21/2017)
315 First STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 12/29/2017)
MINUTE ORDER: The Court GRANTS Yankton Sioux Tribe's 314 Motion for Leave to File Surreply and ORDERS that it is deemed filed. So ORDERED by Judge James E. Boasberg on 1/2/18. (lcjeb1) (Entered: 01/02/2018)
316 SURREPLY to re 302 Status Report Regarding Remand filed by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE. (znmw) (Entered: 01/03/2018)
317 Memorandum in opposition re 292 MOTION for Partial Summary Judgment and Cross Motion for Partial Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA)(Marinelli, Matthew) Modified event title on 1/11/2018 (znmw). (Entered: 01/10/2018)
318 NOTICE of Joinder in Cross−Motion by DAKOTA ACCESS LLC re 320 Cross MOTION for Partial Summary Judgment. (Scherman, William) Modified link on 1/11/2018 (znmw). (Entered: 01/10/2018)
319 Memorandum in opposition re 292 MOTION for Partial Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Scherman, William) Modified event title on 1/11/2018 (znmw). (Entered: 01/10/2018)
320 Cross MOTION for Partial Summary Judgment by UNITED STATES ARMY CORPS OF ENGINEERS. (See Docket Entry 317 to view document). (znmw) (Entered: 01/11/2018)
321 Cross MOTION for Partial Summary Judgment by DAKOTA ACCESS LLC. (See Docket Entry 319 to view document). (znmw) (Entered: 01/11/2018)
322 NOTICE by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE (Rasmussen, Jeffrey) (Entered: 01/17/2018)
323 Joint MOTION for Extension of Time to File Response/Reply as to 292 MOTION for Partial Summary Judgment by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE (Baker, Jennifer) (Entered: 01/19/2018)
MINUTE ORDER GRANTING Joint 323 Motion for Extension of Time to File Response/Reply. The Court ORDERS that Plaintiffs' reply/response shall be filed on or before January 26, 2018, and that Defendants' and Intervenor−Defendant's reply shall be filed on or before February 9, 2017. So ORDERED by Judge James E.

01/22/2018 01/26/2018
01/26/2018
01/30/2018
01/30/2018 02/01/2018 02/07/2018 02/07/2018 02/09/2018 02/09/2018 02/20/2018 02/20/2018
02/20/2018 02/23/2018 02/26/2018
02/27/2018

Boasberg on 1/22/2018. (lcjeb2) (Entered: 01/22/2018)
Set/Reset Deadlines: Responses due by 1/26/2018. Replies due by 2/9/2018. (znbn) (Entered: 01/22/2018)
324 REPLY to opposition to motion re 292 MOTION for Partial Summary Judgment AND OPPOSITION TO CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT filed by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE. (Baker, Jennifer) Modified on 1/29/2018 (znmw). (Entered: 01/26/2018)
325 Memorandum in opposition to re 320 MOTION for Partial Summary Judgment, 321 MOTION for Partial Summary Judgment filed by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE. (See Docket Entry 324 to view document). (znmw) (Entered: 01/29/2018)
MINUTE ORDER: As Dakota Access's 216 Motion regarding completion of the administrative record remains outstanding, the Court ORDERS that by March 1, 2018, Dakota Access shall notify the Court whether it will withdraw the Motion, seek a stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 1/30/2018. (lcjeb2) (Entered: 01/30/2018)
Set/Reset Deadlines: Notice of Intent due by 3/1/2018. (lsj) (Entered: 01/30/2018)
326 Second STATUS REPORT Regarding Remand by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 02/01/2018)
327 RESPONSE re 326 Status Report And Request for Meaningful Consultation on Remand filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration Ducheneaux Declaration)(Ducheneaux, Nicole) (Entered: 02/07/2018)
328 MOTION to Compel Meaningful Consultation on Remand by CHEYENNE RIVER SIOUX TRIBE. (See Docket Entry 327 to view document). (znmw) (Entered: 02/08/2018)
329 REPLY to opposition to motion re 320 MOTION for Partial Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 02/09/2018)
330 REPLY to opposition to motion re 321 MOTION for Partial Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 02/09/2018)
331 Joint MOTION to Stay re 328 MOTION to Compel by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Marinelli, Matthew) (Entered: 02/20/2018)
MINUTE ORDER GRANTING 331 Motion to Stay Deadline to Respond. The Court ORDERS that the deadline for Federal Defendants and Dakota Access to respond to Cheyenne River's 328 Motion is STAYED. The parties shall submit a proposal for further briefing on the consultation motion(s) on or before February 23, 2018. So ORDERED by Judge James E. Boasberg on 2/20/2018. (lcjeb2) (Entered: 02/20/2018)
Set/Reset Deadlines: Proposed Further Briefing Schedule due by 2/23/2018 (lsj) (Entered: 02/20/2018)
332 Joint MOTION for Briefing Schedule by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 02/23/2018)
MINUTE ORDER ADOPTING the parties' 332 Motion for Briefing Schedule. The Court ORDERS that (1) Plaintiff Standing Rock shall file any motion related to the remand process on or before March 2, 2018; (2) Defendants shall file any opposition to the Standing Rock/Cheyenne River motions fourteen days after Standing Rock's filing; and (3)Plaintiffs shall file any reply seven days after Defendants' opposition. So ORDERED by Judge James E. Boasberg on 2/26/18.(lcjeb1) (Entered: 02/26/2018)
333 MOTION to Withdraw as Attorney Removal of Counsel of Record by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Ducheneaux, Nicole) Modified event title on 2/28/2018 (znmw). (Entered: 02/27/2018)

02/28/2018 02/28/2018 03/01/2018 03/02/2018
03/02/2018 03/02/2018 03/05/2018 03/16/2018
03/16/2018 03/16/2018
03/19/2018
03/19/2018 03/23/2018
03/23/2018

MINUTE ORDER GRANTING 333 Motion for Removal of Counsel. The Court ORDERS that Intervenor−Plaintiff Cheyenne River Sioux Tribe's Notice of and Motion for Removal of Counsel of Record Conly Schulte is hereby GRANTED. So ORDERED by Judge James E. Boasberg on 2/28/2018. (lcjeb2) (Entered: 02/28/2018)
334 Second STATUS REPORT by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 02/28/2018)
335 MOTION to Stay re 216 MOTION to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 03/01/2018)
MINUTE ORDER GRANTING 335 Motion to Stay. The Court ORDERS that Intervenor Defendant Dakota Access, LLCs motion to stay resolution of its 216 Motion to Compel Prompt Completion of the Administrative Record is GRANTED and that Dakota Access shall, on or before March 31, 2018, inform the Court as to whether it will withdraw the Motion to Compel, seek a further stay of the Motion, or ask for its resolution. So ORDERED by Judge James E. Boasberg on 3/2/2018. (lcjeb2) (Entered: 03/02/2018)
Set/Reset Deadlines: Status Report due by 3/31/2018 (lsj) (Entered: 03/02/2018)
336 MOTION to ClarifyRemand Process and Remand Conditions by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration of Jan Hasselman, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Hasselman, Jan) (Entered: 03/02/2018)
MINUTE ORDER staying 216 Motion to Compel. So ORDERED by Judge James E. Boasberg on 3/5/18, by the Minute Order filed on 3/2/2018. (nbn) (Entered: 03/05/2018)
337 RESPONSE re 328 MOTION to Compel, 336 MOTION to ClarifyRemand Process and Remand Conditions filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Schifman, Reuben) (Entered: 03/16/2018)
338 NOTICE Regarding Remand Schedule by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 03/16/2018)
339 Memorandum in opposition to re 328 MOTION to Compel, 336 MOTION to ClarifyRemand Process and Remand Conditions filed by DAKOTA ACCESS LLC. (Attachments: # 1 Affidavit Mintner Declaration, # 2 Affidavit Borkland Declaration, # 3 Affidavit Frey Declaration, # 4 Affidavit Nardozzi Declaration, # 5 Affidavit Scherman Declaration, # 6 Affidavit Siguaw Declaration, # 7 Text of Proposed Order Proposed Order)(Scherman, William) (Entered: 03/16/2018)
340 ORDER DENYING 292 Yankton Sioux Tribe's Motion for Partial Summary Judgment; GRANTING 320 U.S. Army Corps of Engineers' Cross−Motion for Partial Summary Judgment; GRANTING 321 Dakota Access LLC's Cross−Motion for Partial Summary Judgment; and ENTERING JUDGMENT in favor of Defendants as to Count One and the NHPA and NEPA claims of Yankton Sioux Tribe's Complaint. Signed by Judge James E. Boasberg on 3/19/2018. (lcjeb2) (Entered: 03/19/2018)
341 MEMORANDUM OPINION re 340 Order on Motion for Partial Summary Judgment. Signed by Judge James E. Boasberg on 3/19/2018. (lcjeb2) (Entered: 03/19/2018)
342 REPLY to opposition to motion re 336 MOTION to ClarifyRemand Process and Remand Conditions Reply in Support of Motion for Clarification Re Remand Process and Remand Conditions filed by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Declaration Second Declaration of Donald Holmstrom, # 2 Declaration Second Declaration of Jan Hasselman)(Hasselman, Jan) (Entered: 03/23/2018)
343 REPLY to opposition to motion re 328 MOTION to Compel Meaningful Consultation filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration of Nicole Ducheneaux)(Ducheneaux, Nicole) (Entered: 03/23/2018)

03/29/2018
03/30/2018 04/02/2018
04/02/2018 04/02/2018 04/02/2018 04/02/2018 04/03/2018
04/03/2018
04/03/2018 04/03/2018 04/10/2018
04/10/2018 04/16/2018 04/30/2018 05/02/2018 05/02/2018

344 MOTION for Leave to File Motion to File and Consider Declaration Out of Time by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Exhibit Exhibit A − Declaration of Mike Faith, Jr., # 2 Text of Proposed Order Proposed Order)(Hasselman, Jan) (Entered: 03/29/2018)
345 MOTION to Stay re Order on Motion to Stay, Resolution of Motion to Compel Completion of Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 03/30/2018)
MINUTE ORDER GRANTING 344 Motion for Leave to File. The Court ORDERS that the Clerk's Office will enter as filed the attached Declaration of Chairman Mike Faith, Jr. and related documents. So ORDERED by Judge James E. Boasberg on 4/2/2018. (lcjeb2) (Entered: 04/02/2018)
346 ENTERED IN ERROR..... STATUS REPORT by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) Modified on 4/3/2018 (znmw). (Entered: 04/02/2018)
347 ENTERED IN ERROR..... STATUS REPORT by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit, # 2 Exhibit)(Scherman, William) Modified on 4/3/2018 (znmw). (Entered: 04/02/2018)
348 STATUS REPORT by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit)(Marinelli, Matthew) (Entered: 04/02/2018)
351 Declaration of Mike Faith, Jr., by STANDING ROCK SIOUX TRIBE. (td) (Entered: 04/04/2018)
NOTICE OF ERROR re 346 Status Report; emailed to wscherman@gibsondunn.com, cc'd 88 associated attorneys −− The PDF file you docketed contained errors: 1. Please refile document, 2. ENTERED IN ERROR; Incorrect format (letter); Refile in proper pleading/brief format in accordance with Local Rules. (znmw, ) (Entered: 04/03/2018)
NOTICE OF ERROR re 347 Status Report; emailed to wscherman@gibsondunn.com, cc'd 88 associated attorneys −− The PDF file you docketed contained errors: 1. Please refile document, 2. ENTERED IN ERROR; Incorrect format (letter); Refile in proper pleading/brief format in accordance with Local Rules. (znmw, ) (Entered: 04/03/2018)
349 STATUS REPORT by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit, # 2 Exhibit)(Scherman, William) (Entered: 04/03/2018)
350 STATUS REPORT by DAKOTA ACCESS LLC. (Attachments: # 1 Exhibit)(Scherman, William) (Entered: 04/03/2018)
MINUTE ORDER GRANTING 345 Motion to Stay Resolution of 216 Motion to Compel Completion of Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by May 2, 2018, as to whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 4/10/2018. (lcjeb2) Modified on 4/10/2018 (zlsj). (Entered: 04/10/2018)
Set/Reset Deadlines: Dakota Access LLC's Status Report due by 5/2/2018 (lsj) Modified on 4/11/2018 (zlsj). (Entered: 04/10/2018)
352 ORDER DENYING 328 Motion to Compel and 336 Motion to Clarify. Signed by Judge James E. Boasberg on 4/16/2018. (lcjeb2) (Entered: 04/16/2018)
353 Third STATUS REPORT Regarding Pipeline Conditions at Lake Oahe by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 04/30/2018)
354 MOTION to Stay Resolution of 216 Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 05/02/2018)
MINUTE ORDER GRANTING 354 Motion to Extend Stay Resolution of 216 Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by May 31, 2018, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 5/2/2018. (lcjeb2) (Entered: 05/02/2018)

05/02/2018 05/02/2018 05/03/2018
05/31/2018 06/04/2018
06/04/2018 06/08/2018 06/29/2018 07/02/2018 07/03/2018
07/03/2018 08/01/2018 08/02/2018
08/02/2018 08/07/2018 08/31/2018

Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 5/31/2018. (znbn) (Entered: 05/02/2018)
355 STATUS REPORT by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 05/02/2018)
MINUTE ORDER: Per the United States Army Corps of Engineers 355 Status Report, the Court ORDERS that the Corps provide the Court with a status report on or before June 8, 2018, identifying the specific date on which the Corps expects to complete the remand process. So ORDERED by Judge James E. Boasberg on 5/3/2018. (lcjeb2) (Entered: 05/03/2018)
356 MOTION to Extend Stay Resolution of 216 Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) Modified text on 5/31/2018 (ztd). (Entered: 05/31/2018)
MINUTE ORDER GRANTING 356 Motion to Stay 216 Motion to Compel Completion of Administrative Record. The Court ORDERS that Dakota Access, LLC, shall update the Court by July 2, 2018, as to whether it will withdraw the 216 Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 6/4/2018. (lcjeb2) (Entered: 06/04/2018)
Set/Reset Deadlines: Dakota Access, LLC, shall update the Court by 7/2/2018. (znbn) (Entered: 06/04/2018)
357 STATUS REPORT Regarding Remand by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 06/08/2018)
358 STATUS REPORT Regarding Pipeline Conditions at Lake Oahe by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 06/29/2018)
359 MOTION to Stay Resolution of 216 Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 07/02/2018)
MINUTE ORDER GRANTING 359 Motion to Stay Motion to Extend Stayof Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by August 1, 2018 as to whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 7/3/2018. (lcjeb2) (Entered: 07/03/2018)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 8/1/2018, as to whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. (znbn) (Entered: 07/03/2018)
360 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 08/01/2018)
MINUTE ORDER GRANTING 360 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by September 3, 2018, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 8/2/2018. (lcjeb2) (Entered: 08/02/2018)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 9/3/2018, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. (znbn) (Entered: 08/02/2018)
361 STATUS REPORT Regarding Remand by UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 08/07/2018)
362 STATUS REPORT Regarding Remand by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit)(Brar, Amarveer) (Entered: 08/31/2018)

09/10/2018 09/10/2018
09/10/2018 10/01/2018 10/02/2018
10/02/2018 10/10/2018 10/10/2018
10/10/2018 10/30/2018 10/30/2018 10/30/2018 10/30/2018 10/30/2018 10/30/2018

363 MOTION to Extend Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William); Modified text on 9/14/2018 (tth). (Entered: 09/10/2018)
MINUTE ORDER GRANTING 363 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by October 10, 2018, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 9/10/2018. (lcjeb1) (Entered: 09/10/2018)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it by 10/10/2018. (znbn) (Entered: 09/11/2018)
364 Joint STATUS REPORT by CHEYENNE RIVER SIOUX TRIBE. (Ducheneaux, Nicole) (Entered: 10/01/2018)
MINUTE ORDER ADOPTING 364 Joint Status Report. The Court ORDERS that (1) any party wishing to include additional redactions or seeking to prohibit redactions shall either reach agreement with the other parties or file a protective order within ten days of receiving the document; any Opposition shall be due within fourteen days; and any Reply three days after that; and (2) the parties shall file proposals for post−remand proceedings on or before November 1, 2018. So ORDERED by Judge James E. Boasberg on 10/2/2018. (lcjeb1) (Entered: 10/02/2018)
Set/Reset Deadlines: The parties shall file proposals for post−remand proceedings on or before due by 11/1/2018. (znbn) (Entered: 10/03/2018)
365 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 10/10/2018)
MINUTE ORDER GRANTING 365 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by November 12, 2018, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 10/10/2018. (lcjeb1) (Entered: 10/10/2018)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 11/12/2018. (znbn) (Entered: 10/10/2018)
366 MOTION for Extension of Time to FILE A PROPOSAL FOR POST−REMAND PROCEEDINGS by OGLALA SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Roy, Michael) (Entered: 10/30/2018)
367 Memorandum in opposition to re 366 MOTION for Extension of Time to FILE A PROPOSAL FOR POST−REMAND PROCEEDINGS filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 10/30/2018)
368 MOTION for Extension of Time to File a Proposal for Post−Remand Proceeding by YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Baker, Jennifer) (Entered: 10/30/2018)
MINUTE ORDER: The Court ORDERS that Plaintiff Oglala Sioux's 366 Motion for Extension and Plaintiff Yankton Sioux's 368 Motion for Extension are GRANTED IN PART, and they shall file their proposals by November 6, 2018. So ORDERED by Judge James E. Boasberg on 10/30/2018. (lcjeb1) (Entered: 10/30/2018)
369 MOTION for Extension of Time to File Post−Remand Proceedings by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 10/30/2018)
370 RESPONSE re 369 MOTION for Extension of Time to File Post−Remand Proceedings filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 10/30/2018)

10/31/2018
10/31/2018 10/31/2018 11/01/2018 11/01/2018 11/06/2018 11/06/2018 11/07/2018
11/07/2018 11/12/2018 11/13/2018
11/13/2018 11/15/2018
11/15/2018

MINUTE ORDER GRANTING 369 Motion for Extension of Time to File. The Court ORDERS that Plaintiff−Intervenor Cheyenne River Sioux Tribe shall file its proposal for post−remand proceedings by November 6, 2018. So ORDERED by Judge James E. Boasberg on 10/31/2018. (lcjeb1) (Entered: 10/31/2018)
MINUTE ORDER: The Court ORDERS that all parties may have until November 6, 2018, to set forth their positions on post−remand scheduling. So ORDERED by Judge James E. Boasberg on 10/31/2018. (lcjeb1) (Entered: 10/31/2018)
Set/Reset Deadlines: Positions on post−remand scheduling due by 11/6/2018. (znbn) (Entered: 10/31/2018)
371 MOTION for Leave to File Supplemental Complaint by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Supplement Complaint, # 2 Text of Proposed Order)(Hasselman, Jan) (Entered: 11/01/2018)
372 STATUS REPORT by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 11/01/2018)
373 Joint STATUS REPORT by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 11/06/2018)
374 Joint STATUS REPORT for Post−Remand Scheduling by CHEYENNE RIVER SIOUX TRIBE, STEVE VANCE. (Messineo, Joseph) (Entered: 11/06/2018)
MINUTE ORDER: The Court ORDERS that the parties shall appear for a status hearing on November 15, 2018, at 11:00 a.m. to discuss briefing schedules. Parties wishing to appear telephonically shall inform chambers at least 24 hours in advance. So ORDERED by Judge James E. Boasberg on 11/7/2018. (lcjeb1) (Entered: 11/07/2018)
Set/Reset Hearings: Status Conference set for 11/15/2018 at 11:00 AM in Courtroom 25 before Judge James E. Boasberg. (znbn) (Entered: 11/07/2018)
375 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 11/12/2018)
MINUTE ORDER GRANTING 375 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by December 12, 2018, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 11/13/2018. (lcjeb1) (Entered: 11/13/2018)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 12/12/2018. (znbn) (Entered: 11/14/2018)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 11/15/2018. A further Status Conference is set for 12/12/2018 at 11:00 AM in Courtroom 25A before Judge James E. Boasberg. (Order forthcoming.) (Court Reporter Lisa Griffith.) (hmc) (Entered: 11/15/2018)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) Any motions to amend or supplement a complaint shall be filed by November 26, 2018; 2) By December 6, 2018, the parties shall submit a joint status report: a) that proposes how supplemental/amended complaints should be handled; b) in which Plaintiffs shall identify each claim they intend on continuing to pursue and for each such claim, the parties shall identify whether they will agree to convert a preliminary ruling of the Court on the claim into a judgment or whether they will include this claim in further summary−judgment briefing; and c) that proposes a briefing schedule moving forward, assuming that only one round of summary−judgment briefing will be permitted; 3) The parties shall return for a further status hearing on December 12, 2018, at 11:00 a.m.; and 4) The Government shall lodge the Administrative Record by January 31, 2019. So ORDERED by Judge James E. Boasberg on 11/15/2018. (lcjeb1) (Entered: 11/15/2018)

11/15/2018 11/26/2018 11/26/2018 11/26/2018 11/26/2018 12/06/2018 12/11/2018 12/12/2018
12/12/2018 12/12/2018

Set/Reset Deadlines/Hearings: Amended Pleadings due by 11/26/2018. Joint Status Report due by 12/6/2018. Status Conference set for 12/12/2018 at 11:00 AM in Courtroom 25A before Judge James E. Boasberg. Administrative Record due by 1/31/2019. (znbn) (Entered: 11/15/2018)
376 MOTION for Leave to File Amended Complaint by OGLALA SIOUX TRIBE (Attachments: # 1 [Proposed]First Amended Complaint, # 2 Text of Proposed Order)(Roy, Michael) (Entered: 11/26/2018)
377 MOTION for Leave to File Supplemental Complaint by OGLALA SIOUX TRIBE (Attachments: # 1 [Proposed] Supplemental Complaint, # 2 Text of Proposed Order)(Roy, Michael) (Entered: 11/26/2018)
378 MOTION for Leave to File Supplemental Complaint by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Exhibit Supplemental Complaint, # 2 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 11/26/2018)
379 MOTION for Leave to File Amended Complaint against U.S. ARMY CORPS OF ENGINEERS filed by YANKTON SIOUX TRIBE. (Attachments: # 1 Supplement Supplemental Complaint, # 2 Text of Proposed Order Proposed Order)(Baker, Jennifer) Modified on 11/29/2018 to correct docket event/text (jf). (Entered: 11/26/2018)
380 Joint STATUS REPORT by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 12/06/2018)
381 Supplemental STATUS REPORT by CHEYENNE RIVER SIOUX TRIBE, OGLALA SIOUX TRIBE, STANDING ROCK SIOUX TRIBE, YANKTON SIOUX TRIBE. (Hasselman, Jan) (Entered: 12/11/2018)
MINUTE ORDER: As discussed at today's status conference, the Court ORDERS that: 1) By consent, judgment is entered in favor of Defendant on Plaintiffs' RFRA claims for the reasons set forth in the Court's preliminary−injunction denial; 2) Plaintiffs may argue in their summary−judgment briefing that their NHPA claims are not moot; 3) If any Plaintiff seeks to pursue any other claim (beyond NHPA) not related to the remand, it must identify such claim in a filing by December 19, 2018, or such clam will be dismissed; 4) If Plaintiffs do not withdraw their Motions to Supplement or Amend, Defendants must file an opposition (or notice of non−opposition) by December 21, 2018, with replies due by January 2, 2019; 5) The Administrative Record shall be lodged by January 31, 2019; 6) Any party shall file any challenge to the completeness of the AR by February 15, 2019, with oppositions due by February 25, 2019, and replies by March 1, 2019; 7) In such challenge a party may seek the inclusion of extra−record material, but failure to do so will not bar that party from citing such material in its summary−judgment briefs, which citation may be opposed; 8) If no challenge is filed to the completeness of the AR, the parties shall submit a joint proposed briefing schedule for summary judgment by February 22, 2019; 9) If a challenge is filed, the parties shall submit such proposal within seven days of the Court's ruling on the challenge; and 10) All answers shall be held in abeyance pending further Order of the Court. So ORDERED by Judge James E. Boasberg on 12/12/2018. (lcjeb1) (Entered: 12/12/2018)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 12/12/2018. See Order for details. (Court Reporter Lisa Griffith) (nbn) (Entered: 12/12/2018)
382 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 11−15−18; Page Numbers: 1−22. Date of Issuance:12−12−18. Court Reporter/Transcriber Lisa Griffith, Telephone number (202) 354−3247, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above . After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal

identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

12/12/2018 12/12/2018
12/12/2018 12/12/2018 12/19/2018 12/19/2018 12/19/2018 12/21/2018 12/21/2018 12/21/2018
12/26/2018 01/02/2019 01/03/2019
01/10/2019

Redaction Request due 1/2/2019. Redacted Transcript Deadline set for 1/12/2019. Release of Transcript Restriction set for 3/12/2019.(Griffith, Lisa) (Entered: 12/12/2018)
383 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 12/12/2018)
MINUTE ORDER GRANTING 383 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by January 14, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 12/12/2018. (lcjeb1) (Entered: 12/12/2018)
Set/Reset Deadlines: Proposed Briefing Schedule due by 2/22/2019. Responses due by 12/21/2018. Replies due by 1/2/2019. Administrative Record due by 1/31/2019. (znbn) (Entered: 12/14/2018)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 1/14/2019. (znbn) (Entered: 12/14/2018)
384 Unopposed MOTION to Amend/Correct 235 Protective Order, Order on Motion for Protective Order by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit A − Proposed Second Revised Protective Order)(Collins, Brian) (Entered: 12/19/2018)
385 NOTICE REGARDING NON−REMAND CLAIMS by OGLALA SIOUX TRIBE re Order,,,,,, (Roy, Michael) (Entered: 12/19/2018)
386 NOTICE REGARDING IDENTIFICATION OF CLAIMS by YANKTON SIOUX TRIBE (Baker, Jennifer) (Entered: 12/19/2018)
387 RESPONSE re 376 MOTION for Leave to File Amended Complaint filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Brar, Amarveer) (Entered: 12/21/2018)
388 Memorandum in opposition to re 376 MOTION for Leave to File Amended Complaint filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 12/21/2018)
389 RESPONSE re 377 MOTION for Leave to File Supplemental Complaint, 378 MOTION for Leave to File Supplemental Complaint, 371 MOTION for Leave to File Supplemental Complaint, 379 MOTION for Leave to File Supplemental Complaint filed by DAKOTA ACCESS LLC, UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 12/21/2018)
390 ORDER GRANTING Unopposed 384 Motion to Amend Protective Order. Signed by Judge James E. Boasberg on 12/26/2018. (lcjeb1) (Entered: 12/26/2018)
391 REPLY to opposition to motion re 376 MOTION for Leave to File Amended Complaint filed by OGLALA SIOUX TRIBE. (Attachments: # 1 Exhibit A)(Roy, Michael) (Entered: 01/02/2019)
MINUTE ORDER: As agreed by the parties, the Court ORDERS that Plaintiffs' [371, 377−79] Motions to Supplement are GRANTED, and the [371−1, 377−1, 378−1, 379−1] proposed Supplemental Complaints are deemed FILED. Such Order is without prejudice for Defendants to subsequently argue that such supplementation exceeded the scope of FRCP 15(d) or the topics in the Court's remand Order. So ORDERED by Judge James E. Boasberg on 1/3/2019. (lcjeb1) (Entered: 01/03/2019)
392 MEMORANDUM OPINION AND ORDER DENYING 376 Motion to Amend. Signed by Judge James E. Boasberg on 1/10/2019. (lcjeb1) (Entered: 01/10/2019)

01/14/2019 01/15/2019
01/15/2019 01/17/2019 01/17/2019 01/22/2019 01/22/2019 01/28/2019 01/29/2019 01/31/2019 01/31/2019
01/31/2019
02/04/2019 02/14/2019

393 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 01/14/2019)
MINUTE ORDER GRANTING 393 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by February 14, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 1/15/2019. (lcjeb1) (Entered: 01/15/2019)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 2/14/2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it (znbn) (Entered: 01/17/2019)
394 WITHDRAWN PURSUANT TO NOTICE FILED ON 1/28/2019..... MOTION to Stay due to lapse in appropriations by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben); Modified text on 1/29/2019 (tth). (Entered: 01/17/2019)
395 RESPONSE re 394 MOTION to Stay due to lapse in appropriations filed by CHEYENNE RIVER SIOUX TRIBE. (Ducheneaux, Nicole) (Entered: 01/17/2019)
MINUTE ORDER: Should any other Plaintiff oppose Defendant Corps' 394 Motion to Stay, the Court ORDERS that any opposition must be filed by January 24, 2019, with any Corps reply due by January 28, 2019. So ORDERED by Judge James E. Boasberg on 1/22/2019. (lcjeb3) (Entered: 01/22/2019)
Set/Reset Deadlines: Opposition due by 1/24/2019. Reply due by 1/28/2019. (znbn) (Entered: 01/24/2019)
396 MOTION to Withdraw 394 MOTION to Stay due to lapse in appropriations by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 01/28/2019)
MINUTE ORDER: The Court ORDERS that Defendant's 396 Motion to Withdraw is GRANTED, and its 394 Motion to Stay is WITHDRAWN. So ORDERED by Judge James E. Boasberg on 1/29/2019. (lcjeb1) (Entered: 01/29/2019)
397 Unopposed MOTION to Modify Schedule by UNITED STATES ARMY CORPS OF ENGINEERS (Schifman, Reuben) (Entered: 01/31/2019)
MINUTE ORDER: The Court ORDERS that Federal Defendants' Consent 397 Motion to Modify Schedule is GRANTED and that the following schedule shall govern proceedings: 1) Federal Defendants shall lodge the Administrative Record by February 4, 2019; 2) Any party shall file any challenge to the completeness of the Administrative Record by February 18, 2019; 3) Oppositions are due by February 28, 2019; 4) Replies are due by March 6, 2019; 5) If no challenge is filed to the completeness of the Administrative Record, the parties shall submit a joint proposed briefing schedule for summary judgment by February 25, 2019; and 6) If a challenge is filed, the parties shall submit such proposal within seven days of the Court's ruling on the challenge. So ORDERED by Judge James E. Boasberg on 1/31/2019. (lcjeb3) (Entered: 01/31/2019)
Set/Reset Deadlines: Federal Defendants Administrative Record due by 2/4/2019. Any party shall file any challenge to the completeness of the Administrative Record by 2/18/2019. Responses due by 2/28/2019 Replies due by 3/6/2019. If no challenge is filed to the completeness of the Administrative Record, the parties shall submit a Joint Proposed Briefing Schedule for summary judgment by 2/25/2019. (znbn) (Entered: 02/01/2019)
398 NOTICE of service of the administrative record by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit)(Schifman, Reuben) (Entered: 02/04/2019)
399 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 02/14/2019)

02/14/2019 02/14/2019
02/14/2019 02/15/2019
02/15/2019 02/27/2019
03/11/2019 03/11/2019 03/14/2019 03/14/2019
03/14/2019 03/18/2019 03/22/2019 03/22/2019

400 MOTION to Modify Schedule by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion to ModifySchedule)(Hasselman, Jan) (Entered: 02/14/2019)
MINUTE ORDER GRANTING 400 Motion to Modify Schedule. The Court ORDERS that the following schedule shall govern proceedings: 1) Any party shall file any challenge to the completeness of the Administrative Record by February 27, 2019; 2) Oppositions are due by March 11, 2019; 3) Replies are due by March 18, 2019; 4) If no challenge is filed to the completeness of the Administrative Record, the parties shall submit a joint proposed briefing schedule for summary judgment by March 6, 2019; and 5) If a challenge is filed, the parties shall submit such proposal within seven days of the Court's ruling on the challenge. So ORDERED by Judge James E. Boasberg on 2/14/2019. (lcjeb2) (Entered: 02/14/2019)
Set/Reset Deadlines: Any party shall file any challenge to the completeness of the Administrative Record by 2/27/2019. Joint Proposed Briefing Schedule due by 3/6/2019. Responses due by 3/11/2019. Replies due by 3/18/2019. (znbn) (Entered: 02/15/2019)
MINUTE ORDER GRANTING 399 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by March 14, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 2/15/2019. (lcjeb1) (Entered: 02/15/2019)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 3/14/2019 whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. (znbn) (Entered: 02/15/2019)
401 MOTION To Complete Administrative Record by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Declaration Declaration of Jan Hasselman in Support of Motion to Complete Administrative Record, # 2 Exhibit Exhibit 1 to Declaration of Jan Hasselman, # 3 Exhibit Exhibit 2 to Declaration of Jan Hasselman, # 4 Text of Proposed Order Proposed Order Granting Motion to Complete Administrative Record)(Hasselman, Jan) (Entered: 02/27/2019)
402 RESPONSE re 401 MOTION To Complete Administrative Record filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit 1)(Brar, Amarveer) (Entered: 03/11/2019)
403 Memorandum in opposition to re 401 MOTION To Complete Administrative Record filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/11/2019)
404 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 03/14/2019)
MINUTE ORDER GRANTING 404 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by April 15, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 3/14/2019. (lcjeb1) (Entered: 03/14/2019)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it by 4/15/2019. (znbn) (Entered: 03/15/2019)
405 REPLY to opposition to motion re 401 MOTION To Complete Administrative Record filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 03/18/2019)
406 JOINT APPENDIX OF REMAND ANALYSIS RECORD by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 03/22/2019)
407 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit

03/25/2019 03/25/2019 04/04/2019 04/15/2019 04/15/2019 04/15/2019
04/15/2019 04/15/2019
04/15/2019 04/15/2019 04/15/2019
04/15/2019 04/22/2019
05/08/2019

A−3, # 4 Exhibit A−4, # 5 Exhibit A−5, # 6 Exhibit A−6_Part 1, # 7 Exhibit A−6_Part 2, # 8 Exhibit A−7, # 9 Exhibit A−8, # 10 Exhibit A−9, # 11 Exhibit A−10_Part 1, # 12 Exhibit A−10_Part 2, # 13 Exhibit A−11, # 14 Exhibit A−12, # 15 Exhibit A−13, # 16 Exhibit A−14, # 17 Exhibit A−15, # 18 Exhibit A−16, # 19 Exhibit A−17, # 20 Exhibit A−18_Part 1, # 21 Exhibit A−18_Part 2, # 22 Exhibit A−19, # 23 Exhibit A−20, # 24 Exhibit A−21, # 25 Exhibit A−22, # 26 Text of Proposed Order)(Hasselman, Jan) (Entered: 03/22/2019)
408 NOTICE OF WITHDRAWAL OF APPEARANCE as to DAKOTA ACCESS LLC. Attorney Alan M. Glen terminated. (Attachments: # 1 Declaration of Kimberly H. Caine on behalf of Dakota Access, LLC Consenting to Withdrawal of Counsel)(Glen, Alan) (Entered: 03/25/2019)
409 SEALED DOCUMENT Exhibits A−1 through A−22 filed by STANDING ROCK SIOUX TRIBE. (See Docket Entry 407 to view documents.) (This document is SEALED and only available to authorized persons.) (ztth) (Entered: 03/26/2019)
410 NOTICE OF CHANGE OF FIRM NAME by YANKTON SIOUX TRIBE (Baker, Jennifer) (Entered: 04/04/2019)
411 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 04/15/2019)
412 NOTICE of Change of Address by Nicole E. Ducheneaux (Ducheneaux, Nicole) (Entered: 04/15/2019)
413 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Tracey A. Zephier, :Firm− Cheyenne River Sioux Tribe Attorney General, :Address− PO Box 590, Eagle Butte, SD 57625. Phone No. − 605−964−6686. Fax No. − 605−964−1160 Filing fee $ 100, receipt number 0090−6060857. Fee Status: Fee Paid. by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Ducheneaux, Nicole) (Entered: 04/15/2019)
MINUTE ORDER GRANTING 413 Motion for Admission Pro Hac Vice of TRACEY A. ZEPHIER. So ORDERED by Judge James E. Boasberg on 4/15/2019. (lcjeb1) (Entered: 04/15/2019)
MINUTE ORDER GRANTING 411 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by May 20, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 4/15/2019. (lcjeb1) (Entered: 04/15/2019)
414 NOTICE of Appearance by Patricia Ann Marks on behalf of CHEYENNE RIVER SIOUX TRIBE (Marks, Patricia) (Entered: 04/15/2019)
415 NOTICE OF NAME CHANGE by CHEYENNE RIVER SIOUX TRIBE (Marks, Patricia) (Entered: 04/15/2019)
416 MOTION for Removal of Counsel of Record by Patricia Ann Marks on behalf of CHEYENNE RIVER SIOUX TRIBE, Substituting for attorney Joseph V. Messineo and Nicole E. Ducheneaux (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Marks, Patricia); Modified event and text on 4/17/2019 (tth). (Entered: 04/15/2019)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it by 5/20/2019. (znbn) (Entered: 04/16/2019)
MINUTE ORDER GRANTING 416 Motion for Removal of Counsel of Record. The Court ORDERS that Nicole E. Ducheneaux and Joseph V. Messineo be removed as counsel of record for Intervenor−Plaintiff Cheyenne River Sioux Tribe and removed from all service lists. So ORDERED by Judge James E. Boasberg on 4/22/2019. (lcjeb1) (Entered: 04/22/2019)
417 ORDER GRANTING IN PART and DENYING IN PART Plaintiffs' 401 Motion to Complete the Administrative Record. The Court ORDERS that: 1) Plaintiffs shall,

05/08/2019 05/14/2019 05/14/2019 05/14/2019 05/16/2019 05/17/2019
05/20/2019 05/20/2019
05/20/2019 05/22/2019 05/22/2019 06/05/2019
06/05/2019 06/06/2019 06/06/2019 06/07/2019 06/11/2019

within fourteen days, file a Notice containing a list of sources substantively cited in the Remand Analysis to support a factual proposition; 2) Defendant shall, in the fourteen days thereafter, indicate which, if any, of those documents it objects to including in the record; and 3) Defendant shall, within fourteen days, submit an affidavit detailing its legal rationale for the redaction of the as−built drawings and the reasons, if any, that the information could not be revealed to Plaintiffs subject to the protective order. Signed by Judge James E. Boasberg on 5/8/2019. (lcjeb1) (Entered: 05/08/2019)
418 MEMORANDUM OPINION re 417 Order on Motion to Complete the Administrative Record. Signed by Judge James E. Boasberg on 5/8/2019. (lcjeb1) (Entered: 05/08/2019)
419 NOTICE of Appearance by Nicole E. Ducheneaux on behalf of CHEYENNE RIVER SIOUX TRIBE (Ducheneaux, Nicole) (Main Document 419 replaced on 5/15/2019) (ztth). (Entered: 05/14/2019)
420 NOTICE of Appearance by Joseph V. Messineo on behalf of CHEYENNE RIVER SIOUX TRIBE (Messineo, Joseph) (Entered: 05/14/2019)
421 MOTION to Strike by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration)(Ducheneaux, Nicole); Modified event and text on 5/15/2019 (tth). (Entered: 05/14/2019)
422 MOTION to Withdraw as Attorney , MOTION to Strike 421 MOTION to Strike by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Marks, Patricia) (Entered: 05/16/2019)
MINUTE ORDER: As it appears there is full agreement on representation for the Cheyenne River Sioux Tribe, the Court ORDERS that: 1) The 422 Motion to Withdraw is GRANTED; and 2) The 421 Motion to Strike is DENIED as moot. So ORDERED by Judge James E. Boasberg on 5/17/2019. (lcjeb1) (Entered: 05/17/2019)
423 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 05/20/2019)
MINUTE ORDER GRANTING 423 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by June 20, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 5/20/2019. (lcjeb1) (Entered: 05/20/2019)
Set/Reset Deadlines: Status Report due by 6/20/2019 (lsj) (Entered: 05/20/2019)
424 NOTICE of sources cited in the Remand Analysis for a factual proposition by OGLALA SIOUX TRIBE (Roy, Michael) (Entered: 05/22/2019)
425 NOTICE of Filing Pursuant to ECF 417 by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit One)(Brar, Amarveer) (Entered: 05/22/2019)
MINUTE ORDER: In light of the Corps' Notice and particularly paragraph 7 of the Casner Declaration (ECF No. 425−1), the Court ORDERS that the Corps shall provide the unredacted as−built drawings to the parties subject to the protective order. So ORDERED by Judge James E. Boasberg on 6/5/2019. (lcjeb1) (Entered: 06/05/2019)
426 RESPONSE re 424 Notice (Other) filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Brar, Amarveer) (Entered: 06/05/2019)
MINUTE ORDER: As Plaintiffs propose (ECF No. 424 at 3 n.2), the Court ORDERS that they may file a response to the Corps' response (ECF 426) by June 7, 2019. So ORDERED by Judge James E. Boasberg on 6/6/2019. (lcjeb1) (Entered: 06/06/2019)
Set/Reset Deadlines: Responses due by 6/7/2019. (znbn) (Entered: 06/06/2019)
427 RESPONSE re 426 Response to Document Plaintiffs' Notice of Additional Documents filed by OGLALA SIOUX TRIBE. (Roy, Michael) (Entered: 06/07/2019)
MINUTE ORDER: The parties have narrowed in their notices (ECF Nos. 424, 426, 427) their dispute regarding completion of the record to one category of documents.

06/18/2019 06/19/2019
06/19/2019
06/20/2019 06/20/2019 06/20/2019 06/26/2019 07/09/2019 07/22/2019 07/22/2019
07/22/2019 08/16/2019

Per its reasoning on pp. 7−8 of its Memorandum Opinion (ECF No. 418), the Court ORDERS that the documents cited in Table 2−2 of the Remand Analysis (ECF No. 407, at RAR 12) need not be added to the record. So ORDERED by Judge James E. Boasberg on 6/11/2019. (lcjeb1) (Entered: 06/11/2019)
428 STATUS REPORT AND JOINT PROPOSED BRIEFING SCHEDULE by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 06/18/2019)
MINUTE ORDER ADOPTING the parties' 428 Joint Status Report and Proposed Briefing Schedule. The Court ORDERS that: 1) the United States Army Corps of Engineers shall add additional documents to the administrative record by June 26, 2019; 2) Plaintiffs will file motions for summary judgment by August 16, 2019; 3) Defendant and intervenors will file cross−motions for summary judgment and oppositions to Plaintiffs motions by October 9, 2019; 4) Plaintiffs will file their oppositions to the cross−motions and replies in support of their summary judgment motions by October 30, 2019; and 5) Defendant and intervenors will file their replies by November 20, 2019. So ORDERED by Judge James E. Boasberg on 6/19/2019. (lcjeb1) (Entered: 06/19/2019)
Set/Reset Deadlines: United States Army Corps of Engineers shall add additional documents to the Administrative Record by 6/26/2019. Summary Judgment motions due by 8/16/2019. Response to Motion for Summary Judgment due by 10/9/2019. Cross Motions due by 10/9/2019. Reply to Motion for Summary Judgment due by 10/30/2019. Response to Cross Motions due by 10/30/2019. Reply to Cross Motions due by 11/20/2019. (znbn) (Entered: 06/19/2019)
429 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 06/20/2019)
MINUTE ORDER GRANTING 429 Motion to Extend Stay of Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by July 22, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 6/20/2019. (lcjeb1) (Entered: 06/20/2019)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by July 22, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it.(znbn) (Entered: 06/21/2019)
430 NOTICE of Addition of Documents to the Remand Administrative Record by UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Exhibit)(Schifman, Reuben) (Entered: 06/26/2019)
431 NOTICE of Change of Address by Michael L. Roy (Roy, Michael) (Entered: 07/09/2019)
432 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 07/22/2019)
MINUTE ORDER: The Court ORDERS that Defendant−Intervenor Dakota Access's 432 Motion to Extend Stay of Resolution of Motion to Compel Completion of Administrative Record is GRANTED. The Court further ORDERS that Dakota Access shall update the Court by August 22, 2019, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 7/22/2019. (lcjeb3) (Entered: 07/22/2019)
Set/Reset Deadlines: Dakota Access shall update the Court whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it by 8/22/2019. (znbn) (Entered: 07/22/2019)
433 MOTION for Summary Judgment on Remand by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order Granting Plaintiff Standing Rock Sioux Tribe's Motion for Summary Judgment on Remand, # 2 Memorandum in Support of Standing Rock Sioux Tribe's Motion for Summary Judgment on Remand, # 3 Declaration of Jon Eagle, Sr. in Support of Plaintiff Standing Rock Sioux Tribe's Motion for Summary Judgment on Remand)(Hasselman, Jan) (Entered: 08/16/2019)

08/16/2019
08/16/2019 08/16/2019 08/16/2019 08/22/2019 08/23/2019 08/23/2019 08/23/2019
08/23/2019
08/26/2019 08/26/2019 08/26/2019

434 MOTION for Partial Summary Judgment by OGLALA SIOUX TRIBE (Attachments: # 1 Text of Proposed Order granting Oglala Sioux tribe's motion for partial summary judgment, # 2 Memorandum in Support of Oglala Sioux tribe's motion for partial summary judgment, # 3 Declaration of Michael L. Roy in support of Oglala Sioux Tribe's motion for partial summary judgment, # 4 Exhibit A)(Roy, Michael) (Entered: 08/16/2019)
MINUTE ORDER: The Court ORDERS that no other brief may exceed the page limits set forth in the Local Rules. So ORDERED by Judge James E. Boasberg on 08/16/2019. (lcjeb1) (Entered: 08/16/2019)
435 MOTION for Summary Judgment by ROBERT FLYING HAWK, YANKTON SIOUX TRIBE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Baker, Jennifer) (Entered: 08/16/2019)
436 MOTION for Summary Judgment by CHEYENNE RIVER SIOUX TRIBE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Ducheneaux, Nicole). Added MOTION for Joinder on 8/19/2019 (tth). (Entered: 08/16/2019)
437 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 08/22/2019)
MINUTE ORDER GRANTING Defendant's 437 Motion to Stay. The Court ORDERS that Defendant Dakota Access, LLC shall update the Court by September 23, 2019. So ORDERED by Judge James E. Boasberg on 08/23/2019. (lcjeb2) (Entered: 08/23/2019)
Set/Reset Deadlines: Defendant Dakota Access, LLC shall update the Court by 9/23/2019. (znbn) (Entered: 08/23/2019)
438 NOTICE of Appearance by Michael R. Sklaire on behalf of Big Valley Band of Pomo Indians of the Big Valley Rancheria, Confederated Tribes of the Umatilla Indian Reservation, Fort Belknap Indian Community, Hoonah Indian Association, Miccosukee Tribe of Indians of Florida, Nez Perce Tribe, Pascua Yaqui Tribe, Ramapough Lenape Nation, Red Cliff Band of Lake Superior Chippewa Indians, Rosebud Sioux Tribe, San Carlos Apache Tribe, Seneca Nation, Swinomish Indian Tribal Community, Wampanoag Tribe of Gay Head (Aquinnah) (Sklaire, Michael) (Entered: 08/23/2019)
439 MOTION for Leave to File TO FILE AMICI CURIAE BRIEF by Big Valley Band of Pomo Indians of the Big Valley Rancheria, Confederated Tribes of the Umatilla Indian Reservation, Fort Belknap Indian Community, Hoonah Indian Association, Miccosukee Tribe of Indians of Florida, Nez Perce Tribe, Pascua Yaqui Tribe, Ramapough Lenape Nation, Red Cliff Band of Lake Superior Chippewa Indians, Rosebud Sioux Tribe, San Carlos Apache Tribe, Seneca Nation, Swinomish Indian Tribal Community, Wampanoag Tribe of Gay Head (Aquinnah) (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Sklaire, Michael) (Entered: 08/23/2019)
440 Memorandum in opposition to re 439 MOTION for Leave to File TO FILE AMICI CURIAE BRIEF filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 08/26/2019)
MINUTE ORDER: The Court ORDERS that Amici's 439 Motion is GRANTED, and their Brief is deemed FILED. So ORDERED by Judge James E. Boasberg on 08/26/2019. (lcjeb1) (Entered: 08/26/2019)
441 AMICUS BRIEF by BIG VALLEY BAND OF POMO INDIANS OF THE BIG VALLEY RANCHERIA, CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION, FORT BELKNAP INDIAN COMMUNITY, HOONAH INDIAN ASSOCIATION, MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, NEZ PERCE TRIBE, RAMAPOUGH LENAPE NATION, RED CLIFF BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, ROSEBUD SIOUX TRIBE, SAN CARLOS APACHE TRIBE, SENECA NATION, SWINOMISH INDIAN TRIBAL COMMUNITY, WAMPANOAG TRIBE OF GAY HEAD, (AQUINNAH), ASSOCIATION OF AMERICAN INDIAN AFFAIRS, AMERICANS FOR INDIAN OPPORTUNITY, INDIAN LAW RESOURCE CENTER, TRIBAL LAW AND

09/16/2019 09/23/2019 09/23/2019
09/23/2019 10/08/2019 10/09/2019
10/09/2019 10/09/2019
10/09/2019 10/09/2019 10/09/2019 10/09/2019 10/09/2019 10/09/2019 10/09/2019 10/09/2019 10/09/2019

POLICY INSTITUTE. (tth); Modified text and filers on 8/29/2019 (ztth). (Entered: 08/29/2019)
442 NOTICE OF WITHDRAWAL OF APPEARANCE as to CHEYENNE RIVER SIOUX TRIBE, STEVE VANCE. Attorney Joseph V. Messineo terminated. (Messineo, Joseph) (Entered: 09/16/2019)
443 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 09/23/2019)
MINUTE ORDER GRANTING Defendant's 443 Motion to Stay. The Court ORDERS that Defendant Dakota Access, LLC shall update the Court by October 23, 2019. So ORDERED by Judge James E. Boasberg on 09/23/2019. (lcjeb1) (Entered: 09/23/2019)
Set/Reset Deadlines: Defendant Dakota Access, LLC shall update the Court by 10/23/2019. (znbn) (Entered: 09/23/2019)
444 Unopposed MOTION for Leave to File Excess Pages by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 10/08/2019)
MINUTE ORDER GRANTING Defendant Dakota Access, LLC's 444 Motion for Leave to File Excess Pages. The Court ORDERS that Defendant shall file a memorandum of law in opposition to Paintiffs' motion for summary judgment and in support of its cross−motion for summary judgment of no more than 70 pages. So ORDERED by Judge James E. Boasberg on 10/9/2019. (lcjeb1) (Entered: 10/09/2019)
445 Cross MOTION for Summary Judgment against Cheyenne River Sioux Tribe by UNITED STATES ARMY CORPS OF ENGINEERS (Zilioli, Erica) (Entered: 10/09/2019)
446 Memorandum in opposition to re 436 MOTION for Summary Judgment MOTION for Joinder and Memorandum in Support of Cross−Motion for Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Zilioli, Erica) (Entered: 10/09/2019)
447 Cross MOTION for Summary Judgment against Yankton Sioux Tribe by UNITED STATES ARMY CORPS OF ENGINEERS (Zilioli, Erica) (Entered: 10/09/2019)
448 Memorandum in opposition to re 435 MOTION for Summary Judgment and Memorandum in Support of Cross−Motion for Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Zilioli, Erica) (Entered: 10/09/2019)
449 Cross MOTION for Summary Judgment against Oglala Sioux Tribe by UNITED STATES ARMY CORPS OF ENGINEERS (Zilioli, Erica) (Entered: 10/09/2019)
450 Memorandum in opposition to re 434 MOTION for Partial Summary Judgment and Memorandum in Support of Cross−Motion for Summary Judgment filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Zilioli, Erica) (Entered: 10/09/2019)
451 CROSS MOTION for Summary Judgment by UNITED STATES ARMY CORPS OF ENGINEERS. (ztth) (Entered: 10/10/2019)
452 Memorandum in opposition to re 433 MOTION for Summary Judgment on Remand filed by UNITED STATES ARMY CORPS OF ENGINEERS. (ztth) (Entered: 10/10/2019)
453 ENTERED IN ERROR.....CROSS MOTION for Summary Judgment by DAKOTA ACCESS LLC. (Attachments: # 1 Memorandum in Support, # 2 Declaration) (ztth); Modified on 10/10/2019 (ztth). (Entered: 10/10/2019)
454 ENTERED IN ERROR.....Memorandum in opposition to re 433 MOTION for Summary Judgment on Remand filed by DAKOTA ACCESS LLC. (See Docket Entry 453 to view document). (ztth); Modified on 10/10/2019 (ztth). (Entered: 10/10/2019)
455 Cross MOTION for Summary Judgment by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) Modified on 10/10/2019 to correct filing date (ztth). (Entered: 10/10/2019)

10/09/2019
10/10/2019 10/16/2019 10/17/2019
10/17/2019
10/23/2019 10/24/2019 10/24/2019 10/30/2019 10/30/2019 10/30/2019 10/30/2019 10/30/2019 10/30/2019 10/30/2019

456 Memorandum in opposition to re 433 MOTION for Summary Judgment on Remand, 434 MOTION for Partial Summary Judgment , 436 MOTION for Summary Judgment MOTION for Joinder, 435 MOTION for Summary Judgment and Memorandum in Support of Cross−Motion for Summary Judgment filed by DAKOTA ACCESS LLC. (Attachments: # 1 Declaration of William S. Scherman)(Scherman, William); Modified on 10/10/2019 to correct filing date (ztth). (Entered: 10/10/2019)
NOTICE OF CORRECTED DOCKET ENTRY: re 453 MOTION for Summary Judgment, 454 Memorandum in Opposition was entered in error. Said pleadings were filed by counsel as Docket Entries 455 and 456 . (ztth) (Entered: 10/10/2019)
457 MOTION for Leave to File Excess Pages and to Refile Brief by U.S. ARMY CORPS OF ENGINEERS, UNITED STATES ARMY CORPS OF ENGINEERS (Attachments: # 1 Text of Proposed Order)(Marinelli, Matthew). Added MOTION for Leave to File on 10/17/2019 (znmw). (Entered: 10/16/2019)
MINUTE ORDER GRANTING Defendant U.S. Army Corps of Engineers' 457 Motion for Leave to File Excess Pages. The Court ORDERS that Defendant U.S. Army Corps of Engineers shall re−file a memorandum of law in opposition to Paintiffs' motion for summary judgment and in support of its cross−motion for summary judgment of no more than 50 pages. So ORDERED by Judge James E. Boasberg on 10/17/2019. (Entered: 10/17/2019)
458 SUPPLEMENTAL MEMORANDUM re 455 Cross MOTION for Summary Judgment on Remand, 456 Memorandum in opposition to re 433 MOTION for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS, UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) Modified event title and link on 10/18/2019 (znmw). (Entered: 10/17/2019)
459 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 10/23/2019)
MINUTE ORDER GRANTING Defendant's 459 Motion to Stay. The Court ORDERS that Defendant Dakota Access, LLC shall update the Court by November 25, 2019. So ORDERED by Judge James E. Boasberg on 10/24/2019. (lcjeb1) (Entered: 10/24/2019)
Set/Reset Deadlines: Defendant Dakota Access, LLC shall update the Court by 11/25/2019. (nbn) (Entered: 10/24/2019)
460 Memorandum in opposition to re 455 Cross MOTION for Summary Judgment , 449 Cross MOTION for Summary Judgment against Oglala Sioux Tribe filed by OGLALA SIOUX TRIBE. (Roy, Michael) (Entered: 10/30/2019)
461 REPLY to opposition to motion re 434 MOTION for Partial Summary Judgment filed by OGLALA SIOUX TRIBE. (Roy, Michael) (Entered: 10/30/2019)
462 MOTION for Extension of Time to File Response/Reply as to 447 Cross MOTION for Summary Judgment against Yankton Sioux Tribe, 455 Cross MOTION for Summary Judgment , 435 MOTION for Summary Judgment by YANKTON SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Baker, Jennifer) (Entered: 10/30/2019)
463 REPLY to opposition to motion re 445 Cross MOTION for Summary Judgment against Cheyenne River Sioux Tribe filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration)(Ducheneaux, Nicole) (Entered: 10/30/2019)
464 RESPONSE re 445 Cross MOTION for Summary Judgment against Cheyenne River Sioux Tribe filed by CHEYENNE RIVER SIOUX TRIBE. (Attachments: # 1 Declaration)(Ducheneaux, Nicole) (Entered: 10/30/2019)
465 RESPONSE re 455 Cross MOTION for Summary Judgment , 451 MOTION for Summary Judgment filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 10/30/2019)
466 REPLY to opposition to motion re 433 MOTION for Summary Judgment on Remand filed by STANDING ROCK SIOUX TRIBE. (Hasselman, Jan) (Entered: 10/30/2019)

10/31/2019
10/31/2019
11/04/2019 11/04/2019 11/07/2019 11/14/2019 11/20/2019 11/20/2019 11/20/2019 11/22/2019 11/22/2019 11/22/2019
11/25/2019 11/25/2019

MINUTE ORDER GRANTING Consent 462 Motion for Extension of Time. The Court ORDERS that 1) Plaintiff Yankton Sioux Tribe shall file its reply in support of its motion for summary judgment and its response in opposition to Defendant's motion for summary judgment by November 4, 2019; 2) Defendant U.S. Army Corps of Engineers shall file its reply by November 22, 2019; and 3) Defendant−Intervenor Dakota Access shall files its reply by November 25, 2019. So ORDERED by Judge James E. Boasberg on 10/31/2019. (lcjeb1) (Entered: 10/31/2019)
Set/Reset Deadlines: Plaintiff Yankton Sioux Tribe shall file its reply in support of its motion for summary judgment and its response in opposition to Defendant's motion for summary judgment by 11/4/19. Defendant U.S. Army Corps of Engineers shall file its reply by 11/22/19. Defendant−Intervenor Dakota Access shall files its reply by 11/25/19. (znbn) (Entered: 11/01/2019)
467 RESPONSE re 447 Cross MOTION for Summary Judgment against Yankton Sioux Tribe, 455 Cross MOTION for Summary Judgment , 435 MOTION for Summary Judgment filed by YANKTON SIOUX TRIBE, ROBERT FLYING HAWK. (Baker, Jennifer); Modified to add filer on 11/7/2019 (ztth). (Entered: 11/04/2019)
468 REPLY to opposition to motion re 435 MOTION for Summary Judgment filed by YANKTON SOUX TRIBE and ROBERT FLYING HAWK. (See Docket Entry 467 to view document) (ztth) Modified text to add Yankton as a filer on 11/7/2019 (ztd). (Entered: 11/07/2019)
469 NOTICE of Change of Address by Jan Hasselman (Hasselman, Jan) (Entered: 11/07/2019)
470 NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES ARMY CORPS OF ENGINEERS. Attorney Amarveer Singh Brar terminated. (Brar, Amarveer) (Entered: 11/14/2019)
471 REPLY to opposition to motion re 445 Cross MOTION for Summary Judgment against Cheyenne River Sioux Tribe filed by U.S. ARMY CORPS OF ENGINEERS, UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 11/20/2019)
472 REPLY to opposition to motion re 449 Cross MOTION for Summary Judgment against Oglala Sioux Tribe filed by U.S. ARMY CORPS OF ENGINEERS, UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 11/20/2019)
473 REPLY to opposition to motion re 451 MOTION for Summary Judgment against Standing Rock Sioux Tribe filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 11/20/2019)
474 Unopposed MOTION for Leave to File Excess Pages by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 11/22/2019)
475 REPLY to opposition to motion re 447 Cross MOTION for Summary Judgment against Yankton Sioux Tribe filed by U.S. ARMY CORPS OF ENGINEERS, UNITED STATES ARMY CORPS OF ENGINEERS. (Marinelli, Matthew) (Entered: 11/22/2019)
476 MOTION for Leave to File Sur−Rely Brief by OGLALA SIOUX TRIBE (Attachments: # 1 Sur−Reply Brief, # 2 Declaration of Michael L. Roy in support of Oglala Sioux Tribe's Sur−Reply Brief, # 3 Exhibit A to Michael Roy Declaration, # 4 Exhibit B to Michael Roy Declaration, # 5 Exhibit C to Michael Roy Declaration, # 6 Text of Proposed Order granting motion for leave to file Sur−Reply)(Roy, Michael) (Entered: 11/22/2019)
MINUTE ORDER: The Court GRANTS Defendant Dakota Access, LLC's 474 Motion for Leave to File Excess Pages and ORDERS that Dakota Access shall file a Reply of no more than 35 pages. So ORDERED by Judge James E. Boasberg on 11/25/2019. (lcjeb1) (Entered: 11/25/2019)
MINUTE ORDER: The Court GRANTS Plaintiff Oglala Sioux Tribe's 476 Motion for Leave to File a Sur−Reply and ORDERS that its Sur−Reply is deemed FILED. So ORDERED by Judge James E. Boasberg on 11/25/2019. (lcla) (Entered: 11/25/2019)

11/25/2019 11/25/2019 11/25/2019 11/25/2019 12/05/2019 12/06/2019 12/06/2019 12/13/2019
12/16/2019 12/16/2019
12/16/2019 12/16/2019 12/23/2019 12/28/2019

477 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 11/25/2019)
MINUTE ORDER GRANTING Defendant's 477 Motion to Stay. The Court ORDERS that Defendant Dakota Access, LLC shall update the Court by December 23, 2019. So ORDERED by Judge James E. Boasberg on 11/25/2019. (lcjeb1) (Entered: 11/25/2019)
478 REPLY to opposition to motion re 455 Cross MOTION for Summary Judgment filed by DAKOTA ACCESS LLC. (Scherman, William) Modified date filed due to technical cmecf issues on the evening of 11/25/19 on 11/26/2019 (ztd). (Entered: 11/26/2019)
480 SURREPLY to re 451 MOTION for Summary Judgment filed by OGLALA SIOUX TRIBE. (Attachments: # 1 Declaration A, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (ztth) (Entered: 12/06/2019)
479 MOTION for Extension of Time to File Administrative Record Appendix by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order Granting Plaintiff Standing Rock Sioux Tribe's Motion for Extension of Time to File Administrative Record Appendix)(Hasselman, Jan) (Entered: 12/05/2019)
MINUTE ORDER: The Court GRANTS Plaintiff Standing Rock Sioux Tribe's 479 Motion for Extension of Time to File and ORDERS that Plaintiff shall file the Administrative Record Appendix by December 13, 2019. So ORDERED by Judge James E. Boasberg on 12/6/2019. (lcjeb1) (Entered: 12/06/2019)
Set/Reset Deadlines: Administrative Record due by 12/13/2019. Appendix due by 12/13/2019. (nbn) (Entered: 12/06/2019)
481 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by STANDING ROCK SIOUX TRIBE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A Part 1 of 4 (UNDER SEAL), # 3 Exhibit A Part 2 of 4 (UNDER SEAL), # 4 Exhibit A Part 3 of 4 (UNDER SEAL), # 5 Exhibit A Part 4 of 4 (UNDER SEAL))(Hasselman, Jan) (Entered: 12/13/2019)
MINUTE ORDER: The Court ORDERS that Plaintiff Standing Rock Sioux Tribe's 481 Sealed Motion for Leave to File Document Under Seal is GRANTED. So ORDERED by Judge James E. Boasberg on 12/16/2019. (lcjeb1) (Entered: 12/16/2019)
482 JOINT APPENDIX of Remand Administrative Record by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Appendix Volume 1, # 2 Appendix Volume 2, # 3 Appendix Volume 3, # 4 Appendix Volume 4, # 5 Appendix Volume 5, # 6 Appendix Volume 6, # 7 Appendix Volume 7, # 8 Appendix Volume 8, # 9 Appendix Volume 9, # 10 Appendix Volume 10)(Hasselman, Jan) (Entered: 12/16/2019)
483 JOINT APPENDIX Volume 11 by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Appendix Volume 11)(Hasselman, Jan) (Entered: 12/16/2019)
484 SEALED DOCUMENT − Exhibit A Part 1 of 4 filed by STANDING ROCK SIOUX TRIBE. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A Part 2 of 4, # 2 Exhibit A Part 3 of 4, # 3 Exhibit A Part 4 of 4) (ztth) (Entered: 12/20/2019)
485 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 12/23/2019)
MINUTE ORDER: The Court GRANTS 485 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by January 23, 2020, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 12/28/2019. (lcjeb1) (Entered: 12/28/2019)

12/30/2019 01/23/2020 01/23/2020
01/23/2020 01/28/2020
01/28/2020 01/29/2020 01/30/2020
01/30/2020 02/24/2020 02/24/2020
02/24/2020 03/09/2020 03/10/2020
03/13/2020 03/13/2020

Set/Reset Deadlines: Dakota Access, LLC To Update The Court due by 1/23/2020. (mac) (Entered: 12/30/2019)
486 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 01/23/2020)
MINUTE ORDER: The Court GRANTS Dakota Access, LLC's 486 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by February 24, 2020, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 1/23/2020 (lcjeb1) (Entered: 01/23/2020)
Set/Reset Deadlines: Dakota Access, LLC's Status Report due by 2/24/2020 (lsj) (Entered: 01/23/2020)
MINUTE ORDER: The Court ORDERS that the parties shall appear for oral argument on the pending Motions for Summary Judgment on February 21, 2020, at 11:00 a.m. So ORDERED by Judge James E. Boasberg on 1/28/2020. (lcjeb2) (Entered: 01/28/2020)
Set/Reset Hearings: Motion Hearing set for 2/21/2020 at 11:00 AM in Courtroom 25A before Judge James E. Boasberg. (nbn) (Entered: 01/28/2020)
487 Unopposed MOTION to Continue Reschedule Oral Argument by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order)(Hasselman, Jan) Modified event title on 1/30/2020 (znmw). (Entered: 01/29/2020)
MINUTE ORDER GRANTING Plaintiff's 487 Motion for Extension of Time. The Court ORDERS that the hearing currently set for February 21, 2020, at 11:00 a.m. is VACATED and RESET for March 18, 2020, at 11:00 a.m. So ORDERED by Judge James E. Boasberg on 1/30/2020. (lcjeb2) (Entered: 01/30/2020)
Set/Reset Hearings: Motion Hearing set for 3/18/2020 at 11:00 AM in Courtroom 25A before Judge James E. Boasberg. (nbn) (Entered: 01/31/2020)
488 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 02/24/2020)
MINUTE ORDER GRANTING Defendant−Intervenor's 488 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access shall update the Court by March 24, 2020. So ORDERED by Judge James E. Boasberg on 2/24/2020.(lcjeb2) (Entered: 02/24/2020)
Set/Reset Deadlines: Dakota Access shall update the Court by 3/24/2020. (nbn) (Entered: 02/24/2020)
489 MOTION to Clarify Oral Argument on Summary Judgment Motions by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 03/09/2020)
MINUTE ORDER: The Court ORDERS that the parties shall focus their oral argument on the issue of "highly controversial" under the NEPA regulations. The Court further ORDERS that the 489 Motion to Clarify is GRANTED inasmuch as the Court expects to conclude argument by 12:30 p.m. So ORDERED by Judge James E. Boasberg on 3/10/2020. (lcjeb2) (Entered: 03/10/2020)
490 MOTION for Leave to Appear by Telephone by STANDING ROCK SIOUX TRIBE (Attachments: # 1 Text of Proposed Order Granting Motion to Conduct Hearing Telephonically)(Hasselman, Jan) (Entered: 03/13/2020)
MINUTE ORDER: The Court ORDERS that Plaintiffs' 490 Motion for Telephonic Hearing is GRANTED, and all parties shall appear via telephone. The Court will determine if audio can be made publicly available. So ORDERED by Judge James E. Boasberg on 3/13/2020. (lcjeb2) (Entered: 03/13/2020)

03/13/2020 03/17/2020 03/18/2020 03/19/2020 03/20/2020 03/24/2020 03/24/2020
03/24/2020 03/25/2020
03/25/2020 03/25/2020 03/26/2020 03/27/2020
03/27/2020 04/20/2020

491 Memorandum in opposition to re 490 MOTION for Leave to Appear by Telephone filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/13/2020)
MINUTE ORDER: The Court ORDERS that given the complexity and importance of this matter, as well as the fact that all parties are appearing telephonically, the hearing set for March 18, 2020, shall proceed as scheduled. So ORDERED by Judge James E. Boasberg on 3/17/2020. (lcjeb2) (Entered: 03/17/2020)
Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 3/18/2020. Oral argument heard on the pending Motions for Summary Judgment. Motions taken under advisement. Opinion forthcoming. (Court Reporter Lisa Griffith) (nbn) (Entered: 03/18/2020)
492 NOTICE of Filing by STANDING ROCK SIOUX TRIBE (Hasselman, Jan) (Entered: 03/19/2020)
493 RESPONSE re 492 Notice (Other) of Filing filed by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 03/20/2020)
494 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 03/24/2020)
MINUTE ORDER: The Court GRANTS Dakota Access, LLC's 494 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by April 24, 2020, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 3/24/2020. (lcjeb1) (Entered: 03/24/2020)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 4/24/2020. (nbn) (Entered: 03/24/2020)
495 ORDER GRANTING IN PART AND DENYING IN PART the parties' [433, 434, 435, 436, 445, 447, 449, 451, 455] Motions for Summary Judgment. The Court ORDERS that: 1) Defendant and Defendant−Intervenor shall submit briefing on remedy by April 8, 2020; 2) Plaintiffs and Plaintiff−Intervenor shall submit their responses by April 15, 2020; and 3) Defendant and Defendant−Intervenor shall submit their replies by April 22, 2020. Signed by Judge James E. Boasberg on 3/25/2020. (lcmg) (Entered: 03/25/2020)
496 MEMORANDUM OPINION re 495 Order on Motions for Summary Judgment. Signed by Judge James E. Boasberg on 3/25/2020. (lcjeb2) (Entered: 03/25/2020)
Set/Reset Deadlines: Brief due by 4/8/2020. Responses due by 4/15/2020. Replies due by 4/22/2020. (znbn) (Entered: 03/26/2020)
497 MOTION for Extension of Time to File Opening Remedy Brief by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 03/26/2020)
MINUTE ORDER GRANTING Intervenor Defendant's 497 Motion for Extension of Time. The Court ORDERS that: 1) Dakota Access and Defendant Army Corps of Engineers shall file their opening remedy briefs on April 29, 2020; 2) Plaintiffs shall file their briefs in response on May 20, 2020; and 3) Dakota Access and the Corps' shall file their reply briefs by May 27, 2020. So ORDERED by Judge James E. Boasberg on 3/27/2020. (lcjeb3) (Entered: 03/27/2020)
Set/Reset Deadlines: Opening Remedy Brief due 4/29/2020. Response Brief due 5/20/2020. Reply Brief due 5/27/2020. (nbn) (Entered: 03/27/2020)
498 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 3/18/2020; Page Numbers: 1−48. Date of Issuance:4/20/2020. Court Reporter/Transcriber Lisa Griffith, Telephone number 202−354−3247, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above . After 90 days, the transcript may be accessed via PACER. Other transcript formats,

(multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

04/24/2020 04/27/2020
04/27/2020 04/29/2020 04/29/2020 04/29/2020 04/29/2020
04/29/2020
04/29/2020
04/29/2020 04/29/2020 04/29/2020

Redaction Request due 5/11/2020. Redacted Transcript Deadline set for 5/21/2020. Release of Transcript Restriction set for 7/19/2020.(Griffith, Lisa) (Entered: 04/20/2020)
499 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 04/24/2020)
MINUTE ORDER: The Court GRANTS Dakota Access, LLC's 499 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by May 22, 2020, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 4/27/2020. (lcjeb1) (Entered: 04/27/2020)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 5/22/2020. (nbn) (Entered: 04/27/2020)
500 NOTICE of Appearance by Matthew A. Sagsveen on behalf of STATE OF NORTH DAKOTA, STATE OF NORTH DAKOTA (Sagsveen, Matthew) (Entered: 04/29/2020)
501 MOTION for Leave to File Amicus Curiae Brief by HESS CORPORATION (Attachments: # 1 Text of Proposed Order (Exhibit 1), # 2 Exhibit 2 − Amicus Curiae Brief, # 3 Exhibit 3 − B. Lohnes Declaration)(Naresh, Ragan) (Entered: 04/29/2020)
502 MOTION for Leave to File Amicus Curiae Brief by CONSUMER ENERGY ALLIANCE (Attachments: # 1 Amicus Curiae Brief, # 2 Text of Proposed Order)(Miller, Amy) (Entered: 04/29/2020)
503 MOTION for Leave to File Amicus Curiae Brief by NORTH DAKOTA PETROLEUM COUNCIL (Attachments: # 1 Exhibit Brief of Amicus Curiae North Dakota Petroleum Council in Opposition to Vacatur on Remand, # 2 Exhibit Order Granting the North Dakota Petroleum Council's Motion for Leave to File Brief in Opposition to Vacatur on Remand, # 3 Exhibit Corporate Disclosure Certification)(Snell, Grant) (Entered: 04/29/2020)
504 AMICUS BRIEF re 495 Order on Motion for Summary Judgment,, Order on Motion for Partial Summary Judgment by STATE OF NORTH DAKOTA. (Attachments: # 1 Exhibit Ex. A − Affidavit of Joe Morrissette, # 2 Exhibit Ex. B Ex. B − Affidavit of Lynn Helms, # 3 Exhibit Ex. C − Affidavit of Justin Kringstad, # 4 Exhibit Ex. D − Affidavit of Ryan Rauschenberger)(Sagsveen, Matthew); Modified event and text on 4/30/2020 (ztth). (Entered: 04/29/2020)
505 MOTION for Leave to File Amici Curiae Brief by North Dakota Farm Bureau, North Dakota Grain Dealers Association, North Dakota Grain Growers Association, South Dakota Corn Growers Association, South Dakota Farm Bureau Federation, South Dakota Soybean Association (Attachments: # 1 Exhibit Proposed Amici Brief, # 2 Exhibit Proposed Order)(Dec, Adam) (Entered: 04/29/2020)
506 NOTICE of Appearance by Amy Miller on behalf of CONSUMER ENERGY ALLIANCE (Miller, Amy) (Entered: 04/29/2020)
507 MEMORANDUM by UNITED STATES ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Schifman, Reuben) (Entered: 04/29/2020)
508 MOTION for Leave to File Amici Curiae Brief by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF OIL PIPE LINES (Attachments: # 1 Exhibit A −

04/29/2020
04/29/2020 04/30/2020 04/30/2020
04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020
04/30/2020 04/30/2020 05/01/2020 05/01/2020

Amici Curiae Brief, # 2 Declaration of David Murk, # 3 Text of Proposed Order)(Coburn, David) (Entered: 04/29/2020)
509 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DAKOTA ACCESS LLC (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Brief Regarding Remedy, # 2 Scherman Declaration, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K)(Scherman, William) (Entered: 04/29/2020)
510 REDACTED DOCUMENT − by DAKOTA ACCESS LLC. (Scherman, William); Modified event and text on 4/30/2020 (ztth). (Entered: 04/29/2020)
MINUTE ORDER: The Court ORDERS that the 501 Motion of the Hess Corporation for Leave to File Brief as Amicus Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 4/30/2020. (lcjeb1) (Entered: 04/30/2020)
MINUTE ORDER: The Court ORDERS that Amicus's 502 Motion is DENIED WITHOUT PREJUDICE for violating the Court's Local Rule on excessive footnotes. Amicus may seek to refile with a brief containing no more than 10 footnotes with 50 aggregate lines of text. So ORDERED by Judge James E. Boasberg on 4/30/2020. (lcjeb1) (Entered: 04/30/2020)
MINUTE ORDER: The Court ORDERS that the 503 Motion of the North Dakota Petroleum Council for Leave to File Brief as Amicus Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 4/30/2020. (lcjeb1) (Entered: 04/30/2020)
MINUTE ORDER: The Court ORDERS that the 505 Motion of the North Dakota Farm Bureau, et al., for Leave to File Brief as Amici Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 4/30/2020. (lcjeb1) (Entered: 04/30/2020)
MINUTE ORDER: The Court ORDERS that the 508 Motion of the American Fuel & Petrochemical Manufacturers, et al., for Leave to File Brief as Amici Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 4/30/2020. (lcjeb1) (Entered: 04/30/2020)
511 Amended MOTION for Leave to File Amicus Curiae Brief by CONSUMER ENERGY ALLIANCE (Attachments: # 1 Text of Proposed Order, # 2 Amicus Curiae Brief)(Miller, Amy) (Entered: 04/30/2020)
512 NOTICE of Filing on the Public Docket Certain Documents Previously Filed Under Seal by DAKOTA ACCESS LLC (Attachments: # 1 Scherman Declaration, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit H, # 6 Exhibit I)(Scherman, William) (Entered: 04/30/2020)
515 AMICUS BRIEF by HESS CORPORATION. (Attachment: # 1 Declaration) (ztth) (Entered: 05/04/2020)
516 AMICUS BRIEF by NORTH DAKOTA FARM BUREAU, NORTH DAKOTA GRAIN DEALERS ASSOCIATION, NORTH DAKOTA GRAIN GROWERS ASSOCIATION, SOUTH DAKOTA CORN GROWERS ASSOCIATION, SOUTH DAKOTA FARM BUREAU FEDERATION, SOUTH DAKOTA SOYBEAN ASSOCIATION. (ztth) (Entered: 05/04/2020)
517 AMICUS BRIEF by AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS, AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF OIL PIPE LINES. (Attachment: # 1 Declaration) (ztth) (Entered: 05/04/2020)
519 AMICUS BRIEF by NORTH DAKOTA PETROLEUM COUNCIL (ztth); (Main Document 519 replaced on 5/5/2020) (ztth). Modified filer and text on 5/5/2020 (ztth). (Entered: 05/05/2020)
MINUTE ORDER: The Court ORDERS that the 511 Motion of the Consumer Energy Alliance for Leave to File Brief as Amicus Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 5/1/2020. (lcjeb1) (Entered: 05/01/2020)
513 NOTICE of Appearance by Thomas Molnar Fisher on behalf of States of Indiana, Montana, Alabama, Arkansas, Iowa, Kansas, Kentucky, Louisiana, Nebraska, Ohio, South Dakota, Texas, Utah and West Virginia (Fisher, Thomas) (Entered: 05/01/2020)

05/01/2020 05/01/2020 05/07/2020 05/20/2020 05/20/2020
05/20/2020 05/20/2020 05/20/2020
05/20/2020
05/20/2020 05/20/2020 05/20/2020 05/21/2020 05/21/2020

514 AMICUS BRIEF by States of Indiana, Montana, Alabama, Arkansas, Iowa, Kansas, Kentucky, Louisiana, Nebraska, Ohio, South Dakota, Texas, Utah and West Virginia. (Fisher, Thomas); Modified text and event on 5/4/2020 (ztth). (Entered: 05/01/2020)
518 AMICUS BRIEF by CONSUMER ENERGY ALLIANCE. (ztth) (Entered: 05/04/2020)
520 NOTICE of Filing on the Public Docket the Remaining Documents Previously Filed Under Seal in Support of Remedy Brief by DAKOTA ACCESS LLC (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit G, # 5 Exhibit J, # 6 Exhibit K)(Scherman, William) (Entered: 05/07/2020)
521 MOTION for Leave to File Amicus Brief by Members of Congress (Attachments: # 1 Brief of Amici Members of Congress, # 2 Text of Proposed Order)(Eubanks, William) (Entered: 05/20/2020)
522 MOTION for Leave to File Amicus Curiae Brief by BOLD ALLIANCE, CENTER FOR BIOLOGICAL DIVERSITY, DAKOTA RURAL ACTION, FRIENDS OF THE EARTH, HONOR THE EARTH, SAVE OUR ILLINOIS LAND, SIERRA CLUB, 350.ORG (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Schoenhut, Karimah) (Entered: 05/20/2020)
523 NOTICE of Appearance by Karimah Schoenhut on behalf of 350.ORG, BOLD ALLIANCE, CENTER FOR BIOLOGICAL DIVERSITY, DAKOTA RURAL ACTION, FRIENDS OF THE EARTH, HONOR THE EARTH, SAVE OUR ILLINOIS LAND, SIERRA CLUB (Schoenhut, Karimah) (Entered: 05/20/2020)
MINUTE ORDER: The Court ORDERS that the 521 Motion of Members of Congress for Leave to File Brief as Amici Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 5/20/2020. (lcjeb2) (Entered: 05/20/2020)
524 MOTION for Leave to File Amicus Curiae Brief by AFFILIATED TRIBES OF NORTHWEST INDIANS, ASSOCIATION ON AMERICAN INDIAN AFFAIRS, GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION, INTER TRIBAL ASSOCIATION OF ARIZONA, NATIONAL CONGRESS OF AMERICAN INDIANS, UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY PROTECTION FUND, INC., Midwest Alliance of Sovereign Tribes, 28 Federally Recognized Indian Tribes (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Campbell, Matthew) (Entered: 05/20/2020)
525 STRICKEN PURSUANT TO THE MINUTE ORDER FILED ON 5/21/2020.....MEMORANDUM by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Marie Fagan, Ph.D, # 3 Exhibit 1 to Decl. of Marie Fagan, Ph.D, # 4 Exhibit 2 to Decl. of Marie Fagan, Ph.D, # 5 Declaration (Third) of Donald Holmstrom, # 6 Exhibit 1 to 3rd Decl. of Donald Holmstrom, # 7 Exhibit 2 to 3rd Decl. of Donald Holmstrom, # 8 Declaration of Patrick S. Flanders, # 9 Declaration (Second) of Elliot Ward, # 10 Declaration of Steve Vance, # 11 Declaration of Albert Two Bears)(Hasselman, Jan) (Attachment 8 replaced on 5/21/2020 as document was not viewable.) (ztnr). Modified on 5/22/2020 (znbn). (Entered: 05/20/2020)
528 NOTICE of Appearance by Daniel P. Sheehan on behalf of LAKOTA PEOPLE'S LAW PROJECT. (ztth) (Entered: 05/22/2020)
529 MOTION for Leave to File Amicus Brief by LAKOTA PEOPLE'S LAW PROJECT (Attachments: # 1 Certificate of Service, # 2 Exhibit A, # 3 Text of Proposed Order) (ztth) (Entered: 05/22/2020)
531 AMICUS BRIEF by MEMBERS OF CONGRESS. (ztth) (Entered: 05/22/2020)
526 Joint MOTION for Extension of Time to File Reply Regarding Remedy by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William); Modified relief on 5/22/2020 (ztth). (Entered: 05/21/2020)
MINUTE ORDER: The Court ORDERS that the 522 Motion of Bold Alliance, et al., for Leave to File Brief as Amici Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 5/21/2020. (lcjeb2) (Entered: 05/21/2020)

05/21/2020 05/21/2020
05/21/2020 05/21/2020 05/21/2020 05/21/2020 05/21/2020
05/22/2020
05/22/2020 05/22/2020
05/22/2020 05/22/2020 06/03/2020 06/03/2020 06/08/2020

MINUTE ORDER: The Court ORDERS that the 524 Motion of Affiliated Tribes of Northwest Indians, et al., for Leave to File Brief as Amici Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 5/21/2020. (lcjeb2) (Entered: 05/21/2020)
MINUTE ORDER: The Court ORDERS that Standing Rock's 525 Memorandum is STRICKEN for violating the Court's Local Rule on excessive footnotes. Standing Rock may refile its Memorandum by May 22, 2020, provided that it contains no more than 10 footnotes with no more than 50 aggregate lines of text. So ORDERED by Judge James E. Boasberg on 5/21/2020. (lcjeb2) (Entered: 05/21/2020)
MINUTE ORDER: The Court ORDERS that Defendants' 526 Motion for Extension is GRANTED in part, and they shall have until June 8, 2020, to file their Reply. So ORDERED by Judge James E. Boasberg on 5/21/2020. (lcjeb2) (Entered: 05/21/2020)
Set/Reset Deadlines: Refile Memorandum due by 5/22/2020. (znbn) (Entered: 05/22/2020)
Set/Reset Deadlines: Reply due by 6/8/2020. (znbn) (Entered: 05/22/2020)
532 AMICUS BRIEF by 350.ORG, BOLD ALLIANCE, CENTER FOR BIOLOGICAL DIVERSITY, DAKOTA RURAL ACTION, FRIENDS OF THE EARTH, HONOR THE EARTH, SAVE OUR ILLINOIS LAND, SIERRA CLUB. (ztth) (Entered: 05/22/2020)
533 AMICUS BRIEF by 28 FEDERALLY RECOGNIZED INDIAN TRIBES, ASSOCIATION ON AMERICAN INDIAN AFFAIRS, GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION, INTER TRIBAL ASSOCIATION OF ARIZONA, MIDWEST ALLIANCE OF SOVEREIGN TRIBES, NATIONAL CONGRESS OF AMERICAN INDIANS, UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY PROTECTION FUND, INC. (ztth) (Entered: 05/22/2020)
527 AMENDED MEMORANDUM by STANDING ROCK SIOUX TRIBE. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Marie Fagan, Ph.D, # 3 Exhibit 1 to Decl. of Marie Fagan, Ph.D, # 4 Exhibit 2 to Decl. of Marie Fagan, Ph.D, # 5 Declaration (Third) of Donald Holmstrom, # 6 Exhibit 1 to 3rd Decl. of Donald Holmstrom, # 7 Exhibit 2 to 3rd Decl. of Donald Holmstrom, # 8 Declaration of Patrick S. Flanders, # 9 Declaration (Second) of Elliot Ward, # 10 Declaration of Steve Vance, # 11 Declaration of Albert Two Bears)(Hasselman, Jan); Modified text at the request of counsel on 5/22/2020 (ztth). (Entered: 05/22/2020)
530 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 05/22/2020)
MINUTE ORDER: The Court GRANTS Dakota Access, LLC's 530 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by June 22, 2020, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 5/22/2020. (lcjeb1) Modified on 5/26/2020 (znbn). (Entered: 05/22/2020)
MINUTE ORDER: The Court ORDERS that the 529 Motion of the Lakota People's Law Project for Leave to File Brief as Amicus Curiae is GRANTED. So ORDERED by Judge James E. Boasberg on 5/22/2020. (lcjeb1) (Entered: 05/22/2020)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 6/22/2020. (znbn) (Entered: 05/26/2020)
534 NOTICE OF SUBSTITUTION OF COUNSEL by Rollie Wilson on behalf of ROBERT FLYING HAWK, YANKTON SIOUX TRIBE Substituting for attorney Patty Marks (Wilson, Rollie) (Entered: 06/03/2020)
535 NOTICE of Change of Address by Rollie Wilson (Wilson, Rollie) (Entered: 06/03/2020)
MINUTE ORDER: The Court ORDERS that Defendant−Intervenor Dakota Access, LLC's 509 Sealed Motion for leave to file unredacted versions of (1) Dakota Access, LLC's Brief Regarding Remedy; and (2) the Declaration Of William S. Scherman in support of the Brief Regarding Remedy, including the exhibits thereto, is GRANTED.

06/08/2020 06/08/2020 06/08/2020 06/08/2020 06/08/2020 06/09/2020
06/09/2020 06/11/2020 06/12/2020 06/22/2020 06/22/2020
06/22/2020

So ORDERED by Judge James E. Boasberg on 6/8/2020. (lcjeb1) (Entered: 06/08/2020)
536 REPLY Regarding Remedy filed by UNITED STATES ARMY CORPS OF ENGINEERS. (Schifman, Reuben) (Entered: 06/08/2020)
537 MEMORANDUM by STATE OF NORTH DAKOTA re 527 (Attachments: # 1 Declaration Second Declaration of Lynn Helms, # 2 Declaration Second Declaration of Joe Morrisette)(Sagsveen, Matthew); Modified to add docket entry relationship on 6/9/2020 (ztth). (Entered: 06/08/2020)
538 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by DAKOTA ACCESS LLC (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Reply Brief Regarding Remedy, # 2 Scherman Declaration, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G)(Scherman, William) (Entered: 06/08/2020)
539 REDACTED DOCUMENT− Reply Brief Regarding Remedy by DAKOTA ACCESS LLC. (Scherman, William) (Entered: 06/08/2020)
540 SEALED DOCUMENT (Brief) filed by DAKOTA ACCESS LLC. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K) (ztth) (Entered: 06/09/2020)
MINUTE ORDER: The Court ORDERS that Defendant−Intervenor Dakota Access, LLC's 538 Sealed Motion for Leave to File unredacted versions of of (1) Dakota Access, LLC's Reply Brief Regarding Remedy; and (2) the Declaration of William S. Scherman in Support of the Reply Brief Regarding Remedy, including the exhibits thereto, is GRANTED. So ORDERED by Judge James E. Boasberg on 6/9/2020. (lcjeb1) (Entered: 06/09/2020)
541 SEALED DOCUMENT (Reply Brief) filed by DAKOTA ACCESS LLC. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K) (ztth) (Entered: 06/09/2020)
542 NOTICE of Filing on the Public Docket Certain Documents Previously Filed Under Seal in Support of Remedy Reply Brief by DAKOTA ACCESS LLC (Attachments: # 1 Scherman Declaration, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G)(Scherman, William) (Entered: 06/11/2020)
543 NOTICE of Filing on the Public Docket the Remaining Documents Previously Filed Under Seal in Support of Remedy Reply Brief by DAKOTA ACCESS LLC (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Scherman, William) (Entered: 06/12/2020)
544 MOTION to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record by DAKOTA ACCESS LLC (Attachments: # 1 Text of Proposed Order)(Scherman, William) (Entered: 06/22/2020)
MINUTE ORDER: The Court GRANTS Dakota Access, LLC's 544 Motion to Stay Resolution of Motion to Compel Prompt Completion of the Administrative Record. The Court ORDERS that Dakota Access, LLC shall update the Court by July 22, 2020, whether it will withdraw the Motion, seek a further stay of the Motion, or ask for the Court to resolve it. So ORDERED by Judge James E. Boasberg on 6/22/2020. (lcjeb1) (Entered: 06/22/2020)
Set/Reset Deadlines: Dakota Access, LLC shall update the Court by 7/22/2020. (znbn) (Entered: 06/22/2020)

 
 Case 1:16-cv-01534-JEB Document 1 Filed 07/27/16 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE
P.O. Box D Building No. 1., North Standing Rock Avenue
Fort Yates, ND 58538,
Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS
441 G Street NW
Washington, DC 20314-1000,
Defendant.

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. This is a complaint for declaratory and injunctive relief. The Standing Rock Sioux Tribe (“Tribe”) brings this action in connection with federal actions relating to the Dakota Access Pipeline (“DAPL”), a 1,168-mile-long crude oil pipeline running from North Dakota to Illinois. The Tribe, a federally recognized American Indian Tribe with a reservation in North Dakota and South Dakota, brings this case because defendant U.S. Army Corps of Engineers (“Corps”) has taken actions in violation of multiple federal statutes that authorize the pipeline’s construction and operation. The construction and operation of the pipeline, as authorized by the

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Corps, threatens the Tribe’s environmental and economic well-being, and would damage and destroy sites of great historic, religious, and cultural significance to the Tribe.
2. This complaint involves two kinds of claims. First, the Tribe brings an as-applied challenge to Nationwide Permit 12 (“NWP 12”), issued by the Corps in 2012 pursuant to the federal Clean Water Act (“CWA”) and Rivers and Harbors Act (“RHA”). DAPL crosses hundreds if not thousands of federally regulated rivers, streams, and wetlands along its route. The discharge of any fill material in such waters is prohibited absent authorization from the Corps. Federal authorization under these statutes, in turn, triggers requirements under the National Historic Preservation Act (“NHPA”), intended to protect sites of historic and cultural significance to Tribes like Standing Rock. In issuing NWP 12, however, the Corps authorized discharges into federal waters without ensuring compliance with the NHPA. In essence, in enacting NWP 12, the Corps pre-authorized construction of DAPL in all but a handful places requiring federal authorization without any oversight from the Corps. In so doing, the Corps abdicated its statutory responsibility to ensure that such undertakings do not harm historically and culturally significant sites.
3. Second, on July 25, 2016, the Corps issued multiple federal authorizations needed to construct the pipeline in certain designated areas along the pipeline route. One such authorization allows DAPL to construct the pipeline underneath Lake Oahe, approximately half a mile upstream of the Tribe’s reservation. Others authorize the DAPL to discharge into waters of the United States at multiple locations in the Tribe’s ancestral lands. The Tribe brings this challenge because these authorizations were made in violation of the CWA and its governing regulations and without compliance with NHPA, and the National Environmental Policy Act (“NEPA”).

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4. The Tribe seeks a declaration that the Corps violated the NHPA in issuing NWP 12, and an injunction preventing the Corps from using NWP 12 as applied to DAPL and directing the Corps to ensure full compliance with § 106 at all sites involving discharges into waters of the United States. The Tribe further seeks a declaration that the July 25, 2016 authorizations were made in violation of the CWA, NEPA, and NHPA, and an order vacating all existing authorizations and verifications pending full compliance with the CWA, NEPA, and NHPA.
JURISDICTION AND VENUE 5. This case states a claim under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“APA”), which authorizes a federal court to find unlawful and set aside any final agency action that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. Jurisdiction arises under 28 U.S.C. § 1362 (“district courts shall have original jurisdiction all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States”); § 2201 (declaratory relief); § 2202 (injunctive relief). 6. Venue in this district is appropriate under 28 U.S.C. § 1391(e) because it is the district in which the defendant resides and in which “a substantial part of the events or omissions giving rise to the claim occurred.”
PARTIES 7. The Standing Rock Sioux Tribe is a federally-recognized Indian tribe with a governing body recognized by the Secretary of the Interior. The Tribe is a successor to the Great Sioux Nation, a party to the two Treaties of Fort Laramie in 1851 and 1868. In those Treaties, the Sioux ceded a large portion of their aboriginal territory in the northern Great Plains, but

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reserved land rights “set apart for the absolute and undisturbed use and occupation” of the Indians.
8. The reservation established in the 1851 Treaty of Fort Laramie included extensive lands that would be crossed by the proposed pipeline. The Tribe has a strong historical and cultural connection to such land. Despite the promises made in the two Fort Laramie treaties, in 1877 and again in 1889, Congress betrayed the treaty parties by passing statutes that took major portions of this land away from the Sioux. In 1889, Congress stripped large portions of the Great Sioux Reservation that had been promised to the Tribe forever, leaving nine much smaller Sioux reservations, including Standing Rock. In the modern area, the Tribe suffered yet another loss of lands, this time in connection with the same Oahe dam and Reservoir. In 1958, the Corps took 56,000 acres of bottomlands on the Standing Rock reservation for the Oahe project without the Tribe’s consent or agreement.
9. Since time immemorial, the Tribe’s ancestors lived on the landscape to be crossed by the DAPL. The pipeline crosses areas of great historical and cultural significance to the Tribe, the potential damage or destruction of which greatly injures the Tribe and its members. The pipeline also crosses waters of utmost cultural, spiritual, ecological, and economic significance to the Tribe and its members. The Tribe and its members have been, are being, and unless the relief sought herein is granted, harmed by the Corps’ failure to comply with environmental and historic preservation laws.
10. The U.S. Army Corps of Engineers is an agency of the United States government, and a division of the U.S. Army, part of the U.S. Department of Defense. It is charged with regulating any dredging and filling of the waters of the United States under § 404 of the CWA and § 10 of the RHA.

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11. By filing this action, the Tribe does not waive its sovereign immunity and does not consent to suit as to any claim, demand, offset, or cause of action of the United States, its agencies, officers, agents, or any other person or entity in this or any other court.
STATUTORY AND REGULATORY BACKGROUND I. THE CLEAN WATER ACT
12. Congress enacted the CWA in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the CWA prohibits the discharge of any pollutant, including dredged spoil or other fill material, into waters of the United States unless authorized by a permit. Id., § 1311(a). Unless statutorily exempt, all discharges of dredged or fill material into waters of the United States must be authorized under a permit issued by the Corps. Id., §§ 1344(a)–(e).
13. The Corps is authorized to issue two types of permits under § 404: individual permits and general permits. Id. The Corps issues individual permits under § 404(a) on a caseby-case basis. Id., § 1344(a). Such permits are issued after a review involving, among other things, site specific documentation and analysis, public notice and opportunity for a hearing, public interest analysis, and formal determination. 33 C.F.R. § 322.3; Parts 323, 325.
14. The CWA also authorizes the Corps to issue “general” permits on a state, regional or nationwide basis. 33 U.S.C. § 1344(e). Such general permits may be issued for any category of similar activities that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” Id. “No general permit … shall be for a period of more than five years after the date of its issuance.” 33 U.S.C. § 1344(e)(2). The purpose of this approach to permitting is to “regulate with little, if any, delay or paperwork certain activities that have minimal impacts.” 33 C.F.R. § 330.1(b).

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15. The Corps issued the current set of 48 nationwide permits (“NWPs”) in February of 2012. 77 Fed. Reg. 10184 (Feb. 21, 2012). The 2012 NWPs in “most cases” authorize discharge into regulated waters without any further process involving the Corps. In effect, the NWP pre-authorizes certain categories of discharge, without any additional approval from, or even notification to, the Corps. 33 C.F.R. § 330.1(e)(1). In other instances, discharges cannot occur until the proponent of the action files a “pre-construction notification” (“PCN”) to the Corps, and receives verification that the proposed action is consistent with the terms of the NWP. Id. § 330.6(a). The specifics of whether or not a PCN is required are spelled out in each individual NWP as well as a series of “general conditions” accompanying the NWP. 77 Fed. Reg. at 10282 (listing 31 general conditions). II. THE RIVERS AND HARBORS ACT
16. The Rivers and Harbors Act of 1899 is the nation’s oldest environmental law. The statute prohibits a number of activities that impair ports, channels and other navigable waters. Unlike the CWA, which applies in all waters of the United States, the RHA applies only in “navigable” waters, defined as waters subject to the ebb and flow of the tides, or waters that are “presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4.
17. Section 10 of the RHA, 33 U.S.C. § 403, among other things, makes it unlawful “to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of” any navigable water without a permit from the Corps. Like § 404 permits, § 10 permits may be issued as individual permits or pursuant to the NWP program and are generally subject to many of the same regulations.
18. Tunneling under a navigable water requires a section 10 permit from the Corps, even without any discharge into navigable waters. 33 C.F.R. § 322.3(a) (“For purposes of a

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section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capacity of the waterbody.”).
19. A separate provision of the RHA, known as “Section 408,” makes it unlawful to “build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States” without a permit from the Corps. 33 U.S.C. § 408. Unlike Section 10 permits, § 408 permits cannot be issued pursuant to the NWP program but are only issued as individual permits. Prior to issuance of a § 408 permit, the Corps must determine whether the use or occupation will be injurious to the public interest or impair the usefulness of the project. III. THE NATIONAL HISTORIC PRESERVATION ACT
20. Section 106 of the National Historic Preservation Act (“NHPA”) requires that, prior to issuance of a federal permit or license, federal agencies shall take into consideration the effects of that “undertaking” on historic properties. 54 U.S.C. § 306108. Agencies “must complete the section 106 process prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” 36 C.F.R. § 800.1.
21. The NHPA defines undertaking as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including— (1) those carried out by or on behalf of the Federal agency; (2) those carried out with Federal financial assistance; (3) those requiring a Federal permit, license, or approval; and (4) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” 54 U.S.C. § 300320; 36 C.F.R. § 800.16(y).
22. Early in the NHPA process, an agency must determine the area of potential effects (“APE”) of a federal undertaking. 36 C.F.R. § 800.4(1)(1). The APE is defined by regulation to

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include the area “within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties…. The [APE] is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Id. § 800.16(d).
23. The Section 106 process requires consultation with Indian Tribes on federal undertakings that potentially affect sites that are culturally significant to Indian Tribes. 36 C.F.R. § 800.2(c)(2); 54 U.S.C. § 302707 (properties “of traditional religious and cultural importance to” a Tribe may be included on the National Register, and federal agencies “shall consult with any Indian Tribe…that attaches religious or cultural significance” to such properties). Consultation must occur regarding sites with “religious and cultural significance” even if they occur on ancestral or ceded land. Id. § 800.2(c)(2)(II)(D).
24. Under the consultation regulations, an agency official must “ensure” that the process provides Tribes with “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties….articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. § 800.2(c)(ii)(A). This requirement imposes on agencies a “reasonable and good faith effort” by agencies to consult with Tribes in a “manner respectful of tribal sovereignty.” Id. § 800.2(c)(2)(II)(B).
25. Acting “in consultation with … any Indian tribe … that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take steps necessary to identify historic properties within the area of potential effects.” Id. §800.4(b). The agency must evaluate the historic significance of such sites, and determine whether they are potentially eligible for listing under the National Register. Id. § 800.4(c).

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26. If the agency determines that no historic properties will be affected by the undertaking, it must provide notice of such finding to the state and tribal historic preservation offices, and the Advisory Council on Historic Preservation (“ACHP”), which administers the NHPA. Id. § 800.4(d). The regulations give those parties the opportunity to object to such a finding, which elevates the consultation process further. Id.
27. If the agency finds that historic properties are affected, it must provide notification to all consulting parties, and invite their views to assess adverse effects. Id. Any adverse effects to historic properties must be resolved, involving all consulting parties and the public. Id. § 800.6. If adverse effects cannot be resolved, the process is elevated again to the ACHP and the head of the agency undertaking the action. Id. §800.7. Until this process is complete, the action in question cannot go forward.
28. The ACHP authorizes agencies to adopt their own regulations for implementing its § 106 obligations. Such regulations must be reviewed and approved by the ACHP in order to be valid. Id. § 800.14.
29. The Corps has adopted procedures intended to satisfy its § 106 obligations. See App. C to 33 C.F.R. Part 325. Those procedures, which predate amendments to the NHPA that significantly broaden the role of Tribes in the § 106 process, have never been approved by the ACHP. Several courts have concluded that the Corps’ NHPA procedures are legally invalid. However, the Corps continues to follow these procedures for purposes of § 106 consultation, including in the process surrounding DAPL.
30. Section 106 regulations also provide an alternative compliance mechanism under which agencies can negotiate a “programmatic agreement” with the ACHP to resolve “complex project situations or multiple undertakings.” 36 C.F.R. § 800.14(b). Such agreements are

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suitable for “when effects on historic properties are similar and repetitive or are multi-State or regional in scope;” “when effects on historic properties cannot be fully determined prior to approval of an undertaking;” or when “nonfederal parties are delegated major decisionmaking responsibilities,” among other situations. Id. § 800.14(b)(1). Programmatic agreements require consultation with Tribes, among others, as well as public participation.
31. The Corps has never adopted a programmatic agreement with the ACHP regarding its CWA/RHA permits or any other activity. IV. THE NATIONAL ENVIRONMENTAL POLICY ACT
32. NEPA, 42 U.S.C. §§ 4321–4370f, is our “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). It makes environmental protection a part of the mandate of every federal agency. 42 U.S.C. § 4332(1).
33. NEPA seeks to ensure that federal agencies take a “hard look” at environmental concerns. One of NEPA’s primary purposes is to ensure that an agency, ‘“in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.’” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA also “guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience,” including the public, “that may also play a role in the decisionmaking process and the implementation of the decision.” Id.
34. NEPA requires agencies to fully disclose all of the potential adverse environmental impacts of its decisions before deciding to proceed. 42 U.S.C. § 4332(C). NEPA also requires agencies to use high quality, accurate scientific information and to ensure the scientific integrity of the analysis. 40 C.F.R. §§ 1500.1(b), 1502.24.

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35. If an agency action has adverse effects that are “significant,” they need to be analyzed in an environmental impact statement (“EIS”). 40 C.F.R. § 1501.4. If it is unclear whether impacts are significant enough to warrant an EIS, it may prepare an “environmental assessment” (“EA”) to assist in making that determination. Id. If the agency determines that no EIS is required, it must document that finding in a “finding of no significant impact” (“FONSI”).
36. NEPA’s governing regulations define what “range of actions, alternatives, and impacts [must] be considered in an environmental impact statement.” 40 C.F.R. § 1508.25. This is in part what is known as the “scope” of the EIS. The EIS must consider direct and indirect effects. The direct effects of an action are those effects “which are caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8(a). The indirect effects of an action are those effects “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b).
37. An agency must also analyze and address the cumulative impacts of a proposed project. 40 C.F.R. § 1508.25(c)(3). Cumulative impacts are the result of any past, present, or future actions that are reasonably certain to occur. Such effects “can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7.
FACTUAL ALLEGATIONS I. INTERESTS OF THE STANDING ROCK SIOUX TRIBE
38. Since time immemorial, the Tribe’s ancestors—the Oceti Sakowin, also known as the Great Sioux Nation—used and occupied a broad area throughout the northern Great Plains, including much of the area that DAPL proposes to traverse with its pipeline. Within this broad region, tribal members followed migrating buffalo herds and traversed a landscape filled with cultural and historical significance central to the Tribe’s identity.

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39. The Tribe’s traditional and ancestral territory extends well beyond the current Reservation’s exterior boundaries, encompassing lands that are the subject of this action. The Corps and other federal agencies have repeatedly acknowledged the traditional use of lands within and around the DAPL route by the Tribe’s ancestors.
40. The Tribe’s cultural resources are historically and culturally interrelated over the entirety of the land within the Tribe’s traditional territory, within and outside of the exterior boundaries of the Reservation. Protection of the Tribe’s cultural heritage is of significant importance to the Tribe. Destruction or damage to any one cultural resource, site, or landscape contributes to destruction of the Tribe’s culture, history, and religion. Injury to the Tribe’s cultural resources causes injury to the Tribe and its people.
41. Cultural resources of significance to the Tribe are located on the lands that are the subject of this action and adjacent lands. In addition to specific archaeological sites that have been identified to date, there are numerous significant culturally important sites that have not been identified. The lands within the pipeline route are culturally and spiritually significant.
42. The Tribe and its members also have a cultural interest in preserving the quality of the land, water, air, fauna, and flora within the Tribe’s traditional territory, within and outside the Reservation. For example, the Tribe is concerned with impacts to the habitat of wildlife species such as piping plovers, least tern, Dakota skipper, and pallid sturgeon, among others. The Tribe has a particular concern for bald eagles, which remain federally protected and play a significant role in the Tribe’s culture, and which would be adversely affected by the proposed pipeline. 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.

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II. THE CORPS’ ISSUANCE OF NWP 12 43. The Corps issued the current suite of 48 NWPs, covering a wide array of potential
activities involving discharges into regulated waters, in February of 2012. 77 Fed. Reg. 10184 (Feb. 21, 2012). Of relevance here, NWP 12 governs “utility line activities.” Id. at 10271. NWP 12 authorizes the “construction, maintenance, repair and removal of utility lines and associated facilities” in waters of the United States, providing that the activity does not result in the loss of greater than a ½ acre of waters “for each single and complete project.” Counterintuitively, a “single and complete project” in the case of linear projects like utility lines is any crossing of a separate waterbody. 33 C.F.R. § 330.2(i). Under this definition, a pipeline like DAPL is made up of hundreds if not thousands of “single and complete projects.”
44. The NWP defines “utility line” to include “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose.” 77 Fed. Reg. at 10271. The Corps considers pipelines carrying crude oil to be covered by NWP 12.
45. Under NWP 12, preconstruction notification (“PCN”) to the Corps by a nonfederal project proponent, and a verification from the Corps, is required if any one of several criteria is met. Id. at 10272. If none of the criteria are met, the proponent is authorized by NWP 12 to proceed with the work in regulated waters without additional notification to, or approval from, the Corps. None of the NWP 12-specific criteria relates to historic or cultural preservation.
46. The NWP program also includes a set of general conditions that are applicable to all NWPs, include NWP 12. General Condition 20 (“GC 20”) addresses historic properties. Under GC 20, a non-federal permittee must submit a PCN “if the authorized activity may have the potential to cause effects to any historic priorities listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties.” Id. at 10284. If a PCN is provided, the Corps purports to

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comply with § 106 of the NHPA prior to verifying that the NWP is applicable, and work may not commence until such verification is provided. 33 C.F.R. § 330.5(g)(2). Conversely, if no PCN is provided, no § 106 process occurs.
47. GC 20 puts the responsibility on the proponent, not the Corps, to determine whether historic or culturally significant properties are present, and requires Corps’ verification only if the proponent finds such sites and reports them to the Corps via a PCN.
48. NWP 12 was formally adopted by the Corps in a “Decision Document” signed by Major General Michael J. Walsh on Feb. 13, 2012. In responding to public comment regarding potential impacts to tribal sites, the Decision Document states that compliance with NHPA on NWP implementation is carried out via GC 20. III. FACTS RELEVANT TO CHALLENGE TO NWP 12
49. The proponent of DAPL proposes to construct a major crude oil pipeline across 1,168 miles through North Dakota, South Dakota, Iowa, and Illinois. The pipeline will have a capacity of 570,000 barrels of crude oil per day, making it one of the largest crude oil pipelines in the nation, carrying over half of the current capacity of North Dakota’s oil production.
50. DAPL is one of several pipelines that have been proposed for the North Dakota oil production area, some of which have been moving on a slower timeline due to environmental review requirements. DAPL has moved aggressively to get the pipeline constructed as quickly as possible.
51. The pipeline’s route passes through the Tribe’s ancestral lands, and areas of great cultural, religious and spiritual significance to the Tribe. Construction of the pipeline includes clearing and grading a 100-150 foot access pathway nearly 1200 miles long, digging a trench as deep as 10 feet, and building and burying the pipeline. Such work would destroy burial grounds,

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sacred sites, and historically significant areas in its path. These sites carry enormous cultural importance to the Tribe and its members.
52. DAPL claims to have completed cultural resource surveys along the entire pipeline length. However, the out-of-state, non-Tribal consultants hired by DAPL to do cultural surveys are unable to assess the potential cultural significance of sites in this area to the Tribes. Only Tribally trained and approved consultants have the ability to assess such sites. The Tribe has never had the opportunity to discuss protocols for cultural surveys, or participate in the surveys that were conducted. Instead, it was provided copies of partial surveys after they were completed.
53. Compared to other pipelines, DAPL has taken a highly unusual approach to Corps permitting for activities involving discharges into regulated waters. Rather than seek Corps’ verifications on all waters of the U.S. in which pipeline construction would cause a discharge, as has been typical, DAPL has only sought Corps’ verification for a tiny minority of the impacts to federally regulated waters.
54. For example, DAPL’s route through North Dakota is 359 miles. A 2015 “Wetlands and Waterbodies Delineation Report” provided to the state Public Service Commission identifies 263 waterbodies and 509 wetlands that would be impacted by the pipeline. However, this information was never provided to the Corps. Instead, DAPL submitted PCNs for only two of these sites, at crossings of the Missouri River. Neither of these PCNs was submitted based on potential impacts to historic sites.
55. In South Dakota, DAPL would cross 273 miles. DAPL’s state Public Utilities Commission filings reveal 288 waterbody crossings and 102 acres of wetlands impacts.

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However, DAPL only provided the Corps with PCNs for 10 of these sites. None of the PCNs in South Dakota was triggered by impacts to historic sites.
56. In both states, this delineation of waterbody impacts was only partially complete, as DAPL did not have landowner access to all sites along the pipeline route. Accordingly, some of the features were estimated through desktop analysis. The ultimate number of waterbody and wetland impacts remains unknown.
57. One of the two places in North Dakota where Corps authorization is required is at Lake Oahe, where the pipeline would cross underneath the Lake (a dammed section of the Missouri River) immediately upstream of the Tribe’s reservation.
58. Due to its concerns about the configuration of the pipeline and inadequacies in the regulatory process, the Tribe has participated extensively in the public process associated with the permits, including filing numerous formal technical comments on the Lake Oahe crossing, meeting with Corps’ leadership and staff, and communicating with elected representatives and agency officials to express concerns. The Tribe has repeatedly conveyed to the Corps and other government officials the significance of its concerns and the risks to the Tribe about moving ahead with the pipeline in its current configuration. The Tribe has in particular highlighted the inadequacies of the Corps’ § 106 consultation process with regard to historic and cultural impacts at the Lake Oahe site.
59. On July 25, 2016, the Corps issued the NWP 12 verification and other authorizations required at the roughly 204 sites in the four states for which verification has been requested along the pipeline’s entire length. However, prior to that time, construction started along the remainder of the route, including construction involving discharges into the hundreds if

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not thousands of sites where pipeline construction involves discharges into waters of the United States, but for which no PCN is required.
60. The Tribe has repeatedly expressed concerns to the Corps regarding construction in waters of the United States pursuant to NWP 12 without any section 106 consultation on historic impacts. On June 30, 2016, the Standing Rock Tribal Historic Preservation Officer, Jon Eagle Sr., wrote to the Corps District Commander regarding the extensive work proceeding without any § 106 consultation under NWP 12. This letter explained that non-Tribal archaeologists were unable to appreciate the cultural significance of Tribal historic sites, and that his office had found the DAPL cultural surveys, conducted by out-of-state archaeologists with no training in the cultural practices of the Oceti Sakowin to be “gravely deficient.”
61. The letter requested that the Corps declare that all impacts to waters of the United States had potential historic impacts and requested that the Corps require PCNs from all such crossings, so that full § 106 consultation could occur.
62. In response, the regulatory branch chief of the Corps’ Omaha district invited Mr. Eagle’s office to participate in “monitoring” for “post construction discoveries of cultural resources and/or burials” at six sites subject to PCNs in North and South Dakota. The Corps did not respond to the issue to which Mr. Eagle’s letter was actually addressed, specifically, cultural impacts at sites that are not subject to a PCN.
63. The Tribe’s concerns were highlighted in June of 2016 when archaeologists working on behalf of Upper Sioux Tribe discovered a site of great religious and cultural significance to Oceti Sakowin in the pipeline’s route in Iowa. The site was not discovered by DAPL during its cultural resource surveys, even though it lay directly in the pipeline’s route.

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64. The pipeline will also impact historic and culturally significant sites in uplands along the pipeline’s route in between areas of Corps’ jurisdiction. The Corps views any impacts to such uplands sites as outside of its responsibility under § 106, as the Corps interprets §106 to apply only within the immediate area of CWA jurisdiction.
65. The ACHP regulations take a different approach. In a May 6, 2016 letter to the Corps regarding DAPL, the ACHP explained that its regulations “define the undertaking as the entire project, portions of which may require federal authorization or assistance.” Even where the jurisdiction is limited to particular portions of a project, the ACHP explained, “the federal agency remains responsible for taking into account the effects of the undertaking on historic properties.” The letter concluded that given the close relationship between the project and multiple federal approvals, “a greater effort to identify and evaluate historic properties” was required.
66. In a May 19, 2016, letter, the ACHP formally objected to the Corps’ finding of “no effect” at the site of the Lake Oahe crossing, one of only two sites in the entire state of North Dakota for which the Corps even purported to engage in § 106 consultation. The ACHP asserted that the Corps misapplied § 106 by considering only historic properties within its areas of jurisdiction, when it should consider indirect impacts to historic sites in uplands that could not occur but for the Corps’ authorization to discharge into waters of the United States.
67. At the time of filing this complaint, DAPL has not executed agreements with all landowners, and eminent domain proceedings are underway in several states. Additionally, several lawsuits have been filed against DAPL and state regulatory agencies which challenge the legality of DAPL approvals, and seeking the remedy of vacating such approvals, which would

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require DAPL to stop work. However, DAPL has chosen to move ahead with construction in places where regulatory approval is secured and where landowner consent has been obtained.
68. DAPL has been repeatedly told by state regulatory agencies that any construction prior to the completion of the regulatory and eminent domain process is at its own risk. DAPL has repeatedly acknowledged that it bears the risk of starting construction prior to the completion of the regulatory and legal process. IV. GENERAL FACTS REGARDING THE CORPS’ ISSUANCE OF THE § 408 PERMITS
AND CWA VERIFICATIONS 69. On July 25, 2016, the Corps’ issued authorizations pursuant to § 408 of the RHA for DAPL to cross federally managed or owned lands on the Missouri River in two places, at Lake Sakakawea and Lake Oahe, roughly 230 miles apart. Accompanying this authorization, the Corps released a final environmental assessment (“EA”) and “finding of no significant impact” (“FONSI”) with respect to two components of the DAPL in North Dakota. The EA and FONSI concluded that these two small segments of the pipeline did not have sufficient adverse environmental impact to warrant preparation of an environmental impact statement (“EIS”), which would have triggered substantially broader environmental review, a closer comparison of alternatives, and greater public engagement. 70. This decision authorizes DAPL proponents to begin drilling a pipeline path underneath each of the two reservoirs, install the pipeline, and begin operating it to transport crude oil in the Tribe’s culturally significant ancestral lands, and adjacent its reservation. DAPL has notified Tribes that construction at the site is scheduled to begin on July 30, 2016. 71. Also on that date, the Corps issued verifications pursuant to the CWA and RHA finding that 204 crossings of jurisdictional waters of the United States, for which PCNs had been filed, met the terms of NWP 12. The verifications include federally protected waters in four

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states: North Dakota (2 verifications), South Dakota (10 verifications), Iowa (61 verifications), and Illinois (45 verifications). The verifications authorize DAPL proponents to begin construction of the pipeline through federally regulated streams, rivers, and wetlands, and operate the pipeline to transport crude oil in the Tribe’s culturally significant ancestral lands, and adjacent its reservation. DAPL has notified Tribes that construction is set to begin at such many of these sites on or before August 1, 2016.
72. On January 5, 2016, the St. Louis District of the Corps released a public notice announcing that it intended to authorize another segment of the pipeline under § 408 of the RHA. That segment crossed federal flowage easements and federally managed levees on the Illinois River. To date, no permit or even draft environmental review document has been issued for this segment of the pipeline.
73. On or about December 17, 2015, the U.S. Fish and Wildlife Service (“FWS”) released a draft EA for yet another segment of the pipeline. That EA reviewed potential impacts of the pipeline over grassland easements held by FWS and managed for wildlife values. A final EA and FONSI were issued by the FWS on June 22, 2016.
74. The current proposed route crosses Lake Oahe a half of a mile upstream of the Tribe’s reservation boundary, where any leak or spill from the pipeline would flow into the reservation. The Tribe and its members have been deeply concerned about the potential impacts of the Lake Oahe crossing since its inception, for two primary reasons. First, the Tribe relies on the waters of Lake Oahe for drinking water, irrigation, fishing, and recreation, and to carry out cultural and religious practices. The public water supply for the Tribe, which provides drinking water for thousands of people, is located a few miles downstream of the proposed pipeline crossing route. Additionally, the cultural and religious significance of these waters cannot be

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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.
75. Pipeline leaks and spills are routine in both new and old pipelines. A segment of the Keystone pipeline built in 2010 recorded 35 leaks in its first year of operations. A study of North Dakota’s pipelines revealed over 300 leaks in two years, most of which were unreported to the public. Major spills from crude oil pipelines have occurred recently on the Kalamazoo and Yellowstone Rivers, with devastating economic and environmental impacts. The Corps does not require, and DAPL does not propose, any technology or mitigation approaches that reduce risk relative to other recent pipelines that have been the source of major and minor spills and leaks in recent years.
76. Second, the Lake Oahe crossing will take place in an area of great cultural, religious and spiritual significance to the Tribe. Construction of the pipeline, which includes clearing and grading a 100-150 foot access pathway nearly 1200 miles long, digging a trench as deep as 10 feet, and building and burying the pipeline, would destroy burial grounds, sacred sites, and historically significant areas on either side of Lake Oahe. These sites carry enormous cultural importance to the Tribe and its members.
77. Construction of pipelines involves other significant environmental impacts, including massive amounts of water required for hydrostatic testing and permanent maintenance of a 50-foot right of way above the pipeline.
78. The confluence of the Cannonball and Missouri Rivers, where the crossing would take place, is a sacred place to the Tribe. It is a place of great historical significance, serving as a place of peace, prayer, and trade where traditional enemies could meet without risk of violence.

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There are numerous sacred stones and historically important sites in the immediate landscape of the Lake Oahe Crossing, few of which have been fully evaluated by Tribal archaeologists.
79. The Corps operates Oahe dam, downstream of the Lake Oahe crossing, for flood control and other purposes. The result of its management is that water levels fluctuate greatly in the reservoir, with attendant erosion, scouring, and deposition of sediments. The geomorphology of the segment of Lake Oahe to be crossed by the pipeline is highly dynamic.
80. Due to its concerns about the configuration of the pipeline and inadequacies in the regulatory process, the Tribe has participated extensively in the public process associated with the permits, including filing numerous formal technical and legal comments on the Lake Oahe crossing, meeting with Corps’ leadership and staff, and communicating with agency officials to express concerns. The Tribe has repeatedly conveyed to the Corps and other government officials the significance of its concerns and the risks to the Tribe about moving ahead with the pipeline in its current configuration. V. SPECIFIC FACTS RELATED TO NHPA COMPLIANCE FOR JULY 25, 2016
AUTHORIZATIONS 81. The confluence of the Cannonball and Missouri Rivers is sacred ground to the Standing Rock Sioux people. It is rich in history, and it is rich in cultural and religious significance. Industrial development of that site for the crude oil pipeline has a high potential to destroy sites eligible for listing in the National Register. 82. The Corps undertook a process to consider the impacts of the Missouri River crossing on historic and culturally significant sites that was flawed in multiple respects. It defined the “area of potential effects” (“APE”) for the Lake Oahe crossing exceptionally narrowly to include only a tiny parcel immediately surrounding the horizontal directional drilling (“HDD”) pits on each side of the river and a narrow strip for an access road and “stringing area”

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on the west side of the crossing. On the east side of the river, the APE is difficult to determine because in some of the Corps’ figures, the “project workspace” includes both the access road and stringing area, while in others only the HDD pit is included.
83. The Corps’ attempts at § 106 consultation omit the actual pipeline route that will be entering and existing the HDD borehole. The pipeline itself will involve 100-150 yard swath of industrial development—clearing, grading, excavation of a 6 to 10 foot trench, and construction work to shape and place the pipeline.
84. It is likely that such development would destroy any historic or culturally significant sites in its path. There are already known but unevaluated historic sites—in other words, sites that may be eligible for protection under the National Historic Preservation Act (“NHPA”)—in the direct path of the pipeline immediately in the area of the HDD crossing. For example, according to the draft EA, several sites are directly in the pipeline’s path in the first mile outside of the HDD site.
85. Consultation with the Tribal Historic Preservation Office (“THPO”) on the DAPL, which would be routed just outside the reservation boundary, on ancestral land with great cultural and religious importance to the Standing Rock Sioux Tribe, has been profoundly inadequate. The Tribe has never been able to participate meaningfully in assessing the significance of sites that are potentially affected by the project.
86. The non-Tribal consultants hired by DAPL to do cultural surveys are not equipped to suitably assess the potential cultural significance of sites in this area. The Tribe has never had the opportunity to discuss protocols for cultural surveys or participate in the surveys that were conducted.

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87. The Tribe’s first record of correspondence from the Corps related to the DAPL is dated February 12, 2015, when a Corps representative emailed the THPO asking if there were concerns related to preliminary bore hole testing to be conducted at the HDD site.
88. The THPO, Ms. Waste’Win Young, wrote back immediately objecting to the Corps’ conclusion that no historic properties would be affected by the bore hole drilling, documenting numerous specific important sites that could be affected as well as the cultural significance of the area generally, and requesting a full Class III survey with tribal archaeologists before any work was done.
89. No response to this urgent correspondence was ever provided, despite several follow up requests from the THPO, and the work was done without any additional tribal consultation or process. Many months later, in a September 16, 2015 letter, a Corps official stated that the § 106 process had ended on January 18, 2015—nearly a month prior to the Corps’ initial email about the project.
90. On February 17, 2015, the Corps sent the THPO a generic form letter seeking to initiate consultation under § 106 on the DAPL. The THPO wrote back immediately, committing the SRST to participation in the § 106 process, highlighting the significance of the site, and recommending full Class III surveys with tribal involvement.
91. In the months that followed, both the THPO and the Chairman of the SRST followed up with numerous additional letters to the Corps outlining concerns about cultural impacts, and seeking to engage the Corps in a good-faith consultation process as required by § 106 regulations.
92. However, no response was received from the Corps to this correspondence until September of 2015, when another letter was sent to the Tribal Chairman that again inquired “if

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you would like to consult” on the pipeline project. The letter asked for any “knowledge or concerns regarding historic properties” that the Tribe wanted the Corps to consider. A deadline of less than a month later was provided.
93. The THPO responded promptly, outlining the Tribe’s significant concerns with properties on the site, and its ongoing exclusion from the § 106 process. The THPO observed that “it has become clear that the Corps is attempting to circumvent the Section 106 process” and urged it to broaden its review to include affected areas outside the Corps’ jurisdiction, as required by governing regulations. The Corps did not respond to this letter.
94. Instead, the Corps’ next action was to publish a draft environmental assessment (“EA”) that included not a single mention of the potential impacts of the pipeline project on the SRST or areas of historic and cultural significance to the Tribe. The draft EA also stated incorrectly that the SRST THPO had indicated to DAPL that the Lake Oahe site avoided impacts to tribally significant sites.
95. SRST submitted extensive comments on the EA, on three occasions, highlighting both the flaws in the § 106 consultation process as well as the significant cultural resources that could be harmed by the project.
96. Additionally, the Corps received critical letters from the U.S. Environmental Protection Agency, the U.S. Department of Interior, and the ACHP, all of whom questioned the Corps’ approach to consultation with the SRST. The ACHP observed that it had “not been provided evidence that the Corps has met” the requirements of § 106, observing that “there is likely to be significant tribal interest” and that “[t]he Corps’ approach to meeting its governmentto-government consultation is extremely important.” It later asked to be formally made a party to consultation on the project.

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97. Around the time of the draft EA, the Tribe also learned that the proponent had conducted cultural surveys at the Lake Oahe site and along the pipeline route during 2014 and 2015. Neither the proponent nor the Corps ever consulted with the Tribe about the protocols for those assessments or the area of potential affects, or had invited their participation as the Tribe had repeatedly requested. Instead, the proponent provided the Tribe with a massive quantity of its survey data, after it was complete, and provided an opportunity to comment.
98. During this same time frame, i.e., late 2015 and early 2016, the proponent stated repeatedly in public and private meetings that construction was slated to start in mid-May of 2016, regardless of any additional process requirements or needs.
99. In February of 2016, the Tribe and the commander of the Omaha District, Col. John Henderson, entered discussions about a visit to the reservation and the Lake Oahe crossing site. SRST Chairman Archambault emphasized in a letter to the Colonel that “there can be no meaningful consultation with respect to decisions that have already been made,” and urged a reopening of the NEPA process to assess route alternatives.
100. The meeting with the Colonel took place on Feb. 29, 2016, at which time the Colonel and Corps archaeologists toured the site with the Chairman, THPO, and tribal archaeologists. Tribal participants in this meeting emphasized the cultural importance of the site, and demonstrated it with specific evidence.
101. In a follow up letter, the Chairman expressed hope that the visit would constitute a “turning point” in what had been to that point a flawed process, and that the Corps could pursue greater consideration of the Tribe’s interests through a full EIS.
102. A follow up visit between Corps and Tribal archaeologists occurred on March 7, 2016, during which SRST staff pointed out places where moles had pushed dirt to the surface,

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carrying prehistoric pottery shards, pieces of bone, flint, and tools. The sites shown to the Corps staff had never been previously assessed or recorded, consistent with the Tribe’s repeatedly expressed belief that the site generally was rich in unassessed sites of historic and cultural significance.
103. During this visit Corps archaeologists stated that they were unaware of many of the sites that they were witnessing and agreed with Tribal staff that additional study was required.
104. On March 15, 2016 the ACHP wrote to the Corps again, noting that the agency “remained perplexed” by the Corps’ difficulties in consulting with the SRST, pointing out that there was no tribal participation in identification surveys and urging the Corps to look at alternative pipeline alignments as required by ACHP regulations.
105. In later March 2016, Chairman Archambault invited Col. Henderson back to the reservation to continue the dialogue about impacts to historic properties. However, on April 22, 2016, the Corps’ next action was to make a formal finding that no historic properties were affected by the Lake Oahe decision.
106. The Tribal THPO requested that the ACHP review the April 22 decision by letter on May 2, 2016.
107. On May 6, 2016, the ACHP sent another letter responding to previous correspondence between the Corps and ACHP. The letter laid out a number of significant criticisms of the Corps’ compliance with § 106 and made recommendations for additional steps that Corps should take.
108. The Chairman of the SRST sent a letter to the Corps formally objecting to the “no historic properties effected” on May 18, 2015. The THPO also sent an objection letter on May

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17, 2016. Neither the Chairman nor the THPO received any response to these formal objections besides additional general information from the Corps on their permitting process.
109. On May 19, 2016, the ACHP formally objected to the effects determinations made by the Corps for DAPL. The ACHP outlined several fundamental flaws with the Corps § 106 compliance, including a failure to properly define the undertaking and area of potential effects; inadequate Tribal consultation and incomplete identification efforts; and numerous procedural flaws.
110. The April 22, 2016 finding pertains only to the Lake Oahe crossing site. It does not apply to any the other hundreds of NWP 12 verifications along the pipeline’s route.
111. Section 106 consultation is required for the Corps’ verifications as well. But the Corps has not consulted with the Tribe to evaluate the impacts of PCN verifications on historic sites within its ancestral lands, including sites in South Dakota and Iowa. Instead, in issuing the verifications, it provided for tribal monitoring during construction. VI. SPECIFIC FACTS RELATED TO NEPA COMPLIANCE FOR JULY 25, 2016
AUTHORIZATIONS 112. The Corps is evaluating different components of DAPL in multiple separate segments, each following an independent process and on its own timeline. The Corps’ documents for each segment fail to acknowledge the existence or impacts of the other segments. 113. One segment is made up of two crossings of Corps-managed or Corps-owned lands in North Dakota, at Lake Sakakawea and at Lake Oahe, roughly 230 miles apart from one another. Another segment is the crossing of Corps-managed and operated land and levees towards the other end of the pipeline, on the Illinois River. Finally, the Corps issued 204 verifications in four states that DAPL can proceed under NWP 12 where they cross jurisdictional waters.

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114. In yet another NEPA process, the FWS reviewed the impacts of providing authorization to cross easements on private land intended to protect wildlife. In June of 2016, FWS released a final EA covering authorization to cross miles of grasslands and wetlands easements in North and South Dakota.
115. The Corps and FWS have pursued a NEPA process for each of these components independently of the other components. For the North Dakota crossings, the Omaha District of the Corps released a draft EA in December 2015 and a final EA and FONSI on July 25, 2016. For the Illinois River crossings, the St. Louis District of the Corps released an EA and FONSI on July 25, 2016, but without having provided a draft EA and any opportunity for public comment. For the FWS easements, an EA was issued in June of 2016. For the CWA NWP 12 verifications, the Corps has not taken any action to comply with NEPA, asserting that verifications are not federal actions subject to NEPA.
116. The North Dakota EA looks narrowly at the impacts of pipeline construction at the HDD crossing site only. It does not look at the indirect effect of facilitating pipeline construction to, from, and through the two HDD crossings. Accordingly, the EA is silent on the impacts to the environment associated with pipeline construction outside the immediate confines of the HDD crossing site, including oil spill risks to waters or lands of cultural significance to the Tribe.
117. The North Dakota EA also does not analyze the environmental impacts of the North Dakota crossings in the context of either the CWA verifications for the pipeline, the Illinois River § 408 permit, or the FWS easement crossings, all of which are integrally related to a single pipeline project.

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118. In multiple sets of legal comments, the Tribe expressed its concerns regarding these and many other issues associated with the NEPA process.
119. On January 8, 2016, the U.S. Environmental Protection Agency (“EPA”) sent comments to the Corps on the draft EA saying that the document lacked “sufficient analysis of direct and indirect impacts to water resources,” lacks information related to the operation of the pipeline, and that the document is “limited to small portions of the complete project and does not identify the related effects of the entire project segment.”
120. EPA sent additional comments on March 11, 2016, highlighting the proximity of the Tribe’s drinking water intake to the pipeline crossing. The letter highlighted multiple risks to water resources from the project, recommended additional analysis of emergency preparedness measures, and urged consideration of additional alternatives that reduced potential conflicts with drinking water supplies.
121. On March 29, 2016, the U.S. Department of the Interior sent a comment letter to the Corps urging preparation of a full Environmental Impact Statement (“EIS”). DOI highlighted the risks to the Tribe’s reservation and drinking water resources. The letter also observed that the Corps’ NEPA analysis should consider more of the pipeline route as a connected action under NEPA. VII. SPECIFIC FACTS RELATED TO CWA/RHA COMPLIANCE FOR JULY 25, 2016
AUTHORIZATIONS 122. Construction of the DAPL will involve dredge and/or fill in waters of the United States in hundreds if not thousands of locations. Construction of DAPL will also involve obstructions to the capacity of navigable waters of the United States. 123. The Corps is only issuing individual permits at three locations on the entire length of the pipeline: at the two North Dakota reservoir crossings, and at the Illinois River crossing.

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Those components of the pipeline require a permit under § 408 of the Rivers and Harbors Act and real estate actions because the pipeline will cross federally owned or managed land.
124. The remainder of the pipeline’s impacts on jurisdictional waters is being processed under NWP 12, which authorizes certain actions without an individual permit.
125. With respect to PCNs and verifications, the final verifications identify 2 locations in North Dakota, 10 locations in South Dakota, 61 locations in Iowa, and 45 locations in Illinois, for a total of 204 crossings in 1,168 miles of pipeline.
126. Since the purpose of the pipeline is to carry crude oil developed in western North Dakota to sites in Illinois, no component of the pipeline is useful without all of the other components of the pipeline in place
127. The Lake Oahe pipeline crossing will take place in close proximity to the Tribe’s public water supply, as well as a number of private water supplies, and irrigation intakes. The crossing will also impair tribal treaty rights on the Standing Rock reservation, including reserved water rights.
CLAIMS FOR RELIEF I. FIRST CLAIM FOR RELIEF – FAILURE TO CONSULT UNDER § 106 OF THE
NHPA 128. Plaintiff reincorporates the allegations in all preceding paragraphs. 129. Issuance of an individual or general § 404 permit is an “undertaking” as defined in the NHPA. As such, § 106 consultation is required to determine the effect of such undertaking on historic properties. 130. The Corps failed to consider the impacts of NWP 12 on historic or culturally significant properties, or otherwise engage in the § 106 process, prior to issuance of NWP 12 in 2012.

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131. The Corps has never developed a programmatic agreement with the ACHP with respect to the NWP program.
132. Issuance of NWP 12 is a “final agency action” within the meaning of the APA. 133. The Corps’ failure to comply with the requirements of the NHPA and its implementing regulations is arbitrary, capricious, and contrary to law in violation of the APA, 5 U.S.C. § 706. II. SECOND CLAIM FOR RELIEF – UNLAWFUL ABDICATION OF § 106 RESPONSIBILITIES 134. Plaintiff reincorporates the allegations in all preceding paragraphs. 135. Section 106 of the NHPA directs federal agency heads to take into account the effect of any undertaking on historic properties, and provide the ACHP and affected parties a reasonable opportunity to comment on such undertaking. 136. Under ACHP regulations, “it is the statutory obligation of the Federal agency to fulfill the requirements of section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106 compliance….” 36 C.F.R. § 800.2(a). 137. In issuing NWP 12, however, the Corps does not fulfill the requirements of § 106 or “take legal and financial responsibility” for compliance. Rather, it provided up-front CWA/RHA authorization to discharge fill into waters of the United States, effectively ending its involvement in most situations. In so doing, it improperly abdicated its § 106 responsibility, and delegated to the proponent its NHPA duty to determine whether there would be any potential impact to historic properties. If the proponent determines for itself that no historic properties are affected, the Corps is not notified of the action and provides no verification of NWP 12 authorization. In such circumstances, the Corps does not consider, and does not give the ACHP

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or interested parties a reasonable opportunity to comment on, the potential impacts to historic sites. In so doing, the Corps abdicated its § 106 duties and/or improperly delegated them to private parties.
138. ACHP regulations direct that agencies “shall involve” consulting parties in findings and determinations made during the § 106 process. 36 C.F.R. § 800.2(a)(4). Consulting parties must include Indian Tribes “that attach religious and cultural significance to historic properties that may be affected by an undertaking.” Id. § 800.2(c)(2). The agency “shall ensure” that the § 106 process provides such Tribe “ a reasonable opportunity” to “identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. §800.2(c)(2)(ii)(A). Further, it is the “responsibility of the agency official to make a reasonable and good faith effort to identify Indian Tribes” to be consulted in the § 106 process. Id. § 800.2(c)(4)
139. Applicants for federal permits are “entitled to participate” as consulting parties in § 106 consultation, and the responsible official may “authorize an applicant … to initiate consultation with” consulting parties, but “remains legally responsible for all findings and determinations charged to the agency official.” Id. Such authorization requires notice to all state and tribal historic preservation offices, and federal agencies “remain responsible for their government-to-government relationships with Indian Tribes.” Id. Moreover “the views of the public are essential” to the § 106 process and agencies “shall seek and consider the views of the public” in carrying out its responsibilities. Id. § 800.2(d).

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140. Additionally, ACHP regulations require Federal agencies to “ensure” that all actions taken by employees or contractors “shall meet professional standards under regulations developed by” the ACHP. However, in issuing NWP 12 and GC 20, the Corps did not “ensure” that any standards at all would be used by private parties delegated to make their own § 106 threshold determinations.
141. In enacting NWP 12 and GC 20, the Corps authorized discharges into waters of the United States in a way that sidesteps virtually all of the requirements of the ACHP § 106 regulations. Under NWP 12 and GC 20, private project proponents can make their own determinations as to the effects on tribally significant sites without any involvement of the Tribes. Under NWP 12 and GC 20, Tribes are not provided any opportunity, let alone a reasonable one, to identify their concerns or assist in the identification of historic sites. Under NWP 12 and GC 20, the Corps is not responsible for the findings and determinations regarding adverse effects. Under NWP 12 and GC 20, private project proponents can be made in a vacuum, with no input, no notice, no accountability, and no oversight. Moreover NWP 12 and GC 20 do not establish definitions or standards to be used by private project proponents on how to make determinations of historic impacts, leaving it up to the proponents’ unfettered discretion to determine whether a PCN is required or not.
142. NWP 12 and CG 20 are being applied to DAPL to authorize discharges into waters of the United States with no verification or oversight by the Corps, and no accompanying § 106 process. Through NWP 12 and GC 20, the Corps is violating non-delegable duties: there is no consultation process, there are no standards governing determinations made by private parties, and the Corps has no mechanism to “ensure” compliance with its legal responsibilities.

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143. The Tribe is harmed by NWP 12 and GC 20 because they have led and will continue to lead to the destruction of culturally significant sites. Following NWP 12 and GC 20, DAPL proponents have conducted gravely deficient cultural surveys, with no involvement by the Tribes. DAPL proponents have not found historic properties that would be affected by pipeline construction in Corps’ jurisdictional areas. Accordingly, they have not filed PCNs and sought verification at the vast majority of sites at which they will be discharging into waters of the United States.
144. The ACHP wrote to the Corps on May 6, 2016 to share the concern that Tribes like Standing Rock Sioux Tribe have not had the opportunity to share relevant information “in the vicinity of water crossings and within the project [right of way] that the applicant assumes will not require PCNs under General Conditions 20 and 31 [standards for PCNs] of the NWP protocols.”
145. Issuance of NWP 12 is a “final agency action” within the meaning of the APA. 146. The Corps’ delegation of its § 106 responsibilities to private parties in NWP 12 and GC 20 is arbitrary, capricious, and contrary to law in violation of the APA, 5 U.S.C. § 706. III. THIRD CLAIM FOR RELIEF – FAILURE TO REQUIRE CONSIDERATION OF INDIRECT EFFECTS UNDER § 106 147. Plaintiff reincorporates the allegations in all preceding paragraphs. 148. Under NHPA, federal agencies must consult on the effects of “undertakings” to historic properties. An undertaking is defined by rule to mean “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a federal agency, those carried out with Federal financial assistance, and those requiring a federal permit, license or approval.” 36 C.F.R. § 800.16(y) (emphasis added).

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149. The entirety of a private pipeline project that requires Corps’ authorization for hundreds if not thousands of discharges into waters of the United States is an “undertaking” for purposes of § 106 because it requires federal approval in order to occur and because it is under the “indirect jurisdiction” of the Corps.
150. GC 20 directs permittees to file a PCN with the Corps if the authorized activity will have the potential to cause effects to historic properties. However, the Corps directs permittees to only consider the direct effects of activities in jurisdictional waters, and not indirect impacts such as construction impacts in uplands.
151. ACHP regulations require consideration of indirect effects of agency undertakings, including areas in uplands outside of Corps jurisdiction. With respect to DAPL, in a May 19, 2016 letter, the ACHP confirmed that the entire 1,168-mile crude oil pipeline is the “undertaking” for purposes of § 106 consultation, and accused the Corps of “not differentiating appropriately between federal action and the undertaking….” The ACHP concluded that “the Corps’ effects determinations, thus far, fail to consider the potential for effects from the larger undertaking on historic properties including those of cultural and religious significance to Indian Tribes.”
152. Issuance of NWP 12 is a “final agency action” within the meaning of the APA. 153. As applied to DAPL, the authorization to discharge into waters of the United States, without consideration of indirect impacts on historic sites as required by § 106, is arbitrary, capricious, and contrary to law in violation of the APA, 5 U.S.C. § 706. IV. FOURTH CLAIM FOR RELIEF – VIOLATIONS OF NATIONAL HISTORIC PRESERVATION ACT WITH RESPECT TO JULY 25, 2016 VERIFICATIONS AND § 408 PERMITS 154. Plaintiff reincorporates the allegations in all preceding paragraphs.

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A. Incorrect Definition of “Area of Potential Effects” 155. Section 106 of the National Historic Preservation Act (“NHPA”) requires that, prior to issuance of a federal permit or license, that federal agencies shall take into consideration the effects of that “undertaking” on historic properties. 54 U.S.C. § 306108. Issuance of § 408 permits and CWA/RHA verifications under NWP 12 are federal undertakings within the meaning the NHPA. 156. Early in the NHPA process, an agency, in consultation with the THPO, must determine the area of potential effects (“APE”) of a federal undertaking. 36 C.F.R. § 800.4(1)(1). The APE is defined by regulation to include the area “within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties…. The [APE] is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Id. § 800.16(d). 157. The Corps defined the APE for the Lake Oahe crossing unlawfully narrowly, and inconsistently with both the ACHP regulations and its own guidance. 158. The APE for the crossing includes only a tiny parcel immediately surrounding the HDD pits on each side of the river and a narrow strip for an access road and “stringing area” on the west side of the crossing. On the east side of the river, the APE is difficult to determine because in some of the Corps’ figures, the “project workspace” includes both the access road and stringing area, while in others only the HDD pit is included. 159. The Corps unlawfully omits the actual pipeline route that will be entering and exiting the HDD borehole from the APE. Pipeline construction would involve 100-150 yard swath of industrial development—clearing, grading, excavation of a 6 to 10 foot trench, and construction work to shape and place the pipeline. Such development would destroy any historic

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or culturally significant sites in its path. But because these sites are outside the APE, the Corps’ conclusion does not consider them.
160. The pipeline path should be in the APE because, even where the Corps lacks direct permitting jurisdiction over segments in between regulatory areas, pipeline construction in such areas is an indirect effect of the HDD process. Id. § 800.16(d).
161. The Corps’ failure to consider the impacts to historic and sacred sites outside of the immediate and narrow confines of the HDD drilling sites was arbitrary, capricious, and not in accordance with law in violation of the APA and the NHPA.
B. Inadequate § 106 Consultation 162. The Section 106 process requires consultation with Indian Tribes on federal undertakings that potentially affect sites that are sacred or culturally significant to Indian Tribes. 36 C.F.R. § 800.2(c)(2). Consultation must occur regarding sites with “religious and cultural significance” even if they occur on ancestral or ceded land. Id. § 800.2(c)(2)(II)(D); 54 U.S.C. § 302707. 163. Under the consultation regulations, an agency official must “ensure” that the process provides Tribes with “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties….articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. § 800.2(c)(ii)(A). This requirement imposes a “reasonable and good faith effort” by agencies to consult with Tribes in a “manner respectful of tribal sovereignty.” Id. § 800.2(c)(2)(II)(B). 164. The Corps’ final permit decision is the product of a fundamentally flawed consultation process that does not meet the requirements of the ACHP regulations.

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165. Consultation never occurred at all on the bore hole testing. The Tribe was notified and the work was done before the Tribe’s serious concerns were even received by the Corps.
166. Consultation did not start at the earliest phases of the process. Consultation did not occur on the “area of potential affects.” Consultation did not occur on participation in the surveys or protocols for how they should be conducted. 36 C.F.R. § 800(c)(2)(II)(A).
167. Instead, the THPO was given a brief window to “comment” on the proponents’ deeply flawed and completed surveys long after the route had been selected and construction scheduled.
168. The Corps’ April 22, 2016 “no effect” determination contains citations to documents, like “Landt & McCord, 2016,” that have never been provided to the Tribe.
169. The Tribe acted promptly and repeatedly to draw the Corps’ attention to its serious concerns. It immediately responded to all correspondence from the Corps.
170. Information was not sought from the Tribe in determining the scope of its identification efforts, as required by 36 C.F.R. § 800.4(a), nor was the Tribe given a meaningful opportunity to assist the Corps in the identification of this culturally rich but largely unassessed site. Id. § 800.4(b).
171. The Standing Rock THPO formally objected to the Corps’ finding of no historic properties affected on May 17, 2016. Although the regulations required the Corps to either consult with the objecting party to resolve the disagreement, or request action by the ACHP, neither of those things have ever happened. 36 C.F.R. § 800.4(d)(1)(ii).
172. The ACHP formally objected to the Corps’ findings of no historic properties affected on May 19, 2016. Under ACHP regulations, such an objection must be taken into

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account by the Corps prior to reaching a final decision, and the Corps must prepare a summary of the decision and its rationale, along with evidence of consideration of the ACHP’s objection. 36 C.F.R. § 800.4(d)(1)(iv).
173. There are significant unevaluated properties in and near the Lake Oahe crossing work site, as well as the broader pipeline route. Some sites deemed “ineligible” by DAPL’s private surveys may in fact be eligible. Some sites deemed unevaluated have in fact been evaluated and are potentially eligible.
174. The Corps’ decision on the Lake Oahe crossing was arbitrary, capricious, and not in accordance with law in violation of the APA and the NHPA.
C. No § 106 Consultation for Verifications 175. The Corps’ NWP general conditions require completion of the § 106 process for NWP permit verifications and before work can begin. The proponent must present a PCN to the Corps wherever an activity “may have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing” on the National Register. 77 Fed. Reg. 10184, 10284 (Feb, 21, 2012). 176. The Corps has never consulted with the Tribe on issuance of verifications in its ancestral lands, which span the length of the pipeline. The Tribe is unaware of any formal § 106 findings for verifications outside of the two sites in North Dakota. 177. The Corps’ decision that § 106 consultation had been completed on the 204 CWA verifications was arbitrary, capricious, and not in accordance with law in violation of the APA and the NHPA.

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V. FIFTH CLAIM FOR RELIEF – VIOLATIONS OF NEPA WITH RESPECT TO JULY 25, 2016 VERIFICATIONS AND § 408 PERMITS 178. Plaintiff hereby alleges and incorporates and restates all previous paragraphs of
this complaint. A. Failure to Consider Indirect Effects of Missouri River Crossings 179. NEPA requires consideration of indirect effects of agency decision. The Corps
misapplied these legal standards in the final North Dakota EA. It looked narrowly at the impacts of the river crossings themselves, and did not disclose or consider the impacts of other components of the pipeline, either related to its construction or its operation to transport 570,000 barrels a day of crude oil over nearly 1200 miles.
180. Pipeline construction is an indirect impact of the Corps § 408 permits because it is proximately caused by the Corps’ decision. Without the ability to cross the Missouri River, the pipeline could not be built. Pipeline construction is a reasonably foreseeable outcome of the Corps’ decision.
181. Alternatively, pipeline construction could be considered an indirect effect of the Corps’ § 408 permit because it is a future action that is reasonably certain to occur as long as DAPL receives Corps’ authorization at the Missouri River crossings.
182. The Corps failure to consider and disclose the impacts of the pipeline’s construction and operation is arbitrary and capricious and not in accordance with law in violation of the APA and NEPA.
B. Unlawful Segmentation of Project Components 183. NEPA requires consideration of separate components of a single project in a single NEPA review. 40 C.F.R. § 1508.25. NEPA regulations state that connected actions should be considered in a single EIS, defining them as action that “cannot or will not proceed

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unless other actions are taken previously or simultaneously,” and “are interdependent parts of a larger action and depend on the larger action for their justification.” Id.
184. The Corps’ permitting regulations also require it to reject applications that seek to segment a single project into multiple permits. 33 C.F.R. § 325.1(c)(2) (“All activities which the applicant plans to undertake which are reasonable related to the same project and for which a DA permit would be required should be included in the same permit application.”).
185. The Corps has not adhered to these requirements, despite having them pointed out to them by the Tribe, multiple federal agencies, and others. Rather, it unlawfully segmented its NEPA review into separate components in North Dakota and in Illinois, each of which is proceeding independent of the other.
186. Moreover, the FWS issued its own EA and FONSI for a component of this pipeline project. That EA and FONSI did not evaluate the impacts of the FWS decision in the context of the Corps permits or the larger project which it was a part of.
187. The Illinois § 408 permit, the North Dakota § 408 permit, and the FWS grassland easements, are connected actions because they meet the criteria in 40 C.F.R. § 1508.25. NEPA requires them to be considered in a single NEPA document. They were not.
188. By unlawfully segmenting multiple components of the same pipeline project, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of NEPA and the APA.
C. Arbitrary Economic Analysis 189. NEPA and its implementing regulations require the Corps to produce environmental review documents that are factually accurate, well supported, and that fully discloses the impacts of an action to the public. 40 C.F.R. § 1502. 190. These standards apply equally to an agency’s treatment of economic data. 40

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C.F.R. §§ 1502.23 (cost benefit analysis), 1508.8 (EIS must evaluate economic effects). An agency’s failure to include and analyze information that is important, significant, or essential renders an EA and FONSI inadequate. 40 C.F.R. § 1500.1. These fundamental NEPA principles apply to both economic and environmental analyses in an EIS. 40 C.F.R. §§ 1502.24, 1508.8 (“effects” in an EIS must evaluate include economic impacts.).
191. In reaching its decision on the North Dakota crossings, the Corps looked very narrowly at only two tiny segments of the pipeline, ignoring the environmental and economic risks and harms of the pipeline as a whole.
192. However, it balanced these narrow risks and harms against the full economic benefit of the pipeline as a whole. For example, the EA cites the full $3.78 billion investment “directly impacting the local, regional, and national labor force by creating nearly 12,000 construction jobs.” Final EA, at 80. It repeats DAPL’s public talking points about providing “considerable labor income and state income tax revenue – including the generation of more than $13.4 million in ad valorem taxes.” Id.
193. The Corps’ decision to balance the full economic benefits of building and operating the entire pipeline against the economic risks of constructing tiny segments of that pipeline is arbitrary and capricious and not in accordance with law, in violation of NEPA and the APA. VI. SIXTH CLAIM FOR RELIEF: VIOLATIONS OF THE CLEAN WATER ACT AND
RIVERS AND HARBORS ACT WITH RESPECT TO JULY 25, 2016 VERIFICATIONS AND § 408 PERMITS 194. Plaintiff incorporates by reference all preceding paragraphs.

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A. Arbitrary and Inadequate Public Interest Review for North Dakota Permits 195. Prior to issuance of a § 408 permit, or any other CWA/RHA permit, the Corps is required to conduct a “public interest” review consistent with its governing regulations, 33 C.F.R. § 320.4(a). 196. In conducting a public interest review, the Corps must consider the probable impacts of the proposed action, and weigh “all those factors which become relevant.” Id. The Corps must balance the benefits “which reasonably may be expected to accrue” from the action against the “reasonably foreseeable detriments.” Id. “All factors” which may be relevant to the proposal must be considered, including the extent of the public and private need for the proposal, and the existence of unresolved conflicts around resource use. The District Engineer is authorized to make an “independent review of the need for the project from the perspective of the overall public interest.” Id. § 320.4(q) 197. The Corps’ did not conduct a valid public interest review of the § 408 authorizations in North Dakota. To the extent it conducted any public interest review at all, it suffered from all of the same flaws as the NEPA review identified above. Specifically, the Corps conducted an arbitrary and segmented approach that ignored virtually all of the indirect effects of its decision, specifically, the construction and operation of the pipeline itself; and it conducted an arbitrary and one-sided economic balance in which the benefits of the entire $4 billion pipeline were weighed against the impacts of tiny segments of the pipeline. 198. By failing to undertake a lawful and adequate public interest review of the actions proposed in its § 408 decision, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of the CWA and the APA.

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B. Unlawful Verification For Lake Oahe Crossing 199. In addition to a § 408 permit, the portion of the pipeline that crosses under Lake Oahe requires a Rivers and Harbors Act § 10 permit. 33 C.F.R. § 322.3(a) 200. On July 25, 2016, the Corps issued verification that the Lake Oahe pipeline crossing complied with the conditions of NWP 12, and hence was authorized under § 10 of the Rivers and Harbors Act. 201. In order to “qualify” for NWP authorization, proposals must meet a number of general conditions. 77 Fed. Reg. 10184, 10282 (Feb. 21, 2012). 202. The Lake Oahe crossing does not comply with these conditions and, accordingly, does not “qualify” for NWP 12. See also 33 C.F.R. § 330.6(a)(2) (“If the [Army Corps] decides that an activity does not comply with the terms or conditions of an NWP, he will notify the person desiring to do the work and instruct him on the procedures to seek authorization under a regional general permit or individual permit.”). 203. General Condition 7 states that no activity may be authorized under a NWP that is in “proximity” to public water supplies. 77 Fed. Reg. at 10283. The Lake Oahe crossing is in close proximity to the Tribe’s source of drinking water for a significant portion of the reservation community. 204. The potential impact on drinking water for the Standing Rock and many other Tribes and communities has also been emphasized by the Environmental Protection Agency and the U.S. Department of Interior, as well as the Tribal government and many of its members. 205. Further, General Condition 17 states that no activity authorized by a NWP may “impair tribal rights” including “reserved water rights.” 77 Fed. Reg. at 10283. DAPL is routed just upstream of the Tribe’s reservation boundary, where any oil spill would have devastating effects within the reservation. The Reservation necessarily includes the protection of adequate

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water quality. The Lake Oahe crossing does not “qualify” for a NWP 12 because of the risks to Tribal resources protected by treaty.
206. The Corps decision to verify that the Lake Oahe crossing was consistent with NWP 12 was arbitrary, capricious and not in accordance with law, in violation of the APA.
C. Issuance of Verifications for 204 Jurisdictional Waters 207. Under the Corps’ regulations, a single project can only proceed under both an NWP and an individual permit where the “portions qualifying for NWP authorization would have independent utility and are able to function or meet their purpose independent of the total project.” 33 C.F.R. § 330.6(d). 208. For the reasons discussed immediately above, the Lake Oahe crossing requires an individual permit. Moreover, Section 408 authorizations are individual “permits” within the meaning of this regulation. See id., § 320.2(e); § 320.4 (general policies applicable to “all” Army permits). 209. No component of DAPL has “independent utility” or the “ability to function” without the other components of the pipeline. As a result of this, the Corps cannot authorize some portions of DAPL under NWP 12, and other portions as individual permits. 210. Because the Lake Oahe crossing requires an individual permit, no other component of the pipeline can be authorized under NWP 12. 211. Issuance of a verification by the Corps constitutes a final agency action within the meaning of the APA. 212. The Corps’ verification of 204 additional crossings of jurisdictional waters was arbitrary and capricious and not in accordance with law, in violation of the APA and the CWA.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:

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1. Declare that NWP 12 is invalid as applied to DAPL because the Corps failed to comply with § 106 at the time of its issuance, in violation of the NHPA.
2. Declare that NWP 12 is invalid as applied to DAPL because the Corps unlawfully delegated its responsibility to comply with § 106 to private parties, effectively allowing discharge into waters of the United States without any consideration of impacts to historic properties, in violation of the NHPA.
3. Declare that NWP 12 is invalid as applied to DAPL because the Corps authorized discharge into waters of the United States without consideration of indirect impacts on historic sites, in violation of the NHPA.
4. Declare that the July 25, 2016 authorizations and verifications are arbitrary, capricious, and in violation of the NHPA, NEPA, CWA and RHA, and implementing regulations.
5. Vacate NWP 12 as applied to DAPL. 6. Enjoin the Corps to direct DAPL to seek either an individual permit covering all discharges along the entire pipeline route, or submit PCNs for all impacts to waters of the U.S., and fully comply with § 106 prior to finalizing such permit or verifications. 7. Vacate all authorizations and verifications related to DAPL pending full compliance with law. 8. Vacate the final EA and FONSI. 9. Retain jurisdiction over this matter to ensure that the Corps complies with the law. 10. Award Plaintiff its reasonable fees, costs, expenses, and disbursements, including attorneys’ fees, associated with this litigation; and

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11. Grant Plaintiff such further and additional relief as the Court may deem just and
proper.
Respectfully submitted this 27th day of July, 2016.
/s/ Patti A. Goldman Patti A. Goldman, DCBA # 398565 Jan E. Hasselman, WSBA # 29107 (Pro Hac Vice Application Pending) Stephanie Tsosie, WSBA # 49840 (Pro Hac Vice Application Pending) Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 Telephone: (206) 343-7340 pgoldman@earthjustice.org jhasselman@earthjustice.org stsosie@earthjustice.org
Attorneys for Plaintiff

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 Case 1:16-cv-01534-JEB Document 37 Filed 09/08/16 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,

Plaintiff,

Case No. 1:16-cv-1534-JEB

and

CHEYENNE RIVER SIOUX TRIBE,

Intervenor-Plaintiff,

v.

U.S. ARMY CORPS OF ENGINEERS,

Defendant.

and

DAKOTA ACCESS, LLP,

Intervenor-Defendant.

INTERVENOR-PLAINTIFF CHEYENNE RIVER SIOUX TRIBE’S FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Intervenor-Plaintiff Cheyenne River Sioux Tribe seeks declaratory and injunctive relief against Defendant and, in support thereof, states as follows:
INTRODUCTION 1. This is a complaint for declaratory and injunctive relief. The Cheyenne River Sioux Tribe (“Tribe”) brings this action in connection with federal actions relating to the Dakota Access Pipeline (“DAPL”), a 1,168-mile-long crude oil pipeline running from North Dakota to Illinois owned by the oil company, Dakota Access LLP (“Dakota Access”). The Tribe, a federallyrecognized Indian Tribe with a reservation in South Dakota (25 U.S.C. § 479a; 81 Fed. Reg. 5020 (Jan. 29, 2016), brings this case against Defendant U.S. Army Corps of Engineers (“Corps”),
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whose authorization of DAPL violates the United States’ trust and protectorate relationship with the Tribe, as embodied in the United States Constitution, multiple treaties with the Tribe, federal statutes, executive orders, and regulations, in addition to violating multiple federal statutes that govern pipeline construction and operation. The construction and operation of the pipeline, as authorized by the Corps, represents an existential threat to the Tribe’s permanent homeland and our environmental and economic well-being, and will damage and destroy sites of great historic, religious, and cultural significance to the Tribe.
2. Specifically, the DAPL crude oil pipeline approved by the Corps is planned to transect the heart of the Tribe’s ancestral and treaty lands and will run directly under the Missouri River at the site of the Oahe Reservoir, which is the primary source of water for the Cheyenne River Sioux Reservation. The waters of the Missouri River or Mni Šoše are sacred to the Lakota people of the Cheyenne River Sioux Tribe and constitute the lifeblood of our religion and traditions. Further, the Tribe’s treaties and the federal statutes that govern the Tribe’s rights with regard to the Missouri River establish that the Tribe enjoys a clear property right in the waters of the Missouri and enjoys a right to waters that are clean and suitable for drinking, agricultural use, hunting, fishing, and other rights. This property right is subject to the special trust relationship between the United States and the Cheyenne River Sioux Tribe.
3. Should this oil pipeline fail, like so many before it have, it will contaminate this essential resource and deprive the Tribe of the right guaranteed to us by the United States to rely on the Missouri River to sustain our homeland. These public health and safety concerns caused Dakota Access to abandon an early proposal to run the pipeline under the Missouri River near the city of Bismarck, North Dakota, which relies upon these waters for its municipal waters. Nevertheless, when the Environmental Protection Agency, the Department of Interior, and the
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Tribe communicated their grave concerns about the environmental impact of siting the DAPL under Tribally-owned waters, the Corps improperly relied upon an Environmental Assessment (“EA”) that failed to analyze the significant environmental effects of the oil pipeline on the Tribe’s water. The Corps’ issuance of the permits that allow Dakota Access to run its pipeline through the Tribe’s waters was arbitrary and capricious and should be set aside because it violated the National Environmental Policy Act (“NEPA”), Department of Defense policies and regulations, and because it breached the United States’ trust responsibility to the Cheyenne River Sioux Tribe.
4. The Tribe also brings an as-applied challenge to Nationwide Permit 12 (“NWP 12”), issued by the Corps in 2012 pursuant to the federal Clean Water Act (“CWA”) and Rivers and Harbors Act (“RHA”). DAPL crosses hundreds if not thousands of federally-regulated rivers, streams, and wetlands along its route. The discharge of any fill material in such waters is prohibited absent authorization from the Corps. Federal authorization under these statutes, in turn, triggers requirements under the National Historic Preservation Act (“NHPA”), intended to protect sites of historic and cultural significance to Tribes like Cheyenne River. In issuing NWP 12, however, the Corps authorized discharges into federal waters without ensuring compliance with the NHPA. In essence, in enacting NWP 12, the Corps pre-authorized construction of DAPL in all but a handful of places requiring federal authorization without any oversight from the Corps. In so doing, the Corps abdicated its statutory responsibility to ensure that such undertakings do not harm historically and culturally significant sites.
5. In addition, on July 25, 2016, the Corps issued multiple federal authorizations needed to construct the pipeline in certain designated areas along the pipeline route. One such authorization allows Dakota Access to construct the pipeline underneath Lake Oahe, approximately seventy miles upstream of the Tribe’s reservation. Others authorize the DAPL to
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discharge into waters of the United States at multiple locations throughout the Tribe’s ancestral lands. The Tribe brings this challenge because these authorizations were made in violation of the CWA and its governing regulations and without compliance with NHPA, and the NEPA. These authorizations also violate the Corps’ responsibility to manage the waters of Lake Oahe, which are owned by the Cheyenne River Sioux Tribe, pursuant to the Flood Control Act of 1944, P.L. 83776, Department of Defense policies and regulations, and in violation of the Corps’ trust and fiduciary responsibility to the Tribe set forth in statute and Treaty.
6. The Tribe seeks a declaration that the Corps violated the NHPA in issuing NWP 12, and an injunction preventing the Corps from using NWP 12 as applied to DAPL and directing the Corps to ensure full compliance with § 106 of the NHPA at all sites involving discharges into waters of the United States. The Tribe also seeks a declaration that the July 25, 2016 authorizations were made in violation of the CWA, NEPA, and NHPA, and an order vacating all existing authorizations and verifications pending full compliance with the CWA, NEPA, and NHPA. The Tribe finally seeks a declaration that the Corps’ authorization of the DAPL crossing under the Missouri River violated the United States’ trust responsibility to the Tribe, and an order vacating all existing authorizations and verifications.
7. The Tribe seeks a declaration the Corps violated the Mineral Leasing Act (“MLA”) and the Administrative Procedures in its failure to promulgate regulations in accordance with the MLA. The Tribe also seeks a declaration that any right-of-way issued by the Corps was made in violation of the MLA, and an order vacating the issues of any right-of-way on lands with the Corps exercises jurisdiction.
JURISDICTION AND VENUE 8. This case arises under the Constitution and laws of the United States, including the Supremacy Clause, U.S. Const., Art. 6; the Treaty of Fort Laramie, 11 Stat. 749 (Sep. 17, 1851);
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and the 1868 Sioux Nation Treaty, 15 Stat. 635 (Apr. 29, 1868). This case also states a claim under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“APA”), which authorizes a federal court to find unlawful and set aside any final agency action that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at § 706. Jurisdiction arises under 28 U.S.C. § 1362 (“district courts shall have original jurisdiction of all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States”); § 2201 (declaratory relief); § 2202 (injunctive relief).
9. Venue in this district is appropriate under 28 U.S.C. § 1391(e) because it is the district in which the Defendant resides and in which “a substantial part of the events or omissions giving rise to the claim occurred.”
PARTIES 10. The Cheyenne River Sioux Tribe is a federally-recognized Indian tribe with a governing body recognized by the Secretary of the Interior. The Tribe is a member of the Oceti Šakowiŋ (“Seven Council Fires,” also known as the Great Sioux Nation), which includes the Lakota, Dakota, and Nakota people. The Tribe is comprised of four of the seven bands of Lakota (Itazipco, Minnicoujou, Oohenumpa, and Siha Sapa) and is a party to the 1851 Fort Laramie Treaty and the 1868 Sioux Nation Treaty. In those Treaties, the United States made solemn promises to the Tribe, including the explicit guarantee of “protection” and the reservation of lands intended to provide a homeland and subsistence for the Tribe “set apart for [their] absolute and undisturbed use and occupation.” In consideration for those promises, the Tribe ceded a large portion of their aboriginal territory in the northern Great Plains. 11. The original territory set aside by the United States for the Tribe was diminished over time to create nine much smaller Sioux reservations, including the Cheyenne River. The
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present Cheyenne River Sioux Reservation is bordered on the north by the Standing Rock Sioux Reservation and bordered on the east by Lake Oahe, upon which the Tribe relies for its very subsistence—its drinking water, its agricultural water, its industrial water, and the waters that support subsistence and sport hunting, fishing, and boating. Lake Oahe is the same reservoir of the Missouri that the proposed pipeline is intended to cross. The Cheyenne River Sioux Reservation is approximately seventy miles downstream of that proposed crossing.
12. The territory set aside for the Tribe in the 1851 Treaty of Fort Laramie was vast, including all of the Dakotas west of the Missouri River and large sections of Montana, Wyoming, and Nebraska. These Treaty lands encompass exactly the site of the proposed pipeline. Further, the Tribe’s aboriginal territory prior to 1851 included the entirety of the Dakotas (in addition to other areas). Hence, a great portion of the rest of the DAPL pipeline crossing through the Dakotas is within the Tribe’s ancestral and ceded lands.
13. The present-day borders of the Cheyenne River Sioux Reservation were established by the Act of March 2, 1889, 25 Stat. 888, but a significant portion of those lands were later taken by an unconsented inundation of Tribal lands when the Defendant here flooded the Missouri River to create Lake Oahe in the 1950s which took 104,420 acres of the our very best lands. Since the beginning of its interactions with the Tribe, however, the United States has reiterated time and again by statute, regulation, and executive order its promise to provide the Tribe with protection, subsistence, a livable homeland, and the waters necessary to maintain the same.
14. The U.S. Army Corps of Engineers is an agency of the United States government and a division of the U.S. Army, part of the U.S. Department of Defense. It is charged with regulating any dredging and filling of the waters of the United States under § 404 of the CWA and
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§ 10 of the RHA. The Corps is empowered by statute to exercise comprehensive control over the waters of Lake Oahe. 33 U.S.C. § 707.
15. By filing this action, the Tribe does not waive its sovereign immunity and does not consent to suit as to any claim, demand, offset, or cause of action of the United States, its agencies, officers, agents, or any other person or entity in this or any other court.
TREATIES, STATUTES, AND REGULATONS, RELATED TO THE CORPS’ OBLIGATIONS TO MANAGE WATERS OF LAKE OAHE AND TRUST DUTY TO
THE TRIBE I. THE FORT LARAMIE TREATY OF 1851 AND 1868 SIOUX NATION TREATY
16. At the close of the War of 1812, the United States settled with Great Britain in the Treaty of Ghent, promising that Indian nations and tribes would enjoy the same status with the United States as they had prior to the War. Accordingly, the United States sent out treaty delegations to Indian country. In 1851, the United States entered into a treaty with the Great Sioux Nation, including the four bands of the Lakota who comprise the Cheyenne River Sioux Tribe. 1851 Treaty of Fort Laramie, 11 Stat. 749 (Sep. 17, 1851). In this peacetime treaty, the Tribe reserved a vast territory encompassing all of the Dakotas west of the Missouri River and large swaths of Montana, Wyoming, and Nebraska. The United States bound itself to “protect” the Great Sioux Nation “against the commission of all depredations by the people of the said United States, after the ratification of this treaty.”
17. From 1867 to 1868, the Great Sioux Nation fought the Powder River War, a series of military engagements in which the Sioux Tribes fought to protect the integrity of the Treaty lands recognized by the United States in1851 from the incursion of white settlers. The United States, acting under the auspices of the Indian Peace Commission, sought a treaty to end the war. The Treaty Commission travelled up the Missouri River to meet with the leaders of the Great Sioux
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Nation where they negotiated the 1868 Sioux Nation Treaty. 15 Stat. 635 (Apr. 29, 1868). In the
Treaty of 1868, the Sioux Nation reserved all of the lands west of the low water mark of the
Missouri River in South Dakota and adjacent lands in North Dakota as the Tribe’s permanent
homeland, including without limitation appurtenant waters, natural resources, grazing, timber,
mineral rights, hunting and fishing rights, usufructuary rights, and absolute and undisturbed use,
occupancy, ownership, self-government and treaty rights protected by the United States’ honor,
the Full Faith and Credit of the United States, the federal trust responsibility and the Constitution
of the United States. The Reservation of the Great Sioux Nation’s permanent homeland includes
the sacred pledge by the United States that it would be a livable homeland.
II. ACT OF MARCH 2, 1889, 25 Stat. 888
18. In 1889, after a prior illegal abrogation of the 1868 Treaty, the United States
reserved the present-day Cheyenne River Sioux Reservation as the permanent home for the four
Lakota bands that comprise the Cheyenne River Sioux Tribe today. The Act states:
That the following tract of land, being a part of the said Great Reservation of the Sioux Nation, in the Territory of Dakota, is hereby set apart for a permanent reservation for the Indians receiving rations and annuities at the Cheyenne River Agency, in the said Territory of Dakota, namely: Beginning at a point in the center of the main channel of the Missouri River, ten miles north of the mouth of the Moreau River, said point being the southeastern corner of the Standing Rock Reservation; thence down said center of the main channel of the Missouri River, including also entirely within said reservation all islands, if any, in said river, to a point opposite the mouth of the Cheyenne River; thence west to said Cheyenne River, and up the same to its intersection with the one hundred and second meridian of longitude; thence north along said meridian to its intersection with a line due west from a point in the Missouri River ten miles north of the mouth of the Moreau River; thence due east to the place of beginning.
25 Stat. 888, §4.
The reservation includes treaty lands, appurtenant waters, natural resources, grazing, timber,
mineral rights, hunting and fishing rights, usufructuary rights, and absolute and undisturbed use,
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occupancy and ownership, self-government and treaty rights. This reservation of land was accompanied by a reservation of water rights in the Missouri River to fulfill the purpose of the reservation to provide for the Tribe’s self-sufficiency. Winters v. United States, 207 U.S. 564 (1908). The Tribe enjoys a clear property right in the waters of Lake Oahe and the Missouri River reserved to it by the United States by the creation of the Cheyenne River Sioux Reservation. Id. This Winters right includes the right to clean, safe water that is consistent with the purpose of the reservation. Id. III. FLOOD CONTROL ACT OF 1944, PUBLIC LAW 83-776
19. In Public Law 83-776, the United States directed the Defendant Army Corps of Engineers to construct the Oahe Dam on the Missouri River to provide for federal flood control for Americans living downstream of the Cheyenne River Sioux Tribe. The Act permitted a taking of Tribal lands that resulted in the inundation 104,420 acres of the Tribe’s very best lands. Public Law 83-776, however, reserved the Reservation boundaries, appurtenant waters, natural resources, grazing, timber, mineral rights, hunting and fishing rights, usufructuary rights, and absolute and undisturbed use occupancy and ownership, self-government and treaty rights.
20. The Flood Control Act also granted to the Army Corps of Engineers comprehensive power over federally-owned reservoirs such as Lake Oahe, including authority over water use, leases, construction, recreation, storage, flood control and navigation, and regulations related to the same. See 16 U.S.C. §§ 460d, 825s (1946 Ed.); 33 U.S.C. §§ 708, 709 (1946 Ed.). The Corps’ control over federally-owned reservoirs is pervasive, excluding even its sister agencies. ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988).
21. The Flood Control Act, further, explicitly prohibits the Corps from taking any action in its management of Lake Oahe that conflicts with present and future beneficial
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consumptive uses of the waters in Lake Oahe for domestic, municipal, stock water, irrigation, mining, or industrial purposes. Act of December 22, 1944, 58 Stat. 887, §1(b). IV. THE CORPS’ TRUST RESPONSIBILITY TO THE TRIBE
22. The Cheyenne River Sioux Tribe owns reserved water rights guaranteed by its Treaties in the waters of Lake Oahe. “Indian reserved water rights are vested property rights for which the United States has a trust responsibility, with the United States holding legal title to such water in trust for the benefit of the Indians.” Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed. Reg. 9223 (Mar. 12, 1990). Under the federal trust responsibility, the United States has a duty to conserve Indian lands, waters, and natural resources, and appropriately manage tribal natural resources 25 U.S.C. § 162(a)-(d). It is also “the policy of the United States, that all Indian communities . . . be provided with safe and adequate water supply. . . .” 25 U.S.C § 1632(a) (5). Among the United States’ core obligations is their duty to prevent upstream users from impairing a tribes’ reserved right. See Winters, 207 U.S. at 577-78.
23. The Corps and the Department of Defense exercise their trust responsibility to protect tribes and tribal trust resources by government-to-government consultation with tribes on any action under their authority that could impair tribal trust resources or tribal rights. Department of Defense Instruction 4710.02 (Sept. 14, 2006); see also Secretary of Defense Policy on “Department of Defense American Indian and Alaska Native Policy,” Oct. 20, 1998; Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (Nov. 6, 2000); Presidential Memorandum on Tribal Consultation (Nov. 6, 2009). While the courts and the Corps itself recognize that the Corps owes a trust duty to Tribes, particularly with regard to ensuring that Treaty rights are given full effect, the Corps also owes a specific trust responsibility to the Tribe
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to protect its reserved water emanating from its comprehensive statutory control over the Tribe’s trust property.
24. The Corps’ duty to the Tribe is a moral obligation of the highest responsibility and trust that should be judged by the most exacting fiduciary standards. United States v. Jicarilla Apache Nation, 564 U.S. 162, 207 (2011).
THE CLEAN WATER ACT 25. Congress enacted the CWA in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the CWA prohibits the discharge of any pollutant, including dredged soil or other fill material, into waters of the United States unless authorized by a permit. Id. at § 1311(a). Unless statutorily exempt, all discharges of dredged or fill material into waters of the United States must be authorized under a permit issued by the Corps. Id. at §§ 1344(a)–(e). 26. The Corps is authorized to issue two types of permits under § 404: individual permits and general permits. Id. The Corps issues individual permits under § 404(a) on a caseby-case basis. Id. at § 1344(a). Such permits are issued after a review involving, among other things, site specific documentation and analysis, public notice and opportunity for a hearing, public interest analysis, and formal determination. 33 C.F.R. § 322.3, Parts 323, 325. 27. The CWA also authorizes the Corps to issue “general” permits on a state, regional, or nationwide basis. 33 U.S.C. § 1344(e). Such general permits may be issued for any category of similar activities that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” Id. “No general permit . . . shall be for a period of more than five years after the date of its issuance.” 33
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U.S.C. § 1344(e)(2). The purpose of this approach to permitting is to “regulate with little, if any, delay or paperwork certain activities that have minimal impacts.” 33 C.F.R. § 330.1(b).
28. The Corps issued the current set of 48 nationwide permits (“NWPs”) in February of 2012. 77 Fed. Reg. 10184 (Feb. 21, 2012). The 2012 NWPs in “most cases” authorize discharge into regulated waters without any further process involving the Corps. In effect, the NWP preauthorizes certain categories of discharge, without any additional approval from, or even notification to, the Corps. 33 C.F.R. § 330.1(e)(1). In other instances, discharges cannot occur until the proponent of the action files a “pre-construction notification” (“PCN”) to the Corps, and receives verification that the proposed action is consistent with the terms of the NWP. Id. at § 330.6(a). The specifics of whether or not a PCN is required are spelled out in each individual NWP as well as a series of “general conditions” accompanying the NWP. 77 Fed. Reg. at 10282 (listing 31 general conditions).
THE RIVERS AND HARBORS ACT 29. The Rivers and Harbors Act of 1899 is the nation’s oldest environmental law. The statute prohibits a number of activities that impair ports, channels, and other navigable waters. Unlike the CWA, which applies in all waters of the United States, the RHA applies only in “navigable” waters, defined as waters subject to the ebb and flow of the tides, or waters that are “presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4. 30. Section 10 of the RHA, 33 U.S.C. § 403, among other things, makes it unlawful “to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of” any navigable water without a permit from the Corps. Like § 404 permits, § 10 permits may be issued as individual permits or pursuant to the NWP program and are generally subject to many of the same regulations.
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31. Tunneling under a navigable water requires a § 10 permit from the Corps, even without any discharge into navigable waters. 33 C.F.R. § 322.3(a) (“For purposes of a Section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capacity of the waterbody.”).
32. A separate provision of the RHA, known as “Section 408,” makes it unlawful to “build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States” without a permit from the Corps. 33 U.S.C. § 408. Unlike § 10 permits, § 408 permits cannot be issued pursuant to the NWP program but are only issued as individual permits. Prior to issuance of a § 408 permit, the Corps must determine whether the use or occupation will be injurious to the public interest or impair the usefulness of the project.
THE NATIONAL HISTORIC PRESERVATION ACT 33. Section 106 of the National Historic Preservation Act requires that, prior to issuance of a federal permit or license, federal agencies shall take into consideration the effects of that “undertaking” on historic properties. 54 U.S.C. § 306108. Agencies “must complete the Section 106 process prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” 36 C.F.R. § 800.1. 34. The NHPA defines undertaking as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including (1) those carried out by or on behalf of the Federal agency; (2) those carried out with Federal financial assistance; (3) those requiring a Federal permit, license, or approval; and (4) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” 54 U.S.C. § 300320; 36 C.F.R. § 800.16(y).
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35. Early in the NHPA process, an agency must determine the area of potential effects (“APE”) of a federal undertaking. 36 C.F.R. § 800.4(1)(1). The APE is defined by regulation to include the area “within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties. The [APE] is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Id. at § 800.16(d).
36. The § 106 process requires consultation with Indian tribes on federal undertakings that potentially affect sites that are culturally significant to Indian tribes. 36 C.F.R. § 800.2(c)(2); 54 U.S.C. § 302707 (properties “of traditional religious and cultural importance to” a Tribe may be included on the National Register, and federal agencies “shall consult with any Indian Tribe . . . that attaches religious or cultural significance” to such properties). Consultation must occur regarding sites with “religious and cultural significance” even if they occur on ancestral or ceded land. Id. at § 800.2(c)(2)(II)(D).
37. Under the consultation regulations, an agency official must “ensure” that the process provides Tribes with “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties . . . articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. at § 800.2(c)(ii)(A). This requirement imposes on agencies a “reasonable and good faith effort” to consult with tribes in a “manner respectful of tribal sovereignty.” Id. at § 800.2(c)(2)(II)(B).
38. Acting “in consultation with . . . any Indian tribe . . . that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take steps necessary to identify historic properties within the area of potential effects.” Id. at §
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800.4(b). The agency must evaluate the historic significance of such sites and determine whether they are potentially eligible for listing under the National Register. Id. at § 800.4(c).
39. If the agency determines that no historic properties will be affected by the undertaking, it must provide notice of such finding to the state and tribal historic preservation offices, and the Advisory Council on Historic Preservation (“ACHP”), which administers the NHPA. Id. at § 800.4(d). The regulations give those parties the opportunity to object to such a finding, which elevates the consultation process further. Id.
40. If the agency finds that historic properties are affected, it must provide notification to all consulting parties and invite their views to assess adverse effects. Id. Any adverse effects to historic properties must be resolved, involving all consulting parties and the public. Id. at § 800.6. If adverse effects cannot be resolved, the process is elevated again to the ACHP and the head of the agency undertaking the action. Id. at § 800.7. Until this process is complete, the action in question cannot go forward.
41. The ACHP authorizes agencies to adopt their own regulations for implementing its § 106 obligations. Such regulations must be reviewed and approved by the ACHP in order to be valid. Id. at § 800.14.
42. The Corps has adopted procedures intended to satisfy its § 106 obligations. See App. C to 33 C.F.R. Part 325. Those procedures, which predate amendments to the NHPA that significantly broaden the role of tribes in the § 106 process, have never been approved by the ACHP. Several courts have concluded that the Corps’ NHPA procedures are legally invalid. However, the Corps continues to follow these procedures for purposes of § 106 consultation, including in the process surrounding DAPL.
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43. Section 106 regulations also provide an alternative compliance mechanism under which agencies can negotiate a “programmatic agreement” with the ACHP to resolve “complex project situations or multiple undertakings.” 36 C.F.R. § 800.14(b). Such agreements are suitable for “when effects on historic properties are similar and repetitive or are multi-State or regional in scope;” “when effects on historic properties cannot be fully determined prior to approval of an undertaking;” or when “nonfederal parties are delegated major decisionmaking responsibilities,” among other situations. Id. at § 800.14(b)(1). Programmatic agreements require consultation with Tribes, among others, as well as public participation.
44. The Corps has never adopted a programmatic agreement with the ACHP regarding its CWA/RHA permits or any other activity.
THE NATIONAL ENVIRONMENTAL POLICY ACT 45. NEPA, 42 U.S.C. §§ 4321–4370f, is our “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). It makes environmental protection a part of the mandate of every federal agency. 42 U.S.C. § 4332(1). 46. NEPA seeks to ensure that federal agencies take a “hard look” at environmental concerns. One of NEPA’s primary purposes is to ensure that an agency, ‘“in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.’” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA also “guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience,” including the public, “that may also play a role in the decisionmaking process and the implementation of the decision.” Id. 47. NEPA requires agencies to fully disclose all of the potential adverse environmental impacts of its decisions before deciding to proceed. 42 U.S.C. § 4332(C). NEPA also requires
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agencies to use high quality, accurate scientific information and to ensure the scientific integrity of the analysis. 40 C.F.R. §§ 1500.1(b), 1502.24.
48. If an agency action has adverse effects that are “significant,” they need to be analyzed in an environmental impact statement (“EIS”). 40 C.F.R. § 1501.4. If it is unclear whether impacts are significant enough to warrant an EIS, it may prepare an “environmental assessment” (“EA”) to assist in making that determination. Id. If the agency determines that no EIS is required, it must document that finding in a “finding of no significant impact” (“FONSI”).
49. NEPA’s governing regulations define what “range of actions, alternatives, and impacts [must] be considered in an environmental impact statement.” 40 C.F.R. § 1508.25. This is in part what is known as the “scope” of the EIS. The EIS must consider direct and indirect effects. The direct effects of an action are those effects “which are caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8(a). The indirect effects of an action are those effects “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b).
50. An agency must also analyze and address the cumulative impacts of a proposed project. 40 C.F.R. § 1508.25(c)(3). Cumulative impacts are the result of any past, present, or future actions that are reasonably certain to occur. Such effects “can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7.
THE MINERAL LEASING ACT 51. The Mineral and Leasing Act imposes a mandatory duty that rights-of-way or permits granted or renewed pursuant to 30 U.S.C. § 185 shall be subject to promulgated regulations. 52. The relevant section is set forth in 30 U.S.C. § 185(f).
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53. The section is intended to ensure that permits and rights-of-way granted or renewed pursuant to the Mineral Leasing Act are promulgated in accordance with the provisions of section 185. In addition to the mandatory requirement of regulations being promulgated in accordance with the provisions of section 185, the Secretary of the Interior or agency head may prescribe additional terms and conditions regarding the extent, duration, survey, location, construction, operation, maintenance, use and termination of such permits and grants.
54. The Corps has not promulgated any regulations or final rule regarding the grant of rights-of-way or permits granted or renewed pursuant to the Mineral Leasing Act.
55. The APA requires promulgated rulemaking by agencies after the public receives notice and an opportunity to comment.
56. It is incumbent upon an agency to follow is own procedures. Morton v. Ruiz, 415 U.S. 199 (1974).
FACTUAL ALLEGATIONS VI. INTERESTS OF THE CHEYENNE RIVER SIOUX TRIBE
57. Since time immemorial, the Tribe’s ancestors—the Oceti Šakowiŋ, also known as the Great Sioux Nation—used and occupied a broad area throughout the northern Great Plains, including much of the area that Dakota Access proposes to cross with its pipeline. Although the Tribe followed migrating buffalo herds without limitation across the North American landscape (including present-day Iowa and Illinois), the Tribe’s aboriginal territory prior to the 1851 Fort Laramie Treaty has been understood to include all of the Dakotas and large parts of Montana, Wyoming, and Nebraska. The Tribe’s traditional territories as set forth in the various treaties has been judicially established to include all of the Dakotas west of the Missouri River and large parts of Montana, Wyoming, and Nebraska. This broad territory embraces a landscape filled with cultural and historical significance central to the Tribe’s identity.
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58. The Tribe’s traditional and ancestral territory extends well beyond the current Reservation’s exterior boundaries, encompassing lands that are the subject of this action, but especially those lands that have been judicially established as treaty territories of the tribe. The Corps and other federal agencies have repeatedly acknowledged the traditional use of lands within and around the DAPL route by the Tribe’s ancestors.
59. The Tribe’s cultural resources are historically and culturally interrelated over the entirety of the land within the Tribe’s traditional territory, within and outside of the exterior boundaries of the Reservation. Protection of the Tribe’s cultural heritage is of significant importance to the Tribe. Destruction or damage to any one cultural resource, site, or landscape contributes to destruction of the Tribe’s culture, history, and religion. Injury to the Tribe’s cultural resources causes injury to the Tribe and its people.
60. Cultural resources of significance to the Tribe are located on the lands that are the subject of this action and adjacent lands. In addition to specific archaeological sites that have been identified to date, there are numerous significant culturally important sites that have not been identified. The lands within the pipeline route are culturally and spiritually significant.
61. The waters of the Missouri River moreover are sacred to the Tribe and essential to the Tribe’s practice of our religion. The waters of the Missouri River are themselves a Tribal cultural and spiritual resource.
62. The Tribe and its members also have a cultural interest in preserving the quality of the land, water, air, fauna, and flora within the Tribe’s traditional territory, within and outside the Reservation. For example, the Tribe is concerned with impacts to the habitat of wildlife species such as piping plovers, least tern, Dakota skipper, the black-footed ferret, and pallid sturgeon, among others. The Tribe has a particular concern for bald eagles, which remain federally protected
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and play a significant role in the Tribe’s culture, and which would be adversely affected by the proposed pipeline. 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.
63. The Tribe has a clear legally recognized property right in the waters of Lake Oahe. See Winters v. United States, 207 U.S. 564 (1908). When the United States set aside the lands that comprise the Cheyenne River Sioux Reservation, it impliedly reserved waters both sufficient to sustain the Reservation and of a quality to serve that purpose. Id. Although the Tribe has never quantified those rights, the Tribe relies upon the waters of Lake Oahe for nearly all of its drinking water, agricultural and industrial water, as well as water to support subsistence and sport hunting and fishing. The Cheyenne River Sioux Tribe relies upon the waters of Lake Oahe for its health, safety, and economy. In light of the Tribe’s almost total reliance upon Lake Oahe for its water, contamination of those waters by toxic discharge or by a failure of the proposed pipeline would devastate the Cheyenne River Sioux Reservation, impair our property rights, and threaten the Tribe’s very existence.
THE CORPS’ ISSUANCE OF NWP 12 64. The Corps issued the current suite of 48 NWPs, covering a wide array of potential activities involving discharges into regulated waters, in February of 2012. 77 Fed. Reg. 10184 (Feb. 21, 2012). Of relevance here, NWP 12 governs “utility line activities.” Id. at 10271. NWP 12 authorizes the “construction, maintenance, repair and removal of utility lines and associated facilities” in waters of the United States, providing that the activity does not result in the loss of greater than a ½ acre of waters “for each single and complete project.” Counterintuitively, a “single and complete project” in the case of linear projects like utility lines is any crossing of a
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separate waterbody. 33 C.F.R. § 330.2(i). Under this definition, a pipeline like DAPL is made up of hundreds if not thousands of “single and complete projects.”
65. The NWP defines “utility line” to include “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose.” 77 Fed. Reg. at 10271. The Corps considers pipelines carrying crude oil to be covered by NWP 12.
66. Under NWP 12, preconstruction notification (“PCN”) to the Corps by a non-federal project proponent, and a verification from the Corps, is required if any one of several criteria is met. Id. at 10272. If none of the criteria are met, the proponent is authorized by NWP 12 to proceed with the work in regulated waters without additional notification to, or approval from, the Corps. None of the NWP 12-specific criteria relates to historic or cultural preservation.
67. The NWP program also includes a set of general conditions that are applicable to all NWPs, including NWP 12. General Condition 20 (“GC 20”) addresses historic properties. Under GC 20, a non-federal permittee must submit a PCN “if the authorized activity may have the potential to cause effects to any historic priorities listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties.” Id. at 10284. If a PCN is provided, the Corps purports to comply with § 106 of the NHPA prior to verifying that the NWP is applicable, and work may not commence until such verification is provided. 33 C.F.R. § 330.5(g)(2). Conversely, if no PCN is provided, no § 106 process occurs.
68. GC 20 puts the responsibility on the proponent, not the Corps, to determine whether historic or culturally significant properties are present, and requires Corps’ verification only if the proponent finds such sites and reports them to the Corps via a PCN.
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69. NWP 12 was formally adopted by the Corps in a “Decision Document” signed by Major General Michael J. Walsh on Feb. 13, 2012. In responding to public comment regarding potential impacts to tribal sites, the Decision Document states that compliance with NHPA on NWP implementation is carried out via GC 20.
FACTS RELEVANT TO CHALLENGE TO NWP 12 70. The proponent of DAPL proposes to construct a major crude oil pipeline across 1,168 miles through North Dakota, South Dakota, Iowa, and Illinois. The pipeline will have a capacity of 570,000 barrels of crude oil per day, making it one of the largest crude oil pipelines in the nation, carrying over half of the current capacity of North Dakota’s oil production. 71. DAPL is one of several pipelines that have been proposed for the North Dakota oil production area, some of which have been moving on a slower timeline due to environmental review requirements. DAPL has moved aggressively to get the pipeline constructed as quickly as possible. 72. The pipeline’s route passes through the Tribe’s ancestral lands, and areas of great cultural, religious, and spiritual significance to the Tribe. Construction of the pipeline includes clearing and grading a 100-150 foot access pathway nearly 1,200 miles long, digging a trench as deep as 10 feet, and building and burying the pipeline. Such work would destroy burial grounds, sacred sites, and historically significant areas in its path. These sites carry enormous cultural importance to the Tribe and its members. 73. DAPL claims to have completed cultural resource surveys along the entire pipeline length. However, the out-of-state, non-Tribal consultants hired by DAPL to do cultural surveys are unable to assess the potential cultural significance of sites in this area to the affected Tribes. Only Tribally-trained and approved consultants have the ability to assess such sites. The Tribe has
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never had the opportunity to discuss protocols for cultural surveys, or participate in the surveys that were conducted. Instead, it was provided copies of partial surveys after they were completed.
74. Compared to other pipelines, DAPL has taken a highly unusual approach to Corps permitting for activities involving discharges into regulated waters. Rather than seek Corps’ verifications on all waters of the U.S. in which pipeline construction would cause a discharge, as has been typical, DAPL has only sought Corps’ verification for a tiny minority of the impacts to federally-regulated waters.
75. For example, DAPL’s route through North Dakota is 359 miles. A 2015 “Wetlands and Waterbodies Delineation Report” provided to the state Public Service Commission identifies 263 waterbodies and 509 wetlands that would be impacted by the pipeline. However, this information was never provided to the Corps. Instead, DAPL submitted PCNs for only two of these sites, at crossings of the Missouri River. Neither of these PCNs was submitted based on potential impacts to historic sites.
76. In South Dakota, DAPL would cross 273 miles. DAPL’s state Public Utilities Commission filings reveal 288 waterbody crossings and 102 acres of wetlands impacts. However, DAPL only provided the Corps with PCNs for 10 of these sites. None of the PCNs in South Dakota was triggered by impacts to historic sites.
77. In both states, this delineation of waterbody impacts was only partially complete, as DAPL did not have landowner access to all sites along the pipeline route. Accordingly, some of the features were estimated through desktop analysis. The ultimate number of waterbody and wetland impacts remains unknown.
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78. One of the places in South Dakota where Corps’ authorization is required is at Lake Oahe, where the pipeline would cross underneath the Lake (a dammed section of the Missouri River) immediately upstream of the Tribe’s reservation.
79. Due to its concerns about the configuration of the pipeline and inadequacies in the regulatory process, the Tribe has participated in the public meeting process associated with the permits, including joining Standing Rock Sioux’s formal technical comments on the Lake Oahe crossing. The Tribe has repeatedly attempted to interact with the Corps to facilitate in person government-to-government consultation with the Tribal Council. The Tribe is greatly concerned about the risks to the Tribe that would occur if the pipeline was to move forward in its current configuration. The Tribe has in particular highlighted the inadequacies of the Corps’ § 106 consultation process with regard to historic and cultural impacts at the Lake Oahe site.
80. On July 25, 2016, the Corps issued the NWP 12 verification and other authorizations required at the roughly 204 sites in the four states for which verification has been requested along the pipeline’s entire length. However, prior to that time, construction started along the remainder of the route, including construction involving discharges into the hundreds if not thousands of sites where pipeline construction involves discharges into waters of the United States, but for which no PCN is required.
81. The Tribe has repeatedly expressed concerns to the Corps regarding construction in waters of the United States pursuant to NWP 12 without any § 106 consultation on historic impacts. On May 19, 2016, the Cheyenne River Sioux Tribal Historic Preservation Officer, Steve Vance, wrote to the Corps Omaha District Engineer regarding the extensive work proceeding on the DAPL Project without any § 106 consultation. This letter explained that non-Tribal archaeologists were unable to appreciate the cultural significance of Tribal historic sites, and that
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his office had found the DAPL cultural surveys, conducted by out-of-state archaeologists with no training in the cultural practices of the Oceti Šakowiŋ to be “gravely deficient.”
82. The letter requested that other federal agencies, such as the United States Environmental Protection Agency, the Department of Energy, and the Federal Energy Regulatory Commission, take part in the § 106 consultation. The letter also stated that the DAPL Project impacts to waters of the United States beyond those identified by the Corps and has numerous potential historic impacts.
83. The Corps did not respond to Mr. Vance’s raised concerns. 84. The Tribe’s concerns were highlighted in June of 2016 when archaeologists working on behalf of the Upper Sioux Tribe discovered a site of great religious and cultural significance to Oceti Šakowiŋ in the pipeline’s route in Iowa. The site was not discovered by DAPL during its cultural resource surveys, even though it lay directly in the pipeline’s route. 85. The pipeline will also impact historic and culturally significant sites in uplands along the pipeline’s route in between areas of Corps’ jurisdiction. The Corps views any impacts to such uplands sites as outside of its responsibility under § 106, as the Corps interprets § 106 to apply only within the immediate area of CWA jurisdiction. 86. The ACHP regulations take a different approach. In a May 6, 2016 letter to the Corps regarding DAPL, the ACHP explained that its regulations “define the undertaking as the entire project, portions of which may require federal authorization or assistance.” Even where the jurisdiction is limited to particular portions of a project, the ACHP explained, “the federal agency remains responsible for taking into account the effects of the undertaking on historic properties.” The letter concluded that given the close relationship between the project and multiple federal approvals, “a greater effort to identify and evaluate historic properties” was required.
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87. In a May 19, 2016, letter, the ACHP formally objected to the Corps’ finding of “no effect” at the site of the Lake Oahe crossing, one of only two sites in the entire state of North Dakota for which the Corps even purported to engage in § 106 consultation. The ACHP asserted that the Corps misapplied § 106 by considering only historic properties within its areas of jurisdiction, when it should consider indirect impacts to historic sites in uplands that could not occur but for the Corps’ authorization to discharge into waters of the United States.
88. At the time of filing this Complaint, DAPL has not executed agreements with all landowners, and eminent domain proceedings are underway in several states. Additionally, several lawsuits have been filed against DAPL and state regulatory agencies which challenge the legality of DAPL approvals, and seeking the remedy of vacating such approvals, which would require DAPL to stop work. However, DAPL has chosen to move ahead with construction in places where regulatory approval is secured and where landowner consent has been obtained.
89. DAPL has been repeatedly told by state regulatory agencies that any construction prior to the completion of the regulatory and eminent domain process is at its own risk. DAPL has repeatedly acknowledged that it bears the risk of starting construction prior to the completion of the regulatory and legal process.
GENERAL FACTS REGARDING THE CORPS’ ISSUANCE OF THE § 408 PERMITS AND CWA VERIFICATIONS
90. On July 25, 2016, the Corps issued authorizations pursuant to § 408 of the RHA for DAPL to cross federally-managed or owned lands on the Missouri River in two places, at Lake Sakakawea and Lake Oahe, roughly 230 miles apart. Accompanying this authorization, the Corps released a final environmental assessment (“EA”) and “finding of no significant impact” (“FONSI”) with respect to two components of the DAPL in North Dakota. The EA and FONSI concluded that these two small segments of the pipeline did not have sufficient adverse
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environmental impact to warrant preparation of an environmental impact statement (“EIS”), which would have triggered substantially broader environmental review, a closer comparison of alternatives, and greater public engagement.
91. Also on that date, the Corps issued verifications pursuant to the CWA and RHA finding that 204 crossings of jurisdictional waters of the United States, for which PCNs had been filed, met the terms of NWP 12. The verifications include federally-protected waters in four states: North Dakota (2 verifications), South Dakota (10 verifications), Iowa (61 verifications), and Illinois (45 verifications). The verifications authorize DAPL proponents to begin construction of the pipeline through federally-regulated streams, rivers, and wetlands, and operate the pipeline to transport crude oil in the Tribe’s culturally significant ancestral lands, and adjacent to its reservation. DAPL notified tribes that construction was set to begin at many of these sites on or before August 1, 2016. Permits have been granted at the Lake Oahe site and construction is ongoing at this time.
92. On January 5, 2016, the St. Louis District of the Corps released a public notice announcing that it intended to authorize another segment of the pipeline under § 408 of the RHA. That segment crossed federal flowage easements and federally-managed levees on the Illinois River. To date, no permit or even draft environmental review document has been issued for this segment of the pipeline.
93. On or about December 17, 2015, the U.S. Fish and Wildlife Service (“FWS”) released a draft EA for yet another segment of the pipeline. That EA reviewed potential impacts of the pipeline over grassland easements held by FWS and managed for wildlife values. A final EA and FONSI were issued by the FWS on June 22, 2016.
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94. The current proposed route crosses Lake Oahe about 70 miles upstream of the Tribe’s reservation boundary, where any leak or spill from the pipeline would flow directly into the reservation. The Tribe and its members have been deeply concerned about the potential impacts of the Lake Oahe crossing since its inception, for two primary reasons. First, the Tribe relies on the waters of Lake Oahe for drinking water, irrigation, fishing, and recreation, and to carry out cultural and religious practices. The public water supply for the Tribe, which provides drinking water for thousands of people, is located directly downstream of the proposed pipeline crossing route. Additionally, the 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.
95. Pipeline leaks and spills are routine in both new and old pipelines. A segment of the Keystone pipeline built in 2010 recorded 35 leaks in its first year of operations. A study of North Dakota’s pipelines revealed over 300 leaks in two years, most of which were unreported to the public. Major spills from crude oil pipelines have occurred recently on the Kalamazoo and Yellowstone Rivers, with devastating economic and environmental impacts. The Corps does not require, and DAPL does not propose, any technology or mitigation approaches that reduce risk relative to other recent pipelines that have been the source of major and minor spills and leaks in recent years.
96. Second, the Lake Oahe crossing will take place in an area of great cultural, religious and spiritual significance to the Tribe. Construction of the pipeline, which includes clearing and grading a 100-150 foot access pathway nearly 1,200-miles long, digging a trench as deep as 10 feet, and building and burying the pipeline, would destroy burial grounds, sacred sites, and
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historically significant areas on either side of Lake Oahe. These sites carry enormous cultural importance to the Tribe and its members.
97. Construction of pipelines involves other significant environmental impacts, including massive amounts of water required for hydrostatic testing and permanent maintenance of a 50-foot right-of-way above the pipeline.
98. The confluence of the Cannonball and Missouri Rivers, where the crossing would take place, is a sacred place to the Tribe. It is a place of great historical significance, serving as a place of peace, prayer, and trade where traditional enemies could meet without risk of violence. There are numerous sacred stones and historically important sites in the immediate landscape of the Lake Oahe Crossing, few of which have been fully evaluated by Tribal archaeologists.
99. The Corps operates Oahe dam, downstream of the Lake Oahe crossing, for flood control and other purposes. The result of its management is that water levels fluctuate greatly in the reservoir, with attendant erosion, scouring, and deposition of sediments. The geomorphology of the segment of Lake Oahe to be crossed by the pipeline is highly dynamic.
100. Due to its concerns about the configuration of the pipeline and inadequacies in the regulatory process, the Tribe has participated in the public process associated with the permits, including filing formal technical and legal comments on the Lake Oahe crossing. The Tribe has attempted numerous times to engage in government-to-government consultation with the Corps to express its concerns, but no avail, and in violation of § 106. The Tribe has repeatedly conveyed to the Corps and other government officials the significance of its concerns and the risks to the Tribe about moving ahead with the pipeline in its current configuration.
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SPECIFIC FACTS RELATED TO NHPA COMPLIANCE FOR JULY 25, 2016 AUTHORIZATIONS
101. The confluence of the Cannonball and Missouri Rivers is sacred ground to the Cheyenne River Sioux people. It is rich in history, and it is rich in cultural and religious significance. Industrial development of that site for the crude oil pipeline has a high potential to destroy sites eligible for listing in the National Register.
102. The Corps undertook a process to consider the impacts of the Missouri River crossing on historic and culturally significant sites that was flawed in multiple respects. It defined the “area of potential effects” (“APE”) for the Lake Oahe crossing exceptionally narrowly to include only a tiny parcel immediately surrounding the horizontal directional drilling (“HDD”) pits on each side of the river and a narrow strip for an access road and “stringing area” on the west side of the crossing. On the east side of the river, the APE is difficult to determine because in some of the Corps’ figures, the “project workspace” includes both the access road and stringing area, while in others only the HDD pit is included.
103. The Corps’ attempts at § 106 consultation omit the actual pipeline route that will be entering and existing the HDD borehole. The pipeline itself will involve a 100-150 yard swath of industrial development—clearing, grading, excavation of a 6 to 10 foot trench, and construction work to shape and place the pipeline.
104. It is likely that such development would destroy any historic or culturally significant sites in its path. There are already known but unevaluated historic sites—in other words, sites that may be eligible for protection under the National Historic Preservation Act (“NHPA”)—in the direct path of the pipeline immediately in the area of the HDD crossing. For example, according to the draft EA, several sites are directly in the pipeline’s path in the first mile outside of the HDD site.
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105. Consultation with the Tribal Historic Preservation Office (“THPO”) on the DAPL, which would be routed on historic ancestral land with great cultural and religious importance to the Cheyenne River Sioux Tribe, has been profoundly inadequate. The Tribe has never been able to participate meaningfully in assessing the significance of sites that are potentially affected by the project.
106. The non-Tribal consultants hired by DAPL to do cultural surveys are not equipped to suitably assess the potential cultural significance of sites in this area. The Tribe has never had the opportunity to discuss protocols for cultural surveys or participate in the surveys that were conducted.
107. The Tribe’s first record of correspondence from the Corps related to the DAPL is dated October 29, 2014, when a Corps representative contacted the THPO addressing proposed soil boring in Section 10 and 11, Township 134N, Range 79 W, Morton and Emmons Counties, North Dakota.
108. The Cheyenne River Sioux THPO, Steve Vance, joined Standing Rock Sioux THPO’s formal Complaint, which objected to the Corps’ conclusion that no historic properties would be affected by the bore hole drilling, documenting numerous specific important sites that could be affected as well as the cultural significance of the area generally, and requesting a full Class III survey with tribal archaeologists before any work was done.
109. No response to this urgent correspondence was ever provided, despite several follow up requests from the Cheyenne River Sioux and Standing Rock Sioux THPOs, and the work was done without any additional tribal consultation or process.
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110. On February 17, 2015, the Corps sent the THPO a generic form letter seeking to initiate consultation under § 106 on the DAPL. The Tribe has attempted numerous times to initiate such government-to-government contact, with no meaningful response from the Corps.
111. In the months that followed, both the THPO and the Chairman of the Tribe followed up with numerous additional letters and several in-person requests to the Corps outlining concerns about cultural impacts, and seeking to engage the Corps in a good-faith consultation process as required by § 106 regulations.
112. The Tribe has indicated its significant concerns with properties on the site, and its ongoing exclusion from the § 106 process. Due to the lack of interaction and meaningful response by the Corps, it became clear to the Tribe that the Corps was attempting to circumvent the § 106 process. The THPO urged the Corps to include other federal agencies in the § 106 process and broaden its review to include affected areas outside the Corps’ jurisdiction, as required by governing regulations.
113. Instead, the Corps’ next action was to publish a draft environmental assessment (“EA”) that included not a single mention of the potential impacts of the pipeline project on the Cheyenne River Sioux or areas of historic and cultural significance to the Tribe.
114. Additionally, the Corps received critical letters from the U.S. Environmental Protection Agency, the U.S. Department of Interior, and the ACHP, all of whom questioned the Corps’ approach to consultation with the Standing Rock Sioux Tribe. The ACHP observed that it had “not been provided evidence that the Corps has met” the requirements of § 106, observing that “there is likely to be significant tribal interest” and that “[t]he Corps’ approach to meeting its government- to-government consultation is extremely important.” It later asked to be formally made a party to consultation on the project.
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115. Around the time of the draft EA, the Tribe also learned that the proponent had conducted cultural surveys at the Lake Oahe site and along the pipeline route during 2014 and 2015. Neither the proponent nor the Corps ever consulted with the Tribe about the protocols for those assessments or the area of potential affects, or had invited their participation as the Tribe had repeatedly requested. Instead, the proponent provided the Tribe with a massive quantity of its survey data, after it was complete, and provided an opportunity to comment.
116. During this same time frame, i.e., late 2015 and early 2016, the proponent stated repeatedly in public and private meetings that construction was slated to start in mid-May of 2016, regardless of any additional process requirements or needs.
117. The THPO and Chairman Frazier continued attempts to facilitate government-togovernment consultation with the Corps through the commander of the Omaha District, Col. John Henderson. As the Corps had not met its consultation requirement vis-a-vis the Cheyenne River Sioux Tribe, the Tribe did not participate in the informal multi-tribe informational meetings and site visits conducted by the Corps.
118. To date there has been no formal government-to-government meeting between the Corps and the Cheyenne River Sioux Tribe.
119. The Tribe has repeatedly advised the Corps that the site generally is rich in unassessed sites of historic and cultural significance. Representatives of the Standing Rock Sioux Tribe have specifically identified evidence of such sites and notified the Corps of the same. The Corps has refused to acknowledge the Tribes’ identification of its own culturally and historically significant material on the sites at issue.
120. On April 22, 2016, the Corps made a formal finding that no historic properties were affected by the Lake Oahe decision.
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121. On May 19, 2016, the ACHP sent a letter responding to the Corps in response to its April 22, 2016 determination. The letter laid out a number of significant criticisms of the Corps’ compliance with § 106 and made recommendations for additional steps that Corps should take.
122. The Cheyenne River Sioux Tribe’s THPO sent a letter to the Corps formally objecting to the “no historic properties effected” on May 19, 2016. No response was received to these formal objections besides additional general information from the Corps on their permitting process.
123. On May 19, 2016, the ACHP formally objected to the effects determinations made by the Corps for DAPL. The ACHP outlined several fundamental flaws with the Corps § 106 compliance, including a failure to properly define the undertaking and area of potential effects; inadequate Tribal consultation and incomplete identification efforts; and numerous procedural flaws.
124. The April 22, 2016 finding pertains only to the Lake Oahe crossing site. It does not apply to any the other hundreds of NWP 12 verifications along the pipeline’s route.
125. Section 106 consultation is required for the Corps’ verifications as well. But the Corps has not consulted with the Tribe to evaluate the impacts of PCN verifications on historic sites within its ancestral lands, including sites in South Dakota, Iowa, and Illinois. Instead, in issuing the verifications, it provided for tribal monitoring during construction.
SPECIFIC FACTS RELATED TO NEPA COMPLIANCE FOR JULY 25, 2016 AUTHORIZATIONS
126. The Corps is evaluating different components of DAPL in multiple separate segments, each following an independent process and on its own timeline. The Corps’ documents for each segment fail to acknowledge the existence or impacts of the other segments.
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127. One segment is made up of two crossings of Corps-managed or Corps-owned lands in North Dakota, at Lake Sakakawea and at Lake Oahe, roughly 230 miles apart from one another. Another segment is the crossing of Corps-managed and operated land and levees towards the other end of the pipeline, on the Illinois River. Finally, the Corps issued 204 verifications in four states that DAPL can proceed under NWP 12 where they cross jurisdictional waters.
128. In yet another NEPA process, the FWS reviewed the impacts of providing authorization to cross easements on private land intended to protect wildlife. In June of 2016, FWS released a final EA covering authorization to cross miles of grasslands and wetlands easements in North and South Dakota.
129. The Corps and FWS have pursued a NEPA process for each of these components independently of the other components. For the North Dakota crossings, the Omaha District of the Corps released a draft EA in December 2015 and a final EA and FONSI on July 25, 2016. For the Illinois River crossings, the St. Louis District of the Corps released an EA and FONSI on July 25, 2016, but without having provided a draft EA and any opportunity for public comment. For the FWS easements, an EA was issued in June of 2016. For the CWA NWP 12 verifications, the Corps has not taken any action to comply with NEPA, asserting that verifications are not federal actions subject to NEPA.
130. The North Dakota EA looks narrowly at the impacts of pipeline construction at the HDD crossing site only. It does not look at the indirect effect of facilitating pipeline construction to, from, and through the two HDD crossings. Accordingly, the EA is silent on the impacts to the environment associated with pipeline construction outside the immediate confines of the HDD crossing site, including oil spill risks to waters or lands of cultural significance to the Tribe.
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131. The North Dakota EA also does not analyze the environmental impacts of the North Dakota crossings in the context of either the CWA verifications for the pipeline, the Illinois River § 408.
132. The North Dakota EA also does not analyze the environmental impacts of the North Dakota crossings in the context of either the CWA verifications for the pipeline, the Illinois River § 408 permit, or the FWS easement crossings, all of which are integrally related to a single pipeline project.
133. In multiple sets of legal comments, the Tribe expressed its concerns regarding these and many other issues associated with the NEPA process.
134. On January 8, 2016, the U.S. Environmental Protection Agency (“EPA”) sent comments to the Corps on the draft EA saying that the document lacked “sufficient analysis of direct and indirect impacts to water resources,” lacks information related to the operation of the pipeline, and that the document is “limited to small portions of the complete project and does not identify the related effects of the entire project segment.”
135. EPA sent additional comments on March 11, 2016, highlighting the proximity of tribal drinking water intake to the pipeline crossing. The letter highlighted multiple risks to water resources from the project, recommended additional analysis of emergency preparedness measures, and urged consideration of additional alternatives that reduced potential conflicts with drinking water supplies.
136. On March 29, 2016, the U.S. Department of the Interior sent a comment letter to the Corps urging preparation of a full Environmental Impact Statement (“EIS”). DOI highlighted the risks to the tribal lands and drinking water resources. The letter also observed that the Corps’ NEPA analysis should consider more of the pipeline route as a connected action under NEPA.
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137. The Corps did not prepare a full EIS. Instead, it released its final EA on July 25, 2016. The final EA provided only cursory responses to the agency and tribal comments regarding drinking water and downstream impact.
SPECIFIC FACTS RELATED TO CWA/RHA COMPLIANCE FOR JULY 25, 2016 AUTHORIZATIONS
138. Construction of the DAPL will involve dredge and/or fill in waters of the United States in hundreds if not thousands of locations. Construction of DAPL will also involve obstructions to the capacity of navigable waters of the United States.
139. The Corps is only issuing individual permits at three locations on the entire length of the pipeline: at the two North Dakota reservoir crossings, and at the Illinois River crossing. Those components of the pipeline require a permit under § 408 of the Rivers and Harbors Act and real estate actions because the pipeline will cross federally-owned or managed land.
140. The remainder of the pipeline’s impacts on jurisdictional waters is being processed under NWP 12, which authorizes certain actions without an individual permit.
141. With respect to PCNs and verifications, the final verifications identify 2 locations in North Dakota, 10 locations in South Dakota, 61 locations in Iowa, and 45 locations in Illinois, for a total of 204 crossings in 1,168 miles of pipeline.
142. Since the purpose of the pipeline is to carry crude oil developed in western North Dakota to sites in Illinois, no component of the pipeline is useful without all of the other components of the pipeline in place.
143. The Lake Oahe pipeline crossing will take place in to the Tribe’s public water supply, as well as a number of private water supplies, and irrigation intakes. The crossing will also impair tribal treaty rights on the Cheyenne River Sioux Reservation, including reserved water rights.
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FACTS RELATING TO CORPS’ FAILURE TO MEET TRUST RESPONSIBILITY TO TRIBE AND THE CORPS’ VIOLATION OF
FLOOD CONTROL ACT 144. The Corps has authorized Dakota Access to discharge into Lake Oahe and to construct a crude oil pipeline under this body of water. 145. The Tribe has a clear property right in the waters of Lake Oahe under federal law and it is a trust property of the Tribe. 146. The Tribe draws nearly all of its drinking water from a water intake that pumps water directly from the Lake Oahe. 147. The Corps has never consulted with the Tribe concerning any discharges into this trust property nor the effects of the construction and operation of this oil pipeline on the trust property. 148. The Corps failed to include any consideration of the effects of the discharges into the trust property and effects of the construction and operation of this oil pipeline on the trust property on the Cheyenne River Sioux Tribe in its EA.
SPECIFIC FACTS RELATING THE CORPS FAILURE TO PROMULGATE REGULATIONS 149. Dakota Access requires a right-of-way across lands owned by the Corp in order to engage in HDD boring under Lake Oahe. 150. The Corps had indicated that it has granted this right-of-way. 151. The Mineral Leasing Act imposed a clear duty on the Corps to promulgate regulations associated with grants or renewals of rights-of-way or permits it issues pursuant to the MLA. 152. Corps has failed to promulgate any regulations or final rule.
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153. Corps failure to provide notice to the public and opportunity to comment on any proposed rules.
CLAIMS FOR RELIEF I. FIRST CLAIM FOR RELIEF FAILURE TO CONSULT UNDER § 106 OF THE NHPA 154. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. 155. Issuance of an individual or general § 404 permit is an “undertaking” as defined in the NHPA. As such, § 106 consultation is required to determine the effect of such undertaking on historic properties. 156. The Corps failed to consider the impacts of NWP 12 on historic or culturally significant properties, or otherwise engage in the § 106 process, prior to issuance of NWP 12 in 2012. 157. The Corps has never developed a programmatic agreement with the ACHP with respect to the NWP program. 158. Issuance of NWP 12 is a “final agency action” within the meaning of the APA. 159. The Corps’ failure to comply with the requirements of the NHPA and its implementing regulations is arbitrary, capricious, and contrary to law in violation of the APA, 5 U.S.C. § 706. II. SECOND CLAIM FOR RELIEF UNLAWFUL ABDICATION OF § 106 RESPONSIBILITIES 160. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. 161. Section 106 of the NHPA directs federal agency heads to take into account the effect of any undertaking on historic properties, and provide the ACHP and affected parties a reasonable opportunity to comment on such undertaking.
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162. Under ACHP regulations, “it is the statutory obligation of the Federal agency to fulfill the requirements of section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106 compliance . . . .” 36 C.F.R. § 800.2(a).
163. In issuing NWP 12, however, the Corps does not fulfill the requirements of § 106 or “take legal and financial responsibility” for compliance. Rather, it provided up-front CWA/RHA authorization to discharge fill into waters of the United States, effectively ending its involvement in most situations. In so doing, it improperly abdicated its § 106 responsibility, and delegated to the proponent its NHPA duty to determine whether there would be any potential impact to historic properties. If the proponent determines for itself that no historic properties are affected, the Corps is not notified of the action and provides no verification of NWP 12 authorization. In such circumstances, the Corps does not consider, and does not give the ACHP or interested parties a reasonable opportunity to comment on, the potential impacts to historic sites. In so doing, the Corps abdicated its § 106 duties and/or improperly delegated them to private parties.
164. ACHP regulations direct that agencies “shall involve” consulting parties in findings and determinations made during the § 106 process. 36 C.F.R. § 800.2(a)(4). Consulting parties must include Indian Tribes “that attach religious and cultural significance to historic properties that may be affected by an undertaking.” Id. § 800.2(c)(2). The agency “shall ensure” that the § 106 process provides such Tribe “ a reasonable opportunity” to “identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. § 800.2(c)(2)(ii)(A).
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Further, it is the “responsibility of the agency official to make a reasonable and good faith effort to identify Indian Tribes” to be consulted in the § 106 process. Id. § 800.2(c)(4).
165. Applicants for federal permits are “entitled to participate” as consulting parties in § 106 consultation, and the responsible official may “authorize an applicant . . . to initiate consultation with” consulting parties, but “remains legally responsible for all findings and determinations charged to the agency official.” Id. Such authorization requires notice to all state and tribal historic preservation offices, and federal agencies “remain responsible for their government-to-government relationships with Indian Tribes.” Id. Moreover “the views of the public are essential” to the § 106 process and agencies “shall seek and consider the views of the public” in carrying out its responsibilities. Id. § 800.2(d).
166. Additionally, ACHP regulations require Federal agencies to “ensure” that all actions taken by employees or contractors “shall meet professional standards under regulations developed by” the ACHP. However, in issuing NWP 12 and GC 20, the Corps did not “ensure” that any standards at all would be used by private parties delegated to make their own § 106 threshold determinations.
167. In enacting NWP 12 and GC 20, the Corps authorized discharges into waters of the United States in a way that sidesteps virtually all of the requirements of the ACHP § 106 regulations. Under NWP 12 and GC 20, private project proponents can make their own determinations as to the effects on tribally-significant sites without any involvement of the Tribes. Under NWP 12 and GC 20, Tribes are not provided any opportunity, let alone a reasonable one, to identify their concerns or assist in the identification of historic sites. Under NWP 12 and GC 20, the Corps is not responsible for the findings and determinations regarding adverse effects. Under NWP 12 and GC 20, private project proponents can be made in a vacuum, with no input,
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no notice, no accountability, and no oversight. Moreover NWP 12 and GC 20 do not establish definitions or standards to be used by private project proponents on how to make determinations of historic impacts, leaving it up to the proponents’ unfettered discretion to determine whether a PCN is required or not.
168. NWP 12 and CG 20 are being applied to DAPL to authorize discharges into waters of the United States with no verification or oversight by the Corps, and no accompanying § 106 process. Through NWP 12 and GC 20, the Corps is violating non-delegable duties: there is no consultation process, there are no standards governing determinations made by private parties, and the Corps has no mechanism to “ensure” compliance with its legal responsibilities.
169. The Tribe is harmed by NWP 12 and GC 20 because they have led and will continue to lead to the destruction of culturally significant sites. Following NWP 12 and GC 20, DAPL proponents have conducted gravely deficient cultural surveys, with no involvement by the Tribes. DAPL proponents have not found historic properties that would be affected by pipeline construction in Corps’ jurisdictional areas. Accordingly, they have not filed PCNs and sought verification at the vast majority of sites at which they will be discharging into waters of the United States.
170. The ACHP wrote to the Corps on May 6, 2016 to share the concern that Tribes like the Cheyenne River Sioux Tribe have not had the opportunity to share relevant information “in the vicinity of water crossings and within the project [right-of-way] that the applicant assumes will not require PCNs under General Conditions 20 and 31 [standards for PCNs] of the NWP protocols.”
171. Issuance of NWP 12 is a “final agency action” within the meaning of the APA.
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172. The Corps’ delegation of its § 106 responsibilities to private parties in NWP 12 and GC 20 is arbitrary, capricious, and contrary to law in violation of the APA, 5 U.S.C. § 706.
III. THIRD CLAIM FOR RELIEF FAILURE TO REQUIRE CONSIDERATION OF
INDIRECT EFFECTS UNDER § 106 173. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. 174. Under NHPA, federal agencies must consult on the effects of “undertakings” to historic properties. An undertaking is defined by rule to mean “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a federal agency, those carried out with Federal financial assistance, and those requiring a federal permit, license or approval.” 36 C.F.R. § 800.16(y) (emphasis added). 175. The entirety of a private pipeline project that requires Corps’ authorization for hundreds if not thousands of discharges into waters of the United States is an “undertaking” for purposes of § 106 because it requires federal approval in order to occur and because it is under the “indirect jurisdiction” of the Corps. 176. GC 20 directs permittees to file a PCN with the Corps if the authorized activity will have the potential to cause effects to historic properties. However, the Corps directs permittees to only consider the direct effects of activities in jurisdictional waters, and not indirect impacts such as construction impacts in uplands. 177. ACHP regulations require consideration of indirect effects of agency undertakings, including areas in uplands outside of Corps jurisdiction. With respect to DAPL, in a May 19, 2016 letter, the ACHP confirmed that the entire 1,168-mile crude oil pipeline is the “undertaking” for purposes of § 106 consultation, and accused the Corps of “not differentiating appropriately
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between federal action and the undertaking . . . .” The ACHP concluded that “the Corps’ effects determinations, thus far, fail to consider the potential for effects from the larger undertaking on historic properties including those of cultural and religious significance to Indian Tribes.”
178. Issuance of NWP 12 is a “final agency action” within the meaning of the APA. 179. As applied to DAPL, the authorization to discharge into waters of the United States, without consideration of indirect impacts on historic sites as required by § 106, is arbitrary, capricious, and contrary to law in violation of the APA, 5 U.S.C. § 706.
IV. FOURTH CLAIM FOR RELIEF VIOLATIONS OF NATIONAL HISTORIC PRESERVATION ACT WITH
RESPECT TO JULY 25, 2016 VERIFICATIONS AND § 408 PERMITS 180. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. A. Incorrect Definition of “Area of Potential Effects” 181. Section 106 of the National Historic Preservation Act (“NHPA”) requires that, prior to issuance of a federal permit or license, that federal agencies shall take into consideration the effects of that “undertaking” on historic properties. 54 U.S.C. § 306108. Issuance of § 408 permits and CWA/RHA verifications under NWP 12 are federal undertakings within the meaning of the NHPA. 182. Early in the NHPA process, an agency, in consultation with the THPO, must determine the area of potential effects (“APE”) of a federal undertaking. 36 C.F.R. § 800.4(1)(1). The APE is defined by regulation to include the area “within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties . . . . The [APE] is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Id. § 800.16(d).
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183. The Corps defined the APE for the Lake Oahe crossing unlawfully narrowly, and inconsistently with both the ACHP regulations and its own guidance.
184. The APE for the crossing includes only a tiny parcel immediately surrounding the HDD pits on each side of the river and a narrow strip for an access road and “stringing area” on the west side of the crossing. On the east side of the river, the APE is difficult to determine because in some of the Corps’ figures, the “project workspace” includes both the access road and stringing area, while in others only the HDD pit is included.
185. The Corps unlawfully omits the actual pipeline route that will be entering and exiting the HDD borehole from the APE. Pipeline construction would involve a 100-150 yard swath of industrial development—clearing, grading, excavation of a 6 to 10 foot trench, and construction work to shape and place the pipeline. Such development would destroy any historic or culturally significant sites in its path. But because these sites are outside the APE, the Corps’ conclusion does not consider them.
186. The pipeline path should be in the APE because, even where the Corps lacks direct permitting jurisdiction over segments in between regulatory areas, pipeline construction in such areas is an indirect effect of the HDD process. Id. § 800.16(d).
187. The Corps’ failure to consider the impacts to historic and sacred sites outside of the immediate and narrow confines of the HDD drilling sites was arbitrary, capricious, and not in accordance with law in violation of the APA and the NHPA.
B. Inadequate § 106 Consultation 188. The Section 106 process requires consultation with Indian Tribes on federal undertakings that potentially affect sites that are sacred or culturally significant to Indian tribes. 36 C.F.R. § 800.2(c)(2). Consultation must occur regarding sites with “religious and cultural
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significance” even if they occur on ancestral or ceded land. Id. § 800.2(c)(2)(II)(D); 54 U.S.C. § 302707.
189. Under the consultation regulations, an agency official must “ensure” that the process provides Tribes with “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties . . . articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id. § 800.2(c)(ii)(A). This requirement imposes a “reasonable and good faith effort” by agencies to consult with Tribes in a “manner respectful of tribal sovereignty.” Id. § 800.2(c)(2)(II)(B).
190. The Corps’ final permit decision is the product of a fundamentally flawed consultation process that does not meet the requirements of the ACHP regulations.
191. Consultation never occurred at all on the bore hole testing. The Tribe was notified and the work was done before the Tribe’s serious concerns were even received by the Corps.
192. Consultation did not start at the earliest phases of the process. Consultation did not occur on the “area of potential affects.” Consultation did not occur on participation in the surveys or protocols for how they should be conducted. 36 C.F.R. § 800(c)(2)(II)(A).
193. Instead, the THPO was given a brief window to “comment” on the proponents’ deeply flawed and completed surveys long after the route had been selected and construction scheduled.
194. The Corps’ April 22, 2016 “no effect” determination contains citations to documents, like “Landt & McCord, 2016,” that have never been provided to the Tribe.
195. The Tribe acted promptly and repeatedly to draw the Corps’ attention to its serious concerns.
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196. Information was not sought from the Tribe in determining the scope of its identification efforts, as required by 36 C.F.R. § 800.4(a), nor was the Tribe given a meaningful opportunity to assist the Corps in the identification of this culturally rich but largely unassessed site. Id. § 800.4(b).
197. The Cheyenne River THPO formally objected to the Corps’ finding of no historic properties affected on May 19, 2016. Although the regulations required the Corps to either consult with the objecting party to resolve the disagreement, or request action by the ACHP, neither of those things have ever happened. 36 C.F.R. § 800.4(d)(1)(ii).
198. The ACHP formally objected to the Corps’ findings of no historic properties affected on May 19, 2016. Under ACHP regulations, such an objection must be taken into account by the Corps prior to reaching a final decision, and the Corps must prepare a summary of the decision and its rationale, along with evidence of consideration of the ACHP’s objection. 36 C.F.R. § 800.4(d)(1)(iv).
199. There are significant unevaluated properties in and near the Lake Oahe crossing work site, as well as the broader pipeline route. Some sites deemed “ineligible” by DAPL’s private surveys may in fact be eligible. Some sites deemed unevaluated have in fact been evaluated and are potentially eligible.
200. The Corps’ decision on the Lake Oahe crossing was arbitrary, capricious, and not in accordance with law in violation of the APA and the NHPA.
C. No § 106 Consultation for Verifications 201. The Corps’ NWP general conditions require completion of the § 106 process for NWP permit verifications and before work can begin. The proponent must present a PCN to the Corps wherever an activity “may have the potential to cause effects to any historic properties listed
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on, determined to be eligible for listing on, or potentially eligible for listing” on the National Register. 77 Fed. Reg. 10184, 10284 (Feb, 21, 2012).
202. The Corps has never consulted with the Tribe on issuance of verifications in its ancestral lands, which span the length of the pipeline. The Tribe is unaware of any formal § 106 findings for verifications outside of the two sites in North Dakota.
203. The Corps’ decision that § 106 consultation had been completed on the 204 CWA verifications was arbitrary, capricious, and not in accordance with law in violation of the APA and the NHPA.
V. FIFTH CLAIM FOR RELIEF VIOLATIONS OF NEPA WITH RESPECT TO JULY 25, 2016 VERIFICATIONS AND § 408 PERMITS 204. Intervenor-Plaintiff hereby alleges and incorporates and restates all previous paragraphs of this complaint. A. Failure to Consider Indirect Effects of Missouri River Crossings 205. NEPA requires consideration of indirect effects of agency decision. The Corps misapplied these legal standards in the final North Dakota EA. It looked narrowly at the impacts of the river crossings themselves, and did not disclose or consider the impacts of other components of the pipeline, either related to its construction or its operation to transport 570,000 barrels a day of crude oil over nearly 1,200 miles. 206. Pipeline construction is an indirect impact of the Corps § 408 permits because it is proximately caused by the Corps’ decision. Without the ability to cross the Missouri River, the pipeline could not be built. Pipeline construction is a reasonably foreseeable outcome of the Corps’ decision.
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207. Alternatively, pipeline construction could be considered an indirect effect of the Corps’ § 408 permit because it is a future action that is reasonably certain to occur as long as DAPL receives Corps’ authorization at the Missouri River crossings.
208. The Corps failure to consider and disclose the impacts of the pipeline’s construction and operation is arbitrary and capricious and not in accordance with law in violation of the APA and NEPA.
B. Unlawful Segmentation of Project Components 209. NEPA requires consideration of separate components of a single project in a single NEPA review. 40 C.F.R. § 1508.25. NEPA regulations state that connected actions should be considered in a single EIS, defining them as action that “cannot or will not proceed unless other actions are taken previously or simultaneously,” and “are interdependent parts of a larger action and depend on the larger action for their justification.” Id. 210. The Corps’ permitting regulations also require it to reject applications that seek to segment a single project into multiple permits. 33 C.F.R. § 325.1(c)(2) (“All activities which the applicant plans to undertake which are reasonable related to the same project and for which a DA permit would be required should be included in the same permit application.”). 211. The Corps has not adhered to these requirements, despite having them pointed out to them by the Tribe, multiple federal agencies, and others. Rather, it unlawfully segmented its NEPA review into separate components in North Dakota and in Illinois, each of which is proceeding independent of the other. 212. Moreover, the FWS issued its own EA and FONSI for a component of this pipeline project. That EA and FONSI did not evaluate the impacts of the FWS decision in the context of the Corps permits or the larger project which it was a part of.
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213. The Illinois § 408 permit, the North Dakota § 408 permit, and the FWS grassland easements, are connected actions because they meet the criteria in 40 C.F.R. § 1508.25. NEPA requires them to be considered in a single NEPA document. They were not.
214. By unlawfully segmenting multiple components of the same pipeline project, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of NEPA and the APA.
C. Arbitrary Economic Analysis 215. NEPA and its implementing regulations require the Corps to produce environmental review documents that are factually accurate, well supported, and that fully discloses the impacts of an action to the public. 40 C.F.R. § 1502. 216. These standards apply equally to an agency’s treatment of economic data. 40 C.F.R. §§ 1502.23 (cost benefit analysis), 1508.8 (EIS must evaluate economic effects). An agency’s failure to include and analyze information that is important, significant, or essential renders an EA and FONSI inadequate. 40 C.F.R. § 1500.1. These fundamental NEPA principles apply to both economic and environmental analyses in an EIS. 40 C.F.R. §§ 1502.24, 1508.8 (“effects” in an EIS must evaluate include economic impacts.). 217. In reaching its decision on the North Dakota crossings, the Corps looked very narrowly at only two tiny segments of the pipeline, ignoring the environmental and economic risks and harms of the pipeline as a whole. 218. However, it balanced these narrow risks and harms against the full economic benefit of the pipeline as a whole. For example, the EA cites the full $3.78 billion investment “directly impacting the local, regional, and national labor force by creating nearly 12,000 construction jobs.” Final EA, at 80. It repeats DAPL’s public talking points about providing
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“considerable labor income and state income tax revenue—including the generation of more than $13.4 million in ad valorem taxes.” Id.
219. The Corps’ decision to balance the full economic benefits of building and operating the entire pipeline against the economic risks of constructing tiny segments of that pipeline is arbitrary and capricious and not in accordance with law, in violation of NEPA and the APA.
VI. SIXTH CLAIM FOR RELIEF VIOLATIONS OF THE CLEAN WATER ACT AND RIVERS AND HARBORS
ACT WITH RESPECT TO JULY 25, 2016 VERIFICATIONS AND § 408 PERMITS 220. Intervenor-Plaintiff incorporates by reference all preceding paragraphs. A. Arbitrary and Inadequate Public Interest Review for North Dakota Permits 221. Prior to issuance of a § 408 permit, or any other CWA/RHA permit, the Corps is required to conduct a “public interest” review consistent with its governing regulations, 33 C.F.R. § 320.4(a). 222. In conducting a public interest review, the Corps must consider the probable impacts of the proposed action, and weigh “all those factors which become relevant.” Id. The Corps must balance the benefits “which reasonably may be expected to accrue” from the action against the “reasonably foreseeable detriments.” Id. “All factors” which may be relevant to the proposal must be considered, including the extent of the public and private need for the proposal, and the existence of unresolved conflicts around resource use. The District Engineer is authorized to make an “independent review of the need for the project from the perspective of the overall public interest.” Id. § 320.4(q). 223. The Corps’ did not conduct a valid public interest review of the § 408 authorizations in North Dakota. To the extent it conducted any public interest review at all, it suffered from all of the same flaws as the NEPA review identified above. Specifically, the Corps conducted an
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arbitrary and segmented approach that ignored virtually all of the indirect effects of its decision, specifically, the construction and operation of the pipeline itself; and it conducted an arbitrary and one-sided economic balance in which the benefits of the entire $4 billion pipeline were weighed against the impacts of tiny segments of the pipeline.
224. By failing to undertake a lawful and adequate public interest review of the actions proposed in its § 408 decision, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of the CWA and the APA.
B. Unlawful Verification For Lake Oahe Crossing 225. In addition to a § 408 permit, the portion of the pipeline that crosses under Lake Oahe requires a Rivers and Harbors Act § 10 permit. 33 C.F.R. § 322.3(a). 226. On July 25, 2016, the Corps issued verification that the Lake Oahe pipeline crossing complied with the conditions of NWP 12, and hence was authorized under § 10 of the Rivers and Harbors Act. 227. In order to “qualify” for NWP authorization, proposals must meet a number of general conditions. 77 Fed. Reg. 10184, 10282 (Feb. 21, 2012). 228. The Lake Oahe crossing does not comply with these conditions and, accordingly, does not “qualify” for NWP 12. See also 33 C.F.R. § 330.6(a)(2) (“If the [Army Corps] decides that an activity does not comply with the terms or conditions of an NWP, he will notify the person desiring to do the work and instruct him on the procedures to seek authorization under a regional general permit or individual permit.”). 229. General Condition 7 states that no activity may be authorized under a NWP that is in “proximity” to public water supplies. 77 Fed. Reg. at 10283. The Lake Oahe crossing is in
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close proximity to the Tribe’s source of drinking water for a significant portion of the reservation community.
230. The potential impact on drinking water for the Cheyenne River and many other tribes and communities has also been emphasized by the Environmental Protection Agency and the U.S. Department of Interior, as well as the Tribal government and many of its members.
231. Further, General Condition 17 states that no activity authorized by a NWP may “impair tribal rights” including “reserved water rights.” 77 Fed. Reg. at 10283. DAPL is routed just upstream of the Tribe’s reservation boundary, where any oil spill would have devastating effects within the reservation. The Reservation necessarily includes the protection of adequate water quality. The Lake Oahe crossing does not “qualify” for a NWP 12 because of the risks to Tribal resources protected by treaty.
232. The Corps’ decision to verify that the Lake Oahe crossing was consistent with NWP 12 was arbitrary, capricious and not in accordance with law, in violation of the APA.
C. Issuance of Verifications for 204 Jurisdictional Waters 233. Under the Corps’ regulations, a single project can only proceed under both an NWP and an individual permit where the “portions qualifying for NWP authorization would have independent utility and are able to function or meet their purpose independent of the total project.” 33 C.F.R. § 330.6(d). 234. For the reasons discussed immediately above, the Lake Oahe crossing requires an individual permit. Moreover, § 408 authorizations are individual “permits” within the meaning of this regulation. See id., § 320.2(e); § 320.4 (general policies applicable to “all” Army permits).
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235. No component of DAPL has “independent utility” or the “ability to function” without the other components of the pipeline. As a result of this, the Corps cannot authorize some portions of DAPL under NWP 12, and other portions as individual permits.
236. Because the Lake Oahe crossing requires an individual permit, no other component of the pipeline can be authorized under NWP 12.
237. Issuance of a verification by the Corps constitutes a final agency action within the meaning of the APA.
238. The Corps’ verification of 204 additional crossings of jurisdictional waters was arbitrary and capricious and not in accordance with law, in violation of the APA and the CWA.
VII. SEVENTH CLAIM FOR RELIEF BREACH OF TRUST RESPONSIBILITY 239. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. 240. The Tribe has a vested property right in the waters of Lake Oahe, which is held in trust for us by the United States. 241. The Act of March 2, 1889, the 1868 Sioux Nation Treaty, 15 Stat. 635, and the Fort Laramie Treaty of 1851, 11 Stat. 749 , which reserved to the Tribe its right in the waters of Lake Oahe, include a right to clean, safe water to sustain the a livable permanent homeland and selfsufficiency for the Tribe and its people. 242. The United States and the Army Corps of Engineers have a specific trust responsibility to manage and protect the trust property on behalf of the Tribe based generally in the Treaties and statutes governing the Tribe and its reservation and the general federal trust doctrine as well as specifically in the Flood Control Act of 1944, P.L. 83-777.
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243. The United States’ and the Corps’ trust responsibility to protect and manage the trust property can be exercised, in part, by engaging in government-to-government consultation with tribes on actions that could impair tribal trust resources or tribal rights. Department of Defense Instruction 4710.02 (Sept. 14, 2006).
244. The authorizations and verifications the Corps issued to Dakota Access on July 25, 2016 pursuant to § 408 of the CWA and § 10 of the RHA, authorizing construction of the oil pipeline under Lake Oahe was a final agency action for purposes of the APA.
245. The Corps’ issuance authorizations and verifications to Dakota Access on July 25, 2016 pursuant to § 408 of the CWA and § 10 of the RHA, without any consultation with the Cheyenne River Sioux Tribe regarding the impact on the trust property and without a full EIS to address concerns about the safety of the Tribe’s water was arbitrary and capricious as it breached the Corps’ trust responsibility to the Tribe.
VIII. EIGHTH CLAIM FOR RELIEF VIOLATION OF FLOOD CONTROL ACT 246. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. 247. The authorizations and verifications the Corps issued to Dakota Access on July 25, 2016 pursuant to § 408 of the CWA and § 10 of the RHA, authorizing construction of the oil pipeline under Lake Oahe was a final agency action for purposes of the APA. 248. The Corps’ issuance authorizations and verifications to Dakota Access on July 25, 2016 pursuant to § 408 of the CWA and § 10 of the RHA was arbitrary and capricious as it has violates § 1(b) of the Flood Control Act of 1944, P.L. 83-777 by prioritizing discharges into Lake Oahe and construction and operation of the oil pipeline over the beneficial consumptive uses enumerated in the Act.
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IX. NINTH CLAIM FOR RELIEF FAILURE TO PROMULGATE REGULATIONS 149. Intervenor-Plaintiff reincorporates the allegations in all preceding paragraphs. 150. The Mineral and Leasing Act imposes a mandatory duty that rights-of-way or permits granted or renewed pursuant to 30 U.S.C. § 185 shall be subject to promulgated regulations. 151. The relevant section is set forth in 30 U.S.C. §185(f). 152. The Corps has not promulgated any regulations or final rule regarding the grant of rights-of-way or permits granted or renewed pursuant to the Mineral Leasing Act. 153. The APA requires promulgated rulemaking by agencies after the public receives notice and an opportunity to comment. 154. The Corps’ failure to promulgate was arbitrary and capricious.
PRAYER FOR RELIEF WHEREFORE, Intervenor-Plaintiff respectfully requests that this Court grant the following relief: 1. Declare that NWP 12 is invalid as applied to DAPL because the Corps failed to comply with § 106 at the time of its issuance, in violation of the NHPA. 2. Declare that NWP 12 is invalid as applied to DAPL because the Corps unlawfully delegated its responsibility to comply with § 106 to private parties, effectively allowing discharge into waters of the United States without any consideration of impacts to historic properties, in violation of the NHPA.
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3. Declare that NWP 12 is invalid as applied to DAPL because the Corps authorized discharge into waters of the United States without consideration of indirect impacts on historic sites, in violation of the NHPA.
4. Declare that the July 25, 2016 authorizations and verifications are arbitrary, capricious, in violation of the NHPA, NEPA, CWA and RHA, and implementing regulations, and in violation of the Corps’ trust responsibility to the Tribe.
5. Vacate NWP 12 as applied to DAPL. 6. Enjoin the Corps to direct DAPL to seek either an individual permit covering all discharges along the entire pipeline route, or submit PCNs for all impacts to waters of the United States, and fully comply with § 106 prior to finalizing such permit or verifications. 7. Vacate the final EA and FONSI. 8. Enjoin the Corps and direct it to withdraw its permits as improvidently granted, to require an EIS, and to assess the protection of the Cheyenne River Sioux Tribe’s treaty and trust protected property that is the Tribe’s water rights in Lake Oahe, a Reservoir of the Missouri River. 9. Declare that the Corps violated the MLA for failure to promulgate regulations in accordance with the MLA. 10. Enjoin the Corps and direct it to vacate any rights-of-way on lands with the Corps’ jurisdiction granted in violation of the MLA. 11. Retain jurisdiction over this matter to ensure that the Corps complies with the law. 12. Award Intervenor-Plaintiff its reasonable fees, costs, expenses, and disbursements, including attorneys’ fees, associated with this litigation; and 13. Grant Intervenor-Plaintiff such further and additional relief as the Court may deem just and proper.
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Respectfully submitted this 8th day of September, 2016.
CHEYENNE RIVER SIOUX TRIBE, Intervenor-Plaintiff,

By:

/s/ Nicole E. Ducheneaux

Nicole E. Ducheneaux, Pro Hac Vice

Fredericks Peebles & Morgan LLP

3610 North 163rd Plaza

Omaha, NE 68116

Telephone: (402) 333-4053

Facsimile: (402) 333-4761

Email: nducheneaux@ndnlaw.com

Conly J. Schulte Fredericks Peebles & Morgan LLP 1900 Plaza Drive Louisville, CO 80027 Telephone: (303) 673-9600 Facsimile: (303) 673-9839 Email: cschulte@ndnlaw.com

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Case 1:16-cv-01534-JEB Document 37 Filed 09/08/16 Page 59 of 59 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of September, 2016, a copy of the foregoing was filed electronically with the Clerk of the Court. The electronic filing prompted automatic service of the filing to all counsel of record in this case who have obtained CM/ECF passwords.
/s/ Nicole E. Ducheneaux
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 Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 1 of 58

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al.,
Plaintiffs, v.
U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants.

Civil Action No. 16-1534 (JEB)

MEMORANDUM OPINION “Since the founding of this nation, the United States’ relationship with the Indian tribes has been contentious and tragic. America’s expansionist impulse in its formative years led to the removal and relocation of many tribes, often by treaty but also by force.” Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001). This case also features what an American Indian tribe believes is an unlawful encroachment on its heritage. More specifically, the Standing Rock Sioux Tribe has sued the United States Army Corps of Engineers to block the operation of Corps permitting for the Dakota Access Pipeline (DAPL). The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury

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that would be prevented by any injunction the Court could issue. The Motion will thus be denied. I. Background
DAPL is a domestic oil pipeline designed to move over a half-billion gallons of crude oil across four states daily. The oil enters the pipeline in North Dakota, crosses South Dakota and Iowa, and winds up in Patoka, Illinois, nearly 1,200 miles later. Although the route does not actually cross the Standing Rock reservation, it runs within a half-mile of it.
A project of this magnitude often necessitates an extensive federal appraisal and permitting process. Not so here. Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land.
One significant exception, however, concerns construction activities in federally regulated waters at hundreds of discrete places along the pipeline route. The Corps needed to permit this activity under the Clean Water Act or the Rivers and Harbors Act – and sometimes both. For DAPL, accordingly, it permitted these activities under a general permit known as Nationwide Permit 12. The Tribe alleges that the Corps violated multiple federal statutes in doing so, including the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). In its Complaint, the Tribe asserts that this DAPL permitting threatens its environmental and economic well-being, as well as its cultural resources.
Despite this broad lawsuit, however, the Standing Rock Sioux now seek a preliminary injunction only on the alleged violation of the NHPA. That statute encompasses sites of cultural or religious significance to Indian tribes and requires that federal agencies consult with tribes prior to issuing permits that might affect these historic resources. The Tribe claims that the
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Corps did not fulfill this obligation before permitting the DAPL activities. It bears noting that the Tribe does not press its environmental claims under NEPA here. Nor does it seek a preliminary injunction to protect itself from the potential environmental harms that might arise from having the pipeline on its doorstep. Instead, it asserts only that pipeline-construction activities – specifically, the grading and clearing of land – will cause irreparable injury to historic or cultural properties of great significance.
The statutes and permitting scheme involved in this Motion are undeniably complex. The Court first sets forth the operation of the NHPA, which the Tribe asserts was violated. It next explains the Clean Water Act and the Rivers and Harbors Act, under which the Corps permitted the DAPL activities. Subsequent sections lay out the factual and legal proceedings that have taken place thus far.
A. National Historic Preservation Act Congress enacted the NHPA in 1966 to “foster conditions under which our modern society and our historic property can exist in productive harmony.” 54 U.S.C. § 300101(1). To this end, Section 106 of the Act requires a federal agency to consider the effect of its “undertakings” on property of historical significance, which includes property of cultural or religious significance to Indian tribes. Id. §§ 306108, 302706(b). An undertaking is defined broadly to include any “project, activity, or program” that requires a federal permit. Id. § 300320. Section 106, like the National Environmental Policy Act, is often described as a “stop, look, and listen” provision. See Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 (1st Cir. 2003) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999) (per curiam)). The agency must also give the Advisory Council on Historic Protection, which is charged with passing regulations to govern the implementation of
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Section 106, “a reasonable opportunity to comment on the undertaking.” 54 U.S.C. § 306108. The agency must further consult with, inter alia, tribes “that attach religious or cultural significance to [affected] property.” Id. § 302706(b). Once this is done, Section 106 is satisfied. In other words, the provision does not mandate that the permitting agency take any particular preservation measures to protect these resources. See CTIA-Wireless Ass’n v. FCC, 466 F.3d 105, 106-07 (D.C. Cir. 2006) (citing Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir. 2000)).
The Advisory Council also promulgates the regulations necessary to implement Section 106, see 54 U.S.C. § 304108(a), and these regulations “command substantial judicial deference.” McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 968 F.2d 1283, 1288 (D.C. Cir. 1992). Under them, the permitting agency – here, the Corps – first determines “whether the proposed Federal action is an undertaking . . . and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.” 36 C.F.R. § 800.3(a). Where the agency decides either that there is no undertaking or that the undertaking is not the “type of activity” that has the “potential to cause effects on historic properties, assuming such . . . properties were present,” the Section 106 process is complete. Id. § 800.3(a)(1). No consultation happens and the permit may issue. Id.
Things get more complicated where the agency cannot make this determination. In such a situation, the agency must complete a multi-step “consultation” process before it permits the undertaking. Id. § 800.16(f). Indian tribes that “attach religious and cultural significance to historic properties” that may be affected by the “undertaking” are a consulting party in this process even when the properties are located outside reservation lands. Id. § 800.2(a)(4), (c)(2)(ii). The regulations in fact instruct agencies to recognize that property of importance to Indian tribes is “frequently” located on “ancestral, aboriginal, or ceded lands.” Id.
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§ 800.2(c)(2)(ii)(D). Once its interests are implicated, the affected tribe must be given a reasonable opportunity: “to identify its concerns about [these] properties”; to “advise on the identification and evaluation of” them; to “articulate its views on the undertaking’s effects”; and to “participate in the resolution of adverse effects.” Id. § 800.2(c)(2)(ii)(A). The agency is further directed to conduct these consultations “early in the planning process,” id., in a “sensitive manner respectful of tribal sovereignty,” and recognizing “the government-to-government relationship between the Federal Government and Indian tribes.” Id. § 800.2(c)(2)(ii)(B)-(C).
The regulations then put meat on these aspirational bones by laying out the step-by-step consultative process that must occur. The process begins with initial planning, where the agency “determine[s] the appropriate SHPO . . . to be involved.” Id. § 800.3(c). The State Historic Preservation Officer – viz., SHPO – is designated by the governor of the state to, inter alia, administer this national historic-preservation program at the state level. In consultation with this Officer, an agency official then “identif[ies] any other parties entitled to be consulting parties and invite[s] them to participate.” Id. § 800.3(f).
Such parties then assist the agency to identify potential historic properties in the first phase. The permitting official, along with the SHPO, initially “[d]etermine[s] and document[s] the area of potential effects,” “[r]eview[s] existing information on historic properties within the area of potential effects,” “[s]eek[s] information, as appropriate, from consulting parties,” and “[g]ather[s] information from any [consulting] tribe . . . to assist in identifying properties” of potential significance to them. Id. § 800.4(a). Based on this information, the agency then “shall take the steps necessary to identify historic properties within the area of potential effects.” Id. § 800.4(b). This identification effort extends to the “geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic
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properties, if any such properties exist.” Id. § 800.16(d) (defining “area[s] of potential effects”). The scope of this area is also “influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Id. In this area, the official, through consultations, must “make a reasonable and good faith effort,” “which may include background research, consultation, oral history interviews, sample field investigation, and field survey” to identify potential historic properties. Id. § 800.4(b)(1) (emphasis added). In deciding on the “[l]evel of effort” required, the official “take[s] into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects.” Id.
Once the potentially relevant historic sites are identified, the official moves on to evaluating the historical significance of these sites in consultation with the SHPO and tribes. Id. § 800.4(c). This step must be taken in a manner that recognizes that the tribes “possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them.” Id. § 800.4(c)(1). Nevertheless, where the agency official and SHPO agree that an identified property should not be considered eligible for listing on the National Register of Historic Places, “the property shall be considered not eligible.” Id. § 800.4(c)(2). The permitting agency may then decide at this stage “that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them,” document this finding, and notify all consulting parties. Id. § 800.4(d)(1). If neither the SHPO nor the Advisory Council (if it has entered the consultation) “object within 30 days of receipt of an adequately documented finding, the agency official’s responsibilities under Section 106 are fulfilled.” Id. § 800.4(d)(1)(i).
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The agency otherwise proceeds to a third stage: assessment of the adverse effects on the identified historic properties. Id. § 800.5(a). An effect is considered adverse when the undertaking may “alter, directly or indirectly, any of the characteristics of a historic property that qualify it for inclusion in the National Register,” including via the “introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features.” Id. § 800.5(a)(1), (2)(v). At this point, the agency may determine in consultation with the other parties that there is no qualifying adverse effect or impose modifications or conditions that lead to the same result. Id. § 800.5(b). Alternatively, the Section 106 process may proceed to a fourth and final stage involving resolution of the adverse effects in consultation with the other parties. Id. § 800.6. The agency may, however, terminate this final consultation if it becomes unproductive and then proceed to permit the undertaking despite the effects. Id. § 800.7(a).
A few important global rules also apply to each stage of this process. The permitting agency is empowered to “coordinate the steps of the Section 106 process, as appropriate, with the overall planning schedule for the undertaking and with any reviews required under” other statutes. Id. § 800.3(b). The agency may also “use the services of applicants [or] consultants” to prepare required “information, analyses, and recommendations” in making any of the various determinations. Id. § 800.2(a)(3). Finally, the regulations allow agencies to “develop procedures to implement Section 106 and substitute them” for its procedures where the Advisory Council determines “they are consistent with the Council’s regulations.” Id. § 800.14(a).
B. Clean Water Act The CWA makes it unlawful to discharge dredged or fill material into navigable waters without a permit issued by the Corps. See 33 U.S.C. §§ 1311(a), 1342(a). The Corps grants this
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approval in one of two ways: It issues individual permits for a specific action, id. § 1344(a), or it promulgates general permits that preauthorize a certain type of activity within a defined area. Id. § 1344(e)(1); see Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 38-40 (D.C. Cir. 2015).
General permitting has obvious advantages over individual permitting. Most notably, general permits provide standing authority for an entire category of activities where those activities, alone and together, have minimal impact on regulated waters. See Sierra Club, 803 F.3d at 38-40; see also 33 U.S.C. § 1344(e)(1). They consequently eliminate the need for an arduous permit process for each minor action affecting a U.S. waterway. Indeed, a permittee may typically rely on the general permit without even notifying the Corps of its covered activity. See 33 C.F.R. § 330.1(e)(1). To keep things rolling, the Corps need only issue the permit through public notice and comment every five years. See 33 U.S.C. § 1344(e)(2).
But not every activity covered by a general permit receives this hands-off treatment. Actions proceeding under nationwide general permits also must comply with what are known as General Conditions. These GCs sometimes require that a particular covered action be subject to pre-construction notice and verification (PCN) by the Corps before the work begins. Where a discrete action requires a PCN, a Corps district engineer must confirm that the activity will comply with the general permit, cause no more than minimal adverse effects to the environment, and serve the public interest. See 33 C.F.R. §§ 330.1(e)(2)-(3), 330.6(a)(3)(i). In so doing, the district engineer may supplement the permit’s basic rules with more project-specific ones or even
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compel a more rigorous individual permitting process for that particular work. Id. § 330.6(a)(2), (d).
The Corps here relies on one such general permit – Nationwide Permit 12 – to authorize “the construction, maintenance, repair, and removal” of pipelines throughout the nation, where the activity will affect no more than a half-acre of regulated waters at any single water crossing. See Reissuance of Nationwide Permits (NWP 12), 77 Fed Reg. 10,184, 10,271 (Feb. 12, 2012); see also Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 1056 (10th Cir. 2015). Each stand-alone crossing of a waterway is considered to be a “single and complete project” for these purposes. See 33 C.F.R. § 330.2(i). Most pipeline work that involves minor activities in U.S. waters – i.e., affecting no more than half an acre – can thus proceed without any advance notice to the Corps.
Work that implicates tribal interests, however, cannot receive this laissez-faire handling. For example, GC 17 – not at issue here – prohibits the sanctioning of any activity under NWP 12 that will impair reserved tribal rights, including reserved water rights. See NWP 12 at 10,283. Of more relevance, GC 20 mandates a PCN for any permitted activity that “may have the potential to cause effects to any historic properties . . . including previously unidentified properties” of cultural or religious importance to a tribe. Id. at 10,284. This includes activities that may cause only “visual or noise” effects to historic properties outside the project area or reserved tribal lands. Id. at 10,251. Before such an activity can proceed, a district engineer must verify either (1) that it will not actually affect any identified historic site or (2) that the tribal consultations required by the NHPA are complete. Id. at 10,284. And, should a sanctioned activity nevertheless stumble upon tribal artifacts or remains, GC 21 mandates that the permittee “immediately notify” the Corps and, to the maximum extent possible, halt “construction
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activities that may affect” these objects until coordination with state, tribal, and federal authorities is complete. Id.
NWP 12 also allows a district engineer to impose additional Regional Conditions where the district engineer deems the General Conditions insufficient to protect tribal interests. See ECF No. 6, Exh. 1 (Decision Document for NWP 12) at 10; see also 33 C.F.R. § 330.5(b)(2)(ii). Many of these Regional Conditions restrict the scope of the Permit or expand the types of activities requiring a PCN process before an activity may proceed under it. See, e.g., ECF No. 21, Exh. 3 (2012 NWP Regional Conditions for North Dakota). Of particular relevance to this Motion, North Dakota’s Regional Conditions require a PCN “prior to initiating any regulated activity in the Missouri River.” Id. at 1. Permittees also must notify the Corps of “the location of any borrow site that will be used in conjunction with the construction of the authorized activity so that the Corps may evaluate the site for potential impacts to . . . historic properties.” Id. at 2.
The Corps’ more general permitting regulations further purport to assure that, in the “processing and evaluating of [any] permit,” a district engineer give “maximum consideration [to] historic properties within the time and jurisdictional constraints of the Corps regulatory program.” 33 C.F.R. pt. 325, app. C, § 2(f). Appendix C of these regulations addresses the Corps’ NHPA obligations and requires a district engineer to “take into account the effects, if any, of proposed undertakings on historic properties both within and beyond the waters of the U.S.” Id. § 2(a). The Corps considers each permitted water crossing of a linear pipeline, however, to be its own individual undertaking because the rest of the project – i.e., the entire line – “almost alway[s] can be undertaken without Corps authorization” of such individual crossing by a feasible reroute. Id. § 1(g)(4)(i). In other words, the Corps does not consider each crossing to be
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the “but for” cause of the entire pipeline and thus does not consider the entire pipeline to be an undertaking. Instead, the permitted undertaking, according to the Corps, “extend[s] in either direction from the crossing to that point at which alternative alignments leading to reasonable alternative locations for the crossing can be considered and evaluated.” Id. § 1(g)(4)(ii). For these permitted actions, the district engineer must “encourage the consideration of historic properties at the earliest practical time in [a] planning process” and engage in consultations with tribal leaders, the Advisory Council on Historic Preservation, and State Historic Preservation Officers. Id. § 2(e). The regulations also specify when additional conditions should be placed on a permit to “avoid or reduce” effects to these properties. Id. § 10(a).
C. Rivers and Harbors Act The RHA forbids certain construction activities within the “navigable water of the United States” without prior permission from the Corps. See 33 U.S.C. § 403. The Corps often relies on NWP 12 to discharge this duty for pipeline construction having only a minimal impact on regulated waters, 33 C.F.R. § 322.3(a), and the same general CWA conditions apply here. Lake Oahe is one of the waterways that falls under the jurisdiction of this Act.
* * * To sum up, the NHPA requires that the Corps, prior to issuing a permit under the CWA or the RHA, consider the potential effect of that permitted activity on places of cultural or religious significance to Indian tribes. D. Factual History The Standing Rock Sioux Tribe is a federally recognized American Indian Tribe with a reservation spanning the border between North and South Dakota. See ECF No. 1 (Complaint), ¶ 1. The sweep of the Tribe’s historic and cultural connection to the Great Plains, however,
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extends beyond these modern reservation boundaries. Id., ¶¶ 7-8. A successor to the Great Sioux Nation, the Tribe’s ancestors once lived, loved, worshipped, and mourned “[w]herever the buffalo roamed.” ECF No. 6-2 (Declaration of Jon Eagle, Sr.), ¶ 24. These people created stone alignments, burial cairns, and other rock features throughout the area to conduct important spiritual rituals related to the rhythms of their daily life. See ECF No. 14-1 (Declaration of Tim Mentz, Sr.), ¶ 3; Eagle Decl., ¶¶ 20, 25. Along the region’s waterways in particular, the prevalence of these artifacts reflects water’s sacred role in their deeply held spiritual beliefs. See Eagle Decl., ¶ 25. Today, the Standing Rock Sioux continue to honor these practices and cherish the connection they have to their ancestors through these sites. Id.
One place of particular significance to the Tribe lies at the traditional confluence of the Missouri and Cannonball Rivers. Id., ¶¶ 11-12; ECF No. 6-1 (Declaration of Dave Archambault II), ¶ 12. The ancestors to the Standing Rock Sioux gathered in this location to peacefully trade with other tribes. See Mentz Decl., ¶ 36. They also considered the perfectly round stones shaped by the meeting of these two great rivers to be sacred. See Eagle Decl., ¶ 11. Mighty natural forces, however, no longer hone these stones. Id. In 1958, the Corps dredged and altered the course of the Cannonball River to construct a dam. Id. As a result, a large man-made lake known as Lake Oahe now covers the confluence. Id.
The Tribe nevertheless continues to use the banks of the Missouri River for spiritual ceremonies, and the River, as well as Lake Oahe, plays an integral role in the life and recreation of those living on the reservation. Id. Naturally, then, the Tribe was troubled to learn in late 2014 that a new pipeline was being planned that would cross the Missouri River under Lake Oahe about a half-mile north of the reservation. See Archambault Decl., ¶¶ 8-12. This was, of
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course, DAPL – a 1,172-mile crude-oil pipeline poised to wind its way from the Bakken oil fields near Stanley, North Dakota, to refineries and terminals in Patoka, Illinois.
The conflict that has arisen since this revelation is, to say the least, factually complex. To ease digestion of the relevant information, the Court first describes how Dakota Access chose the pipeline route. It then lays out the facts surrounding the Corps’ permitting and concurrent Section 106 process for the project. These following summaries admittedly contain significant detail and may try the reader’s patience. The Court nonetheless believes such a narrative is necessary because a key question here is whether the Corps engaged in sufficient consultation with the Tribe under Section 106.
1. DAPL In the summer of 2014, Dakota Access crafted the route that brought DAPL to Standing Rock’s doorstep. See ECF No. 22, Exh. B (Declaration of Monica Howard), ¶¶ 2-3. The plotted course almost exclusively tracked privately held lands and, in sensitive places like Lake Oahe, already-existing utility lines. As only 3% of the work needed to build the pipeline would ever require federal approval of any kind and only 1% of the pipeline was set to affect U.S. waterways, the pipeline could proceed largely on the company’s timeline. Dakota Access nevertheless also prominently considered another factor in crafting its route: the potential presence of historic properties. Id. Using past cultural surveys, the company devised DAPL’s route to account for and avoid sites that had already been identified as potentially eligible for or listed on the National Register of Historic Places. Id., ¶¶ 2-4. With that path in hand, in July 2014, the company purchased rights to a 400-foot corridor along its preliminary route to conduct extensive new cultural surveys of its own. Id., ¶ 3. These surveys eventually covered the entire length of the pipeline in North and South Dakota, and much of
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Iowa and Illinois. Id., ¶ 8. Professionally licensed archaeologists conducted Class II cultural surveys, which are “focused on visual reconnaissance of the ground surface in settings with high ground visibility.” Id. In some places, however, the same archaeologists carried out more intensive Class III cultural surveys, which involve a “comprehensive archaeological survey program” requiring both surface visual inspection and shovel-test probes of fixed grids to “inventory, delineate, and assess” historic sites. Id. These latter surveys required coordination with and approval by State Historic Preservation Officers. Id.
Where this surveying revealed previously unidentified historic or cultural resources that might be affected, the company mostly chose to reroute. Id., ¶¶ 4-6. In North Dakota, for example, the cultural surveys found 149 potentially eligible sites, 91 of which had stone features. Id., ¶ 5. The pipeline workspace and route was modified to avoid all 91 of these stone features and all but 9 of the other potentially eligible sites. Id. By the time the company finally settled on a construction path, then, the pipeline route had been modified 140 times in North Dakota alone to avoid potential cultural resources. Id., ¶ 6. Plans had also been put in place to mitigate any effects on the other 9 sites through coordination with the North Dakota SHPO. Id., ¶ 13. All told, the company surveyed nearly twice as many miles in North Dakota as the 357 miles that would eventually be used for the pipeline. Id., ¶ 12.
The company also opted to build its new pipeline along well-trodden ground wherever feasible. See ECF No. 22-1 (Declaration of Joey Mahmoud), ¶¶ 18, 24, 40. Around Lake Oahe, for example, the pipeline will track both the Northern Border Gas Pipeline, which was placed into service in 1982, and an existing overhead utility line. Id., ¶ 18. In fact, where it crosses Lake Oahe, DAPL is 100% adjacent to, and within 22 to 300 feet from, the existing pipeline. Id. Dakota Access chose this route because these locations had “been disturbed in the past – both
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above and below ground level – making it a ‘brownfield crossing location.’” Id., ¶ 19. This made it less likely, then, that new ground disturbances would harm intact cultural or tribal features. Id.
Around the time the cultural survey work began, Dakota Access took its plan public. See Howard Decl., ¶ 12. On September 30, 2014, it met with the Standing Rock Sioux Tribal Council to present the pipeline project as part of a larger community-outreach effort. Id., ¶ 22. Personnel from Dakota Access also spoke with the Tribe’s Historic Preservation Officer (THPO), Waste’ Win Young, several times over the course of the next month. Id., ¶¶ 23-27. At one related meeting, a DAPL archaeologist answered questions about the proposed survey work and invited input from Young on any areas that might be of particular tribal interest. Id., ¶¶ 2528. The company agreed as well to send the centerline files from its cultural survey to her for review, and did so on November 13. Id., ¶ 28. It never received any response from Young. Id.
2. Entry of Corps Based on the current record, the Corps appears to have had little involvement in Dakota Access’s early planning. The one exception is a June 2014 meeting between the two parties to discuss the company’s plan to build a pipeline through the region. See ECF No. 21-18 (Declaration of Martha Chieply), ¶ 8. At this meeting, the Corps informed the company about its permitting requirements and explained the importance of tribal coordination for any actions taken under its jurisdiction. Id. There is no indication that the company sought to secure any permitting or that it presented the Corps with a specific proposed route for DAPL at this time. Id. This conclusion is consistent with the record evidence that Dakota Access was still buying up the necessary right-of-ways for the pipeline surveys in July 2014. See Howard Decl., ¶ 3; Mahmoud Decl., ¶ 40.
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The writing was on the wall, however, that many DAPL permitting requests would eventually land in the Corps inbox. The Corps’ Tribal Liaison, Joel Ames, accordingly, tried to set up a meeting with THPO Young beginning around September 17, 2014, without success. See ECF No. 21-17 (Declaration of Joel Ames), ¶¶ 5-6; see also ECF No. 21, Exh. 9 (Corps Tribal Consultation Spreadsheet) at 1 (documenting five attempts by Ames to coordinate a meeting with Young in September 2014). On October 2, other Corps personnel also sought to hold an arranged meeting with the Tribal Council and Dakota Access on the Standing Rock reservation. See Chieply Decl., ¶ 9. But when the Corps timely arrived for the meeting, Tribal Chairman David Archambault told them that the conclave had started earlier than planned and had already ended. Id. Ames nevertheless continued to reach out to Young to try to schedule another meeting throughout the month of October. See Ames Decl., ¶¶ 5-6. When the new meeting was finally held at the reservation on November 6, though, DAPL was taken off the agenda because Young did not attend. Id., ¶ 7.
3. Soil-Bore Testing at Lake Oahe The Corps’ North Dakota office also received the first request for DAPL permitting around this time and launched a formal NHPA Section 106 consultation as a result. See ECF No. 21-19 (Declaration of Richard Harnois), ¶ 5. This solitary preconstruction request from Dakota Access sought permitting only to conduct preliminary soil-bore testing at the Lake Oahe site, not to actually begin any construction. Id., ¶ 12. Dakota Access needed to conduct these tests to determine whether it could subsequently use its preferred method of Horizontal Directional Drilling at the crossing. Id. HDD – which the company plans to use on all land subject to the RHA or owned by the Corps – allows for “construction across a sensitive area without excavation of a trench by installing the pipeline through a drilled hole significantly
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below the conventional depth of a pipeline.” Howard Decl., ¶ 7. This particular test involved drilling just seven holes of 4-inch diameter with an estimated 10 feet of impact on areas around the holes. See Harnois Decl., Exhs. 1-2. Access to and from the sites, moreover, would take place on existing roads. Id.
As a first cut, the Corps reviewed extensive existing cultural surveys both within and outside the Lake Oahe project area to determine whether the work might affect cultural resources. Id. Then, on October 24, the Corps sent out a letter to tribes, including the Standing Rock Sioux, with information about the proposed work and maps documenting the known cultural sites that the Corps had already identified. Id., ¶ 6; see id., Exh. 1. These included sites that the Corps considered to be outside the projected area of effect. Id., ¶ 6. In addition, the letter requested that any party interested in consulting on the matter reply within thirty days. Id. No response was received from the Tribe. Id. The Corps did receive responses from other tribes and the North Dakota SHPO, which it considered. Id., ¶ 7. After granting an extra three weeks for additional responses, on December 18 the Corps made an initial determination of “No Historic Properties Affected” for the soil-bore testing. Id., ¶¶ 7-11.
The Corps mailed out this decision in a Determination of Effect letter to the North Dakota SHPO and all affected tribes on the same day. Id., ¶ 11. The letter explained that the Corps had concluded that no historic properties would be affected by the tests and clarified that a previous “not eligible” determination had already been made for a nearby site that would also not be affected by the work. Id. The Corps also emailed Young again the next day to seek possible dates for a January 2015 meeting with the Tribe to discuss DAPL. See Tribal Consultation Sheet at 1 (documenting email on December 19, 2014). No response is in the record.
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On February 12, 2015, having still heard nothing from the Tribe, Corps Senior Field Archaeologist Richard Harnois emailed Young again to solicit comments on the narrow issue of the soil-bore testing. See Harnois Decl., ¶¶ 13-14. Again, no reply. Id. Around this same time, Young informed the Corps’ Tribal Liaison, Ames, at an unrelated regulatory meeting that she did not need to consult with the Corps at the moment as she was currently working directly with Dakota Access. See Ames Decl., ¶ 8; see also Tribal Consultation Sheet at 1 (documenting contact). As a result, on February 18, the Corps granted the PCN authorization under NWP 12 for the limited exploratory soil-bore testing requested by Dakota Access. See Harnois Decl., ¶¶ 13-14.
At this point, the Court should note that the Tribe has not provided a declaration from Young about any of these early consultations (or lack thereof). This omission is problematic for its cause because many of the facts relevant to the Tribe’s NHPA claim involve her. As a result, the rendition of the facts in the record is largely told through documentation and affidavits provided by the Corps, with the exception of letters from Young provided by the Tribe.
In any event, several weeks later, on March 2, 2015, the Corps finally received a letter from Young expressing concerns over sites that might be affected by the bore testing. Id., ¶ 15. The letter was dated on the same day that the Corps had green-lighted the work. Id. In particular, Young mentioned the North Cannonball Village Site, which was almost a half-mile from the closest “area of potential effect” boundary set by the Corps. Id. The letter further requested Class III and other cultural surveys under tribal monitoring before the testing, and tribal monitoring during both the testing and any later pipeline construction. Id. Young also sent a similar letter on February 25 to the Corps’ Regulatory Branch Chief, Martha Chieply. See ECF No. 6, Exh. 6 (Letter from Young to Chieply on Feb. 25, 2015).
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Neither of these letters, contrary to representations made in the Tribe’s Motion, appears to be an “immediate[]” response to a February invitation by the Corps to consult on PCNs related to the actual pipeline construction. See Mot. at 10; see also Letter from Young to Chieply (Feb. 25, 2015). Indeed, the letters make no mention of that February offer, focusing instead on the more narrow issue of the soil-bore testing. See Letter from Young to Chieply on Feb. 25, 2015. Of course, as the Court has explained, the Corps had already permitted that limited testing under NWP 12 by the time Young sent the letters. Ames nevertheless renewed his efforts to schedule a meeting between Chairman Archambault and the Corps’ North Dakota District Commander, Colonel Henderson, in response to Young’s letters, but the parties could not find a date when both men were available to consult. See Ames Decl., ¶ 9.
4. PCN Authorizations In the meantime, Dakota Access initiated efforts on December 29, 2014, to secure five additional PCN authorizations under NWP 12 for pipeline-construction work in North Dakota. See Chieply Decl., ¶ 10. (Out of these, three were later withdrawn for various reasons. Id.) In the application, the company provided a project description, a water- and wetland-delineation report, and a cultural-survey report for areas around the PCN sites. Id., Exh. 4 at 1, 8. Dakota Access also requested a jurisdictional determination from the Corps for the work. Id., Exh. 4 at 1. On February 5, 2015, the Corps deemed the application incomplete and informed the company that it would require additional information before considering it. Id., ¶ 11. At this time, the Corps also informed Dakota Access that one of the listed sites, PCN # 1, would not require Corps permitting because the involved waterway had previously been determined to be an isolated waterway not subject to the CWA or RHA. Id., ¶¶ 10-11. Dakota Access responded with a complete application for the remaining PCNs on March 25. See id., ¶ 13. The Corps,
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accordingly, sent a letter in relation to an environmental assessment (EA) for the project to the Tribe and other parties on March 30. See ECF No. 21-20 (Declaration of Jonathan Shelman), ¶ 7. This letter described the two proposed crossings at Lake Sakakawea and the proposed crossing at Lake Oahe – i.e., the three North Dakota sites still thought to require PCNs at the time – and solicited comments from the Tribe to be considered as part of the EA. Id.
While discussions between Dakota Access and the Corps were ongoing, the Corps also sent a form letter to Young on February 17, informing her that it was now considering 55 PCN requests across its offices for DAPL. See ECF No. 6, Exh. 5. The letter went on to explain that the majority of the pipeline work would occur in uplands that were not subject to Corps jurisdiction, but the Corps would need to permit crossings at the Missouri, James, Big Sioux, Des Moines, Mississippi, and Illinois Rivers. Id. The letter, moreover, noted that Dakota Access was conducting cultural surveys along the entire route. Id. Finally, the Corps requested that the Tribe let it “know if you have any knowledge or concerns regarding cultural resources . . . you would like the Corps to consider” and asked whether it wanted to consult on the project. Id. A response was requested prior to March 30 “to help facilitate a timely Section 106 review.” Id. The Corps also attached the current proposed alignment provided by Dakota Access for the pipeline and contact information for various Corps staff involved in facilitating tribal consultations. Id.
On the date of the deadline to respond, Ames and Young exchanged emails, but the content of this exchange is not in the record. See Tribal Consultation Sheet at 8. Young did, however, formally respond on April 8. See ECF No. 6, Exh. 7. In her response this time, she acknowledged receipt of the Corps’ February 17 letter about the 55 construction-related PCNs. Id. at 1. But the thrust of her letter focused again on the Corps’ failure to respond, prior to
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permitting the soil-bore testing, to the concerns she had raised about that work. See id. at 1-2. She further expressed her belief that the Corps’ inaction violated the Section 106 process. Id. at 2. She demanded that the Corps “clarify the proper sequencing of the Section 106 NHPA process” before proceeding with the EA, asserted that she had not yet been contacted by Ames, and described the placement of bore pits on private lands as an attempt to avoid federal jurisdiction. Id. at 2-3. In conclusion, Young informed the Corps that the Tribe opposed “any kind of oil pipeline construction through our ancestral lands,” in part because the potential dredging would take place where “human remains of relatives of current . . . tribal members” were present. Id. at 3. Young ultimately closed, though, by reiterating that the Tribe “look[ed] forward to participation in a full tribal consultation process” once it commenced. Id. On the same day, Corps personnel and Standing Rock Archaeologist Dr. Kelly Morgan discussed future pipeline realignments over the phone. See Tribal Consultation Sheet at 7.
5. Summer of 2015 Relations between the Tribe and Corps did not improve in the summer of 2015. Ames attempted to speak with Young about the project in June, but she informed him via email that she was on an extended leave of absence until July 27. Id. at 8; see Ames Decl., ¶ 9. Ames was unable to determine whether anyone was empowered to act on the Tribe’s behalf in her absence. See Ames Decl., ¶ 9. On July 22, Corps Operations Manager Eric Stasch also sent a letter to Standing Rock describing the planned use of HDD for the Oahe crossing. See Harnois Decl., ¶ 16; see also id., Exh. 3. In his letter, Stasch provided details about the areas of potential effects and explained that the Corps would consider the work a federal undertaking despite its location on private land. See id., Exh. 3 at 1-2. The letter went on to say that Dakota Access’s cultural surveys had identified an additional cultural site within the proposed preparation and staging area
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for this work. Id. at 2. Finally, the letter requested a response within thirty days if the Tribe wished to consult on this particular crossing and indicated that consultations about other pipeline crossings would happen separately. Id. at 2-3. Attached to the letter were current and previous survey information, as well as general and detailed project maps illustrating the location and nature of the Lake Oahe crossing and recorded cultural resources. See Harnois Decl., ¶ 16.
In August, the Tribe responded with two letters of its own. See ECF No. 6, Exhs. 8 (Letter from Archambault to Cross on Aug. 19, 2015), 9 (Letter from Young to Stasch on Aug. 21, 2015). The first, sent on August 19 from Chairman Archambault to Colonel Cross – the Corps’ Commander and District Engineer for the Omaha District – described the Chairman’s frustration in not being contacted earlier in regard to DAPL. See Letter from Archambault to Cross (Aug. 19, 2015). Archambault invited Cross to the reservation to discuss the matter and provided contact information for his administrative assistant to arrange the visit. Id. The very same day, Ames emailed Archambault’s assistant in an attempt to schedule a meeting, but without success. See Ames Decl., ¶ 10; see also Tribal Consultation Sheet at 8. The second letter responded directly to Stasch’s offer to consult on the Lake Oahe crossing. See Letter from Young to Stasch (Aug. 21, 2015). In it, Young again reiterated that the Section 106 consultation run by the Corps had failed to respond to concerns raised by the Tribe in their February letters about the soil-bore testing prior to the completion of that work. Id. She further expressed her frustration in being excluded from the Dakota Access surveying despite company promises to include tribal monitors, and she reiterated her concern that sites might be overlooked or damaged unless the Standing Rock Sioux participated in surveying. Id. In closing, Young again said the Tribe looked forward to participating in “future consultation prior to any work being completed . . . [and] to playing a primary role in any and all survey work and monitoring.” Id. at 2.
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The Corps responded in at least three ways to the Tribe over the next month. First, on August 27, a Corps staff archaeologist started planning an onsite visit for the Corps, the Tribe, and the North Dakota SHPO to Lake Oahe. See Harnois Decl, ¶ 18. Second, the Corps’ District Commander, Colonel Henderson, wrote back to Chairman Archambault. See ECF No. 6, Exh. 10 (Letter from Henderson to Archambault on Sept. 3, 2015). Most of Henderson’s letter reiterated the form offer to consult and other general project information, but the letter also acknowledged receipt of the Tribe’s recent letters and provided additional information about the requested PCN locations. Id. at 2. Third, Stasch sent a letter on September 16, expressing his willingness and desire to address the Tribe’s questions and concerns during the upcoming onsite visit to Lake Oahe planned by the Corps. See Harnois Decl., ¶ 22.
On the same day as Stasch’s letter, Harnois also emailed Standing Rock Archaeologist Morgan to invite her to participate in the “working level, on-the-ground site visit of the proposed DAPL Oahe Crossing.” Id., ¶ 23. This sparked an email exchange between the two on logistics and dates. Id. The very next day, however, Morgan emailed the Corps to back out of the visit. Id., Exh. 4. In an attached letter, she explained that “after careful consideration the [Standing Rock] THPO has determined that it is in the best interest of the THPO to decline participation in the site visits and walking the project corridor’s [area of projected effects] at this time until government-to-government consultation has occurred for this project per Section 106 requirements as requested by the Standing Rock Sioux Tribe.” Id. By this she seemed to mean that the Corps needed to first hold the previously requested meeting between Chairman Archambault and Colonel Henderson. Id. Despite the Tribe’s withdrawal, the Corps ultimately proceeded to hold the onsite visit with the North Dakota SHPO. See Harnois Decl., ¶ 26.
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About a week later, the Tribe sent another letter, this time from Young to Colonel Henderson. See ECF No. 6, Exh. 11 (Letter from Young to Henderson on Sept. 28, 2015). In this letter, Young noted her concern “about the lack of consultation prior to the start of archaeological surveys.” Id. at 1. She further indicated that the Tribe had “received no correspondence prior to the soil bore hole testing,” which she then characterized as evidence that “the Corps is attempting to circumvent the Section 106 process.” Id. Citing the potential for “irreparable damage to . . . known sites,” she complained about the Tribe’s “exclusion of tribal participation up to this point” from the identification efforts and Section 106 process. Id. In addition, she indicated that the Tribe believed “the entire length of the DAPL [is] one project under the . . . [RHA], as well as” the CWA, and that the Corps was trying to avoid “federalization.” Id. at 2.
6. Fall of 2015 In the fall, the Corps responded by redoubling its efforts to meet with the Tribe. On September 29, 2015, Ames, in a phone conversation with Chairman Archambault, scheduled a meeting between the Corps and the Tribe’s Vice Chair for October 28. See Ames Decl., ¶ 13. But two days before that meeting, the Tribe canceled “because nobody from the tribe was available to attend.” Id. On the same day, the Tribe also canceled a meeting scheduled for November with Colonel Henderson, promising to meet with him instead “in a few months.” Id., ¶ 14. The Corps, moreover, documented ten different attempts to contact the Tribe over the course of the October to speak about the project. See Tribal Consultation Sheet at 14. Then, in November, the Corps twice invited the Tribe to a general tribal meeting in Sioux Falls, South Dakota, scheduled for December 8 to 9. See Chieply Decl., ¶ 17; see also id., Exh. 10. This invitation contained a link to the cultural surveys provided by Dakota Access. Id. Five
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tribes attended this meeting. Id., ¶ 18. Standing Rock did not. Id. At the meeting, the Corps made sure that the tribes had copies of the cultural surveys, and the group agreed to reconvene on January 25, 2016, to discuss any issues they found with those surveys. Id. Around the time of this meeting, the Corps also independently looked through these cultural surveys and other route maps to determine whether any additional DAPL crossings might have the potential to affect historic properties. See ECF No. 21-18, Exh. 16. The Corps concluded that only the James River crossing (PCN #4) raised any concerns; no others triggered the need for a PCN under General Condition 20. Id.
During this tribal gathering, Morgan sent a letter to the Corps, indicating that the Tribe was “still interested in formal consultation on the proposed” pipeline despite its decision not to attend. See ECF No. 6, Exh. 12 (Letter from Morgan to Chieply on Dec. 8, 2015) at 1. The Tribe yet again noted that it had not received a response from the Corps about the concerns it had raised in regard to the bore testing. Id. Morgan also protested that the testing should not proceed prior to mitigation efforts and indicated that the Tribe did not concur in the “no effects” determination for this work. Id. at 2. This, of course, makes little sense given that Young had already acknowledged in previous letters from the Tribe that they were aware the soil-bore testing had already taken place back in the spring. See, e.g., Letter from Young to Henderson on Sept. 28, 2015 (recognizing “soil bore testing has already occurred despite our initial correspondence”). In any event, Morgan further indicated that the Tribe looked forward to playing a primary role in any surveying or monitoring and explained that it would refuse to participate in tribal meetings until Colonel Henderson came to their reservation to meet with them first. Letter from Morgan to Chieply (Dec. 8, 2015) at 1. Finally, she informed the Corps
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that the Tribe thought the draft EA could not be issued prior to a full cultural-resources survey. Id. at 2.
Again, the Corps appears to have taken action in response to the Tribe’s demands. Henderson ordered Omaha District Deputy Commander, Lieutenant Colonel Michael D. Sexton to attempt to schedule a meeting with Plaintiff for him. See Ames Decl., ¶ 17. He did so in response to the setbacks experienced by Ames in attempting to secure the same over the previous months. Id. The Tribe, however, never returned Sexton’s calls about scheduling a meeting either, and Young subsequently left her position with the Standing Rock Sioux. Id.
On December 8, the Corps released a draft EA for the project, which contained a request for comment by January 8, 2016. See Shelman Decl., ¶ 8. In the portion of the EA describing the Section 106 process, the draft explained that consultations began in November 2014 for initial geotechnical explorations, which then closed in January 2015. See ECF No. 6, Exh. 13 (Draft EA, Nov. 2015) at 58. The draft next described the ongoing process, starting in July 2015, for consultation related to the actual pipeline construction. Id. In so doing, it acknowledged the Corps’ failure to secure onsite visits or government-to-government meetings to date. Id. at 5859. In the very next section, the EA indicated that Young had said in the October 2014 meeting with Dakota Access that the Lake Oahe HDD process “appeared to avoid impacts to known sites of tribal significance.” Id. at 59.
7. 2016 The Tribe provided timely and extensive comments to the draft EA in letters on January 8 and March 24, 2016. See ECF No. 6, Exh. 14 (Standing Rock Comments on Draft EA); id., Exh. 15 (Standing Rock Supplemental Comments). In these comments, Archambault asserted that the Corps had failed to consult on the identification of cultural sites important to the Tribe. See
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Standing Rock Comments on Draft EA at 2-3; see also id. at 4 (asserting Corps violated its own policy to hold “an active and respectful dialogue. . . before decisions are made and actions are taken”); id. (claiming bore testing violated NHPA because Corps did not include Tribe in decisionmaking process); id. at 6 (noting Corps reliance on old surveys conducted before 1992 Amendments to NHPA). He explained the importance of such consultations by, in part, describing tribal “oral traditions and historical records” that recorded the presence of known sites and burials in the direct path of the pipeline. Id. (counting “at least 350 known sites within the project corridor in North Dakota alone”); see also id. at 4 (indicating that Draft EA misrepresented Tribe’s position in October 2014 meeting thanks to false impression from Dakota Access). As a result, he concluded that those outside the Tribe could not properly identify these sites. Id. He additionally criticized the 400-foot corridor used for the Dakota Access surveys as too narrow and described the “no effects” determination by the Corps for sites within the corridor as lacking “scientific or engineering support.” Id. at 7-8. Archambault, in his later supplemental comments, again stressed the importance of tribal participation in the identification of historic properties and, accordingly, decisions about potential alternative routes for the pipeline. See Standing Rock Supplemental Comments at 23-24. He also cited the Advisory Council’s Section 106 regulations and case law to support his assertion that form letters and public meetings could not meet the Corps’ obligations under the NHPA to consult with the tribes. Id. In conclusion, he implored the Corps to assure that full cultural surveys would be done, with tribal input, on the entire pipeline. Id. at 28-29. Two other tribes also indicated at this time that they thought they had not yet been fully consulted on the potential effects of the pipeline. See ECF No. 6, Exhs. 22-24.
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The Section 106 process between the Corps and Tribe finally picked up steam in the spring of 2016. From January to May, there were no fewer than seven meetings between the two entities. On January 22, Corps Senior Archaeologist Harnois met at the reservation with Chairman Archambault; the Tribe’s new THPO Ron His Horse is Thunder; Morgan; and the Tribe’s Section 106 Coordinator, LaDonna Brave Bull Allard. See Harnois Decl., ¶ 27. Three days later, on January 25, the Tribe participated in the follow-on tribal meeting to discuss the Dakota Access cultural surveys. See Chieply Decl., ¶ 21. Next, on March 3, Corps staff held a meeting with the Tribe at Corps headquarters. See Ames Decl., ¶ 29. Perhaps most significantly, Morgan met with the Corps to express specific concerns about tribal burial sites at the James River crossing (PCN # 4). See Harnois Decl., ¶ 24. Based on the information she provided, the Corps verified the presence of cultural resources at the site and successfully instructed Dakota Access to move the pipeline alignment to avoid them. Id.
Colonel Henderson also attended several meetings with the Tribe. He first officiated at a third tribal summit on February 18-19, again with Standing Rock participation. See Chieply Decl., ¶ 22. Then, he attended meetings with Standing Rock on February 26, April 29, and May 14. See Ames Decl., ¶¶ 26, 33, 36. Through these conversations, Henderson committed the Corps to imposing several additional conditions on DAPL, such as double-walled piping, in response to tribal concerns about environmental safety. Id., ¶ 27. One of these summits also included an onsite visit to the Lake Oahe crossing. See Harnois Decl., ¶ 28; see also Archambault Decl., ¶ 19. During that visit, Chairman Archambault “pointed out areas of concern and explained the tribe’s issues with the pipeline project.” Harnois Decl., ¶ 28. Indeed, in March, Archambault acknowledged that the Corps had recently made strides toward righting the Section 106 ship and indicated he felt this particular onsite visit was productive at identifying
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new stones, graves, burial sites, and earthen lodges that needed to be considered by the Corps. See Supplemental Comments on Draft EA at 26-27. Henderson and Archambault exchanged letters about the project throughout the spring as well. Id., ¶ 30.
The improved relationship, however, had its limits. In the spring, the Corps worked with Dakota Access to offer consulting tribes an opportunity to conduct cultural surveys at PCN locations where the private landowner would permit them. See Chieply Decl., ¶ 28. This included 7 of the 11 sites in North and South Dakota. Id. Three tribes took the opportunity, and it paid off. See ECF No. 22, Exh. C (Declaration of Michelle Dippel) ¶ 28. The Upper Sioux Community identified areas of tribal concern at three PCN sites, and Dakota Access agreed to additional avoidance measures at all of them. Id. At one of these sites, the tribal surveyors and the Iowa SHPO declared a site eligible for listing on the National Registry that had not previously been identified on Dakota Access’s surveys. See Eagle Decl., ¶¶ 32-36; see also Mentz Decl., ¶¶ 38-39 (describing his hiring to conduct surveys for the Upper Sioux). Dakota Access agreed in response to this discovery to bury the pipeline 111 feet below the site to avoid disturbing it. See Mot. Hearing Trans. at 36. Similarly, the Osage Tribe identified areas through their surveys that they wished to monitor during construction, and the company granted that request too. Id.
Standing Rock took a different tack. The Tribe declined to participate in the surveys because of their limited scope. See Chieply Decl., ¶ 29. Instead, it urged the Corps to redefine the area of potential effect to include the entire pipeline and asserted that it would send no experts to help identify cultural resources until this occurred. Id. In a responsive email, the Corps expressed its regret that the Tribe would not participate and welcomed any knowledge or information regarding historic properties that it was still willing to provide. Id. The Corps went
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on to explain that it did not “regulate or oversee the construction of pipelines, and [its] regulatory control is limited to only a small portion of the land and waterways that the pipeline traverses.” Id., Exh. 14. While the Corps’ regulations allowed it to consider uplands outside “waters of the United States,” the email asserted that work in these areas had to be “directly associated [with], integrally related [to],” and caused by the “in-water authorized activity” before the Corps could claim authority over it. Id.
The Tribe did engage in two more visits to Lake Oahe with the Corps around this time. See Eagle Decl., ¶¶ 13-14; Harnois Decl., ¶ 29. First, on March 8, Morgan and the Tribe’s latest THPO, Jon Eagle, identified areas of potential cultural significance to the Corps and described the area’s sacred importance to the Standing Rock people. See Harnois Decl., ¶ 29. Several of the sites they identified were in areas that the Corps had determined were well outside the area of potential impact for the project, such as a cemetery approximately 1.2 miles from the nearest bore pit and .6 miles from the HDD preparation and construction area. Id. The group also toured the Cannonball Village site. Id. At this site, Morgan and Eagle pointed out places in the mole dirt where “pottery shards, pieces of bone, flint and tools used for scraping hides and cutting” were visible. See Eagle Decl., ¶ 14. Eagle, in addition, pointed out a sacred stone in the area that is still used for prayer. Id., ¶ 15. During the visit, Corps staff acknowledged that they had been previously unaware of some of these cultural resources and committed to further study of them. Id., ¶ 14. Morgan and Harnois thereafter exchanged several follow-up emails to discuss the Tribe’s “concerns and questions” generated by the onsite visit. See Harnois Decl., ¶¶ 30-31. The Corps nevertheless ultimately determined that the Cannonball Village site was not in the area that would be affected by DAPL-related construction work. Id., ¶ 29.
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The second onsite visit occurred on March 22 and went much the same as the first. Id., ¶ 32. This time, however, Morgan asked questions about the surveying that had been done on the area as part of the Northern Borderline Pipeline project – a pre-existing natural-gas pipeline installed under Lake Oahe that runs parallel to DAPL’s proposed course. Id. Harnois continued discussions with her about the adequacy of the mapping and considered requiring additional testing on the site. Id. Ultimately, however, Harnois determined that additional testing would not be necessary based on his later review of the site documentation and research. Id.
The Corps then sought to end the Section 106 process for the Lake Oahe crossing. On April 22, Harnois made a Determination of Effect for the site and emailed it to the consulting parties. Id., ¶ 33; see also ECF No. 6, Exh. 43. In it, Harnois described the project, explained the location, and discussed data on 41 potential historic sites in detail. Id. He concluded that one of the sites identified, 32MOx0570, was “not eligible” for listing and that the project overall had “no historic properties subject to effect.” Id. Four days later, the North Dakota SHPO concurred with his determination via email. See Harnois Decl., ¶ 34. Harnois then notified the Tribe of this concurrence. Id., ¶ 35. Both Chairman Archambault and Eagle formally objected to the determination. See ECF No. 6, Exh. 30 at 2 (“To date, none of our request for consultation or Class III Cultural Surveys has been honored.”); id., Exh. 31. As a result, the Tribe and Corps continued their dialogue on these issues. See Ames Decl., ¶ 36; Chieply Decl., ¶¶ 32, 35 (describing Corps response to these objections).
The Advisory Council – the agency responsible for commenting on NHPA compliance for federal undertakings – also sent the Corps a series of letters about the adequacy of the Section 106 process around this time. After the Corps published the draft EA, the Advisory Council requested verification from the Corps of its consultation efforts and relayed concerns expressed
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to them by Archambault about the consultations (or lack thereof) that had occurred to date with Standing Rock. See ECF No. 6, Exh. 20 (Advisory Council Comment on Draft EA) at 2. The Advisory Council formally entered the Section 106 consultation process for DAPL soon thereafter. See Chieply Decl., ¶ 27. Then, in March, the Advisory Council wrote to express its skepticism about the Corps’ determination that the entire pipeline was not subject to its jurisdiction. See ECF No. 6, Exh. 25 (Letter from Advisory Council to Henderson on Mar. 15, 2016). In particular, the Advisory Council felt that the PCNs required for various portions of the pipeline transformed the entire pipeline into an undertaking. Id. In addition, the Advisory Council described itself as “perplexed by the Corps’ apparent difficulties in consulting” with Standing Rock. Id. Again, on May 6, the Advisory Council wrote with additional questions relating to the DAPL permit area, tribal consultations, and federal-agency coordination. See ECF No. 6, Exh. 26. The Advisory Council also formally objected to the Corps determination of “no effects,” citing numerous deficiencies in the Section 106 process, including the failure of the Corps to properly define the scope of its responsibilities. See ECF No. 6, Exh. 32. Finally, on June 2, the Advisory Council requested that the Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, review that “no effects” determination. See Chieply Decl., ¶ 32.
The Corps responded to these letters with several of its own. On May 13, Henderson wrote to reiterate that the Corps could not exercise control over portions of the project not subject to its jurisdiction. See id.; see also id., Exh. 15. In his letter, Henderson contested the Advisory Council’s conclusion that the permitted activity determined the entire right-of-way for the pipeline, instead contending that the crossing of jurisdictional waters did not ultimately control project alignment elsewhere. Id. He further explained that the use of HDD in many places would avoid Corps jurisdiction altogether by eliminating any discharge of dredge or fill
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materials into regulated waters. Id. On June 30, the Assistant Secretary of the Army also replied. See Chieply Decl, ¶ 38; see also ECF No. 6, Exh. 39. In her letter, she reiterated the Corps’ position on its own jurisdiction, asserted tribes were notified and invited to participate and provide information, and contested the Advisory Council’s claim that field visits had identified the presence of new areas within the APE for the project. Id.
The Corps then moved to close the book on the matter. On July 25, 2016, it issued an EA finding of “no significant impact” and verified all 204 PCN locations under NWP 12. See ECF No. 6, Exhs. 33-36; Ames Decl., ¶ 36. The PCNs, however, contained additional restrictions. See ECF No. 6, Exhs. 33-36. Most importantly, they instituted a “Tribal Monitoring Plan” that requires Dakota Access to allow tribal monitors at all PCN sites when construction is occurring. Id. Dakota Access immediately notified the tribes of its intent to begin construction at the PCN sites within five to seven days. See ECF No. 6, Exh. 49 (Letter from Dippel to Upper Sioux).
* * * In summary, the Corps has documented dozens of attempts it made to consult with the Standing Rock Sioux from the fall of 2014 through the spring of 2016 on the permitted DAPL activities. These included at least three site visits to the Lake Oahe crossing to assess any potential effects on historic properties and four meetings with Colonel Henderson. E. Procedural History and Recent Activities Two days after the Corps issued the PCN authorizations, Standing Rock filed this suit against it under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., asserting in part that the Corps had violated its obligation under the NHPA prior to issuing the permitting for DAPLrelated construction along the entire pipeline route. The Tribe then filed, on August 4, 2016, this Motion for Preliminary Injunction to mandate a withdrawal of this permitting. The next day,
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Dakota Access intervened in the action in support of the Corps. See ECF No. 7 (Dakota Access Motion to Intervene). The Court subsequently permitted intervention by the Cheyenne River Sioux Tribe on Plaintiff’s side, though it did not participate in this Motion. After a scheduling conference on August 8, the Court ordered an expedited briefing schedule and set a hearing on the Motion for August 24.
At the Motion hearing, Dakota Access revealed that most of the construction associated with DAPL is, in fact, already complete. Because only 3% of the pipeline is subject to federal permitting, Dakota Access has always been free to proceed with the vast majority of the construction, which will occur on private land. In fact, 48% of the pipeline had already been cleared, graded, trenched, piped, backfilled, and reclaimed. See Mot. Hearing Trans. at 24. The company also moved fast elsewhere; this figure included all but 11 of the 204 sites that the Corps had subjected to PCN authorization. Id. at 25. All of the necessary clearing and grading has also been done in South Dakota, and 90% of it is complete in North Dakota. Id. at 24. One of the few exceptions is the crossing leading up to the west side of Lake Oahe, which has not yet been cleared or graded.
The tribal monitoring and GC 21 unexpected-discovery protocols also appeared to be in place for the activity that was permitted by the Corps. Id. at 37-39. When construction is ongoing for such activities, Dakota Access allows archaeological and tribal monitors onsite to look for evidence of cultural or historic resources. Id. As of the hearing, construction had triggered the unexpected-discovery protocol six times. Id. at 39. In each case, construction stopped until the state, federal, and tribal representatives confirmed that the resources were not being damaged. Id. Each one turned out to be a false alarm. Id. At the conclusion of the hearing, the Court informed the parties that it would issue its decision on September 9, two
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weeks being necessary to adequately review the voluminous record and draft this lengthy Opinion.
Nine days after the hearing, on Friday, September 2, the Tribe filed a supplemental declaration by Tim Mentz, the Tribe’s former Tribal Historic Preservation Officer and a member of the Standing Rock Sioux Tribe. See ECF No. 29-1 (Supplemental Declaration of Tim Mentz, Sr.). In the declaration, Mentz explained that he had been invited by a landowner to conduct cultural surveys on private land along the DAPL route that had already been cleared for pipeline construction. See id., ¶¶ 2-3; see also id., Exh. 1. This land was about 1.75 miles from the construction activity that the Corps has actually permitted at Lake Oahe. Id., ¶ 3. In other words, the area in question was entirely outside the Corps’ jurisdiction. The construction activity on it, as a result, never required a federal permit, and neither the Corps nor any other federal agency had any control over it. Because these activities do not require a federal permit, they are also not necessarily subject to the attendant restrictions to protect historic properties – i.e., GC 21 and tribal monitoring – placed by the Corps on the activities that it did permit.
Mentz, over the course of several days beginning on August 30, avers that he surveyed this private land around the pipeline right-of-way. Id., ¶ 6. During these surveys, he observed several rock cairns and other sites of cultural significance inside the 150-foot corridor staked for DAPL construction. Id., ¶¶ 7-11. He was, however, confined in his actual surveying to those areas immediately adjacent to the pipeline right-of-way and did not enter the corridor itself. Id. Mentz documented the presence of several sites that he believed to be of great cultural note nearby, including a stone constellation used to mark the burial site of a very important tribal leader about 75 feet from the pipeline corridor. Id., ¶ 10. Mentz did not observe any fencing or other protective measures around these sites. Id., ¶ 9. He also observed what he believed to be
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important stone features within the pipeline corridor. Id., ¶ 11. According to Mentz, none of these sites was documented on the earlier cultural surveys of the area commissioned by Dakota Access. Id., ¶ 17.
The next day, on Saturday, September 3, Dakota Access graded this area. See ECF No. 30 (Emergency Motion for Temporary Restraining Order). On September 4, both the Tribe and the Cheyenne River Sioux Tribe filed for a Temporary Restraining Order on any additional construction work at the site described by Mentz – i.e., the length of the pipeline route for approximately two miles west of Highway 1806 in North Dakota – and for any additional construction work on the pipeline within 20 miles on either side of Lake Oahe, until the Court ruled on this Motion for Preliminary Injunction. Id. The Corps responded that it would not oppose the restraining order while awaiting this decision.
Dakota Access, not surprisingly, hotly contested Mentz’s version of events in its opposition to the TRO motion. In a map of the area, the company sought to demonstrate that many of the sites documented by Mentz were in fact well outside the pipeline route. See ECF No. 34 (Response to TRO) at 6-8. The rest, according to Dakota Access, were directly over the existing Northern Border Natural Gas Pipeline that runs through the area and thus could not have been historic artifacts. Id. at 6. The company instead alleges that the route of the pipeline in this area proves its point: it twists and turns to avoid the finds that Mentz documented adjacent to the pipeline and thus demonstrates that Dakota Access did purposefully shift the route to avoid any sites of cultural significance in its planning phase. Id. The Court acknowledges that the map provided by the company does seem to indicate that the pipeline curves to accommodate the cultural sites. Id. at 7.
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This Court held a TRO hearing on September 6, the first business day after that motion was filed. Without making factual determinations about the truth of Mentz’s observations, the Court was able to obtain Dakota Access’s agreement not to perform any construction activities within 20 miles east of Lake Oahe and within about two miles west of the Lake, as it had already ceased such operations while awaiting the Court’s preliminary-injunction ruling. The Court otherwise denied the TRO. This current Opinion now issues on a highly expedited basis. 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. Advisory Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. 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 factor. See, e.g., Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a “more demanding burden” requiring plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
Whether a sliding-scale analysis still exists or not, courts in our Circuit have held that “if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors.” Dodd v. Fleming, 223 F. Supp. 2d 15, 20 (D.D.C.
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2002) (citing CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)). Likewise, a failure to show a likelihood of success on the merits alone is sufficient to defeat a preliminary-injunction motion. Ark. Dairy Co-op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009) (citing Apotex, Inc. v. FDA, 449 F.3d 1249, 1253 (D.C. Cir. 2006)). It follows, then, that the Court may deny a motion for preliminary injunction, without further inquiry, upon finding that a plaintiff is unable to show either irreparable injury or a likelihood of success on the merits. Here, Standing Rock fails on both grounds. III. Analysis
The Corps gave the go-ahead, under NWP 12, for DAPL’s construction activities in federally regulated waters at hundreds of discrete places along its nearly 1,200-mile route. In seeking a preliminary injunction, the Tribe contends that the Corps, in doing so, shirked its responsibility to first engage in the tribal consultations required by the NHPA. Because DAPL construction is ongoing, the Tribe further asserts that sites of great significance will likely be damaged or destroyed unless this Court pumps the brakes now. It also contends that the balance of harms and the public interest favor its position.
Defendants rejoin that preliminary-injunctive relief is inappropriate both because the Corps has satisfied its obligations under the NHPA – in other words, the Tribe is unlikely to succeed on the merits of its NHPA claim – and because the Tribe has failed to show that any harm will befall it in the absence of an injunction. As the Court agrees on both points, it need not consider the final two factors – balance of harms and the public interest – to deny the Motion. It now discusses the merits and the harm separately.
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A. Likelihood of Success on the Merits Although the Tribe’s legal theory is not entirely clear, the Court believes it can infer four separate arguments that the Corps’ permitting of DAPL was unlawful. First, the Standing Rock Sioux assert that the Corps violated the NHPA when it promulgated NWP 12 without a Section 106 process. Next, they contend that, even if the Corps could defer site-specific Section 106 consultations when promulgating NWP 12, it violated the NHPA by permitting DAPL-related activities at some federally regulated waters without a Section 106 determination. Third, the Tribe maintains that, even where the Corps did conduct a Section 106 process, it unlawfully narrowed the scope of its review to only those areas around the permitted activity, as opposed to the entire pipeline. Finally, the Tribe urges that the Section 106 process at the PCN sites was inadequate because the quality of the consultations was deficient. None of these claims appears likely to succeed on the merits at this stage.
1. NWP 12 Although many DAPL-related construction activities in federally regulated waters occurred or will occur at places where the Corps did not require a PCN verification, such activities nevertheless required approval from the Corps under the CWA or RHA. That approval was provided on a general level when the Corps re-promulgated NWP 12 in 2012. Because these activities thus were “permitted” by a federal agency, they fall within the NHPA’s definition of a federal “undertaking.” See 54 U.S.C. § 300320; 36 C.F.R. § 800.16(y). As federal undertakings, they triggered the Corps’ NHPA duty to consider, prior to the issuance of the permit, their effects on properties of cultural or historic significance. See 54 U.S.C. § 306108 (“[P]rior to the issuance of any license, [the federal agency] shall take into account the effect of
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the undertaking on any historic property.”). According to the Tribe, the Corps did not fulfill this obligation because NWP 12 was issued without any tribal consultations.
As an initial matter, the Tribe’s assertion that the Corps did not engage in any NHPA consultations prior to promulgating NWP 12 is false. Before issuing NWP 12, the Corps, in November 2009, sent an early notification to tribes, including Standing Rock, containing information pertaining to its proposed NWPs. See ECF No. 21, Exh. 14 (Letter from Ruchs to Brings Plenty on Nov. 9, 2009). The letter contained a graphic depiction of the types of activities that were most often authorized by nationwide permits in the Omaha District. Id. In addition, in 2010, the Corps proceeded to hold “listening sessions and workshops” with tribes to discuss their concerns related to the proposed nationwide permits. See ECF No. 21, Exh. 13 (Tribal Information Fact Sheet). In March 2010, the Corps contacted Standing Rock personally to discuss the permits and any additional regional conditions that the Tribe thought might need to be included to protect their cultural resources. See Chieply Decl., ¶ 5.
Then, on February 10, 2011, the Corps sent a letter to the Standing Rock Sioux Tribal Chairman and THPO Young, notifying them of its plan to publish a proposal in the Federal Register to reissue NWP 12. See ECF No. 21, Exh. 13 (Letter from Ruchs to Murphy on Feb. 10, 2011). Attached to the letter, the Corps provided a description of the proposed NWP 12, as well as a draft of the current Omaha District regional conditions that would apply to the permit. Id. The Corps requested that the Tribe “consider this letter our invitation to begin consultation on the proposal to reissue the NWPs.” Id. It went on to say that the Corps “look[s] forward to consulting with you on a government-to-government basis on this issue” and requested that the Tribe notify the Corps if it was “interested in consulting.” Id. The Corps further committed to provide a “Corps representative at consultation and fact-finding meetings” and to “fully consider
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any information you wish to provide.” Id. In an email on March 9, 2011, the Corps followed up on the offer. See Chieply Decl., ¶ 7. The Corps also seems to have conducted district-level tribal listening sessions and workshops. See Tribal Information Fact Sheet at 1. There is no indication in the record that the Tribe responded to the Corps’ invitation to consult, but was ignored. The Tribe, in fact, concedes that it did not participate in the notice-and-comment for NWP 12 at all. See Reply at 2. When it actually promulgated NWP 12, moreover, the Corps included a section on its compliance with the NHPA, noting that GC 20 “requires consultation for activities that have the potential to cause effects to historic properties” prior to those activities’ proceeding under the general permit. See ECF No 6, Exh. 1 (Nationwide Permit 12 Decision Document) at 10 (emphasis added).
To the extent that the Tribe now seeks in this Motion to launch a belated facial attack against NWP 12, then, it is unlikely to succeed. The Corps made a reasonable effort to discharge its duties under the NHPA prior to promulgating NWP 12, given the nature of the general permit. Cf. Sierra Club v. Bostick, 787 F.3d 1043, 1047, 1057 (10th Cir. 2015) (holding Corps permissibly interpreted CWA “to allow partial deferral of minimal-impacts analysis” because of “the difficulty of predicting the impact of activities allowed under nationwide permits”). Without definite knowledge of the specific locations that would require permitting in the future, it is hard to ascertain what else the Corps might have done, before issuing a general permit, to discharge its NHPA duties. In other words, the Corps, when it promulgated NWP 12, had no knowledge of DAPL or its proposed route. The CWA and RHA plainly allow the Corps to do just what it did here: preauthorize a group of similar activities that, alone and combined, have minimal impact on navigable waterways. This Court cannot conclude that the Corps does not
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have the ability to promulgate these general permits at all. As a result, the Corps’ effort to speak with those it thought might be concerned was sufficient to discharge its NHPA obligations.
This conclusion is reinforced by the limited scale and scope of the federally sanctioned activities at issue. The Advisory Council’s regulations provide that the “agency official should plan consultations appropriate to the scale of the undertaking and the scope of the Federal involvement.” 36 C.F.R. § 800.4(a). Here, the scope of the Corps’ involvement was limited. It never had the ability, after all, to regulate the entire construction of a pipeline. Congress has decided that no general federal regulation applies to domestic oil pipelines. In addition, the scale of the federally permitted undertaking here is narrow. The CWA and RHA regulate, as relevant here, only certain limited construction activities in waterways. The CWA, moreover, restricts the use of general permits to an even narrower subset of these already limited activities in waterways. The Corps can only authorize discharges that have a minimal impact on the jurisdictional waterway through a general permit. See 33 U.S.C. § 1344(e). In other words, NWP 12, by definition, can authorize only that regulated conduct that will have little effect on the regulated waterway in the first place. Given these restrictions, the Corps’ decision to promulgate NWP 12 after the effort to consult that it made here was reasonable.
The Tribe responds that the Corps was instead required to work out a “programmatic agreement” with any tribe that might one day be affected by the activities permitted under NWP 12. See Mot. at 22-23. A programmatic agreement is an “agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings” that is negotiated by the Advisory Council and the permitting agency. See 36 C.F.R. § 800.14(b). On this score, Standing Rock is certainly right that the Corps could have pursued a programmatic agreement to fulfill its NHPA duties, as it did
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in 2004 with several tribes in regard to the Missouri Basin. See ECF No. 6, Exh. 4 (Programmatic Agreement). But the Advisory Council does not make the pursuit of a programmatic agreement mandatory. See 36 C.F.R. § 800.14(b) (“The Advisory Council and the agency official may negotiate a programmatic agreement.”) (emphasis added). The Court thus cannot conclude that a PA was the only avenue available to the Corps to fulfill its duties under the NHPA. There is, indeed, no indication that such a requirement would even be feasible for a nationwide permitting scheme given the sheer number of possible consulting parties. Nor could the Corps have complied with the full Advisory Council process, which is clearly designed for project-specific determinations. As a result, it was reasonable for the Corps to engage in a general process at the time it promulgated NWP 12 and to defer site-specific NHPA determinations to a later time.
2. NWP 12 Applied at Non-PCN Sites The Tribe next argues that NWP 12’s operation is unlawful because the Corps makes no site-specific Section 106 determination for numerous generally permitted activities – i.e., nonPCN sites. In particular, it claims that GC 20 improperly delegates authority to the permittee to assess whether its activities will have a potential effect on historic properties. To refresh the reader, GC 20 requires that “[i]n cases where the district engineer determines that the activity may affect [NHPA] properties . . . , the activity is not authorized, until the requirements of Section 106 of the [NHPA] have been satisfied.” 77 Fed. Reg at 10,284. The Advisory Council, too, seems to concur that, in individual cases of permitting under NWP 12, Section 106 is not satisfied where the Corps itself does not make a site-specific determination about whether a permitted activity has the potential to affect historic properties. See ECF No. 6, Exh. 50 at 1-2. As the Tribe and the Advisory Council read GC 20, the Corps never considers whether an
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individual activity will have the potential to affect historic sites unless the permittee decides that it might and, accordingly, seeks a PCN. The Corps, in turn, responds that it does consider itself to retain the authority and responsibility under GC 20 to determine whether permitted activity has the potential to damage historic properties. See Corps Opp. at 13-14.
Standing Rock and the Advisory Council make a good argument. It is possible that the Corps’ permitting under NWP 12 would be arbitrary and capricious where it relies completely on the unilateral determination of a permittee that there is no potential cultural resource that will be injured by its permitted activity. Fortunately, this Court need not decide that issue because that is not how the Corps interpreted and applied GC 20 to DAPL. In this case, the Corps looked at reports and maps of the pipeline to determine which jurisdictional crossings had the potential to affect historic properties. See Chieply Decl., Exh. 16 at 1; see also id., Exh. 15 at 1. These extensive maps reflected cultural surveys conducted by licensed archaeologists (sometimes with SHPO participation). See Howard Decl., ¶¶ 4-10; see, e.g., ECF No. 6, Exh. 44. The Corps ultimately concluded that only 204 of the jurisdictional crossings triggered either GC 20 or some other concern that would require a PCN verification. See Chieply Decl., Exh. 16 at 1.
The Court must review that determination under the Administrative Procedure Act’s deferential standard. See 5 U.S.C. § 706(2)(a). Under this standard, the Tribe bears the burden to demonstrate that the agency action was unlawful, arbitrary or capricious, or not in accordance with the law. See Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976). Plaintiff has not done so here. At no point has the Tribe clearly pointed this Court to a specific non-PCN activity – i.e., crossings the Corps permitted – where there is evidence that might indicate that cultural resources would be damaged. The Tribe instead focuses on the potential impact to cultural resources elsewhere along the pipeline. But to show the Corps’ determination was unreasonable,
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Standing Rock needs to offer more than vague assertions that some places in the Midwest around some bodies of water may contain some sacred sites that could be affected. For example, if the Corps had not required a PCN verification for a site like Lake Oahe (assuming it was not subject to the RHA), to which the Tribe has shown it has important historic and cultural connections, this Court might well find unreasonable the Corps’ determination that construction at the site would have no potential to cause negative effects to these resources. Without such a specific showing involving a site within the Corps’ jurisdiction, however, the Court can find no ground at this juncture to hold that the Corps’ considered judgment – based as it was on its expertise, the activity involved, extensive cultural surveys, and additional research – was unreasonable. The Tribe has had more than a year to come up with evidence that the Corps acted unreasonably in permitting even a single jurisdictional activity without a PCN, and it has not done so. As a result, it has not met its burden here.
3. Scope of Section 106 Process at PCN Sites The Tribe next asserts that the Corps’ Section 106 process was deficient even at those places where it did in fact require a PCN notification. Here, again, Standing Rock largely focuses its efforts on a sweeping claim that the Corps was obligated in permitting this narrow activity – i.e., certain construction activities in U.S. waterways – to consider the impact on potential cultural resources from the construction of the entire pipeline. In particular, the Tribe contends that the NHPA requires such an analysis because the statute defines the potential effect of an undertaking to include the indirect effects of the permitted activity on historic properties. This argument, however, misses the mark. In its regulations concerning compliance with the adverse-effects analysis required by the NHPA, the Corps determined that entire pipelines need not be considered part of the analyzed areas. Rather, only construction activity in the
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federally regulated waterways – the direct effect of the undertaking – and in uplands around the federally regulated waterways – the indirect effect of the undertaking – requires analysis. See 33 C.F.R. pt. 325, app. C, § 1(g)(i). This Circuit has held just such an approach to be reasonable in the context of a challenge brought under a similar “stop, look, and listen” provision in NEPA, and these two statutes are often treated similarly. See, e.g., Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291, 1294-95 (D.C. Cir. 2007) (“Because of the ‘operational similarity’ between NEPA and NHPA, both of which impose procedural obligations on federal agencies after a certain threshold of federal involvement, courts treat ‘major federal actions’ under NEPA similarly to ‘federal undertakings’ under NHPA.”). Specifically, this Circuit held that where a federal easement and CWA permitting encompassed only five percent of the length of a pipeline, “the federal government was not required to conduct NEPA analysis of the entirety of the . . . pipeline, including portions not subject to federal control or permitting.” Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 34-35 (D.C. Cir. 2015). Other Circuits have held the same. See Bostick, 787 F.3d at 1051-54 (holding Corps was not required to prepare NEPA analysis of entire pipeline when verifying NWPs for 485-mile oil pipeline crossing over 2,000 waterways); Winnebago Tribe of Neb. v. Ray, 621 F.2d 269, 272-73 (8th Cir. 1980) (concluding same for electric utility line). The Tribe offers no persuasive argument as to why the facts here demand a different conclusion. As a result, this Court cannot conclude here that a federal agency with limited jurisdiction over specific activities related to a pipeline is required to consider all the effects of the entire pipeline to be the indirectly or directly foreseeable effects of the narrower permitted activity.
The Corps’ decision in this regard is also entitled to deference under the APA as it falls squarely within the expertise of the Corps, not the Advisory Council, to determine the scope of
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the effects of construction activities at U.S. waterways. See Bldg. & Constr. Trades Dep’t v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988) (holding courts must be especially deferential to an agency’s determination within an area in which it has “special expertise”). The Tribe, moreover, fails to provide any evidence that would call the Corps’ technical judgment in this regard into question. See 33 C.F.R. pt. 325, app. C, § 1(g)(i) (explaining that for linear crossings, the “permit area shall extend in either direction from the crossing to that point at which alternative alignments leading to a reasonable alternative locations for the crossing can be considered and evaluated”). The Tribe contends instead, without evidence, that the entire pipeline must be the indirect effect of the permitted activity because the pipeline cannot feasibly avoid all federally regulated water crossings. In other words, no permitting means no pipeline. The Court cannot say on this record, however, that the Tribe is right. In fact, as DAPL’s own construction demonstrates, the use of technology such as HDD can at least sometimes avoid the Corps’ jurisdiction at federally regulated waters by eliminating the need for the discharge of dredge or fill material.
The limited nature of the Corps’ jurisdiction, in fact, reinforces the reasonableness of the its decision not to consider the effects of the entire pipeline on historic properties before issuing the DAPL permitting. “[W]here an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency[’s action] cannot be considered a legally relevant ‘cause’ of the effect.” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 770 (2004). Section 106 analysis is designed only to “discourage[e] federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.” Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C. Cir. 1989). That section does not require that the Corps consider the effects of actions over which it has no control and which are far removed from its
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permitting activity. The Corps here ultimately determined that the route taken by the pipeline through private lands, up to a certain point approaching a federally regulated waterway, is driven by factors that have little to do with the discrete activities that the Corps needs to permit. The Court cannot conclude otherwise on this record. As such, it cannot hold the Corps’ decision arbitrary, capricious, or otherwise unlawful.
4. Sufficiency of Consultations Plaintiff’s last point on the merits is that the Corps failed to offer it a reasonable opportunity to participate in the Section 106 process as to the narrow scope of the construction activity that the Corps did consider to be an effect of the permitted waterway activities. The factual proceedings recited in exhaustive detail in Section I.D., supra, tell a different story. The Corps has documented dozens of attempts to engage Standing Rock in consultations to identify historical resources at Lake Oahe and other PCN crossings. To the reader’s relief, the Court need not repeat them here. Suffice it to say that the Tribe largely refused to engage in consultations. It chose instead to hold out for more – namely, the chance to conduct its own cultural surveys over the entire length of the pipeline. In fact, on this record, it appears that the Corps exceeded its NHPA obligations at many of the PCN sites. For example, in response to the Tribe’s concerns about burial sites at the James River crossing, the Corps verified that cultural resources indeed were present and instructed Dakota Access to move the pipeline to avoid them. Dakota Access did so. See Ames Decl., ¶ 24. Furthermore, the Corps took numerous trips to Lake Oahe with members of the Tribe to identify sites of cultural significance. See Summit Lake Paiute Tribe of Nevada v. U.S. Bureau of Land Mgmt., 496 F. App’x 712, 715 (9th Cir. 2012) (not reported) (holding four visits with a tribe to site constituted sufficient consultation for resolution of adverse effects). Colonel
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Henderson also met with the Tribe no fewer than four times in the spring of 2016 to discuss their concerns with the pipeline. Ultimately, the Corps concluded that no sites would be affected by the DAPL construction at Lake Oahe, and the State Historic Preservation Officer who had visited that site concurred. The Corps’ effort to consult the Tribe on this site – the place that most clearly implicated the Standing Rock Sioux’s cultural interests – sufficed under the NHPA.
Contact, of course, is not consultation, and “consultation with one tribe doesn’t relieve the [agency] of its obligation to consult with any other tribe.” Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of Interior, 755 F. Supp. 2d 1104, 1112, 1118 (S.D. Cal. 2010). But this is not a case about empty gestures. As noted in Section I.D., supra, and the examples just above, the Corps and the Tribe engaged in meaningful exchanges that in some cases resulted in concrete changes to the pipeline’s route. “This is not a case like Quechan Tribe, where a tribe entitled to consultation actively sought to consult with an agency and was not afforded the opportunity.” Wilderness Soc’y. v. Bureau of Land Mgmt., 526 F. App’x 790, 793 (9th Cir. May 28, 2013) (not reported).
The Tribe nevertheless asserts that the Corps’ failure to include it in the early cultural surveys rendered the permitting unlawful for at least some of the PCN sites. These surveys, however, were not conducted by the Corps or under its direction. Even setting this fact aside, neither the NHPA nor the Advisory Council regulations require that any cultural surveys be conducted for a federal undertaking. The regulations instead demand only that the Corps make a “reasonable and good faith effort” to consult on identifying cultural properties, which “may include background research, consultation, oral history interviews, sample field investigations, and field survey.” 36 C.F.R. § 800.4(b)(1). It goes without saying that “‘may’ means may.” McCreary v. Offner, 172 F.3d 76, 83 (D.C. Cir. 1999). These regulations contain “no
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requirement that a good faith effort include all of these things.” Summit Lake Paiute, 496 F. App’x at 715. The Tribe, then, did not have an absolute right to participate in cultural surveying at every permitted undertaking, as it seems to argue. The Advisory Council regulations direct the agency to “take into account past planning, research, and studies” in making these types of determinations, see 36 C.F.R. § 800.4(b)(1), and that is just what the Corps did here. It gave the Tribe a reasonable and good-faith opportunity to identify sites of importance to it. As a result, the Court must conclude that the Tribe has not shown that it is likely to succeed on the merits of its NHPA claim at this stage.
B. Irreparable Injury In seeking preliminary-injunctive relief here, the Standing Rock Sioux do not claim that a potential future rupture in the pipeline could damage their reserved land or water. Instead, they point to an entirely separate injury: the likelihood that DAPL’s ongoing construction activities – specifically, grading and clearing of land – might damage or destroy sites of great cultural or historical significance to the Tribe. The risk that harm might befall such sites is a matter of unquestionable importance to the Standing Rock people. In the eloquent words of their Tribal Chairman:
History connects the dots of our identity, and our identity was all but obliterated. Our land was taken, our language was forbidden. Our stories, our history, were almost forgotten. What land, language, and identity remains is derived from our cultural and historic sites. . . . Sites of cultural and historic significance are important to us because they are a spiritual connection to our ancestors. Even if we do not have access to all such sites, their existence perpetuates the connection. When such a site is destroyed, the connection is lost. Archambault Decl., ¶¶ 6, 15. The tragic history of the Great Sioux Nation’s repeated dispossessions at the hands of a hungry and expanding early America is well known. See, e.g., Dee Brown, Bury My Heart at Wounded Knee (1970); United States v. Sioux Nation, 448 U.S.
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371 (1980). The threat that new injury will compound old necessarily compels great caution and respect from this Court in considering the Tribe’s plea for intervention.
Although the potential injury may be significant, the Tribe must show that it is probable to occur in the absence of the preliminary injunction it now seeks. See Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”) (emphasis added). This is the burden the law imposes for this form of relief. The Court must faithfully and fairly apply that standard in all cases, regardless of how high the stakes or how worthy the cause. After a careful review of the current record, the Court cannot conclude that the Tribe has met it.
To understand Standing Rock’s deficit in this regard, it is necessary to first consider the nature of the relief it seeks. The Tribe has not sued Dakota Access here for any transgressions; instead, this Motion seeks to enjoin Corps permitting of construction activities in discrete U.S. waterways along the pipeline route. Such relief sought cannot stop the construction of DAPL on private lands, which are not subject to any federal law. Indeed, Standing Rock does not point the Court to any law violated by the private contracts that allow for this construction or any federal regulation or oversight of these activities. From the outset, consequently, no federal agency had the ability to prevent DAPL’s construction from proceeding on these private lands. At most, the Corps could only have stopped these activities at the banks of a navigable U.S. waterway. An injunction of any unlawful permitting now can, at most, do the same.
The facts previously recited bear this simple conclusion out. Dakota Access, as has been explained, began its construction work on private lands long before it had even secured the Corps permitting that the Tribe now seeks to enjoin. See Mahmoud Decl., ¶ 47. Standing Rock
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concedes as much. See Mot. at 35; see also Mot. Hearing Tran. at 46 (“They started construction months ago, months before the permits were issued.”). In many places, this work is already complete. See Mot. Hearing Trans. at 24. There is, moreover, no sign that Dakota Access will pull back from this construction on private land if this Court enjoins the NWP 12 permitting necessary for the 3% of DAPL’s route subject to federal jurisdiction. Quite the contrary; the company has indicated that it has little choice but to push ahead in the hopes of meeting contract obligations to deliver oil by January 2017. See, e.g., id. at 40-41; see also Mahmoud Decl., ¶ 51.
The Tribe thus cannot demonstrate that the temporary relief it seeks here – i.e., a preliminary injunction to withdraw permitting by the Corps for dredge or fill activities in federally regulated waters along the DAPL route – can prevent the harm to cultural sites that might occur from this construction on private lands. In other words, Standing Rock cannot show that any harm taking place on private lands removed from the Corps’ permitting jurisdiction “will directly result from the action which [it now] seeks to enjoin.” Hunter v. FERC, 527 F. Supp. 2d 9, 14-15 (D.D.C. 2007) (explaining that to obtain preliminary relief, “the movant must . . . show that ‘the alleged harm will directly result from the action which the movant seeks to enjoin’”) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (emphasis added)); see also Buckingham Corp. v. Karp, 762 F.2d 257, 261 (2d Cir. 1985) (“The purpose of a preliminary injunction is to protect the moving party from irreparable injury during the pendency of the action.”). Powerless to prevent these harms given the current posture of the case, the Court cannot consider them likely to occur in the absence of the relief sought here. Put simply, any such harms are destined to ensue whether or not the Court grants the injunction the Tribe desires. As Standing Rock acknowledges, Dakota Access has demonstrated that it is determined to build its pipeline right up to the water’s edge regardless of whether it has secured a
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permit to then build across. See Mot. Hearing Trans. at 46. Like the Corps, this Court is unable to stop it from doing so.
There is a second related problem with the Tribe’s claim to irreparable injury, both on the private land and elsewhere along the pipeline. The risk that construction may damage or destroy cultural resources is now moot for the 48% of the pipeline that has already been completed. Id. at 24. As the clearing and grading are the “clearest and most obvious” cause of the harm to cultural sites from pipeline construction, id. at 18-19, 47 (recognizing that injunction is necessary anywhere not yet cleared “to prevent additional harm or construction until [cultural] surveys can take place”), moreover, the damage has already occurred for the vast majority of the pipeline, with the notable exception of 10% of the route in North Dakota, including at Lake Oahe. Here again, then, the Tribe has not shown for this substantial segment of the pipeline that any additional harm is likely to occur to cultural sites absent the preliminary injunction that it now seeks.
Yet a third problem bedevils the Tribe’s efforts to enjoin permitting along the entire pipeline route. Plaintiff never defined the boundaries of its ancestral lands vis-à-vis DAPL. Instead, Standing Rock asserts that these lands extend “wherever the buffalo roamed.” Even accepting this is true, to find that there is a likelihood that construction might run afoul of a site of cultural significance to the Tribe, this Court must ultimately decide where those culturally significant lands lie. There is at least some evidence in the record that they do not traverse the entirety of DAPL. For example, Jon Eagle, the Tribe’s current THPO, indicated prior to this litigation that at least some of the pipeline did not fall within the scope of what he considered ancestral tribal lands. See Chieply Decl., Exh. 14 (Letter from Jon Eagle to Martha Chieply on Mar. 22, 2016) (“Most of the DAPL pipeline route crosses Lakota/Dakota aboriginal land.”); see
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also ECF No. 11-7 (Declaration of H. Frazier). This Court may not enjoin an action that the Corps has authorized by guessing at whether an interest of the Tribe might be affected. Instead, Plaintiff bears the burden to demonstrate that the permitting it seeks to have withdrawn would, in the absence of such relief, likely cause it harm. This it did not do for much of the pipeline.
So what activity remains subject to this Court’s injunctive powers? Any permitted DAPL activity that the Tribe has shown will likely injure a nearby site of cultural or historic significance to the Standing Rock people. As previously explained, 204 sites were subject to PCN authorizations and thus were clearly permitted by the Corps. Those sites are in play. Other discharges into jurisdictional waters at hypothetical locations along the route, however, may also have been permitted under NWP 12 without a PCN process. But it would be pure speculation based on the current record to determine where such permitting occurred. The Tribe points the Court to no specific crossing of cultural significance that the Corps permitted under NWP 12 without a PCN verification. In fact, many of the pipeline crossings were not permitted by the Corps, sometimes because Dakota Access’s use of HDD did not give rise to the dredge or fill activities that trigger federal jurisdiction under the CWA. For example, out of the five places in North Dakota that Dakota Access thought might require a PCN authorization, only three actually needed permitting at all. See Chieply Decl., ¶ 10. Of course, there may be many sites that the Corps permitted under NWP 12 that the Court has missed. But the burden is on the Tribe to indicate why this permitting must be enjoined to prevent an injury likely to occur to it. The Court, again, cannot guess that at some undefined locations there might be harm to the Tribe. It was Standing Rock’s burden to point to the specific NWP 12 permitting that was likely to cause
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it injury. Standing Rock did not do so with regard to the permitting that has occurred outside of the PCN verified locations.
Returning to the 204 PCN sites, the vast majority must be excluded right off the bat. As previously noted, construction at 193 of the 204 PCN has already been completed. See Mot. Hearing Trans. at 24. For those sites, the die is cast. Whatever harms may have occurred from DAPL construction, the Court’s intervention to enjoin the permitting now can no longer avoid them. As a result, the Court must deny the Tribe’s request for an injunction as to permitting at those sites.
As to the other 11 PCN sites, the Tribe largely neglects to point the Court to any resources that may be affected by permitted activity. Plaintiff seeks to avoid its responsibility to identify a likely injury at these locations by claiming that this failure stems from the Corps’ refusal to properly consult in the first place and thus should be excused. See Mot. at 37 n.17. At least with regard to some of these sites, however, the Corps did offer the Tribe the opportunity to visit the sites or even conduct its own surveys, and the Tribe declined to do so. See Chieply Decl., ¶¶ 28-29. The record contains abundant evidence that the Corps also repeatedly sought other input on known cultural sites at these locations, and, in many cases, other tribes conducted site visits to search for any resources likely to be affected by the DAPL work. Id. The Tribe cannot now ask the Court to speculate that there would be a likely injury at these places by claiming that it was prevented from assessing these sites.
These sites are also subject to several additional restrictions that make it unlikely that construction will damage or destroy sites of cultural significance to the Tribe. First, the Corps attached restrictions to its PCN authorizations. These restrictions mandate that tribal monitors and archaeologists be allowed at these sites to look for any evidence of previously overlooked
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resources whenever construction is happening. See ECF No. 6, Exhs. 33-36 (PCN authorizations). GC 21 will also require that Dakota Access stop work until any unanticipated discovery can be evaluated for its historic and cultural significance by the Corps and the SHPO. See NWP 12 at 10,184. Standing Rock, too, will have the right to be involved in that verification process. Id. Given all these precautions, and the Tribe’s failure to point the Court toward any evidence that a particular resource will be injured by this work, the Court must conclude that Plaintiff has not met its burden to show that irreparable injury is likely to occur without an injunction against this permitting.
And then there was one: Lake Oahe. This is the sole permitting that the Tribe might arguably show is likely to cause harm to cultural or historic sites of significance to it. As previously discussed, Lake Oahe is of undeniable importance to the Tribe, and the general area is demonstrably home to important cultural resources. Even here, though, the Tribe has not met its burden to show that DAPL-related work is likely to cause damage. The Corps and the Tribe conducted multiple visits to the area earlier this year in an effort to identify sites that might be harmed by DAPL’s construction. See Eagle Decl., ¶¶ 13-14; Harnois Decl., ¶ 29. While the Tribe identified several previously undiscovered resources during those visits, these sites are located away from the activity required for the DAPL construction. See Harnois Decl., ¶ 29. Ultimately, the Corps considered these findings and determined that they would not be affected by the permitted activity. Id., ¶ 33. Most importantly, the North Dakota SHPO concurred in this opinion after having toured the site as well. See Harnois Decl., ¶ 34.
Several factors unique to the site also support this conclusion. The area around the permitted activity has been subject to previous surveying for other utility projects. See Mahmoud Decl., ¶¶ 18-19. DAPL likewise will run parallel, at a distance of 22 to 300 feet, to an
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Case 1:16-cv-01534-JEB Document 39 Filed 09/09/16 Page 57 of 58 already-existing natural-gas pipeline under the lake. Id.; see also Mot. Hearing Tran. at 25. Dakota Access will also use the less-invasive HDD method to run the pipeline, which will require less disturbance to the land around the drilling and bury the pipeline at a depth that is unlikely to damage cultural resources. See Howard Decl., ¶ 7; see also Mahmoud Decl., ¶ 19. Indeed, the Corps concluded that this method would not cause structural impacts at sites away from the direct drilling, and the Tribe presents no evidence to the contrary. See ECF No. 6, Exh. 51 (Omaha District Envtl. Assessment) at 78-79. Any temporary disturbance to the atmospherics around the site, moreover, will not be irreparable as they will be removed once the construction is complete. Finally, like the other PCN sites, there are several protective measures in place to assure that the Tribe and others will be able to monitor the construction activity to protect any previously unidentified resources.
For all of the above reasons, the Tribe has not carried its burden to demonstrate that the Court could prevent damage to important cultural resources by enjoining the Corps’ DAPLrelated permitting.
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IV. Conclusion As it has previously mentioned, this Court does not lightly countenance any depredation
of lands that hold significance to the Standing Rock Sioux. Aware of the indignities visited upon the Tribe over the last centuries, the Court scrutinizes the permitting process here with particular care. Having done so, the Court must nonetheless conclude that the Tribe has not demonstrated that an injunction is warranted here. The Court, therefore, will issue a contemporaneous Order denying the Plaintiffs’ Motion for Preliminary Injunction.

Date: September 9, 2016

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:16-cv-01534-JEB Document 158 Filed 03/07/17 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and
CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor, v.
U.S. ARMY CORPS OF ENGINEERS Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor and CrossClaimant.

Civil Action No. 16-1534 (JEB)

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), 2016 WL 4734356 (D.D.C. Sept. 9, 2016). 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
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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, 2016 WL 4734356, at *1. Its construction has sparked legal challenges from several American Indian tribes: the Standing Rock and Cheyenne River Sioux Tribes here, as well as others. See Yankton Sioux Tribe v. U.S. Army Corps of Engineers, No. 16-1796 (D.D.C., filed Sept. 8, 2016); Oglala Sioux Tribe v. U.S. Army Corps of Engineers, No. 17-267 (D.D.C., filed Feb. 11, 2017). The present action originally sought, in principal part, to block permitting by the Corps of the construction and operation of DAPL underneath Lake Oahe, a federally regulated waterway created by the Corps in 1958 via a dam constructed on the Missouri River. Standing Rock I, 2016 WL 4734356, at *6. The Lake Oahe crossing sits about half a mile north of the Standing
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Rock Reservation and 73 miles north of the Cheyenne River Reservation. Id.; ECF No. 127-3, Exh. 1. The crossing, which will run under the lakebed but not through the water itself, is the only portion of DAPL that is not yet finished. See ECF No. 89-1 (Presidential Memorandum of Jan. 24, 2017), § 1; Preliminary Injunction Oral Argument Transcript (Feb. 28, 2017) at 9:2210:2.
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, 2016 WL 4734356, at *1-17. It thus will recap only the developments relevant to the present Motion.
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
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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, 2016 WL 4734356, the Departments of Justice, the Interior, and the Army issued a joint statement explaining that because “important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline” remained, “construction of the pipeline on Army Corps land bordering or under Lake Oahe [would] not go forward” until the Army could determine whether reconsideration of any of its previous decisions regarding the Lake Oahe crossing under NEPA or other federal laws was necessary. See ECF No. 42-1 at 1.
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 “[p]otential conditions in an easement for the pipeline crossing” and “[i]n light of such conditions, whether to grant an easement for the pipeline to cross Lake Oahe at the location currently proposed.” Id.
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
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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;
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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. The Court held a hearing on the TRO on February 13. Finding that no harm to religious exercise was imminent, as oil was not yet set to flow through DAPL, the Court denied the application. See Minute Order of Feb. 13, 2017; ECF No. 119 (TRO Oral Argument Transcript, Feb. 13, 2017) at 29:20-30:19. It then set a compressed briefing schedule on the instant Motion for Preliminary Injunction and heard argument on February 28. It issues this Opinion on an expedited basis. 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., 555
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U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20.
Before the Supreme Court’s decision in Winter, courts weighed the preliminaryinjunction 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, 166 F.3d 356, 36061 (D.C. Cir. 1999). This Circuit, however, has suggested that Winter should be read to abandon the sliding-scale analysis in favor of a “more demanding burden” requiring plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). Whether a sliding-scale analysis still exists or not, courts in our Circuit have held that a failure to show a likelihood of success on the merits alone is sufficient to defeat the motion. Ark. Dairy Co-op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009) (citing Apotex, Inc. v. FDA, 449 F.3d 1249, 1253 (D.C. Cir. 2006)). III. Analysis
Cheyenne River seeks preliminary-injunctive 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
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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 laches 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.
A. Laches Laches is an equitable defense “‘designed to promote diligence and prevent enforcement of stale claims’ by those who have ‘slumber[ed] on their rights.’” Menominee Indian Tribe of Wisc. v. United States, 614 F.3d 519, 531 (D.C. Cir. 2010) (quoting Gull Airborne Instructions, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982)). As a general matter, it applies “where there is (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Id. (quotation marks and citation omitted). How a court applies laches, however, turns on whether the relief requested is legal or equitable, whether the legislature has supplied a statute of limitations, and, if so, whether that limitations period has run. See Petrella v. Metro-Goldwin-Mayer, Inc., 134 S. Ct. 1962, 1973-74 (2014). 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
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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., 474 F.3d 227 (6th Cir. 2007); New Era Publications Int’l v. Henry Holt & Co., 873 F.2d 576, 584-85 (2d Cir. 1989)). Absent such circumstances, a court may take account of the plaintiff’s delay at the remedial stage when determining the appropriate injunctive relief. Id. at 1967; 1978-79.
RFRA is subject to a four-year statute of limitations. See 28 U.S.C. § 1658; see also Garraway v. Lappin, 2012 WL 959422, at *3 (M.D. Penn. Mar. 21, 2012); Al-Sadun v. DCFS, 2011 WL 1378638, at *3 (N.D. Ill. Apr. 11, 2011); Pineda-Morales v. De Rosa, 2005 WL 1607276, at *8 (D.N.J. July 6, 2005); Jama v. U.S. INS, 343 F. Supp. 2d 338, 365 (D.N.J. 2004). Defendants do not mention this statute or assert that extraordinary circumstances are present here. The Court, consequently, does not acquiesce in their position that laches bars the RFRA claim in its entirety. See DA Opp. at 1, 10; Corps Opp. at 10-15.
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 preliminaryinjunctive relief, Winter, 555 U.S. at 22, may determine whether laches renders that relief inappropriate. See, e.g., Perry v. Judd, 840 F. Supp. 2d 945, 953-55 (E.D. Va. 2012) (discussing whether laches precluded preliminary-injunctive relief prior to undertaking four-factor analysis). The Court will thus proceed to analyze Defendants’ contention that the Tribe delayed in filing suit on its RFRA claim and thereby caused them prejudice.
1. Lack of Diligence Run-of-the-mill delay is not sufficient to warrant the application of laches. Menominee Indian Tribe, 614 F.3d at 531. The “party seeking relief” must have delayed “inexcusably or
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unreasonably.” Id. (quotation marks and citation omitted) (emphasis added). As explained below, although the Tribe learned of DAPL’s proposed route in October 2014, when the Corps solicited its input on the project, and the Corps issued some of the authorizations necessary for Dakota Access to drill at Lake Oahe in July 2016, 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 and to seek to raise a RFRA claim.
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. See, 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 [e]ffects to cultural and historical resources, Sacred sites (water included), Traditional Cultural Properties, Properties of Cultural or Religious Significan[ce] to Tribe, etc., of the proposed pipeline when they have not been properly
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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.”); Hanois Decl., ¶¶ 3133; 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 and 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 Cheyenne River Sioux
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Tribe and constitute the lifeblood of our religion and traditions.”); ¶ 61 (“The waters of the Missouri River moreover are sacred to the Tribe and essential to the Tribe’s practice of our religion.”).
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 ECF 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.” ECF No. 115-4, Exh. D (Letter from Standing Rock Sioux Tribe to JoEllen 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
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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 ECF 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 government.” ECF No. 97 (Mot. to Amend Complaint) at 3; ECF No. 141 (Reply) at 3-4; TRO Tr. at 7:17-23.
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
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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, 2016 WL 4734356, at *7, 13. The Corps also imposed additional construction conditions on DAPL in response to tribal positions regarding environmental safety. Id. at *14. Notably, such changes were made prior to any litigation. 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
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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, 920 F.2d 32, 39 (D.C. Cir. 1990) (explaining whether relief sought “is still practicable” is a “crucial” consideration that “has turned on the degree to which construction is complete”) (listing cases).
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. Green, 553 U.S. 674, 689 (2008) (citation omitted). Although it does so within RFRA’s four-year statute of limitations, the request comes long after Cheyenne River learned of the pipeline’s proposed route, was invited to offer feedback, articulated other specific environmental and cultural issues, and filed suit on other claims. Only once Dakota Access had built up to the water’s edge and the Corps had granted the easement to proceed did Cheyenne River inform Defendants that the pipeline was the realization of a long-held prophecy about a Black Snake and that the mere presence of oil in the pipeline under the lakebed would interfere with the Tribe’s members’ ability to engage in important religious practices. Because of the Plaintiff’s delay in raising this religious-exercise objection and the negative impact of that delay on the Corps and Dakota Access, the Court concludes that the requested preliminary-injunctive relief is barred by laches.
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
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governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. 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 (3) the policy or action substantially burdens that exercise. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (discussing burdens in Religious Land Use and Institutionalized Persons Act action); id. at 860 (explaining RLUIPA is governed by same standard as set forth in RFRA) (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)). The Court discusses whether the Tribe is likely to satisfy each of these initial three prongs in turn. As it answers this question in the negative, the Court need not look into whether the government interest is compelling or if its action is the least restrictive means.
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), Isnati Awiciliwanpi (coming of age for young women), Wiping of the Tears (conclusion of mourning), and Inipi (prayer and purification) ceremonies. Id. 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 Decl., ¶ 11a.
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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, 457 F.3d 52 (D.C. Cir. 2006), which considered whether RFRA required strict scrutiny of the FAA’s approval of Chicago’s plan to update and reconfigure O’Hare International Airport. Id. at 57. The plan involved relocating a church cemetery, and several individuals and entities sued the FAA, arguing that its approval violated RFRA. Id. The D.C. Circuit held that the Act did not apply because any burden caused by the City’s plan was “not fairly attributable to the FAA.” Id. “[C]onstitutional standards do not attach to conduct by third parties in which the federal government merely acquiesces,” it explained. Id. There must be a “sufficiently close nexus between the [federal government] and the challenged action” of the third party “so that the action of the latter may be fairly treated as that of the [federal government] itself.” Id. at 62 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)) (alterations in original).
Defendants contend that, as in Bensenville, 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 Bensenville 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
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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 Decl., ¶ 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 ceremony.”); 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 Decl., ¶ 11; Mot. at 910. 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 Decl., ¶ 11. Vance states, “[The Missouri River] is important to our spirituality. It is an important source of our foods, medicines, water for
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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 Decl., ¶¶ 15-16. The Lakota also contend that they “own . . . these waters that comprise Lake Oahe,” and so “believe that the existence of this crude oil pipeline under the Lake Oahe Reservoir poses a special threat to the way [they] practice [their] religion.” Vance Decl., ¶ 18.
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 300 feet, to a natural-gas pipeline that was built under the lake in 1982. Standing Rock I, 2016 WL 4734356, at *7, 26. It also tracks an already existing overhead utility line. Id. at *7. Several other oil pipelines cross the Missouri River upstream of Lake Oahe, including one located just 7.5 miles north of the lake (44 miles north of the DAPL crossing). See Corps Opp. at 5; ECF No. 127-3, Exh. 1. In addition, three vehicle bridges and one railroad bridge cross over Lake Oahe at locations closer to the Cheyenne River Reservation than the DAPL crossing, which is 73 miles away. See ECF No. 127-3, Exh. 1. And a wastewater-treatment plant is authorized to discharge into a tributary to a river that flows through the Reservation into Lake Oahe. See Corps Opp. at 5 (citing City of Eagle Butte NPDES Permit (Sept. 30, 2011), https://www.epa.gov/region8/city-eagle-butte-npdes-permit).
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.
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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 Decl., ¶ 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 Decl., ¶ 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., 134 S. Ct. 2751, 2774 n.28 (2014). Courts generally handle “the sincerity inquiry . . . with a light touch, or ‘judicial shyness.’” Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 792 (5th Cir. 2012); see also Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”); Kay v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007)
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(“The inquiry into the sincerity of a free-exercise plaintiff’s religious beliefs is almost exclusively a credibility assessment.”) (citation omitted). In light of instructions to tread gently with its sincerity inquiry, therefore, the Court finds that the Tribe is likely to successfully establish a sincerely held belief that the presence of oil in the Dakota Access pipeline running under Lake Oahe interferes with its members’ religious ceremonies.
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, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd., 450 U.S. 707, 718 (1981)). It offered Sherbert v. Verner, 374 U.S. 398 (1963), as an example of such substantial pressure. That case involved “the denial of unemployment benefits to a Sabbatarian who could not find suitable non-Saturday employment,” which “forced her ‘to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.’” Kaemmerling, 553 F.3d at 678 (quoting Sherbert, 374 U.S. at 404). Using that test, the Circuit rejected Kaemmerling’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
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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., 450 U.S. 707, 718 (1981)).
The government action here — i.e., 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, 485 U.S. 439 (1988), was a case concerning an American Indian tribe’s Free Exercise challenge to federal government actions involving sacred sites on federal land. The Supreme Court held that the incidental effect on religious exercise of a government action undertaken in furtherance of the management and use of government land, even if extreme, is not alone enough to give rise to a Free Exercise claim. That decision leads this Court to conclude that Cheyenne River is unlikely to establish that the Corps’ grant of the easement imposes a substantial burden on its religious exercise such that it will succeed on the merits of its RFRA claim.
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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 plaintiffs contended that the “disruption of the natural environment caused by the . . . road will diminish the sacredness of the area in question” and interfere with tribal members’ use of sites there for religious practice. Id. at 448. 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. Indeed, it explained that it had “no reason to doubt[] that the logging and road-building projects at issue . . . could have devastating effects on traditional Indian religious practices,” including their inability “to conduct a wide variety of specific rituals that aim to accomplish their religious goals.” Id. at 451. But the Court nonetheless concluded that the government’s actions did not cause the kind of harm cognizable under the Free Exercise Clause because they did not “coerce[]” the affected individuals “into violating their religious beliefs” or “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Id. at 449. Ultimately, the Court explained, these harms were “incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs.” Id. at 450. “Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of
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a governmental action on a religious objector’s spiritual development,” even where the effect on religious practice is “extremely grave.” Id. at 451.
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 — the Supreme Court was not unsympathetic to the plight of the affected individuals. Id. at 456. And it cautioned that “[n]othing in [its] opinion should be read to encourage governmental insensitivity to the religious needs of any citizen” or to dissuade the government from accommodating religious practices. Id. at 453. But the effects of the Forest Service’s actions simply did not raise a constitutional concern: “However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.” Id. at 452. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Id. at 451 (quoting Sherbert, 374 U.S. at 412 (Douglas, J., concurring)).
Cheyenne River’s religious-exercise claim is much like the one at issue in Lyng. It involves a government action — granting an easement to Dakota Access to build and operate a pipeline — regarding the use of federal land —the land under Lake Oahe, as discussed infra — that has an incidental, if serious, impact on a tribe’s ability to practice its religion because of spiritual desecration of a sacred site. Just as the government’s tree cutting and road building in Lyng did not give rise to an actionable Free Exercise claim, neither does its easement granting here likely violate RFRA.
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, 494 U.S. 872 (1990), which rejected, in certain circumstances, the Free
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Exercise test employed in cases like Sherbert and Wisconsin v. Yoder, 406 U.S. 205 (1972). Those cases “used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest.” Hobby Lobby, 134 S. Ct. at 2760. Smith held instead that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” Id. at 2761 (quoting City of Boerne v. Flores, 521 U.S. 507, 514 (1997)). In enacting RFRA, Congress restored the compelling-interest test set forth in pre-Smith cases. See 42 U.S.C. § 2000bb.
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 case 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,
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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., 772 F.3d 229, 246, 248 (D.C. Cir. 2014), vacated and remanded by Zubik v. Buwell, 136 S. Ct. 1557 (2016); Eternal World Television Network, Inc. v. Sec’y of U.S. Dep’t of Health & Hum. Servs., 818 F.3d 1122, 1146 (11th Cir. 2016); Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014); Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 349-50 (2d Cir. 2007). One such decision is particularly applicable to this case.
In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), a tribe challenged the federal government’s approval of the use of artificial snow on a mountain the tribe considered sacred. It asserted that the use of ersatz precipitation would “spiritually contaminate the entire mountain and devalue their religious exercises.” Id. at 1063. Relying heavily on Lyng, the Ninth Circuit held that the government’s decision to permit artificial snow did not impose a substantial burden under RFRA because it did not force the tribe to choose between exercising their religion and receiving a government benefit, nor did it coerce them to act contrary to their religion under threat of civil or criminal sanction. Id. at 1071-73. The “sole effect” was on their “subjective spiritual experience” — i.e., “the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain.” Id. at 1063. “[U]nder Supreme Court precedent,” the court explained, “the diminishment of spiritual fulfillment — serious though it may be — is not a ‘substantial burden’ on the free exercise of
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religion.” Id. at 1070. In so concluding, the Ninth Circuit echoed the prudential concerns
discussed in Lyng:
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, 485 U.S. at 452); see also Snoqualmie Indian Tribe v. Fed. Energy
Regulatory Comm’n, 545 F.3d 1207, 1214-15 (9th Cir. 2008) (rejecting tribe’s argument that
FERC’s decision to relicense hydroelectric dam at sacred site imposed substantial burden on
religious exercise).
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.
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i. Factual Differences The Tribe first posits that this case is factually distinct from Navajo Nation and its progeny because “although a kind of spiritual contamination was alleged, the [federal] regulations at issue did not foreclose religious adherents’ ability to practice any part of their religion.” Mot. at 33. Instead, “plaintiffs were left other options to practice the rites at issue.” Id. The daylight between those cases and this one, in fact, is more limited than Cheyenne River suggests. In Navajo Nation, the Ninth Circuit concluded that Lyng would have compelled it to reach the same result even if it had assumed that the use of artificial snow would “virtually destroy the . . . Indians’ ability to practice their religion.” 535 F.3d at 1072 (quoting Lyng, 485 U.S. at 451). 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-yearlong 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, 448 U.S. 371 (1980); Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001), and takes seriously that the Tribe feels such deep oppression as to warrant analogy to the prisoner cases. Yet Lyng expressly cautions that “measuring the effects of a governmental action on a religious objector’s spiritual
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development” is not the proper inquiry when the challenged action is the federal government’s management of its own land. See 485 U.S. at 451.
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, 750 F.3d 742 (8th Cir. 2014) (total ban on tobacco use in prisons, including during Native American religious ceremonies, violated RLUIPA); Yellowbear, 741 F.3d at 55-56 (prison’s refusal to permit inmate housed in special protective unit access to sweat lodge in general prison yard imposed substantial burden); Haight v. Thompson, 763 F.3d 554, 564-65 (6th Cir. 2014) (prison’s decision to totally bar certain traditional foods at powwow imposed substantial burden); Holt, 135 S. Ct. at 862 (grooming policy prohibiting beards imposed substantial burden on Muslim inmate because he “face[d] serious disciplinary action” for contravening policy); Williams v. Wilkinson, 645 Fed. Appx. 692, 702 (10th Cir. 2016) (“[T]he failure to provide Mr. Williams with a kosher diet will either prevent him from exercising his sincerely held religious belief or force him to make the Hobson’s choice of eating a diet contrary to his beliefs or not eating at all.”); Love v. Reed, 216 F.3d 682, 689-90 (8th Cir. 2000) (A choice “between fasting and compromising his religious convictions[] is really no choice at all.”).
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 specific ban on their religious exercise, nor does performance of their sacraments trigger a sanction, loss of a government benefit, or other collateral harm. If a Jewish prisoner is denied kosher meals and
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adheres to his belief that he cannot consume non-kosher food, he will starve. If a Muslim prisoner forbidden from growing a beard nonetheless grows one, he will be punished. But if the Tribe persists in its belief that DAPL will render the waters of Lake Oahe spiritually impure, it suffers no collateral consequence. In so stating, the Court does not diminish the significance of such a loss; indeed, inability to engage in religious conduct may cause deep personal and communal harm. The point is simply that the prisoner cases to which Cheyenne River draws a comparison involve an additional harm beyond the spiritual that is not present here.
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, 535 F.3d at 1070), but Hobby Lobby “rejected the premise that courts can determine the existence of a substantial burden under RFRA based upon whether it is reasonable in light of the government regulation.” Id. Those holdings, however, are not in tension. The Ninth Circuit’s conclusion that there was no substantial burden was not based on the notion that the plaintiffs’ view that the artificial snow would desecrate the affected peaks was unreasonable; it was based on the lack of coercion in the face of a threatened sanction or a government benefit conditioned on religious adherence or forbearance. See 535 F.3d at 1063. The harm asserted by the affected tribes there lacked an essential element the appellate court deemed necessary to conclude that a substantial burden was present. Lyng, likewise, never concluded that the affected tribe’s belief that constructing a road and harvesting timber in a
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particular area would desecrate the site was unreasonable. It held that the government’s actions did not constitute a substantial burden on the free exercise of such belief.
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 their employees for contraceptive methods that they believed to be abortifacients and incurring significant economic sanctions. See 134 S. Ct. at 2775-76. True, the Court accepted the owners’ assertions that the covered contraceptive methods were “connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage,” id. at 2778, but the ultimate conclusion that the mandate imposed a substantial burden rested on the fact that the owners had to choose between violating their beliefs and paying financial penalties. The same was so in Holt. See 135 S. Ct. at 862 (“Because the grooming policy puts petitioner to this choice” between growing a beard and “serious disciplinary action,” the policy “substantially burdens his religious exercise.”). Again, the Tribe here faces no such coercion or sanction.
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 to limit the analysis in RFRA cases to that undertaken in pre-Smith Free Exercise cases, of which Lyng was one. See Reply at 11-13. Hobby Lobby and Holt do provide that RFRA’s religious-exercise protections are separate from and broader than the protections provided under First Amendment case law, but only in certain respects, none of which is helpful to the Tribe.
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.” 134 S. Ct. at 2762; see also id. at 2772-73. After the Supreme Court held in City of Boerne v. Flores,
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521 U.S. 507 (1997), that Congress lacked the power to apply RFRA to the States and its subdivisions, the legislature passed RLUIPA, which “imposes the same general test as RFRA but on a more limited category of governmental actions.” Hobby Lobby, 134 S. Ct. at 2761. Prior to RLUIPA’s enactment, RFRA defined “exercise of religion” as “the exercise of religion under the First Amendment.” Id. (citing 42 U.S.C. § 2000bb-2(4) (1994 ed.)). In RLUIPA, “Congress deleted the reference to the First Amendment and defined the ‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” Id. at 2762 (quoting 42 U.S.C. § 2000cc-5(7)(A)). It then amended RFRA to include the same definition. Id. at 2761 (citing 42 U.S.C. § 2000bb-2(4)).
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.” 135 S. Ct. at 862. It explained that the district court had “improperly imported a strand of reasoning from cases involving prisoners’ First Amendment
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rights,” under which “the availability of alternative means of practice religion is a relevant consideration.” Id. (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987); Turner v. Safley, 482 U.S. 78, 90 (1987)). RLUIPA, Holt said, “provides greater protection.” Id. Its “‘substantial burden’ inquiry asks whether the government has substantially burdened religious exercise . . . , not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Id.
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 religion. See Lyng, 485 U.S. at 451. Likewise, this Court’s decision that Cheyenne River is unlikely to satisfy the substantial-burden inquiry is wholly unrelated to whether the Tribe’s members are able to exercise their religion in other ways besides using water from Lake Oahe in Lakota ceremonies. Holt’s caution that RLUIPA’s substantial-burden inquiry is broader in one specific way than the inquiry undertaken in certain pre-Smith cases does not impliedly overrule Lyng or otherwise undermine its relevance here.
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
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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, 508 U.S. 679, 683 (1993). “Seven subsequent Acts of Congress authorized limited takings of Indian lands for hydroelectric and flood control dams on the Missouri River in both North and South Dakota.” Id. One of these takings “involved the Oahe Dam and Reservoir Project, for which Congress required the Cheyenne River Sioux Tribe to relinquish 104,420 acres of its trust lands, including roughly 2,000 acres of land underlying the Missouri River.” Id. In exchange, the Tribe received more than $10 million. Id. at 683 n.2. An additional $290 million in compensation was appropriated in 2000. See Cheyenne River Sioux Tribe Equitable Compensation Act, P.L. No. 106-511, § 104(b)(1), 114 Stat. 2365 (2000).
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.” 68 Stat. at 1193.
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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, 508 U.S. at 697 (quoting 15 Stat. 636). “Thus, when the United States acquired reservation land to construct the [dam], the [Tribe] necessarily lost their treaty rights to exclusively own, occupy and utilize that land.” Lower Brule Sioux Tribe v. State of South Dakota, 711 F.2d 809, 823 (8th Cir. 1983) (discussing whether the Fort Randall and Big Bend Acts — statutes similar to the Cheyenne River Act that authorized takings of Indian land for dams on the Missouri River — disestablished reservation boundaries or abrogated treaty rights to hunt and fish). Consequently, Cheyenne River cannot distinguish Lyng on the ground that, here, the Tribe has an ownership interest in the land under Lake Oahe. To the extent that Plaintiff has rights of access and use to the land, Lyng directly spoke to such a situation: “Whatever rights the Indians may have to the use of the area,” the Court stated, “those rights do not divest the Government of its right to use what is, after all, its land.” 485 U.S. at 453.
The water rights reserved to Indians pursuant to Winters v. United States, 207 U.S. 564 (1908), do not change the Court’s conclusion. In Winters, water shortages near the Fort Belknap Reservation prompted a lawsuit to enforce tribal water rights against non-Indians who had been diverting water from the region. Id. at 565-67. The Supreme Court held that the United States had the power to reserve water and prevent its diversion from the reservation by private parties. Id. at 577. In so doing, it made clear that “when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose,” such as the creation of a reservation for an Indian tribe, “the Government, by implication, reserves appurtenant water then
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unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U.S. 128, 138 (1976).
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, 373 U.S. 546 (1963), that it was “impossible to believe” that when the federal government created reservations, it was “unaware . . . that water from the river would be essential to the life of the Indian people.” Reply at 8-9 (quoting Arizona, 373 U.S. at 599). The Tribe then contends that, “[i]n America, . . . there is no question that our laws . . . enshrine religion and religious exercise as essential to the life of the people.” Reply at 9 (citing Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940)).
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.
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373 U.S. at 598-99. The opinion then goes on to discuss the importance of an adequate water supply for irrigation and agricultural production. Id. at 599-600. It does not mention religion, spirituality, ceremonies, or the like.
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, 508 U.S. at 697; United States v. Dion, 476 U.S. 734, 738 (1986); United States v. Winans, 198 U.S. 371, 381 (1905); United States v. Adair, 723 F.2d 1394, 1409, 1411 (9th Cir. 1983); United States v. Gila River Irrigation Dist., 920 F. Supp. 1444, 1448 (D. Ariz. 1996)). Absent any colorable argument that the reserved water rights here extend to the right to access religiously pure water, the Court cannot conclude that Winters somehow permits the Tribe to circumvent Lyng.
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, or 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 summaryjudgment 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.
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IV. Conclusion For the foregoing reasons, the Court will deny the Motion for Preliminary Injunction. A
contemporaneous Order so stating will issue this day.

Date: March 7, 2017

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:16-cv-01534-JEB Document 171 Filed 03/14/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al.,
Plaintiffs, v.
U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants.

Civil Action No. 16-1534 (JEB)

ORDER Last week this Court issued a decision denying Plaintiff Cheyenne River Sioux Tribe’s Motion for a Preliminary Injunction, which sought to block the introduction of oil into the stretch of the Dakota Access Pipeline that runs under Lake Oahe. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2017 WL 908538 (D.D.C. Mar. 7, 2017). Having filed its Notice of Appeal on March 10, see ECF No. 164, the Tribe that same day also filed with this Court a Motion for Injunction Pending Appeal. See ECF No. 165. As oil is likely to enter this segment of the pipeline next week, see ECF No. 169 (Status Report), that Motion asked for an immediate ruling. See Mot. at 1. After permitting Defendants only one day to respond, see Minute Order of March 13, 2017, the Court complies with the timing of Plaintiff’s request, but not with its substance. The Motion will thus be denied. I. Legal Standard Federal Rule of Civil Procedure 62(c) provides: “While an appeal is pending from an interlocutory order . . . that . . . denies an injunction, the court may . . . grant an injunction on . . . terms that secure the opposing party’s rights.” To assess the propriety of a stay or an injunction
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pending appeal, the Court looks to four factors: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Cuomo v. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985); see also Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 842 n.1 (D.C. Cir. 1977); McCammon v. United States, 584 F. Supp. 2d 193, 197 (D.D.C. 2008) (consider same factors when party seeks stay or injunction pending appeal). In doing so, it bears in mind that an “injunction pending appeal is an extraordinary remedy.” Memphis Publishing Co. v. F.B.I., 195 F. Supp. 3d 1, 3 (D.D.C. 2012) (citing Cuomo, 772 F.2d at 978). II. Analysis
As in the Motion for a Preliminary Injunction, the critical factor here is Cheyenne River’s lack of likelihood of success on the merits. The Court is well aware of the delicate position a movant like the Tribe faces in asking a court to conclude that its decision is likely to be overturned on appeal. See Loving v. I.R.S., 920 F. Supp. 2d 108, 110 (D.D.C. 2013). This Court is equally aware (via reversals or remands) that the Court of Appeals does not always agree with its decisions. That said, it nevertheless believes that Plaintiff does not have a strong case on appeal, and an injunction here, unlike a stay in some of the cases cited by Cheyenne River, would not preserve the status quo. See Mot. at 2-3 (citing Loving, 920 F. Supp. 2d at 109; CREW v. Office of Admin., 593 F. Supp. 2d 156, 158-60 (D.D.C. 2009)).
As to the remaining factors, the Court acknowledges that the Tribe is likely to suffer irreparable harm to its members’ religious exercise if oil is introduced into the pipeline, but Dakota Access would also be substantially harmed by an injunction, given the financial and
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logistical injuries that would ensue. Finally, the public interest, if consistent with the principles articulated in the Presidential Memorandum Regarding Construction of the Dakota Access Pipeline, see ECF No. 124-1, Exh. G, likely sides with denial. As the Corps points out, moreover, the Court’s laches analysis in the original Opinion, Standing Rock, 2017 WL 908538, at *4-7, also demonstrates that “[t]he public interest would not be served by an injunction pending appeal.” Corps Opp. at 6. A weighing of all four factors, therefore, tips the scale against the Tribe. III. Conclusion
The Court, consequently, ORDERS that the Motion for an Injunction Pending Appeal is DENIED.
IT IS SO ORDERED. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge
Date: March 14, 2017
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 Case 1:16-cv-01534-JEB Document 206 Filed 04/07/17 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al.,
Plaintiffs, v.
U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants.

Civil Action No. 16-1534 (JEB)

MEMORANDUM OPINION After the Standing Rock and Cheyenne River Sioux Tribes filed suit to challenge the U.S. Army Corps of Engineers’ authorization of the construction of the Dakota Access Pipeline in federally regulated waters, the Corps prepared an administrative record for its July 2016 permitting decisions. Defendant-Intervenor Dakota Access LLC has now filed a Motion for a Protective Order in which it asks the Court to shield portions of eleven documents in that record from public disclosure based on its concern that terrorists or other individuals looking to damage the pipeline could use such information to inflict environmental injury. The Corps opposes the Motion in part, and the Tribes oppose it in full. As the Court concludes that Dakota Access has largely failed to meet its burden to show good cause for such an order, it will deny the Motion in the main, but grant it as to parts of five of the eleven documents. I. Background On November 10, 2016, the Corps lodged the administrative record for its July 25, 2016, decisions related to the permitting of the Dakota Access Pipeline (DAPL). See ECF No. 55. It initially withheld from its production 31 documents that Dakota Access had identified as
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containing confidential information warranting protection. See ECF No. 95 (Mot.) at 2 n.1; ECF No. 146 (Corps Opp.) at 2. Upon further consideration, Dakota Access narrowed its concern to eleven documents. See Mot. at 2 & n.1. It filed a Motion for a Protective Order on February 1, 2017, asking the Court to withhold portions of those documents from public disclosure.
The eleven documents at issue fall into three categories: (1) a set of five documents entitled “Spill Model Discussion,” prepared for five different pipeline locations (two in North Dakota and three in Illinois); (2) a set of five corresponding geographic response plans; and (3) a single prevention and response plan prepared by Dakota Access’s Horizontal Directional Drilling contractor.
ECF No. 161 (Reply) at 3. Within those documents, Dakota Access asks the Court to protect “geographic information that specifically details pipeline infrastructure routes through private land” and “spill response information that specifically details pipeline features, capacity, flow rate, transportation, and related emergency response information, safeguards, and plans in certain sensitive locations along the [DAPL] route.” Mot. at 2. Dakota Access believes that the information “pinpoints locations where intentional damage to an oil pipeline would generate the greatest harm, and . . . reveals in great detail the manner in which the authorities would try to respond to that damage.” Id. at 1. It therefore worries that “terrorists or others with . . . malicious intent” will use the information to damage the pipeline in ways that maximize environmental harm. Id. at 3.
The Corps opposes redacting or otherwise withholding from public disclosure the five geographic-response plans and the HDD prevention-and-response plan, but consents to a limited set of redactions to the five spill-model discussions. See Corps Opp. at 1-2, 4. The Tribes oppose any withholding. See ECF No. 150-1 (Tribes Opp.) at 3. To be clear, all disputed documents have been provided in full to the Tribes’ counsel so that they may be cited in the
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pending summary-judgment briefing. Id. at 4. II. Analysis
Dakota Access offers three bases on which certain details in the eleven documents should be protected from public disclosure: (1) the information constitutes Sensitive Security Information; (2) the information constitutes Critical Infrastructure Information; and (3) the information should be withheld pursuant to Federal Rule of Civil Procedure 26(c). The Court addresses each in turn.
A. Sensitive Security Information After the terrorist attacks of September 11, 2001, Congress created the Transportation Security Administration and entrusted it with the authority “to shield information from disclosure when it determined the release of that information would be ‘detrimental to the security of transportation.’” Lacson v. Dep’t of Homeland Sec., 726 F.3d 170, 172 (D.C. Cir. 2013) (quoting Pub. L. No. 107-296, § 1601(b), 116 Stat. 2135, 2312 (2002) (codified as amended at 49 U.S.C. § 114(r))). TSA accordingly promulgated regulations regarding the protection of Sensitive Security Information. See 49 C.F.R. pt. 1520. Those regulations define SSI as “information obtained or developed in the conduct of security activities, including research and development, the disclosure of which TSA has determined would . . . [b]e detrimental to the safety of transportation.” Id. § 1520.5(a). They also set forth categories of information that can constitute SSI, including “[a]ny security program or security contingency plan issued, established, required, received, or approved by [the Department of Transportation] or [the Department of Homeland Security],” and “[a]ny vulnerability assessment directed, created, held, funded, or approved by the DOT, DHS, or that will be provided to DOT or DHS in support of a Federal security program.” Id. § 1520.5(b)(1), (5).
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According to Dakota Access, “Oil pipelines are a transportation activity and subject to [SSI] protection,” and the information it asks the Court to redact implicates “security programs,” “security contingency plans,” “vulnerability assessments,” or “information detailing or relating to DAPL security programs, security contingency plans, and/or vulnerability assessments.” Mot. at 5-6. The Chief of TSA’s SSI Program, however, who has the authority to make SSI determinations, see Lacson, 726 F.3d at 173 n.1, reviewed the eleven documents Dakota Access seeks to shield and determined that they “do not contain any SSI.” ECF No. 146-2 (Letter from D. Blair, TSA, to E. Zilioli, DOJ, Feb. 27, 2017). This Court lacks the power to disturb that conclusion, as federal circuit courts have exclusive jurisdiction to review TSA’s SSI determinations. See 49 U.S.C. § 46110(a), (c); Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 928 F. Supp. 2d 139, 146-47 (D.D.C. 2013). The Court therefore must reject Dakota Access’s argument that the documents should be withheld on the ground that they contain SSI.
B. Critical Infrastructure Information The Company next posits that “[c]ertain details in the documents also constitute Critical Infrastructure Information and should therefore be protected from public disclosure.” Mot. at 7. The Court cannot agree. Dakota Access relies on the Critical Infrastructures Protection Act of 2001, a statute enacted to protect physical and information infrastructures. Under that law, the term “critical infrastructure” means “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” 42 U.S.C. § 5195c(e). Because “DAPL is part of the national critical physical infrastructure” and the eleven documents contain information that, if made
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public, “might compromise and/or undermine DAPL security protections and procedures,” Dakota Access asserts, permitting their public disclosure “would risk disrupting energy sector infrastructure in subversion of the Act’s purpose.” Mot. at 8.
That Act does not prohibit the public disclosure of infrastructure-related information, but the Critical Infrastructure Information Act of 2002 established the Protected Critical Infrastructure Information Program, which protects from disclosure infrastructure information a company voluntarily shares with a federal agency. See 6 U.S.C. § 133. Yet that Program is of no use to the Company. Written information receives protection under the Program when it is submitted with the following label: “This information is voluntarily submitted to the Federal government in expectation of protection from disclosure as provided by the provisions of the Critical Infrastructure Information Act of 2002.” 6 C.F.R. § 29.5(a)(3)(i). Dakota Access never alleges that the eleven documents contain this required statement, nor does it contend that they were subsequently marked as Protected Critical Infrastructure Information by the relevant DHS official. Id. § 29.2(g). The Court, consequently, cannot endorse this second asserted basis for the protective order.
C. Rule 26(c) Although success may not obtain via statute, Dakota Access is not yet out of cards. It next turns to the Federal Rules of Civil Procedure. Where a movant can show “good cause,” Rule 26(c)(1) permits courts to issue protective orders to guard against “annoyance, embarrassment, oppression, or undue burden or expense.” As is relevant here, courts may use such orders to “requir[e] that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G).
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As a threshold matter, the Tribes note that application of Rule 26(c) to the present circumstances would be inapposite — no party is seeking the discovery of materials outside the administrative record; Dakota Access instead wishes to withhold from public disclosure materials already included in the administrative record. See Tribes Opp. at 9-10. But courts have previously approved protective orders to shield portions of administrative records from public disclosure, and the Court sees no reason it lacks the power to do so here. See, e.g., Raytheon Co. v. Dep’t of Navy, 1989 WL 550581, at *1 n.2 (D.D.C. Dec. 22, 1989); Genentech, Inc. v. Bowen, 1987 WL 10500, at *1-2 (D.D.C. Apr. 21, 1987).
Trial courts have “broad discretion . . . to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). “The ‘good cause’ standard is a flexible one that requires an individualized balancing of the many interests that may be present in a particular case.” United States v. Microsoft Corp., 165 F.3d 952, 960 (D.C. Cir. 1999). Ultimately, though, the party requesting the protective order has the burden to establish that it should be granted. See Ecomission Sols., LLC v. CTS Holdings, Inc., 2016 WL 4506974, at *2 (D.D.C. Aug. 26, 2016) (describing movant’s burden as “heavy”); Doe v. Provident Life & Accident Ins. Co., 247 F.R.D. 218, 221 (D.D.C. 2008). To do so, the movant “must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one.” Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). With these principles in mind, the Court now proceeds to identify and then to balance the relevant interests of the parties.
As already noted, Dakota Access urges that a protective order is necessary to further its interest in security and energy infrastructure. It maintains that if the eleven documents are
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released in full — i.e., absent its proposed redactions — “persons with the malicious intent to damage the pipeline will be better able to maximize the harm that they hope to inflict.” Mot. at 10-11.
The Tribes, conversely, contend that public release of the full administrative record “would greatly assist other agencies, the public, and the Tribes in understanding the basis for the Corps’ conclusion that the risks and impacts of oil spills were so insignificant that no [Environmental Impact Statement] was necessary.” Tribes Opp. at 2. They further argue that the documents “address matters of keen public interest” and that “public scrutiny of the documents, and analysis by independent experts and other agencies, will support [the Tribes’] public advocacy efforts regarding the pipeline.” Id. at 11.
Likewise, in opposing the Motion as to the five geographic-response plans and the HDD prevention-and-response plan and consenting only to more limited redactions to the five spillmodel discussions, the Corps asserts that, because “the documents in question are part of the Corps’ records, there is an interest in making the information publicly available.” Corps Opp. at 10.
In weighing these interests, the Court first considers whether, as the movant, Dakota Access has “ma[d]e a specific demonstration of facts in support of [its] request.” Alexander, 186 F.R.D. at 75. It certainly did not do so in its first brief. The only evidence proffered therein is a news article recounting comments made in 2014 by the Association of American Railroads and the American Short Line and Regional Railroad Association to the Federal Railroad Administration opposing a federal emergency order that required railroads to share oil-train route and volume data with state emergency-response commissions given their fear that “environmental extremists” and “[f]oreign terrorists” posed risks to “the transportation of crude
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oil by rail.” ECF No. 92-2 (Blake Sobczak, Rail Executives Feared Terrorists Would Disrupt “Virtual Pipeline”, E&E News, Jan. 24, 2017). As this case concerns the transportation of oil by pipeline in 2017, rather than by rail in 2014, that article can hardly be said to substantiate Dakota Access’s assertions of harm from disclosure of the eleven documents.
The Company’s Reply is somewhat more helpful in this respect. It cites an October 2016 news article that describes how climate activists broke through fences, locks, and chains to turn off the valves on five cross-border oil pipelines in an effort to oppose the Dakota Access Pipeline. See Reply at 11 & n.4 (citing Liz Hampton & Ethan Lou, Bolt Cutters Expose Vulnerability of North America’s Oil Pipeline Grid, Reuters, Oct. 12, 2016, http://www.reuters.com/article/us-usa-canada-pipelines-vulnerabilities-idUSKCN12C0BK). Yet, although pipeline operators and safety experts interviewed for the article noted that shutting off the valves was “extremely dangerous” and risked serious ruptures, the activists apparently did not intend to cause harm to people or the environment. See Hampton & Lou. Rather, the protestors claimed to have “spent months studying how to safely shut the valves,” even if they ultimately “underestimated the risks.” Id. Dakota Access, conversely, expresses concern about “terrorists” and individuals with “malicious intent” who would want to use the information in the administrative record to “maximize the harm that they hope to inflict.” Mot. at 3, 10-11. As the news article cited in the Reply does not concern people with such intent, it does not go directly to the concern animating the Motion.
Fortunately for Dakota Access, the Corps comes to its aid, at least as to the risks presented by disclosure of some of the information in the five spill-model reports. At the Corps’ request, David Lehman, the Director of the Oil Spill Preparedness and Emergency Support Division in the Office of Pipeline Safety at the Pipeline and Hazardous Materials Safety
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Administration (PHMSA), a unit within the Department of Transportation, reviewed the documents marked for redaction by Dakota Access. See ECF No. 146-1 (Declaration of David Lehman, Mar. 1, 2017), ¶¶ 2-4. Lehman’s duties include “identifying information that should be protected from public disclosure for security reasons,” id., ¶ 2, and he concluded that the spillmodel reports “include[] information that PHMSA would redact from public disclosure under 5 U.S.C. § 552(b)(7)(F), which protects records compiled for law enforcement purposes and that if released, could reasonably be expected to endanger the life or physical safety of any individual.” Id., ¶ 5. Lehman accordingly identified approximately 50 redactions to the spill-model reports, which are both fewer and more targeted than the ones proposed by Dakota Access. See ECF No. 148-1 (Corps Redactions).
Lehman’s reliance on the Freedom of Information Act’s Exemption 7(F) to recommend against full disclosure of the spill-model reports is permissible even though the question whether to release them did not arise in a FOIA action. Third parties have the right to protect documents with their information from improper disclosure by the government. See Jurewicz v. U.S. Dep’t of Agric., 891 F. Supp. 2d 147, 151 (D.D.C. 2012) (“When an agency decides that no FOIA exemption applies, ‘[a] person whose information is about to be disclosed pursuant to a FOIA request may file a ‘reverse-FOIA action’ and seek to enjoin the Government from disclosing it.’”) (quoting Canadian Commercial Corp. v. Dep’t of Air Force, 514 F.3d 37, 39 (D.C. Cir. 2008)), aff’d, 741 F.3d 1326 (D.C. Cir. 2014); see also Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979) (holding that third parties can challenge under the Administrative Procedure Act agency decisions to disclose records in response to FOIA requests).
The Court thus considers the spill-model documents first and then the ones in the remaining two categories.
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1. Spill-Model Discussions The Court has reviewed the five spill-model discussions and the proposed redactions from Dakota Access and PHMSA. Both entities would redact maps of DAPL at certain crossings, the names of pipeline segments when paired with timelines for detecting and shutting down spills, graphs of spill-risk scores at various points along the pipeline, maps of spill scenarios and predictions as to the volume of oil that would be released, the names of systems used to monitor the pipeline for leaks, and methods of communication with those monitoring systems. Compare, e.g., Corps Redactions at 6, 10, 15-17, 19-21 (AR 12402, 12406, 12411-13, 12415-17), with ECF No. 94 (Dakota Access Redactions) at 6, 10, 15-17, 19-21 (AR 12402, 12406, 12411-13, 12415-17). Dakota Access would go further and have the Court conceal the name of the crossing to which each spill-model report corresponds. Compare, e.g., Corps Redactions at 2-22 (AR 12398-418) with Dakota Access Redactions at 2-22 (AR 12398-418). Based on its review and PHMSA’s determination, the Court concludes that there is good cause to protect from public disclosure the information PHMSA redacted from the five spillmodel reports. As noted, Lehman determined that this information would be withheld by PHMSA under FOIA Exemption 7(F), which permits an agency to withhold documents that were “compiled for law enforcement purposes” if their release “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). That conclusion is consistent with the D.C. Circuit’s recognition that, “in Exemption 7(F) cases involving documents relating to critical infrastructure, ‘it is not difficult to show that disclosure may endanger the life or physical safety of any individual.’” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 205-06 (D.C. Cir. 2014) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring))
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(quotation omitted). Indeed, in PEER, the Court of Appeals held that inundation maps that displayed the downstream areas and populations that would be affected if certain dams located on the U.S-Mexico border were to break, the estimated time it would take for floodwater to reach downstream locations, and the peak flow times at those locations were properly withheld under Exemption 7(F). Id. at 200, 206. In so doing, it credited the government’s explanation that disclosure of the inundation maps “would give anyone seeking to cause harm the ability to deduce the zones and populations most affected by dam failure,” thus enabling “[t]errorists or criminals” to “use that information to determine whether attacking a dam would be worthwhile, which dam would provide the most attractive target, and what the likely effect of a dam break would be.” Id. at 206 (quotation omitted). The spill-model discussions in the administrative record here are much like the inundation maps described in PEER.
The Court further concludes that, as to the PHMSA redactions in those five documents, the asserted interest in limiting intentionally inflicted harm outweighs the Tribes’ generalized interests in public disclosure and scrutiny, particularly given that all parties in the case will have access to the full, unredacted administrative record for purposes of the summary-judgment litigation.
2. Geographic-Response Plans and HDD Prevention-and-Response Plan The Court, however, does not reach the same outcome as to Dakota Access’s proposed redactions to the other six documents. In the geographic-response plans, the Company suggests redacting the phone numbers of local government agencies, including the sheriff, fire department, and levee districts; the names of waterways potentially affected by spills; and maps and descriptions of potential deflection/containment booms. See, e.g., Dakota Access Redactions at 81-97 (AR 12477-93). In the HDD contingency plan, Dakota Access similarly
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requests the masking of the name, location, and mile post of each crossing at which HDD services were provided, as well as the length of HDD pipe. Id. at 117 (AR 67858). Lehman saw no reason PHMSA would redact this or any other information from the six documents, see Lehman Decl., ¶ 6, and the Court does not find that they obviously implicate the security concerns Dakota Access raises.
As already noted, Dakota Access offers very little in the way of specific facts to support its argument that terrorists or other individuals with malicious intent might use this information to craft a plan to harm the pipeline in a way that causes the greatest damage. It also does not persuasively respond to the argument from the Corps and the Tribes that much of the information in the proposed redactions is already public. See Corps Opp. at 11; Tribes Opp. at 2. The Company acknowledges that some of the information may be available, but claims that although it “poses no particular danger while standing alone,” such information may nonetheless “be valuable to wrongdoers when available to them in conjunction with other information, such as details on how a spill response will be conducted at that location.” Mot. at 9 n.7. Such generalities, absent further explanation or factual support, cannot suffice to justify this Court’s exercise of its Rule 26(c) authority, particularly where the parties opposing the Motion have asserted reasonable interests in disclosure. See Corps Opp. at 10 (interest in making agency’s own record publicly available); Tribes Opp. at 11 (interest in enabling public analysis and debate). For these reasons, the Court believes that Dakota Access has not carried its burden to show good cause for the requested protective order as to the five geographic-response plans and the HDD prevention-and-response plan.
The Court will thus deny the Motion for a Protective Order except as to the approximately 50 redactions to the five spill-model discussions proposed by PHMSA.
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Case 1:16-cv-01534-JEB Document 206 Filed 04/07/17 Page 13 of 13 III. Conclusion
For the foregoing reasons, the Court will grant the Motion for a Protective Order in part and deny it in part. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: April 7, 2017
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 Case 1:16-cv-01534-JEB Document 239 Filed 06/14/17 Page 1 of 91

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al.,
Plaintiffs, v.
U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants.

Civil Action No. 16-1534 (JEB)

MEMORANDUM OPINION Designed to transport oil from the Bakken oil fields in North Dakota to a storage hub in southern Illinois, the Dakota Access Pipeline (DAPL) has also borne substantial controversy in its wake. Most significant has been the opposition from Indian tribes whose reservations lie in close proximity to the pipeline’s crossing of the Missouri River at Lake Oahe. To block Dakota Access LLC’s construction of that last segment and its operation of DAPL, the Standing Rock Sioux Tribe filed this suit in July 2016, and the Cheyenne River Sioux Tribe intervened shortly thereafter. The Tribes have since mounted two substantial legal challenges to DAPL, neither of which yielded success. The first contended that the grading and clearing of land for the pipeline threatened sites of cultural and historical significance, and that the U.S. Army Corps of Engineers had flouted its duty to engage in tribal consultations pursuant to the National Historic Preservation Act. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock I), 205 F. Supp. 3d 4, 7 (D.D.C. 2016). The second maintained that the presence of oil in the pipeline under Lake Oahe would desecrate sacred waters and make it impossible for the Tribes to
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freely exercise their religious beliefs, thus violating the Religious Freedom Restoration Act. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock II), No. 16-1534, 2017 WL 908538, at *1 (D.D.C. Mar. 7, 2017).
Now that the Court has rejected these two lines of attack, Standing Rock and Cheyenne River here take their third shot, this time zeroing in DAPL’s environmental impact. They seek summary judgment on several counts related to the Corps’ alleged failure to comply with the National Environmental Policy Act. In particular, the Tribes believe that the Corps did not sufficiently consider the pipeline’s environmental effects before granting permits to Dakota Access to construct and operate DAPL under Lake Oahe, a federally regulated waterway. This volley meets with some degree of success. Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.
To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.
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Table of Contents

I. Background ............................................................................................................... 4

A. NEPA

4

B. Factual History

6

C. Litigation

11

1. Filing of Suit .................................................................................................... 11 2. Further Consideration ...................................................................................... 12 3. A New Administration..................................................................................... 16

II. Legal Standard ........................................................................................................ 19 III. Analysis of Standing Rock’s Claims ...................................................................... 21

A. Decision Not to Prepare EIS

21

1. Hard Look / Convincing Case ......................................................................... 22

a. Extent of Record............................................................................................. 23 b. Spill-Risk Analysis......................................................................................... 27 c. Impacts Analysis Re: Treaty Rights ............................................................... 36

2. Alternatives...................................................................................................... 43 3. Environmental Justice...................................................................................... 47

B. Decision to Grant the Easement

54

1. Policy Change.................................................................................................. 55 2. Trust Responsibilities ...................................................................................... 59

C. NWP 12

63

D. Remedy

66

IV. Analysis of Cheyenne River’s Claims .................................................................... 67

A. Section 408 Decision

68

1. Impairment....................................................................................................... 69 2. Injurious to Public Interest .............................................................................. 71 3. Other Arguments ............................................................................................. 72

B. Easement Decision

75

1. Section 185(b)(1) ............................................................................................. 76 2. Section 185(h)(2) ............................................................................................. 78 3. Section 185(x).................................................................................................. 79

C. Trust Responsibilities

80

D. Consultation

81

V. Conclusion .............................................................................................................. 91

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I. Background To familiarize the reader with the background information relevant to its analysis, the
Court first briefly sets out the National Environmental Policy Act’s statutory framework and then separately discusses the factual history and litigation to date.
A. NEPA The National Environmental Policy Act, the statute under which the majority of the Tribes’ claims are brought, has two aims: it “places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action,” and “it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (citation omitted). NEPA’s requirements are “procedural,” requiring “agencies to imbue their decisionmaking, through the use of certain procedures, with our country’s commitment to environmental salubrity.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). Importantly, “NEPA does not mandate particular consequences,” id. at 194, and courts are discouraged from substituting their own policy judgments for that of the agency. See N. Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980); see also Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989). “NEPA merely prohibits uninformed — rather than unwise — agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). Agency actions with adverse environmental effects can thus be NEPA compliant where “the agency has considered those effects and determined that competing policy values outweigh those costs.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir. 2009) (citations omitted).
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Under NEPA, an agency must prepare an Environmental Impact Statement for any proposed major federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An EIS must detail the environmental impact of the proposed action, any unavoidable adverse effects, alternatives to the proposed action, the relationship between shortterm uses of the environment and long-term productivity, and any irreversible commitments of resources. Id.
To determine whether an agency must prepare an EIS, it first drafts an Environmental Assessment. See 40 C.F.R. § 1501.4(b). An EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” Id. § 1508.9(a). The EA must discuss the need for the proposal, the alternatives, the environmental impacts of the proposed action and alternatives, and the agencies and persons consulted. Id. § 1508.9(b). If, after preparing an EA, the agency determines that an EIS is not necessary, it must prepare a Finding of No Significant Impact (FONSI) setting forth the reasons why the action will not have any significant impact on the environment. Id. §§ 1501.4(e), 1508.13; cf. Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) (“If any ‘significant’ environmental impacts might result from the proposed agency action then an EIS must be prepared before agency action is taken.”) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)). If the action will not have such impact because of the agency’s commitment to ensure the performance of mitigation measures, the agency prepares a Mitigated FONSI. See Council on Environmental Quality, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact 2, 7 (2011), https://energy.gov/sites/prod/files/NEPACEQ_Mitigation_and_Monitoring_Guidance_14Jan2011.pdf. Mitigation includes “[a]voiding
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an impact by not taking a certain action”; “[m]inimizing an impact by limiting the degree or magnitude of the action”; “[r]ectifying an impact by repairing, rehabilitating, or restoring the affected environment”; “[r]educing or eliminating an impact over time, through preservation and maintenance operations”; and “[c]ompensating for an impact by replacing or providing substitute resources or environments.” Id. at 4-5. As will be explained below, the Corps here prepared an EA and a Mitigated FONSI. The central question this Opinion answers is whether that was sufficient.
B. Factual History As those who have followed this litigation and the concomitant public debate well know, DAPL is a nearly 1,200-mile pipeline designed to move more than half a million gallons of crude oil from North Dakota to Illinois every day. Standing Rock I, 205 F. Supp. 3d at 7. Although no government approval is necessary for oil pipelines traversing private lands, it is required for those segments that cross federally regulated waters. Id. DAPL crosses such waterways at hundreds of discrete places along its route, including, most prominently, at Lake Oahe. Id. Created by the Corps in 1958 via a dam constructed on the Missouri River, Lake Oahe is a reservoir that spans North and South Dakota and borders the Standing Rock and Cheyenne River Sioux Reservations to the east. Id. at 13; ECF No. 172-1 (Environmental Assessment) at 35, 75; ECF No. 97-1 (CRST Second Amended Complaint), ¶ 29. DAPL crosses the Lake 0.55 miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation. See Standing Rock II, 2017 WL 908538, at *1; EA at 75. For orientation purposes, the southern border of the former Reservation also acts as the northern border of the latter. See ECF No. 117-5 (Map of Current Sioux Reservations).
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Lake Oahe holds special significance for the Standing Rock and Cheyenne River Sioux Tribes. Its creation necessitated the taking of approximately 56,000 acres of some of “the best land” from Standing Rock’s Reservation, as well as 104,420 acres of Cheyenne River’s trust lands. See Act of Sept. 2, 1958, Pub. L. No. 85-915, 72 Stat. 1762; S. Rep. No. 102-267, at 188 (1992); Standing Rock II, 2017 WL 908538, at *16 (citing South Dakota v. Bourland, 508 U.S. 679, 683 (1993)). Today, Standing Rock members rely on Lake Oahe’s waters to service “homes, a hospital, clinics, schools, businesses and government buildings throughout the Reservation” and to support agriculture and industrial activities. See ECF No. 117 (SRST MSJ) at 4. The Lake is also the primary source of water for the Cheyenne River Reservation. See CRST Second Amend. Compl., ¶ 2. Both Tribes consider the waters to be “sacred” and “central to [their] practice of religion.” SRST MSJ at 4; see Standing Rock II, 2017 WL 908538, at *6, 8.
Dakota Access notified the Corps of its intent to construct a portion of DAPL under Lake Oahe in June 2014, see ECF No. 183-1 (Email from Monica Howard, Dir. Envtl. Sci., Dakota Access, to Jason Renschler, Project Manager, Corps, June 23, 2014), and first sought the Corps’ approval to do so in October 2014. See ECF No. 159-1, Exh. A (Letter from Monica Howard to Brent Cossette, Nat. Resource Specialist, Corps, Oct. 21, 2014). Specifically, the Company needed three authorizations from the Corps: (1) verification that its activities satisfied the terms and conditions of Nationwide Permit 12; (2) permission under the Rivers and Harbors Act, 33 U.S.C. § 408; and (3) a real-estate easement under the Mineral Leasing Act, 30 U.S.C. § 185. See ECF No. 172-6 (Memorandum from John Henderson, Omaha District Commander & Engineer, Corps, Dec. 3, 2016), ¶ 4. The Court has previously discussed some of the details of these permitting schemes, see Standing Rock I, 205 F. Supp. 3d at 10-12, and will not repeat them here.
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In December 2015, the Corps published and sought public comment on a Draft Environmental Assessment that evaluated the environmental effects of DAPL’s proposed crossing of Lake Oahe and concluded that “construction of the proposed Project [was] not expected to have any significant direct, indirect, or cumulative impacts on the environment.” ECF No. 6-19 (Draft EA) at 1; see EA at 1. Standing Rock promptly submitted comments touching on a range of concerns, including that the Draft EA failed to adequately address potential harm from the pipeline’s construction and operations to the Lake’s water and the Tribe’s rights thereto; did not acknowledge the pipeline’s proximity to the Reservation; insufficiently analyzed the risks of an oil spill; and did not properly address environmentaljustice considerations. See ECF No. 159-1, Exh. C (SRST Comments on Draft EA, Jan. 8, 2016) at 9-17; id., Exh. D (SRST Suppl. Comments on Draft EA, Mar. 24, 2016) at 2-3. The Tribe, accordingly, asked that the Corps prepare an Environmental Impact Statement to assess the pipeline’s effects, a request it had also made prior to the Draft EA’s release. See ECF No. 209-6 (Notes for Feb. 18-19, 2016, Tribal Meeting) at 51; ECF No. 209-9 at 33-34 (Letter from Waste Win Young, Tribal Historic Preservation Officer, Standing Rock Sioux Tribe, to Martha Chieply, Omaha District Regulatory Branch, Corps, Feb. 25, 2015). Cheyenne River expressed similar views. See ECF No. 185-1, Exh. II (Letter from Steve Vance, Tribal Historic Preservation Officer, Cheyenne River Sioux Tribe, to Richard Harnois, Sr. Field Archaeologist, Corps, May 2, 2016); ECF No. 183-19 (Letter from Steve Vance to John Henderson, May 19, 2016); ECF No. 183-20 (Letter from Harold Frazier, Chairman, Cheyenne River Sioux Tribe, June 3, 2016).
Other federal agencies also weighed in on the Draft EA. Like the Tribes, the Department of the Interior requested that the Corps prepare an EIS, a step it believed necessary given DAPL’s “potential impact on trust resources” — i.e., 800,000 acres of land held in trust for the
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Tribe by Interior, as well as waters on which the Tribe and its members depend for drinking and other purposes — should a leak or spill occur. See ECF No. 209-7 at 21 (Letter from Lawrence Roberts, Acting Assistant Secretary for Indian Affairs, Dep’t of Interior, to Brent Cossette, Mar. 29, 2016). Interior criticized the Corps for, inter alia, “not adequately justify[ing] or otherwise support[ing] its conclusion that there would be no significant impacts upon the surrounding environment and community” and not assigning a level of intensity to those potential adverse impacts that were acknowledged. Id.
The Environmental Protection Agency similarly expressed concern that the Draft EA “lack[ed] sufficient analysis of direct and indirect impacts to water resources,” did not adequately address “the measures that will be required to assure that impacts from construction and operation of the pipeline are not significant,” and did “not identify the related effects from the entire project segment.” ECF No. 209-16 at 184 (Letter from Philip Strobel, Director of NEPA Compliance & Review Program, EPA, to Brent Cossette, Jan. 8, 2016). Although the EPA did not believe that the Draft EA “would support a FONSI,” it did not call for the Corps to prepare an EIS; instead, it suggested that “information and mitigation could be added to the EA in order to support a mitigated FONSI.” Id. at 187.
After “becom[ing] aware of the proximity” of DAPL to Standing Rock’s Reservation, the EPA supplemented its comments. See ECF No. 209-8 at 123 (Letter from Philip Strobel to Brent Cossette, Mar. 11, 2016). It recommended that the Corps revise the Draft EA and provide a second public-comment period “to assess potential impacts to drinking water and the Standing Rock Sioux Tribe,” as well as “additional concerns regarding environmental justice and emergency response actions to spills/leaks.” Id. Notably, the EPA took some issue with the Draft EA’s spill analysis, stating that although it indicated only a minimal spill risk associated
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with the project, based on its “experience in spill response,” a break or leak could significantly affect water resources. Id. at 124. Given DAPL’s proposed capacity of 13,100 to 16,600 gallons per minute of crude oil and the proximity of drinking-water intakes to the Oahe crossing, the agency explained, “There would be very little time to determine if a spill or leak affecting surface waters is occurring, to notify water treatment plants and to have treatment plant staff on site to shut down the water intakes.” Id. at 125. Finally, the EPA urged the Corps to expand its analysis for purposes of assessing environmental-justice considerations from “the area of construction disturbance” to “the impacts of the proposed project,” and to look at route alternatives. Id. at 126; see also ECF No. 209-9 at 209 (Email “Quick Summary of Conference Call with EPA,” Feb. 25, 2016) (“EPA concerned over the lack of Environmental justice — Tribal interests have not been addressed sufficiently.”).
On July 25, 2016, about eight months after releasing the Draft EA, the Corps published its Final EA and a Mitigated Finding of No Significant Impact. See EA; ECF No. 172-2 (FONSI). The Final EA — like the Draft EA — was prepared by Dakota Access with involvement from the Corps, as is permitted, when certain conditions are met, by Council on Environmental Quality regulations. See EA at 1; Draft EA at 1; 40 C.F.R. § 1506.5(a)-(b). The Mitigated FONSI explained that the Corps had “coordinated closely with Dakota Access to avoid, mitigate and minimize potential impacts of the Proposed Action” — largely via horizontal directional drilling (HDD) technology — and that the Company was required to comply with a set of mitigation measures set out in the EA. See FONSI at 3. Given those measures and its evaluation of DAPL’s “anticipated environmental, economic, cultural, . . . social[, and] . . . cumulative effects,” the Corps concluded that the crossing at Lake Oahe would not “significantly affect the quality of the human environment,” and preparation of an EIS was therefore not
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required. Id. at 6. The Corps, accordingly, verified that the pipeline activities satisfied the terms and conditions of NWP 12 and granted permission under Section 408 of the Rivers and Harbors Act for DAPL’s placement at Lake Oahe. See ECF No. 209-9 at 149-53 (NWP 12 Permit); ECF No. 209-10 at 54 (Section 408 Permit). 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 Nos. 57, 66, 73. For purposes of this Opinion — and consistent with its understanding throughout the litigation — the Court will assume that it did not. Without such easement, Dakota Access could not construct the pipeline under the Lake.
C. Litigation 1. Filing of Suit
While factual backgrounds to lawsuits are often considerably more involved than the litigation itself, that is not the case here. In part, that is because this action (as well as the 2016 election) generated significant further maneuvers. To begin, two days after the release of the EA on July 25, 2016, Standing Rock 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 the Cheyenne River Sioux Tribe intervened 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 38-56.
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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, 205 F. Supp. 3d at 7, the Departments of Justice, the Interior, and the Army issued a joint statement explaining that, because “important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the Dakota Access pipeline” remained, “construction of the pipeline on Army Corps land bordering or under Lake Oahe [would] not go forward” until the Army could determine whether reconsideration of any of its previous decisions regarding the Lake Oahe crossing under NEPA or other federal laws was necessary. See ECF No. 42-1 at 1. More specifically, the Corps at that time refused to grant the necessary MLA easement.
2. Further Consideration In response to the opportunity for additional consideration, Standing Rock sent several letters to Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, expressing its concerns regarding DAPL, the EA’s spill-risk analysis, and the impact of a potential spill on hunting, fishing, and other Treaty rights. See ECF Nos. 117-11 (Sept. 22, 2016), 117-12 (Oct. 28, 2016), 117-13 (Oct. 3, 2016), 117-14 (Oct. 21, 2016). It also submitted an expert review of the EA, which concluded that it was “seriously deficient and [could not] support the finding of no significant impact, even with the proposed mitigations.” ECF No. 117-15 (Accufacts, Inc. Review of EA, Oct. 28, 2016). As part of the Corps’ internal-review process, its Chief Counsel prepared a memorandum concluding that the agency had “adequately considered and disclosed the environmental, cultural and other potential impacts of its actions and that its decisions were not arbitrary or capricious,”
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and that “supplementation of the EA to address any new information [was] not legally required.” ECF No. 117-24 (Memorandum from David Cooper, Chief Counsel, Corps, Oct. 20, 2016) (Cooper Memo) at 36. He also issued a memorandum that listed 36 possible conditions to be included in an easement that would “provide further protection from any perceived risks posed by the pipeline crossing at Lake Oahe.” ECF No. 209-3 at 55 (Memorandum from David Cooper, Oct. 31, 2016).
On November 14, 2016, Assistant Secretary Darcy wrote to Standing Rock and Dakota Access to inform them that the Army had completed the review called for on September 9, “accounting for information it . . . received from the Tribes and the pipeline company since September,” and had “concluded that its previous decisions comported with legal requirements.” ECF No. 56-1 (Letter from Jo-Ellen Darcy, Nov. 14, 2016). Nonetheless, in light of the United States’ history with the Great Sioux Nation, the importance of Lake Oahe to Standing Rock, the government-to-government relationship with Standing Rock, and the mandates of the Mineral Leasing Act regarding public safety and the interests of those who rely on fish, wildlife, and biotic resources in the general area of a requested right-of-way, see 33 U.S.C. §§ 185(g), (h)(2)(D), (k), “the Army determined that additional discussion with the Standing Rock Sioux Tribe and analysis [were] warranted.” Darcy Nov. 2016 Letter at 2. The Army thus invited Standing Rock to engage in discussions concerning “[p]otential conditions in an easement for the pipeline crossing” that would reduce spill risk “or otherwise enhance the protection of Lake Oahe, the Tribe’s water supplies, and its treaty rights”; the impact of those conditions on spill risk; “whether to grant an easement for the pipeline to cross Lake Oahe at the location currently proposed” given those conditions; and anything else “the Tribe believes is relevant to the proposed pipeline crossing or easement.” Id. Darcy also wrote to Frazier to inform him of the
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Corps’ decision and to express the Corps’ interest in “confer[ring] with [him] to better understand” his concerns. See ECF No. 131-4, Attach. A (Letter from Jo-Ellen Darcy to Harold Frazier, Nov. 14, 2016); see also ECF No. 131-4 (Declaration of Harold Frazier, Feb. 22, 2017), ¶ 15. Two days later, Darcy and other Corps officials met with representatives of the Great Plains Tribal Chairpersons’ Association, including Frazier, to confirm that the November 14 letters “constituted an invitation to the [T]ribes to provide any new information . . . relevant to the Corps’ consideration of the easement.” Id., ¶ 16.
During this next review phase, Standing Rock offered further comments urging the Corps to deny the easement because of the pipeline’s potential harm to its water, hunting, fishing, and gathering rights. See ECF No. 117-17 (Dec. 2, 2016). The Oglala Sioux Tribe, which had brought a related case against the Corps that has been consolidated with Standing Rock’s action, see Minute Order of Mar. 16, 2017, submitted an expert report critiquing the EA’s spill-volume analysis. See ECF No. 117-18 (EarthFax Review of EA, Dec. 2, 2016). The Corps’ Omaha District Commander met with representatives of Standing Rock and Dakota Access to review the Tribe’s concerns and discuss conditions that could be imposed on an easement to reduce the risk of spill or rupture. See ECF No. 209-5 at 1-2 (Email from Scott Spellmon, Commanding General, NW Division, Corps, to Jo-Ellen Darcy, Dec. 2, 2016). The day after the meeting, the District Commander issued a memorandum recommending that the Corps grant an easement to Dakota Access to cross Lake Oahe. See Henderson Memo.
The Corps also used this review phase to solicit the opinion of the Department of the Interior “on the extent to which tribal treaty rights . . . weigh in favor of or against authorizations needed for the Lake Oahe crossing.” ECF No. 117-6 (Memorandum from Hilary C. Tompkins, Solicitor, Dep’t of Interior, Dec. 4, 2016) at 1. Interior’s Solicitor accordingly supplied a
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memorandum concluding that the Corps had “ample legal justification to decline to issue the proposed Lake Oahe easement on the current record,” and that it “would be equally justified in suspending or revoking the existing Section 408 permit as it relates to the Lake Oahe crossing.” Id. at 4. Alternatively, the Solicitor recommended that the Corps not make a decision to issue the easement prior to engaging in government-to-government consultation with the Tribe; preparing an EIS to “adequately evaluate[] the existence of and potential impacts to tribal rights and interests,” “consider a broader range of alternative pipeline routes,” and undertake “a catastrophic spill analysis prepared by an independent expert”; and more comprehensively assessing “DAPL’s impact on tribal rights, lands, and resources, including the socio-economic impacts, . . . in light of the fact that the reservation is a permanent homeland for the Tribes, as well as other federal obligations towards the Tribes.” Id.
On December 4, the same day the Interior Solicitor issued her Opinion, Assistant Secretary Darcy issued a memorandum to the Corps’ Commander. She explained that, to date, the Army had “not made a final decision on whether to grant the easement pursuant to [the Mineral Leasing Act].” ECF No. 172-7 (Memorandum from Jo-Ellen Darcy, Dec. 4, 2016), ¶ 6. Despite the Omaha District Commander’s recommendation that the Corps do so, Darcy stated that she had “concluded that a decision on whether to authorize the Dakota Access Pipeline to cross Lake Oahe at the proposed location merits additional analysis, more rigorous exploration and evaluation of reasonable siting alternatives, and greater public and tribal participation and comments.” Id., ¶ 12. “Accordingly,” she continued, the Army would “not grant an easement to cross Lake Oahe at the proposed location based on the current record.” Id. She directed a “robust consideration of reasonable alternatives . . . , together with analysis of potential spill risk and impacts, and treaty rights,” which she thought would be “best accomplished . . . by preparing
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an Environmental Impact Statement.” Id. Darcy emphasized, though, that her “policy decision” did “not alter the Army’s position that the Corps’ prior reviews and actions have comported with legal requirements.” Id., ¶ 15.
On January 18, 2017, Darcy followed up by publishing in the Federal Register a notice of intent to prepare an EIS. See 82 Fed. Reg. 5,543 (Jan. 18, 2017). Cheyenne River sent a letter to her that same day requesting that the Corps include it as a Cooperating Agency in the preparation and drafting of the EIS given the potential for the pipeline to affect the Tribe and its Reservation. See ECF No. 131-4, Attach. B (Letter from Harold Frazier to Jo-Ellen Darcy, Jan. 18, 2017).
3. A New Administration As we all know, elections have consequences, and the government’s position on the easement shifted significantly once President Trump assumed office on January 20, 2017. A Presidential Memorandum issued on January 24 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 and the Notice of Intent to Prepare an EIS. See ECF No. 172-8, § 2. The Army completed a technical and legal review on February 3 and determined that the Final EA and FONSI “satisf[ied] the NEPA requirements for evaluating the easement required for the DAPL to cross Corps-managed federal lands at Lake Oahe” and “support[ed] a decision to grant an easement.” ECF No. 172-9 (Memorandum from Todd Semonite, Lieutenant General, Corps, Feb. 3, 2017) at 10. Based on a review of the entire record, including the input received
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since September 2016, the Corps also concluded that the Final EA did not require further supplementation, as there were no “substantial changes in the proposed action” or “new significant circumstances or information relevant to environmental concerns.” Id. at 11 (citing 40 C.F.R. §§ 1502.9(c)(1)(i)-(ii)). The Corps thus published in the Federal Register a notice of termination of its intent to prepare an EIS, see ECF No. 95-3, provided notice to Congress of its intent to issue the easement, see ECF No. 172-10 (Congressional Notifications, Feb. 7, 2017), and did so on February 8. See ECF No. 172-11 (Easement). The final easement contains 36 conditions intended to mitigate the risk of rupture at Lake Oahe and otherwise address the Tribe’s concerns. Id. at 37-43. To facilitate the Corps’ granting of the easement, the Acting Secretary of the Interior withdrew the Interior Solicitor’s December 4 Opinion. See ECF No. 127-15 (Memorandum from K. Jack Haugrud, Acting Secretary, Dep’t of Interior, Feb. 6, 2017). Having finally been given the green light, Dakota Access, by late March, completed construction of this last segment beneath Lake Oahe and began placing oil in the pipeline. See ECF No. 191 (DA Status Report, Mar. 27, 2017). DAPL became fully operational on June 1, 2017. See Energy Transfer, Energy Transfer Announces the Bakken Pipeline Is in Service Transporting Domestic Crude Oil from the Bakken/Three Forks Production Areas, June 1, 2017, http://ir.energytransfer.com/phoenix.zhtml?c=106094&p=irol-newsArticle.
The day after the Corps granted Dakota Access the easement, Cheyenne River moved for leave to file a Second Amended Complaint, see ECF No. 97, and also filed a motion for preliminary injunction and application for a temporary restraining order, both based solely on the Religious Freedom Restoration Act. See ECF Nos. 98, 99; Standing Rock II, 2017 WL 908538, at *3. Standing Rock joined the TRO application, but not the preliminary-injunction motion. See ECF No. 107. In both filings, Cheyenne River argued that its members “believe that the
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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,” and that DAPL “correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction.” Standing Rock II, 2017 WL 908538, at *3 (quoting ECF No. 98 at 2-3). After orally denying the TRO, see Minute Order of Feb. 13, 2017; ECF No. 119 (TRO Oral Arg. Tr., Feb. 13, 2017) at 29:20-30:19, the Court issued an Opinion similarly denying the preliminaryinjunction motion, as it concluded that the extraordinary relief requested was not appropriate in light of the equitable doctrine of laches and Cheyenne River’s unlikelihood of success on the merits. Standing Rock II, 2017 WL 908538, at *1.
In the midst of these proceedings, Standing Rock — after moving for leave to amend its Complaint to address new developments since it first filed this case in July 2016, see ECF No. 106 — filed the instant Motion for Partial Summary Judgment on claims concerning the Corps’ decision not to prepare an EIS for the Lake Oahe crossing; its granting of the easement; and its permitting of the Lake Oahe crossing under NWP 12. The Corps responded with its own CrossMotion for Partial Summary Judgment on these causes of action, see ECF No. 172 (Corps SRST MSJ), and Dakota Access filed briefs opposing Standing Rock’s Motion and joining the Corps’ Cross-Motion. See ECF Nos. 159 (DA SRST Opp.), 184 (Notice of Joinder), 202-1 (DA SRST Reply). Cheyenne River joined Standing Rock’s Motion, see ECF No. 131 (CRST MSJ) at 8, and filed its own Motion for Partial Summary Judgment on claims concerning the Corps’ decisions to grant Dakota Access a permit under Section 408 of the RHA and an easement under the MLA. The Corps and Dakota Access then cross-moved for partial summary judgment on those claims as well. See ECF No. 183 (Corps CRST MSJ); ECF No. 185 (DA CRST MSJ).
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These Motions are now ripe. Although the Tribes do not raise exactly the same causes of action, because their Motions are closely related and sometimes overlap, the Court addresses both in this Opinion, turning first to Standing Rock’s claims and then to Cheyenne River’s. For purposes of their resolution, the Court has also today issued a Minute Order granting the Tribes’ motions for leave to amend, such that the claims relating to post-July 2016 events are properly before it. After setting out the governing legal standard, the Court first addresses the relevant claims raised by Standing Rock, see Section III, infra, and then turns to those asserted by Cheyenne River. See Section IV, infra. II. Legal Standard
The parties have cross-moved for partial summary judgment on the administrative record. The summary-judgment standard set forth in Federal Rule of Civil Procedure 56(c), therefore, “does not apply because of the limited role of a court in reviewing the administrative record.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006); see also Bloch v. Powell, 227 F. Supp. 2d 25, 30 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003). “[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Sierra Club, 459 F. Supp. 2d. at 90 (quotation marks and citation omitted). “Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the [Administrative Procedure Act] standard of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (citation omitted), aff’d, 408 Fed. App’x 383 (D.C. Cir. 2010).
The Administrative Procedure Act “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations,
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Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if, for example, the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983).
This is a “narrow” standard of review, under which “a court is not to substitute its judgment for that of the agency.” Id. Rather, the Court “will defer to the [agency’s] interpretation of what [a statute] requires so long as it is ‘rational and supported by the record.’” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. 2011) (quoting C & W Fishing Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991)). In other words, an agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Courts, accordingly, “do not defer to the agency’s conclusory or unsupported suppositions,” United Techs. Corp. v. Dep’t of Def., 601 F.3d 557, 562 (D.C. Cir. 2010) (quoting McDonnell Douglas Corp. v. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004)), and “agency ‘litigating positions’ are not entitled to deference when they are merely [agency] counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.” Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991). Although a reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given,” a decision
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that is not fully explained may, nevertheless, be upheld “if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (citation omitted). III. Analysis of Standing Rock’s Claims
As earlier noted, Standing Rock seeks summary judgment on three claims: (1) The Corps’ July 25, 2016, and February 8, 2017, conclusions that the Oahe crossing did not warrant an EIS violated NEPA because the agency did not make a convincing case that no significant impacts would result and failed to take a hard look at the project’s effects on Treaty rights and environmental-justice considerations; (2) The Corps’ February 8, 2017, decision to grant the easement was arbitrary, capricious, and contrary to law because the Corps reversed a prior policy without reasoned justification and because the decision constituted a breach of trust responsibilities; and (3) The Corps wrongfully concluded on July 25, 2016, that the pipeline activities satisfied the terms and conditions of NWP 12. The Court addresses each in turn.
A. Decision Not to Prepare EIS In reviewing an agency’s decision not to issue an EIS, the Court’s role is a “‘limited’ one, designed primarily to ensure ‘that no arguably significant consequences have been ignored.’” TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006) (quoting Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir. 1988)). An agency’s decision to issue a FONSI and thus not to prepare an EIS will be overturned only “if the decision was arbitrary, capricious, or an abuse of discretion.” Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983). When examining the adequacy of the FONSI and the EA upon which it was based, courts must determine whether the agency:
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(1) has accurately identified the relevant environmental concern, (2) has taken a hard look at the problem in preparing its [FONSI or Environmental Assessment], (3) is able to make a convincing case for its finding of no significant impact, and (4) has shown that even if there is an impact of true significance, an EIS is unnecessary because changes or safeguards in the project sufficiently reduce the impact to a minimum. Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011) (quoting TOMAC, 433 F.3d at 861) (internal quotation marks omitted). In so doing, courts in this circuit apply “a rule of reason to an agency’s NEPA analysis” and decline to “‘flyspeck’ the agency’s findings in search of ‘any deficiency no matter how minor.’” Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322–23 (D.C. Cir. 2015) (quoting Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)). Standing Rock contends that the EA for DAPL “runs afoul of these standards.” SRST MSJ at 19. In particular, the Tribe argues that the Corps did not take a hard look at or make a convincing case that the Lake Oahe crossing will have no significant environmental impact, and that it did not sufficiently consider route alternatives or environmental-justice implications. Id. at 19-31. For these reasons, it asserts that “[t]he Corps’ conclusion that the Oahe crossing was not significant enough to warrant an EIS is arbitrary, capricious, and contrary to law.” SRST MSJ at 17; see Nevada, 457 F.3d at 87 (“[Courts] apply the APA’s arbitrary and capricious standard to a NEPA challenge.”). The Court begins its analysis with environmental impact and then turns to alternatives and environmental justice.
1. Hard Look / Convincing Case Pursuant to NEPA’s “hard look” requirement, the agency must ensure that “the adverse environmental effects of the proposed action are adequately identified and evaluated.” Robertson, 490 U.S. at 350. In evaluating the significance of a proposed action’s impact, an
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agency is to consider, inter alia, the effect on “public health or safety”; “[u]nique characteristics of the geographic area such as proximity to historic or cultural resources”; the extent to which the environmental effects “are likely to be highly controversial” or “are highly uncertain or involve unique or unknown risks”; “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts”; and the degree to which the action “may cause loss or destruction of significant . . . cultural[] or historical resources.” 40 C.F.R. § 1508.27.
The Tribe identifies several ways in which the Corps allegedly failed to take a hard look at the environmental consequences of permitting DAPL’s construction and operation and to make a convincing case of no significant impact. It principally argues that the agency did not properly assess the risk of a spill under Lake Oahe or sufficiently consider the environmental impacts on Treaty rights of the construction of the pipeline or of a spill. Before proceeding to address each of the Tribe’s points, however, the Court must dispense with a threshold issue.
a. Extent of Record To substantiate many of its critiques of the EA’s analysis, the Tribe relies on expert reports and other records dated after July 25, 2016, when the Final EA and Mitigated FONSI were published. Dakota Access argues that the Court should not consider these reports or any evidence from the Tribe that post-dates July 25. “It is a widely accepted principle of administrative law that the courts base their review of an agency’s actions on the materials that were before the agency at the time its decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (listing cases). Here, in challenging the Corps’ decision not to prepare an EIS, the Tribe in effect challenges authorizations made at two different times: the RHA Section 408 authorization and NWP 12
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verification on July 25, 2016, and the easement approval on February 8, 2017. See ECF No. 196-1 (SRST Reply) at 3. The Section 408 and NWP 12 decisions were based on the conclusion set out in the EA and FONSI that the permissions would not have a significant impact on the environment, and the easement decision was also based on “additional review, analysis of terms and conditions for the easement, and on the Corps’ decision that supplementation of the EA/FONSI was not required.” Corps SRST MSJ at 10. The Corps thus decided at two junctures that an EIS was not required, and it prepared an administrative record encompassing the materials that were before it at each decision date. Although Dakota Access is technically correct that the expert reports and other evidence submitted after July 25, 2016, are outside the record for the RHA Section 408 and NWP 12 decisions, that offers them little aid. This is because the Court can review the materials before the Corps as of February 8, 2017, for purposes of evaluating the decision to grant the easement absent an EIS. The Court, consequently, will consider all materials dated up to February 8.
To complicate matters further, however, the Tribe wishes the Court to also review “some uncontroversial background materials (e.g., maps) and declarations from its expert” that postdate February 8. See SRST Reply at 3. It argues that such extra-record evidence comes within the “accepted exceptions to the principle that the court cannot consider information that falls outside the agency record” — namely, where “the agency failed to examine all relevant factors or to adequately explain its grounds for decision, or . . . acted in bad faith or engaged in improper behavior in reaching its decision.” IMS, 129 F.3d at 624; SRST Reply at 3.
On this point, the Tribe first contends that the Corps engaged in improper behavior by withholding confidential spill-model discussions and geographic-response plans to which its post-easement expert declarations respond. See SRST Reply at 3-4. But the showing required
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“to justify supplementing the record” is a “‘strong’” one, IMS, 129 F.3d at 624 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)), and the Court does not find that the Tribe has made it here. The Corps has explained that it withheld from the Tribe and the public a small number of documents supporting the EA “[b]ecause of security concerns and sensitivities.” Dec. 4 Memo, ¶ 5. Indeed, the Court recently concluded that there was good cause to protect from public disclosure certain information in some spill-model reports that, if released, could endanger life or physical safety. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock III), No. 16-1534, 2017 WL 1316918, at *5-6 (D.D.C. Apr. 7, 2017). Absent a showing to the contrary, the Court thus cannot permit supplementation of the record on the ground of some withholding impropriety.
The Tribe next argues that its extra-record evidence describes how the Corps failed to examine all relevant factors and provide adequate grounds for its decision. But “[t]his is not a case where the agency failed ‘to explain administrative action [so] as to frustrate effective judicial review.’” IMS, 129 F.3d at 624 (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973)). The EA addressed each factor for which the Tribe marshals extra-record evidence, even if not with the depth or ultimate conclusion the Tribe would prefer. Compare SRST MSJ at 21 (criticizing Corps’ failure to address “slow leaks in the HDD bore,” which, based on Tribecommissioned expert review, would be “‘complicated if not impossible to clean up and likely would have significant impacts on soils’ and underlying aquifers”) (quoting ECF No. 117-23 (Envy Report, Jan. 5, 2017) at 14); SRST Reply at 11 (“Landslides are a major source of pipeline failures and a critical factor in route selection.”) (citing ECF No. 195-4 (Corrective Action Order, Belle Fourche Pipeline Company, Dec. 20, 2016); Accufacts, Inc. Review at 3; ECF No. 120 (Sealed Declaration of Richard Kuprewicz, Feb. 12, 2017), ¶ 21); id. at 12 (describing EA’s
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failure to acknowledge “undisputed evidence” regarding failure rates of spill-detection systems) (citing ECF No. 209-5 at 110 (Letter from Sierra Club Indigenous Environmental Network, Oct. 10, 2016); Accufacts, Inc. Review at 5); id. at 12-13 (“[T]he EA fails to acknowledge that with a pipeline 90 feet underground, there is no way to discover a slow leak until the oil sheen appears on the surface of the water, at which point a massive release will have occurred that would be nearly impossible to clean up.”) (citing Envy Report at 13-14; Oct. 28, 2016, SRST Letter at 5); id. at 13 (stating the EA’s “startlingly optimistic times for responding to a spill after it has been detected . . . have been the subject of withering criticism”) (citing Accufacts, Inc. Review at 5-6; EarthFax Report at 9; Sealed Kuprewicz Decl., ¶¶ 15-17; Envy Report at 27); id. at 13-14 (“One expert review found numerous flaws in the Corps’ analysis of water quality impacts of a spill, including a failure to identify key pollutants; overstatement of flows that dilute likely pollutant impacts; use of an inappropriate standard to determine toxicity; and reliance on the wrong drinking water standard.”) (citing EarthFax Report at 5-7); id. at 14 (arguing EA’s treatment of impact of winter conditions on spill risk was inadequate) (citing EarthFax Report at 7-8; Oct. 28, 2016, SRST Letter at 5; ECF No. 196-2 (Declaration of Elliott Ward, Mar. 25, 2017), ¶ 12) with EA at 19, 36 (borehole leaks); 26-28 (landslides); 42, 46, 90-91 (description of leak-detection system as “capable of detecting leaks down to 1 percent or better of the pipeline flow rate within a time span of approximately 1 hour or less and capable of providing rupture detection within 1 to 3 minutes”); 36-49 (discussing impacts of spill to water quality); 39, 43, 123 (discussing impact of “[s]ub-freezing temperatures during the winter months” and means of responding to spill in winter, including identifying “all-weather access and collection point” downstream of Oahe crossing and undertaking “full scale winter/ice” emergency response drills/exercises).
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Disagreement with an agency’s analysis is not enough to warrant the consideration of extra-record evidence, which, after all, is “the exception, not the rule.” Oceana, Inc. v. Pritzker, 126 F. Supp. 3d 110, 113 (D.D.C. 2015) (quoting Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)). As it proceeds through Standing Rock’s arguments regarding the deficiencies in the EA’s analysis, therefore, the Court will not engage with those contentions that turn on evidence that post-dates February 8, 2017. This procedural brush now cleared away, the Court tackles the substance of the Tribe’s no-convincing-case position, beginning with spill risks and continuing to Treaty rights.
b. Spill-Risk Analysis Although grouped under the “spill-risk” heading, Standing Rock’s challenges here encompass the risk of spills, the degree of scientific controversy, and the cumulative risk of the project, each of which is analyzed separately.
i. Risk of Spill Standing Rock first maintains that the EA understates and does not properly assess the risk of an oil spill under Lake Oahe. See SRST MSJ at 21 (“[T]he Corps falls back on a rote mantra that the risk of oil spills is low.”); id. at 22 (citing Solicitor Op. at 28-29 & n.171 (noting PHMSA data shows average of over 283 significant incidents involving gas, oil, or other pipelines per year since 1996)). It argues that, although the EA repeats that the spill risk is “very low,” “unlikely,” or “negligible,” see, e.g., EA at 48, 63, 87, it does not explain what “low” means. See SRST Reply at 9. And “to conduct a credible assessment of spill risks,” the Corps should have addressed concerns relating to landslide risks, inadequate spill-detection systems, underground leaks, response times, spill volumes, water-quality analysis, and winter conditions,
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id. at 11-14, and looked at portions of the pipeline entering and exiting the boreholes. Id. at 1516.
The EA, in fact, devotes several pages to discussing DAPL’s “reliability and safety.” EA at 88-94. The relevant section first explains that, “[t]o prevent pipeline failures resulting in inadvertent releases,” DAPL will be constructed and maintained in accordance with “industry and governmental requirements and standards,” including those from PHMSA, the American Society of Mechanical Engineers, the National Association for Corrosion Engineers, and the American Petroleum Industry. Id. at 88. After its installation, the pipeline will undergo “hydrostatic pressure testing at the crossings, checking coating integrity, and X-ray inspection of the welds.” Id. The pipeline right-of-ways will also “be patrolled and inspected by air . . . at least every three weeks and not less than 26 times per year[] to check for abnormal conditions or dangerous activities, such as unauthorized excavation along the pipeline route.” Id. In addition, Dakota Access plans to use “a supervisory control and data acquisition . . . system to provide constant remote oversight of the pipeline facilities,” including the detection of “rapid drops in pressure,” and pipeline-monitoring software to identify any leaks by tracking “pipeline pressure, flow, and temperature data” pulled every six seconds. Id. at 89-90. The EA reports that such a system “is capable of detecting leaks down to 1 percent or better of the pipeline flow rate within a time span of approximately 1 hour or less and capable of providing rupture detection within 1 to 3 minutes.” Id. at 90. If a leak is detected, remotely operated valves are to be triggered and closed within three minutes. Id.
Other courts, including this Circuit, have favorably viewed similar agency reliance on applicable regulatory standards when assessing impacts as part of a NEPA-required analysis. See, e.g., EarthReports, Inc. v. FERC, 828 F.3d 949, 957 (D.C. Cir. 2016) (holding agency
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fulfilled its NEPA obligations to evaluate ballast-water impacts by, inter alia, noting requirements of applicable regulatory agencies); Sierra Club v. Clinton, 746 F. Supp. 2d 1025, 1047 (D. Minn. 2010) (holding agency properly considered impacts of pipeline abandonment by referencing PHMSA regulations).
The EA then proceeds to review the basis for its conclusion that the risk of an oil spill is “low.” EA at 92. Specifically, that conclusion comes from a risk analysis conducted by Dakota Access that was derived from criteria set out in “the W. Kent Muhlbauer Relative Index Methodology (2004), in accordance with 49 CFR 195.452 ‘Hazardous Liquid Pipelines in High Consequence Area’, API RP 1160 ‘Managing System Integrity for Hazardous Liquid Pipelines’, and ASME B31.8S ‘Managing System Integrity of Gas Pipelines.’” Id. That analysis “addressed nine industry-recognized pipeline integrity threat categories”: (1) third-party damage; (2) external corrosion; (3) internal corrosion; (4) pipe-manufacturing defects; (5) constructionrelated defects; (6) incorrect operations; (7) equipment failure; (8) stress-corrosion cracking; and (9) natural forces. Id. at 92-94.
The underlying analysis is not itself in the record, see SRST Reply at 8, but the EA summarizes its conclusions as to each of the nine factors. Although no explanation is provided, three of the nine factors — external corrosion, internal corrosion, and construction-related defects — are assessed only as to the crossing at Lake Sakakawea; the other six are applied to both Sakakawea and Oahe. See EA at 92-94. The EA’s explanation of its choice of methodology and subsequent treatment of the different factors is nonetheless enough to give substance to the Corps’ conclusion that the risk of a spill is low. See Sierra Club v. Watkins, 808 F. Supp. 852, 868 (D.D.C. 1991) (explaining courts should “defer to an agency’s decision to use a particular risk assessment methodology that is consistent with general principles of science”)
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(citing Sierra Club v. Dep’t of Transp., 753 F.2d 120, 128-29 (D.C. Cir. 1985)). For example, the EA explains that, at the Oahe crossing, spill risk due to third-party damage is low because the pipeline is positioned 92 feet below the lakebed; spill risk from manufacturing defects is also slim because the pipeline will be “hydrostatically strength-tested”; and spill risk from “incorrect operations (e.g., overpressure event caused by human error)” is low because the pipeline is designed to withstand twice the maximum-allowable operating pressure. See EA at 92-94. The EA thus does not simply use “[a]n unbounded term” that “provides no objective standard for determining what kind of differential makes one impact more or less significant than another.” Mainella, 459 F. Supp. 2d at 101. Admittedly, the EA does not quantify the risk of a spill with exact numerical precision. But in setting out the specific factors that undergirded its risk analysis and explaining their application to DAPL, the EA reasonably gives the necessary content to its top-line conclusion that the risk of a spill is low.
As noted above in the discussion of extra-record evidence, moreover, the EA did not omit discussion of borehole leaks (EA at 19, 36); landslides (EA at 26-28); leak-detection systems (EA at 42, 46, 90-91); water quality (EA at 36-49); or winter temperatures (EA at 39, 43, 123). To the extent the Tribes’ experts disagree with the Corps’ technical assessments or overall conclusion, such disagreements are “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Wisc. Valley Improvement Co. v. FERC, 236 F.3d 738, 746 (D.C. Cir. 2001) (quoting Marsh, 490 U.S. at 376). In such situations, courts “must defer to ‘the informed discretion of the responsible federal agencies.’” Id. at 747 (quoting Marsh, 490 U.S. at 377); see also Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004) (“When an agency ‘is evaluating scientific data within its technical expertise,’
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an ‘extreme degree of deference to the agency’ is warranted.”) (quoting B&J Oil & Gas v. FERC, 353 F.3d 71, 76 (D.C. Cir. 2004)).
ii. Highly Controversial Although the Court cannot agree with Standing Rock that the Corps did not adequately consider or explain its conclusion that the risk of an oil spill is low, a related position gains more traction. As explained above, CEQ regulations provide that one factor that “should be considered” in evaluating the significance of a proposed action’s impact is “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). Standing Rock argues that evidence in the record indicated that the pipeline’s effects were highly controversial, and that the Corps therefore should have concluded that the project would have significant impacts on the environment. See SRST MSJ at 20-21. Such controversy is not measured by newsworthiness; instead, according to the Court of Appeals, “The term ‘controversial’ refers to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Town of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (quoting Found. for N. Am. Wild Sheep v. Dep’t of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982)). Despite that explanation, however, as other courts in this district have observed, “Just what constitutes the type of ‘controversy’ that requires a full EIS is not entirely clear.” Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 33 (D.D.C. 2016) (quoting Nat’l Wildlife Fed’n v. Norton, 332 F. Supp. 2d 170, 184 (D.D.C. 2004)). At a minimum, “something more is required besides the fact that some people may be highly agitated and be willing to go to court over the matter.” Id. (quoting Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975)).
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“Many courts have found ‘something more’ to be scientific or other evidence that reveals flaws in the methods or data relied upon by the agency in reaching its conclusions.” Id. (citing Nat’l Parks & Conservation Assoc. v. Babbitt, 241 F.3d 722, 736-37 (9th Cir. 2001) (holding agency action was highly controversial because “comments urg[ing] that the EA’s analysis was incomplete, and the mitigation uncertain, . . . cast substantial doubt on the adequacy of the Parks Service’s methodology and data,” and thus the dispute went “beyond a disagreement of qualified experts over the ‘reasoned conclusions’ as to what the data reveal[ed]”); Nat’l Wildlife Fed’n, 332 F. Supp. 2d at 185 (“Such a controversy exists where the Corps is presented with scientific evidence specifically evaluating the environmental effects of the proposed project or calling into question the adequacy of the EA.”); Fund for Animals v. Norton, 281 F. Supp. 2d 209, 235 (D.D.C. 2003) (“While plaintiffs have identified serious gaps in defendants’ assessment of the local effects of the proposed action, they do not appear to have identified any scientific controversy per se as to the extent of the effects.”); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 58, 67-68 (D.D.C. 2010) (“While declarations were submitted to the Corps from numerous experts who claimed that [the development project] will have significant adverse impacts on Cypress Creek and its wetlands, these declarations alone fail to rise to the level of ‘controversy’ under NEPA.”), aff’d in part, rev’d in part on other grounds, 661 F.3d 1147 (D.C. Cir. 2011), as amended (Jan. 30, 2012)); but cf. Humane Soc. of U.S. v. Dep’t of Commerce, 432 F. Supp. 2d 4, 19–20 (D.D.C. 2006) (finding agencies’ decision not to prepare EIS highly controversial based on comments from plaintiff and other agencies indicating disagreement with agencies’ conclusions).
Here, as evidence of controversy, Standing Rock refers only generally to “the multiple critiques of the Corps’ unexamined conclusions, expert evidence indicating greater risks, and
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critical comment from other federal agencies.” SRST MSJ at 20-21. The Tribe does not help the Court to evaluate its argument by, for example, following these general references with specific statements made by the Tribe, agencies, or experts critiquing the Corps’ methodology or data. In any event, based on its review of the record, the Court first concludes that none of the evidence before the Corps as of July 25, 2016 — including Standing Rock’s comments, see ECF No. 1591, Exh. C (SRST Comments on Draft EA, Jan. 8, 2016); id., Exh. D (SRST Suppl. Comments on Draft EA, Mar. 24, 2016); ECF No. 209-6 at 51 (Notes for Feb. 18-19, 2016, Tribal Meeting); ECF No. 209-9 at 33 (Letter from Waste Win Young to Martha Chieply, Feb. 25, 2015), and submissions from the EPA and the Department of the Interior, see ECF No. 209-7 at 21 (Letter from Lawrence Roberts to Brent Cossette, Mar. 29, 2016), ECF No. 209-16 at 184 (Letter from Philip Strobel to Brent Cossette, Jan. 8, 2016), ECF No. 209-8 at 123 (Letter from Philip Strobel to Brent Cossette, Mar. 11, 2016), ECF No. 209-9 at 209 (Email “Quick Summary of Conference Call with EPA,” Feb. 25, 2016) — suggested substantial methodological or data flaws in the Corps’ analysis.
The expert reports submitted to the Corps after the Final EA was published but before the Corps again decided in February 2017 that an EIS was not required, see Semonite Memo at 14, however, do present such scientific critiques. See, e.g., EarthFax Report at 1-3 (critiquing EA for considering spill volumes from pipelines generally, rather than from pipelines with 16-inch or larger diameters, like DAPL); id. at 4 (suggesting EA used incorrect river-flow rates to assess spill impacts); id. at 5-7 (explaining EA used inappropriate benzene-concentration limits); id. at 9 (arguing EA should have included quantitative analysis of risk of failure of system components); id. at 9 (contending EA wrongly relied upon premise that emergency block valves would close immediately upon leak detection); Accufacts, Inc. Review at 7 (stating corrosion
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threats should be assessed based on field readings of in-line inspection runs, not assumed rates); id. at 9-10 (arguing that complete risk analysis required, inter alia, consideration of pipeline elevation profile, maximum operating pressure, location of mainline valves, location and type of “critical leak detection monitoring devices by milepost”).
It may well be the case that the Corps reasonably concluded that these expert reports were flawed or unreliable and thus did not actually create any substantial evidence of controversial effects. Dakota Access, for example, offers a scathing assessment of the reports’ “material flaws.” DA SRST Opp. at 21 n.4. But the Corps never said as much. Its February 3, 2017, memo determining that the Final EA and FONSI satisfied NEPA’s requirements and supported the decision to grant the easement is devoid of any discussion of the methodological and data flaws identified in the reports. Indeed, it acknowledges receiving only Standing Rock’s Accufacts, Inc. Review and wholly ignores the others. See Semonite Memo at 12. As the agency did not demonstrate that it considered, as the CEQ regulations require, the degree to which the project’s effects are likely to be highly controversial, despite being presented with evidence of scientific flaws, the Court cannot conclude that the Corps made a convincing case of no significant impact or took the requisite hard look. The remedy for such violation is discussed in Section III.D, infra.
iii. Cumulative Risk Finally, the Tribe contends that the EA “fails to consider the cumulative risk imposed by the pipeline.” SRST MSJ at 22 (citing 40 C.F.R. § 1508.27(b)(7) (“Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.”)). “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what
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agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. Such impacts “can result from individually minor but collectively significant actions taking place over a period of time.” Id. Other pipelines cross under the Missouri River, but, the Tribe states, the EA does not analyze how the addition of DAPL compounds the overall risk of a pipeline spill in the Missouri River, nor does it consider “the cumulative risk to Tribal resources from the rest of the pipeline outside Lake Oahe.” SRST MSJ at 23; see also id. at 23 n.12 (criticizing Corps for “unlawfully segmenting its NEPA review of one pipeline into [three] separate components”). This argument, like the Tribe’s first in this subsection, does not succeed.
The EA devotes eleven pages to a discussion of cumulative impacts on eleven types of resources, including geology and soils, water and aquatic life, agriculture, land use, cultural and historic resources, and environmental justice. See EA at 98-107. It acknowledges at the outset that in the vicinity of the Oahe crossing are “oil and gas development and associated infrastructure, utility installation, and agriculture,” and that the pipeline at the Oahe crossing is co-located with “a natural gas pipeline and a 345 kV power line.” EA at 98. Although the EA does not expressly state whether the presence of other pipelines increases the risk that DAPL (or those pipelines) will rupture, it acknowledges the potential for unanticipated releases and refers back to the analysis of minimization and remediation activities to conclude that the potential cumulative impacts on water and aquatic resources from spills “would be minor.” Id. at 101. It also considers the benefits of co-location, such as minimized land-use disturbance from construction. Id. at 105. The EA therefore does not simply conclude absent any actual analysis that cumulative impacts would be minimal; on the contrary, there is enough to “allow the Court to review the agency’s finding.” Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs, 109 F. Supp. 2d 30, 42 (D.D.C. 2000).
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The Corps, moreover, was not required to consider the impacts from the whole pipeline. See Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 34 (D.C. Cir. 2015) (holding that where federal easement and CWA permitting encompassed only five percent of pipeline’s length, “the federal government was not required to conduct NEPA analysis of the entirety of the . . . pipeline, including portions not subject to federal control or permitting”); Sierra Club v. Bostick, 787 F.3d 1043, 1051-54 (10th Cir. 2015) (holding Corps was not required to prepare NEPA analysis of entire pipeline when verifying NWPs for 485-mile oil pipeline crossing over 2,000 waterways); Winnebago Tribe of Neb. v. Ray, 621 F.2d 269, 272-73 (8th Cir. 1980) (same for electric utility line). That it did not address the cumulative risk from the entire pipeline thus does not run afoul of NEPA.
c. Impacts Analysis Re: Treaty Rights In addition to challenging the EA’s analysis of the risk of a spill, Standing Rock raises concerns about its discussion of the effects of the project, including a potential spill, should one occur, on the Tribe’s Treaty rights. According to Standing Rock, “NEPA requires the Army Corps to disclose and assess the suite of risks from the Lake Oahe crossing to the full range of the Tribe’s Treaty rights, in the context of the Corps’ heightened trust responsibilities.” SRST MSJ at 24. Here, the relevant Treaty rights are those implicating water, hunting, and fishing. Id. at 25; Corps SRST MSJ at 20; see also Winters v. United States, 207 U.S. 564, 576-78 (1980) (holding that when federal government creates an Indian reservation, it impliedly reserves otherwise unappropriated water to extent necessary to accomplish purposes of reservation); Fort Laramie Treaty of 1851, art. 55, 11 Stat. 749, 1851 WL 7655 (reserving for the Sioux tribes “the privilege of hunting, fishing, or passing over” lands described in Treaty); United States v. Dion, 476 U.S. 734, 738 (1986) (“As a general rule, Indians enjoy exclusive treaty rights to hunt and
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fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress.”). The Court first explains the manner of the Corps’ analysis of these rights and then turns separately to the effect of construction and the impact of a spill on such rights.
i. Manner of Analysis Before turning to whether the Corps adequately considered these impacts, the Court discusses how it was required to do so. The Tribe contends that the Corps had to address these Treaty rights qua Treaty Rights, see SRST MSJ at 25-26; SRST Reply at 23-24, whereas the Corps asserts that it needed only to consider the effects on the resources implicated by the Treaty rights — i.e., water, fish, and game. See Corps SRST MSJ at 20-21 & n.9. To explain more fully, Standing Rock believes that the Corps’ position “misunderstands the Tribe’s Treaty rights,” which “embody the fundamental rights of a people tied to a place since time immemorial” and thus demand a more “existential” analysis. See SRST Reply at 23-24. For example, the Tribe explains that, although “[e]cological impacts to fish and game habitat and populations present one dimension” of the impacts of an oil spill on aquatic resources, “[t]he impact to Tribal members of losing the right to fish and hunt, which provides both much-needed subsistence food to people facing extensive poverty as well as a connection to cultural practices that Tribal members have engaged in since time immemorial, is a separate issue.” Id. Standing Rock may be right that the construction and operation of DAPL under Lake Oahe could affect its members in the broad and existential ways it details, but it offers no case law, statutory provisions, regulations, or other authority to support its position that NEPA requires such a sweeping analysis. The Corps, conversely, points to several cases in which courts have approved an approach consistent with its view of its NEPA obligations — i.e., an
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agency may assess impacts on treaty rights by analyzing the effects on a specific resource identified in the treaty. See Ground Zero Ctr. for Nonviolent Action v. Dep’t of the Navy, 918 F. Supp. 2d 1132, 1152 (W.D. Wash. 2013), on reconsideration in part No. 12-1455, 2013 WL 357509 (W.D. Wash. Jan. 29, 2013) (assessing impact on tribe’s treaty fishing rights by considering surveys of fish patterns and Navy’s mitigation efforts); Nw. Sea Farms, Inc. v. U.S. Army Corps of Eng’rs, 931 F. Supp. 1515, 1521-22 (W.D. Wash. 1996) (explaining Corps correctly concluded that project would impair treaty fishing rights by considering impact on tribe’s access to fish); No Oilport! v. Carter, 520 F. Supp. 334, 356–57 (W.D. Wash. 1981) (concluding EIS’s discussion of effect of pipeline rupture on “the fish resource,” including via maps, adequately evaluated project’s impact on tribe’s treaty fishing rights). Absent any controlling or persuasive authority to the contrary, the Court sees no basis on which to conclude that NEPA demands the type of existential-scope analysis the Tribe advocates. Rather, it is sufficient that the agency adequately analyze impacts on the resource covered by a given treaty.
The next question, then, is whether the agency’s weighing of those relevant Treaty rights here — viz., water, fishing, and hunting — was adequate. The Court approaches that question by looking at the Corps’ assessment of the impacts on the different Treaty rights from (1) the construction of the pipeline, and (2) an unanticipated oil spill. In so doing, the Court keeps in mind the definition of “hard look” recently articulated by the D.C. Circuit: “[A]n agency has taken a ‘hard look’ at the environmental impacts of a proposed action if the statement contains sufficient discussion of the relevant issues and opposing viewpoints, and the agency’s decision is fully informed and wellconsidered.” Myersville Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301, 1324-25 (D.C. Cir. 2015).
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ii. Construction The EA discussed in several places the potential impact of DAPL’s construction on water resources, fish, and wildlife at Lake Oahe. See EA at 36 (acknowledging that, during HDDconstruction phase, drilling fluid could inadvertently be released “directly or indirectly into the waterbody” and discussing mitigation measures); id. at 37 (explaining water required for HDD construction and hydrostatic testing at Oahe crossing would not be obtained from Lake Oahe); id. at 38 (“No waterbody would be permanently drained or filled as part of the DAPL Project, and effects on waterbodies are expected to be short-term and minor.”); id. at 45 (addressing impacts of construction activities on groundwater); id. at 50 (explaining no wetlands exist within Oahe Project Area or Connected Action Area); id. at 58 (discussing “[t]emporary impacts on wildlife” that “could occur during construction,” including displacement of “larger and more mobile animals”); id. (“No impacts to treaty fishing and hunting rights are anticipated due to construction within the Project Area or Connected Actions.”); id. at 69 (discussing possible adverse impacts on “fish eggs, juvenile fish survival, benthic community diversity and health, and spawning habitat,” as well as “fish fry[] and invertebrates inhabiting the river,” from “subsurface disturbing activities,” inadvertent release of drilling mud, and water withdrawal from Missouri River); id. at 75 (“The recreational enjoyment of wildlife (such as hunting or bird watching) may be temporarily affected by construction activities, depending on season and location.”). Because the EA “clearly addressed” these impacts and concluded that they would either be insignificant or could be mitigated, the Court finds that, in this respect, it was adequate. See Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 112 (D.C. Cir. 2014) (finding EA adequately examined compressor-station project’s impact on property values where it recognized some adverse impacts might accrue but could be mitigated).
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iii. Spill Impacts As to the second issue — namely, the spill effects —the Tribe contends that the EA “never examined the impacts of spills on the Tribe and its Treaty rights.” SRST Reply at 1. The Court agrees in part. First, it bears noting that even though a spill is not certain to occur at Lake Oahe, the Corps still had to consider the impacts of such an event on the environment. “[A]n agency conducting an EA generally must examine both the probability of a given harm occurring and the consequences of that harm if it does occur.” New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 482 (D.C. Cir. 2012). “Only if the harm in question is so ‘remote and speculative’ as to reduce the effective probability of its occurrence to zero may the agency dispense with the consequences portion of the analysis.” Id. (quoting Limerick Ecology Action, Inc. v. Nuclear Regulatory Comm’n, 869 F.2d 719, 739 (3d Cir. 1989)). Yet, “the finding that the probability of a given harm is nonzero does not, by itself, mandate an EIS: after the agency examines the consequences of the harm in proportion to the likelihood of its occurrence, the overall expected harm could still be insignificant and thus could support a FONSI.” Id.; see also Gov’t of the Province of Manitoba v. Salazar, 691 F. Supp. 2d 37, 50 (D.D.C. 2010) (“It may be that the risk of a breach is low given the pipeline’s construction, but that is not an excuse for Reclamation to refuse entirely to analyze the consequences. When the degree of potential harm could be great, i.e., catastrophic, the degree of analysis and mitigation should also be great.”); Sierra Club v. Watkins, 808 F. Supp. 852, 868 (D.D.C. 1991) (holding that, given disputed evidence concerning the possibility of severe accidents, an agency may not simply “refus[e] to include certain low probability risks” — it must at least “admit that such accidents are possible,” determine the probability of occurrence, and “discuss[] their potential effects”). Here, the Corps did not wholly
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ignore the consequences of a possible oil spill, despite its conclusion that the risk of such an event was low. On the contrary, it adequately discussed the impacts of such “a low risk/high consequence event,” EA at 92, on water — but not on hunting or aquatic — resources.
As to water resources, the EA offered several comments. It acknowledged that, during operations, “[d]rinking water intakes located downstream from the Missouri River and Lake Oahe crossings could be at risk if there was a release that reached these bodies of water in the vicinity of the intake structures,” and that “the Standing Rock Sioux . . . have intake structures within the river downstream of the Lake Oahe Project area.” Id. at 38; see also id. at 42 (“In the unlikely event of a release during pipeline operations, drinking and irrigation water intakes located downstream from the Missouri River and Lake Oahe crossings could be at risk if hydrocarbons were to reach these bodies of water in the vicinity of the intake structures.”); id. at 87 (“Concerns have been expressed regarding an inadvertent release reaching intake structures on Lake Oahe. . . . In the unlikely event of a release, sufficient time exists to close the nearest intake valve to avoid human impact.”). Later, the EA further explained: “Accidental releases from the pipeline system during operations could potentially affect groundwater. . . . [C]rude oil released into soil can migrate toward water where certain constituents can dissolve into groundwater or surface water in limited amounts.” Id. at 45.
It then presented a model estimating the concentrations of benzene, a potentially toxic compound found in crude oil, that could be released during a very small, small, moderate, or large spill at the Oahe crossing, and discussed how those results might vary during winter months when temperatures are likely to be colder. Id. at 46-47. Even assuming that “[t]he entire volume of a crude oil spill was released due to a catastrophic failure of the pipeline and reached the waterbody; [c]omplete, instanteous mixing occurred; [and] [t]he entire benzene content of the
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crude oil was solubilized into the water column,” the model concluded that under no spill scenario would the acute toxicity threshold for aquatic organisms be exceeded, and that under the “most probable spill volume,” benzene concentrations would not “exceed the drinking water criteria.” Id. In addition, at the conclusion of its discussion of the nine spill-risk factors previously discussed, the EA, under the header “Consequences,” stated: “In the event that a pipeline failure occurs and product is released into the Missouri River at either crossing, the worst case consequence scenario is ranked high because several drinking water intake High Consequence Areas (HCAs) and multiple ecologically sensitive HCAs could be impacted.” Id. at 94.
The EA is not similarly attentive, however, to the impacts of a spill on fish or game, the resources implicated by the Tribe’s fishing and hunting rights. As to aquatic resources, the EA offered only a cursory nod to the potential effects of an oil spill, stating simply that “[t]he primary issue related to impacts on the aquatic environment from operation of the Proposed Action would be related to a release from the pipeline.” Id. at 69. It never explained, though, what those effects would be. Instead, it simply reasoned that adherence to Dakota Access’s response plan “would minimize potential impacts on aquatic wildlife.” Id. at 69-70; see also id. at 101. Likewise, regarding hunting, the EA only discussed the effects of construction on “recreationally and economically important species and nongame wildlife”; it said nothing about the effects of a spill. Id. at 57-58.
Standing Rock, though, had alerted the Corps to its fishing- and hunting-related concerns after the agency published the Draft EA. See, e.g., ECF No. 159-1, Exh. C (SRST Comments on Draft EA, Jan. 8, 2016) at 13 (“[A] pipeline leak would threaten to damage . . . the fish and wildlife on which many Tribal members depend for subsistence.”); ECF No. 159-1, Exh. D
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(SRST Suppl. Comments on Draft EA, Mar. 24, 2016) at 15 (“The waters of Lake Oahe also provide habitat for fish, wildlife, and plants important to the diet . . . of the Tribe.”). The Director of Standing Rock’s Department of Game, Fish, and Wildlife Conservation, moreover, explained that many of the Tribe’s members rely on fishing as “an important supplemental source of food and nutrition” and that the Tribe issued 199 family fishing permits in 2015. See ECF No. 117-16 (Declaration of Jeff Kelly, Nov. 28, 2016), ¶ 5. An oil spill, he said, could “cause extensive fish kills.” Id., ¶ 12. He also spelled out the ways in which an oil spill could seriously affect game along the Oahe shoreline, including by poisoning animals that ingest, inhale, or are otherwise externally exposed to oil and preventing those birds and mammals whose feathers or fur are coated with oil from maintaining their body temperatures. Id., ¶ 13. Although the Corps did not have Kelly’s declaration before it when it issued the EA in July 2016, his remarks were before the agency when it concluded that the easement could be issued based on the EA absent any supplementation.
Without any acknowledgment of or attention to the impact of an oil spill on the Tribe’s fishing and hunting rights, despite Plaintiff’s efforts to flag the issue, the EA — in this limited respect — was inadequate. The appropriate remedy for such omission is discussed in Section III.D, infra.
2. Alternatives To comply with NEPA, an Environmental Assessment must include a “‘brief discussion[]’ of reasonable alternatives to the proposed action.” Myersville, 783 F.3d at 1323 (quoting 40 C.F.R. § 1508.9(b)). This consideration “need not be as rigorous as the consideration of alternatives in an EIS.” Id.; compare 40 C.F.R. § 1508.9(b) (requiring “brief discussion[]”) with id. § 1502.14(a) (requiring agency to “[r]igorously explore and objectively
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evaluate all reasonable alternatives” when EIS required). “An alternative is ‘reasonable’ if it is objectively feasible as well as ‘reasonable in light of [the agency’s] objectives.’” Myersville, 783 F.3d at 1323 (quoting Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011)). An agency’s “specification of the range of reasonable alternatives is entitled to deference.” Id.
Standing Rock believes that the Environmental Assessment lacks an adequate consideration of such alternatives. Specifically, the Tribe posits that the EA did not appropriately examine an alternative route that would have had the pipeline cross the Missouri River further north. See SRST MSJ at 26, 30-31. The Court disagrees: on this front, the EA adequately discharged the Corps’ NEPA obligations.
Before settling on the current DAPL route, Dakota Access considered routing the pipeline to cross Lake Oahe approximately 10 miles north of Bismarck, North Dakota — i.e., approximately 50 miles north of its current location, which sits just 0.5 miles north of the Standing Rock Reservation. See EA at 8, 161 (Figure 13). The Company soon determined, however, that that route was not “a viable alternative.” Id. The EA explains why. A table therein compares the Bismarck and Oahe crossings in terms of overall route mileage; co-location with other pipelines and powerlines; the number of existing pipelines, floodplains, water features, and powerlines crossed; miles of agriculture, developed/low intensity, developed/open space, and grass/pasture land crossed; whether Corps-owned land would be crossed; the number of waterbodies crossed; the number of high-consequence areas affected; and the number of transportation crossings. Id. at 9-10. A separate table compares the two crossings in terms of total pipeline and total HDD length, as well as in terms of cost for road/railroad bores,
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installation for non-HDD areas, HDD, geotechnical investigation, above-ground facilities, rightof-way acquisition, and engineering and consulting. Id. at 11.
That data reveals that the Bismarck alternative would have required an additional 11 miles of pipeline, “consisting of roughly 165 additional acres of impact,” 11 more floodplain crossings, 1 more powerline crossing, and 27 more transportation crossings. Id. at 8-10. In addition, it would have “crossed through or in close proximity to several wellhead source water protection areas” and “crossed other populated PHMSA high consequence areas” — i.e., “locales where a release from a pipeline could have the most significant adverse consequences” — “not present on the [selected] route.” Id. at 8. The North Dakota Public Service Commission, moreover, requires a 500-foot residential buffer, which would have “severely constrained” the Bismarck route. Id. By contrast, on the Reservation, the residence closest to the pipeline at Oahe is located more than 1.5 miles away. Id. at 86. And finally, the Bismarck alternative would have cost nearly $33 million more and been co-located with other pipelines or utility corridors for only 3% of the route as compared to the selected route’s 41%. Id. at 9, 11.
Standing Rock largely focuses its critique on the EA’s reliance on a memo prepared by DAPL consultants, which it argues offers “a one-sided analysis that considered downstream impacts for the Bismarck alternative, but not for the Oahe crossing.” SRST MSJ at 30. But that memo, which the EA does not expressly cite, provides another reasonable basis on which the Corps could have rejected the Bismarck crossing in favor of Oahe. It explains that the two closest municipal-water intakes to the Bismarck crossing would have been at Mandan, 7.3 miles downstream and serving 19,381 people, and Bismarck, 11.6 miles downstream and serving 65,123 people. See ECF No. 209-16 at 18 (Memorandum from Tom Siguaw, Dakota Access, & Steve Rove, HDR Engineering, Apr. 12, 2016). The first downstream intake from the Oahe
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crossing, comparatively, is 4.2 miles downstream but is non-tribal and for agricultural use. Id. The second is 7.6 miles downstream and is used by Standing Rock also for agricultural purposes. Id. The third — and the first to be used for drinking water — is 11.1 miles downstream and belongs to the South Central Regional Water District, which serves 3,491 people in Emmons County, North Dakota. Id. The fourth — and the first Standing Rock intake for public consumption — is 26.2 miles downstream at Fort Yates and serves 229 people in Fort Yates and up to 4,317 in Sioux County. Id. The Bismarck crossing thus would have been much closer — nearly four miles — to a drinking-water intake than the Oahe crossing. The drinking-water intakes near Bismarck also serve many more people than the two closest to the Oahe crossing. This difference will be even more pronounced once construction is complete on a new waterintake structure being built to serve all communities on the Standing Rock Reservation, as that system will be located approximately 50 miles further downstream from the Oahe crossing than the existing structure serving the Tribe at Fort Yates. See Cooper Memo at 19.
This is not to say that the EA’s analysis of the Bismarck alternative is without flaws. As the Cooper Memo points out, when counting the number of wetland and water features crossed, the EA uses raw numbers of crossings, rather than “the total [number] of impacts measured as acreage or linear feet,” which would have given “a more accurate comparison of the route.” Cooper Memo at 9. And although the Bismarck route would have crossed PHMSA highconsequence areas that the Lake Oahe route does not, the Lake Oahe route also crosses highconsequence areas. Id.; EA at 94. Despite these issues, by identifying and comparing several features of the two routes as described, the EA easily clears NEPA’s hurdle requiring “brief discussion” of reasonable alternatives.
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3. Environmental Justice Standing Rock next contends that the Corps’ environmental-justice analysis was arbitrary and capricious. A 1994 Executive Order requires that, “[t]o the greatest extent practicable and permitted by law,” federal agencies “shall make achieving environmental justice part of [their] mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations.” Exec. Order 12,898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 11, 1994), § 1-101. The Order expressly states that it does not create a private right to judicial review, id. § 6-609, but the D.C. Circuit has permitted challenges to environmentaljustice analyses under NEPA and the APA. See Communities Against Runway Expansion, Inc. v. F.A.A., 355 F.3d 678, 689 (D.C. Cir. 2004) (“The [agency] exercised its discretion to include the environmental justice analysis in its NEPA evaluation, and that analysis therefore is properly subject to arbitrary and capricious review under the APA.”). As the EA acknowledges, see EA at 84, the Council on Environmental Quality developed guidance to assist federal agencies in ensuring that environmental-justice concerns “are effectively identified and addressed.” ECF No. 117-19 (CEQ, Environmental Justice Guidance Under the National Environmental Policy Act, Dec. 10, 1997) at 1. That guidance instructs that agencies “should consider the composition of the affected area, to determine whether minority populations, low-income populations, or Indian tribes are present in the area affected by the proposed action, and if so whether there may be disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, or Indian tribes”; “should recognize the interrelated cultural, social, occupational, historical, or economic
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factors that may amplify the natural and physical environmental effects of the proposed agency action”; and “should recognize that the impacts within . . . Indian tribes may be different from impacts on the general population due to a community’s distinct cultural practices.” Id. at 9. “Where environments of Indian tribes may be affected,” CEQ advises, “agencies must consider pertinent treaty, statutory, or executive order rights and consult with tribal governments in a manner consistent with the government-to-government relationship.” Id. at 14. Finally, the “unit of geographic analysis” for the environmental-justice assessment should “be chosen so as not to artificially dilute or inflate the affected minority population.” Id. at 26.
Here, the Corps defined the unit of geographic analysis for its environmental-justice assessment as a 0.5-mile radius around the crossing, yielding a focus on the two census tracts in which the HDD boreholes would be drilled — i.e., the places on either side of Lake Oahe at which the pipeline would enter the ground to pass under the water. See EA at 84. Those two census tracts were in Morton County and Emmons County; they did not include Sioux County, where the Reservation is located. Id. at 80, 83.
To identify the impact of the project on the populations in the chosen census tracts, the Corps compared the average demographic data from the two census tracts to that of “counties in the general vicinity” of the Oahe crossing — Emmons, Morton, and Sioux Counties — and to that of North Dakota generally. Id. at 84. Specifically, the Corps compared the areas by percentage of racial minorities and percentage of persons living below the poverty level. Id. at 83. That data analysis revealed that the minority population in the two census tracts was 2% — i.e., 29% lower than the minority population in the general-vicinity counties and 9% lower than the minority population in North Dakota as a whole. Id. at 83, 85. It also showed that the percentage of persons living below the poverty level in the two census tracts was 9%. Id. at 83.
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The EA states that this figure was 3% lower than the impoverished population in the generalvicinity counties and 50% higher than in North Dakota as a whole. Id. Based on these comparisons, the EA concluded that “there is no concern regarding environmental justice to minority populations at the Proposed Action Area at . . . Lake Oahe.” Id. at 85. In actuality, some of the EA’s calculations are incorrect. See Cooper Memo at 24 (identifying one of two errors). Using the correct figures, the percentage of persons living below the poverty line in the two census tracts was 11% lower than in the general-vicinity counties and 3% lower than in North Dakota as a whole. Id. at 83; Cooper Memo at 24. (As will be seen, the calculation errors play no significant role in the outcome on this issue.)
The Tribe challenges the Corps’ decision to use a 0.5-mile buffer and the resulting analysis as arbitrary and capricious gerrymandering. See SRST MSJ at 28. The Standing Rock Reservation is 0.55 miles — or 80 yards beyond the 0.5-mile limit — downstream of the HDD site, and the Tribe contends that there was no principled basis on which to narrowly exclude it from the bounds of the Corps’ analysis. Id. at 29. It also notes that the two census tracts selected as the “affected area” are “mostly upstream of the crossing site” with a 98% white population. Id. By comparing these tracts to a baseline of three counties that included Sioux County, Standing Rock argues, the EA “compar[ed] an area that will be almost entirely unaffected by a spill from the pipeline, and where few Tribal members live, against a baseline that included a significant portion of the Reservation.” Id. “Unsurprisingly,” the Tribe observes, the “‘affected area’ did not have a higher population of minority and low-income people than the claimed baseline, allowing the Corps to dismiss environmental justice concerns.” Id.
The Corps and Dakota Access defend the reliance on a 0.5-mile buffer by repeating the justification given in the EA: “Transportation projects, such as under the Federal Transit
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Administration, and natural gas pipeline projects under the Federal Energy Regulatory Commission . . . typically use a 0.5 mile buffer area to examine Environmental Justice effects.” EA at 84; see also id. at 87 (“As stated above, linear projects typically use a 0.5 mile buffer area to examine Environmental Justice effects.”); DA SRST Opp. at 29; Corps SRST MSJ at 27.
Although “[t]he ‘identification of the geographic area’ within which a project’s impacts on the environmental resources may occur ‘is a task assigned to the special competency of the appropriate agencies,’” Powder River Basin Res. Council v. BLM, 37 F. Supp. 3d 59, 75 (D.D.C. 2014) (quoting Tri-Valley CAREs v. Dep’t of Energy, 671 F.3d 113, 1127 (9th Cir. 2012)) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976)), the Court is hard pressed to conclude that the Corps’ selection of a 0.5-mile buffer was reasonable. DAPL is neither a transportation project nor a natural-gas pipeline; it is a crude-oil pipeline. The EA does not identify any project involving a crude-oil pipeline for which a 0.5-mile buffer was employed. The Corps, likewise, points only to other types of infrastructure projects. See Corps SRST MSJ at 27 (citing Coal. for Healthy Ports v. Coast Guard, No. 13-5347, 2015 WL 7460018, at *25 (S.D.N.Y. Nov. 24, 2015) (project to raise height of bridge); Bitters v. Fed. Highway Admin., No. 14-1646, 2016 WL 159216, at *14 (E.D. Cal. Jan. 13, 2016) (project to reintroduce vehicle traffic lanes to particular streets)).
The Corps nonetheless rejoins that there is no meaningful distinction between those projects and DAPL. Id. (“Analysis of a half-mile buffer, which is appropriate for bridges or other construction projects with street-level noise, traffic or other impacts, is certainly appropriate for the Lake Oahe crossing, where the construction is deep under the bed of Lake Oahe and is staged on private lands.”); Corps SRST Reply at 13 n.3 (“[A] bridge that carries rail cars or truck traffic transporting oil or hazardous substances which could just as easily suffer low
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probability accidents resulting in releases to the waterways underneath the bridges.”). The problem with the Corps’ argument, however, is that the cases it cites did not consider an oil spill when evaluating impacts; if they had, perhaps a different geographic scope may have been selected. Standing Rock, conversely, points to two oil-pipeline projects for which a much larger affected area was used to assess environmental-justice impacts. See SRST MSJ at 30 n.16 (citing ECF No. 117-22 (Final Supplemental Environmental Impact Statement, Keystone XL Project) at 3.10-3) (assessing environmental-justice impacts 14 miles downstream of crossings)); SRST Reply at 25 n.23 (citing ECF No. 195-6 (Draft Supplemental Environmental Impact Statement for Line 67 Expansion, Jan. 2017) at 3.0-2 (looking at spill impacts up to 40 rivermiles downstream)).
Standing Rock is not the only entity to criticize the 0.5-mile-buffer choice. In its comments on the Draft EA, the EPA advised the Corps that “the area of analysis to assess potential impacts to EJ communities should correspond to the impacts of the proposed project instead of only the area of construction disturbance.” ECF No. 209-8 at 126 (Letter from Philip Strobel to Brent Cossette, Mar. 11, 2016). “For oil pipeline projects, potential impacts to EJ communities would include the effects of leaks and spills to downstream water supplies (both drinking water quality, agricultural uses, and costs) and aquatic resources such as fish and riparian vegetation used by EJ populations.” Id. Even the Corps’ Chief Counsel expressed concern about the agency’s geographic selection when reviewing the EA’s legal sufficiency:
The Corps’ determination of the affected environment . . . can be questioned here. . . . Sioux County is just outside the 0.5-mile pipeline buffer. While the equally sized buffer on both sides of the pipeline seems reasonable along land areas, it is arguably less so at water areas because of the potential for water currents to carry a spill downstream. Sioux County is located just south and downstream of the pipeline. Thus, the SRST population present immediately outside of the proposed area or affected environment and
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downstream reasonably could have been within the area identified as the affected environment in the EA. If that area was included, the EA would then determine whether there might a disproportionately high and adverse human health or environmental effect on the SRST. Cooper Memo at 25-26. The Corps argues that the Court need not confine its analysis to the use of a 0.5-mile buffer, however, because the EA also devoted a separate section to environmental-justice impacts on the Standing Rock Sioux Reservation. See EA at 85-87. That additional section, as it turns out, does not yield the Corps a full reprieve. The Standing Rock-focused environmentaljustice section begins with the “recogni[tion] that the Standing Rock Sioux Tribe is downstream of the Lake Oahe Crossing” and “has a high population of minorities and low-income residents.” Id. at 85. It first discusses impacts from the project’s construction and anticipated operation, and it explains that: the crossing will be installed via HDD on private lands adjacent to Corps-owned land, HDD drilling has no anticipated environmental effects, the pipeline’s route “maintain[s] a minimum distance of 0.5 mile[s] from Tribal land,” and the closest residence on the Reservation to the Oahe crossing is more than 1.5 miles away. Id. at 85-86. “As a result of this routing criteria, the nature of the action (construction associated with laying an underground oil pipeline), the short term duration of effects, construction and operation on private lands, the concurrent reclamation activities, state of the art construction techniques, [and] use of high quality materials and standards that meet or exceed federal standards,” the EA concludes, “there will be no direct or indirect effects to the Standing Rock Sioux Tribe. This includes a lack of impact to its lands, cultural artifacts, water quality or quantity, treaty hunting and fishing rights, environmental quality, or socio-economic status.” Id. at 86. Given the absence of impacts, it
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continues, “there is no resulting adverse or disproportionate impacts of the Proposed Action with
respect to Environmental Justice considerations.” Id.
The problem here, as the Tribe points out, is that this analysis covers only construction
impacts, not spill impacts. See SRST Reply at 26. As to the effects from a spill (as distinct from
the risk of a spill occurring), the EA’s discussion is minimal:
Concerns have been expressed regarding an inadvertent release reaching intake structures on Lake Oahe. Given the engineering design, proposed installation methodology, quality of material selected, operations measures and response plans[,] the risk of an inadvertent release in, or reaching, Lake Oahe is extremely low. While the locations of water intakes is not public information for disclosure in this document, there are private and/or non-tribal intakes closer to the Lake Oahe crossing than any intakes owned by the tribe; further demonstrating the lack of disproportionate impacts of an inadvertent release to the Tribe and the reservation. We understand that due to the rural nature of this area, tribal drinking water supplies are obtained from a combination of wells and surface area. The siting and construction of oil pipelines upstream of drinking water intakes is not uncommon throughout the United States and is not considered an Environmental Justice issue. In the unlikely event of a release, sufficient time exists to close the nearest intake valve to avoid human impact.
EA at 87. This limited analysis, the Court believes, is not enough to discharge the Corps’
environmental-justice responsibilities under NEPA.
“The purpose of an environmental justice analysis is to determine whether a project will
have a disproportionately adverse effect on minority and low income populations.” Allen v.
Nat’l Institutes of Health, 974 F. Supp. 2d 18, 47 (D. Mass. 2013) (quoting Mid States Coal. for
Progress v. Surface Transp. Bd., 345 F.3d 520, 541 (8th Cir. 2003)). The EA takes some steps
toward satisfying this purpose. It acknowledges that Standing Rock, a community with a high
percentage of minorities and low-income individuals, is based downstream of the Oahe crossing
and could be affected by an oil spill, and it observes — without providing any specifics — that a
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non-tribal community’s drinking-water intake is closer to the Oahe crossing than is Standing Rock’s. But these statements are not enough to reasonably support the conclusion that the Tribe will not be disproportionately affected by an oil spill in terms of adverse human health or environmental effects. See CEQ Guidance at 9.
The EA is silent, for instance, on the distinct cultural practices of the Tribe and the social and economic factors that might amplify its experience of the environmental effects of an oil spill. Id. at 9, 14. Standing Rock provides one such example in its briefing: many of its members fish, hunt, and gather for subsistence. See SRST MSJ at 41. Losing the ability to do so could seriously and disproportionately harm those individuals relative to those in nearby nontribal communities.
The Corps need not necessarily have addressed that particular issue, but it needed to offer more than a bare-bones conclusion that Standing Rock would not be disproportionately harmed by a spill. Given the cursory nature of this aspect of the EA’s analysis, the Court agrees with the Tribe that the Corps did not properly consider the environmental-justice implications of the project and thus failed to take a hard look at its environmental consequences. Once again, the remedy for such omission is considered in Section III.D, infra.
B. Decision to Grant the Easement The Tribe’s second set of arguments centers around the Corps’ February 8, 2017, decision to grant an easement to Dakota Access to construct and operate DAPL under Lake Oahe. As a reminder, the Corps had previously said, in a memo issued on December 4, 2016, that it would not grant such an easement based on the current record and would undertake additional analysis before making a final decision. Standing Rock first contends that the Corps’ February 2017 easement decision was an arbitrary and capricious reversal of its previous
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position. It also asserts that the decision was in conflict with the Corps’ trust-responsibility obligations. The Court addresses each in turn.
1. Policy Change When an agency action changes or reverses a prior policy, it must “display awareness that it is changing position”; it may not, e.g., “depart from a prior policy sub silentio.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). It also “must show that there are good reasons for the new policy.” Id. Generally, however, those reasons need not be better than the reasons for the old policy. To satisfy the APA’s procedural-correctness requirements, it is sufficient “that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Id. Sometimes, though, more is required. If the “new policy rests upon factual findings that contradict those which underlay its prior policy,” the agency must “provide a more detailed justification than what would suffice for a new policy created on a blank slate,” for “[i]t would be arbitrary and capricious to ignore such matters.” Id.; see also id. at 537 (Kennedy, J., concurring) (“[A]n agency's decision to change course may be arbitrary and capricious if the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so. An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”). The agency need not, though, “refute the factual underpinnings of its prior policy with new factual data.” United States Sugar Corp. v. Envtl. Prot. Agency, 830 F.3d 579, 626 (D.C. Cir. 2016), on reh’g en banc in part No. 11-1108, 2016 WL 7427434 (D.C. Cir. Dec. 23, 2016), and on reh’g en banc, 2016 WL 7427453 (D.C. Cir. Dec. 23, 2016). It is enough that it offer a
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“reasoned explanation . . . for disregarding facts and circumstances that underlay . . . the prior policy.” Fox, 556 U.S. at 516.
Standing Rock argues that the Corps’ decision to grant the easement on February 8, 2017, was a reversal of the decision announced in the December 4, 2016, memorandum. Because the Corps “failed to address, let alone provide a reasoned explanation for, abandoning the determinations undergirding its December 4 decision to require an EIS,” the Tribe contends, its action was arbitrary and capricious. See SRST MSJ at 36.
In response, the Corps and Dakota Access first argue that Fox simply does not apply: the decision to grant the easement was not a change in policy because the Corps had never denied the easement in the first place. See Corps SRST MSJ at 34; DA SRST Opp. at 32. That position, however, mischaracterizes the Tribe’s argument. Standing Rock does not assert that the Corps previously denied the easement; indeed, it could not plausibly do so. Assistant Secretary Darcy clearly stated in her December 4 memo: “To date, the Army has not made a final decision on whether to grant the easement.” Dec. 4 Memo, ¶ 6. Instead, Standing Rock’s argument is that the Corps announced on December 4 that it would “not grant an easement to cross Lake Oahe at the proposed location based on the current record” — as “additional analysis, more rigorous exploration and evaluation of reasonable siting alternatives, and greater public and tribal participation and comments” were merited, id., ¶ 12 (emphases added) — but nonetheless granted the easement on February 8 without having undertaken such additional analysis. The reversal, then, is the decision to grant the easement on the current record — i.e., as it stood on December 4 — when the Corps had previously said it would not do so. This, the Tribe believes, was arbitrary and capricious. Standing Rock does not, it clarifies in its Reply, assail the withdrawal of the notice of intent to prepare an EIS. See SRST Reply at 30 n.24.
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The Corps’ reversal plainly constituted a change in “official policy.” See, e.g., Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 682 (9th Cir. 2016) (applying Fox to policy change in agency’s approach to assessing foreseeable threats to endangered species triggered by internal agency memorandum); Sierra Club v. Bureau of Land Management, 786 F.3d 1219, 1226 (9th Cir. 2015) (explaining Fox did not apply to an agency’s “evolving analysis” that “was not a change in a published regulation or official policy”); Loving v. I.R.S., 742 F.3d 1013, 1021 (D.C. Cir. 2014) (suggesting Fox applies where initial policy was articulated via testimony to Congress and guidance document — i.e., not final agency actions — and policy change was accomplished via rulemaking). As the decision to grant the easement on the record as of December 4 did not rest on new factual findings not relied upon by Darcy or ignore or countermand prior factual findings absent reasoned explanation, the Corps need only have shown good reasons for its new policy. Taking Fox’s framework into account, the Court concludes that the Corps here satisfied its dictates.
First, the Corps displayed “awareness that it [was] changing position.” Fox, 556 U.S. at 515. The February 3, 2017, memo from the Corps’ Lieutenant General that recommended granting the easement acknowledged that Darcy had previously “directed the Corps to engage in additional review and analysis concerning” alternative locations, the potential risk of an oil spill and potential impacts to the Tribe, and the Tribe’s treaty rights, but explained that, “[a]fter reviewing the record in its entirety and giving further consideration to the input received over the past four months, including additional review and analyses of the subjects identified by [Darcy], other federal executive offices, and the SRST, the Corps finds that the Final EA concerning the crossing of the DAPL at Lake Oahe is sufficient and does not need further supplementation.” Semonite Memo at 9, 11.
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Second, the Corps provided a reasoned explanation for its new policy. Darcy’s memo affirmed that “the Corps’ prior reviews and actions” — including the EA and FONSI — “comported with legal requirements.” Dec. 4 Memo, ¶ 15. Her “policy decision” that “a more robust analysis of alternatives [could] be done and should be done” was “based on the totality of the circumstances” — namely, “the specific mandates of the Mineral Leasing Act (30 U.S.C. § 185), the involvement of historic tribal homelands, the close proximity to reservation lands that extend into the potentially affected waters, and the potential impacts on treaty hunting and fishing rights.” Id. In reversing course, the Corps started from the same premise as Darcy — viz., that the EA and FONSI satisfied NEPA’s requirements. See Semonite Memo at 10. It then explained that the EA “fully informed . . . the decision on whether to grant an easement under the Mineral Leasing Act.” Id. Supplementation of an EA or EIS, it noted, is required by CEQ NEPA regulations only when there are “substantial changes in the proposed action that are relevant to environmental concerns” or when “significant new circumstances or information relevant to environmental concerns” emerge after an EA or EIS is final. Id. at 11 (quoting 40 C.F.R. §§ 1502.9(c)(1)(i), (ii)).
Here, the proposed action described in the EA did not change between July 2016 and February 2017. Id. The Corps also concluded that no new significant circumstances or information relevant to environmental concerns, including the federal government’s trust relationship to the Tribe, the Corps’ analysis of alternatives, risks from oil spills, and the impact of a spill on the Tribe’s Treaty rights and water intakes, had emerged since the EA was finalized. It did so by comparing the various letters received from the Tribe after the EA was issued, including its expert report, with comments the Tribe previously submitted on the Draft EA, as well as by looking at the Corps’ analysis in the Final EA, the subsequent review memos, and the
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36 special conditions imposed on the easement. Id. at 11-13. In response to the Interior Solicitor’s memo “address[ing] a series of issues rooted in the perceived risk that the DAPL would leak into Lake Oahe,” the Corps explained that, as set out in the EA and Cooper Memo, the risk of a spill was low and was further mitigated by the easement conditions. Id. at 13.
By explaining why it was not compelled by the Tribe’s letters, the Interior Solicitor’s Opinion, or the Corps’ post-EA reviews to supplement the EA — which Darcy did not dispute was legally sound — the Corps did enough to satisfy the APA’s requirements regarding policy reversals.
2. Trust Responsibilities In addition to challenging the decision to grant the easement as an arbitrary-andcapricious reversal of prior agency policy, Standing Rock contends that this and other authorizations to cross Lake Oahe violate the Corps’ trust responsibility to protect the Tribe’s Treaty rights. This trust responsibility, the Tribe argues, is “even higher than the one imposed by NEPA.” SRST MSJ at 39. In other words, “compliance with general environmental statutes” is not sufficient “to discharge [the Corps’] trust duty”; a greater fiduciary duty is required. See SRST Reply at 34. As best the Court can tell from the briefing, the Tribe argues that the Corps’ failure to act in accordance with its trust-responsibility obligations renders the granting of the easement arbitrary and capricious under the APA. See SRST MSJ at 35-43 (situating discussion of Treaty rights under heading stating “The Granting of the Easement and Other Corps Authorizations is Arbitrary, Capricious, and Contrary to Law”); SRST Reply at 30-34 (similar). Whether that is so or Plaintiff intends to also state a separate breach-of-trust action, see ECF No. 106-1 (SRST First Amended Complaint), ¶¶ 266-285 (stating separate claims for relief for breach of trust
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responsibility and violation of APA), Standing Rock’s position comes up short for the same reason.
According to the Tribe, to fulfill its trustee duties, the Corps needed to “have before it a full and comprehensive understanding of how the project impacts treaty rights and tribes.” SRST MSJ at 40. It did not so have here, the Tribe asserts, because it “assumed oil spills will never happen and on that basis refused to consider the impacts of an oil spill on the Tribe’s Treaty rights and resources.” Id. Standing Rock further argues that the Corps did not fulfill its fiduciary obligation to share information about the project, as it withheld from the Tribe the spill assessment, spill-response plans, and environmental-justice and route analyses. Id. at 41-42.
The problem for Standing Rock, however, is that “[t]he trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 165 (2011). To bring a breach-of-trust claim, the Tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” United States v. Navajo Nation, 537 U.S. 488, 506 (2003). Standing Rock asserts that “[t]he federal government has a duty, arising from the Treaties and the federal trust responsibility, and reinforced in the MLA and other statutes, to protect treaty rights and resources,” but it does not point in its Motion to a specific statute, treaty, executive order, or other provision that gives rise to specific fiduciary duties. See SRST MSJ at 39. In its Reply, the Tribe cites Section 185(h)(2)(D) of the Mineral Leasing Act, which provides that the Corps, “prior to granting a right-of-way or permit . . . for a new project which may have a significant impact on the environment,” shall impose “requirements to protect the interests of individuals living in the general area of the right-of-way or permit who rely on the fish, wildlife, and biotic resources of
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the area for subsistence purposes.” 30 U.S.C. § 185(h)(2)(D); see SRST Reply at 36. Yet that provision does not contain any trust or fiduciary language, and, in any case, the Corps imposed such conditions on the easement. See Easement at 37-43. “Without an unambiguous provision by Congress that clearly outlines a federal trust responsibility, courts must appreciate that whatever fiduciary obligation otherwise exists, it is a limited one only.” N. Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C. Cir. 1980). “Thus, although the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998).
Standing Rock argues that the line of cases requiring a showing that the government owes a specific statutory fiduciary duty is limited to damages actions brought under the Indian Tucker Act, 28 U.S.C. § 1505, which waives sovereign immunity for certain claims brought by a tribe against the United States. That statute, it contends, does not apply here because “the APA establishes both the cause of action and waiver of sovereign immunity.” SRST Reply at 36. Recent Circuit precedent, however, undermines such a position.
In El Paso Natural Gas Company v. United States, 750 F.3d 863 (D.C. Cir. 2014), the D.C. Circuit considered, inter alia, claims by the Navajo Nation concerning environmental hazards at uranium, waste, and dump sites. As to the Tribe’s breach-of-trust cause of action, the court held that it had failed to state a claim for relief because it “ha[d] not identified a substantive source of law establishing specific fiduciary duties, a failure which [was] fatal to its trust claim regardless of whether [the court] read the claim as brought under the APA or under a cause of action implied by the nature of the fiduciary relationship itself.” Id. at 892. The Navajo Nation
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had argued that its breach-of-trust claim could “be maintained either (1) under the APA or (2) under a cause of action inferred from the fiduciary responsibilities undertaken by the Government.” Id. The D.C. Circuit concluded that, “[o]n either conception of the claim,” its inquiry would be “largely the same because, under controlling precedent, a cause of action will be inferred from a fiduciary relationship only where a plaintiff can identify specific trust duties in a statute, regulation, or treaty. And [that] analysis overlaps with the APA’s requirement that a plaintiff allege ‘that an agency failed to take a discrete agency action that it is required to take.’” Id. (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)).
To explain that conclusion, the court addressed the Supreme Court’s case law concerning Indian trust claims and the law of the circuit. It stated, as this Court has above, “The existence of a general trust relationship between the Government and Indian tribes is long established. But this general trust relationship alone does not afford an Indian tribe with a cause of action against the Government . . . . Something more is needed.” Id. (citations omitted). It then explained, “[W]e apply these same principles” derived from “Indian trust claims arising in the context of the Indian Tucker Act” to “trust claims brought under the APA.” Id. at 892-93; see also id. at 895 (“These principles control here, even though the claim is for equitable relief (not money damages) and even though sovereign immunity is waived under § 702 of the APA (and not the Indian Tucker Act).” Indeed, it noted, the D.C. Circuit has “consistently relied on principles announced in Indian Tucker Act cases in trust cases not arising under the Act.” Id. at 895 (citing, e.g., Andrus, 642 F.2d at 611 (“[T]rust responsibility can only arise from a statute, treaty, or executive order.”); Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (reiterating that fiduciary relationship depends on substantive laws and stating that “the government’s obligations are rooted in and outlined by the relevant statutes and treaties”).
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This Court is bound by El Paso. It thus cannot accept the Tribe’s position that “[t]he Tucker Act line of cases has no bearing on the existence of a claim here,” SRST Reply at 36, or that of amici curiae that the APA affords broader trust enforcement than the statute. See ECF No. 137 (Amicus Brief of Assoc. of American Indian Affairs, et al.) at 8. Because Standing Rock has not identified a specific provision creating fiduciary or trust duties that the Corps violated, its breach-of-trust argument — whether considered a separate count or part of its larger APA cause of action — cannot survive.
C. NWP 12 Standing Rock’s final claim is that the Corps’ decision to issue a verification that the project complied with the terms of Nationwide Permit 12 was arbitrary and capricious. As the Court explained in a previous Opinion, the Rivers and Harbors Act forbids certain construction activities within the “navigable water of the United States” absent permission from the Corps. See Standing Rock I, 205 F. Supp. 3d at 12 (quoting 33 U.S.C. § 403). Because DAPL is, in part, a “structure . . . under . . . a navigable water of the United States,” 33 C.F.R. § 322.3(a), Dakota Access required a permit under Section 10 of the RHA. The Corps often authorizes such activities through a general, nationwide permit. Standing Rock I, 205 F. Supp. 3d at 10. Nationwide Permit 12, the general permit at issue here, authorizes “[a]ctivities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project.” Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012). On July 25, 2016, the Corps verified that the Oahe crossing would satisfy the terms and conditions of NWP 12.
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To qualify for NWP authorization, a permittee must comply with certain General Conditions. General Condition 17, for example, provides that “[n]o activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights.” 77 Fed. Reg. at 10,283. General Condition 7 states, moreover, that “[n]o activity may occur in the proximity of a public water supply intake, except where the activity is for the repair or improvement of public water supply intake structures or adjacent bank stabilization.” Id. The Tribe argues that because the Oahe crossing does not comply with these conditions, it does not qualify for NWP 12. See SRST MSJ at 43-44.
The Court, however, is already remanding on certain of these issues — e.g., Treaty rights and environmental-justice considerations — and the Tribe offers no other basis for concluding that the project does not comply with GCs 7 and 17.
The Corps, furthermore, asserts that it was not obligated to evaluate whether these General Conditions were satisfied prior to verifying that the project was authorized under NWP 12. See Corps SRST MSJ at 45 (citing Snoqualmie Valley Preservation Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155, 1164 (9th Cir. 2012) (“The nationwide permit system is designed to streamline the permitting process. We decline to impose a new requirement of a full and thorough analysis of each general condition based on documentation the Corps may or may not have.”)). Instead, it explains, “[A] permittee must adhere to the General Conditions to maintain eligibility for a Nationwide Permit.” Id. (citing 77 Fed. Reg. at 10,282). Standing Rock insists that it is not asking the Court to require the Corps to undertake an in-depth analysis of each General Condition prior to issuing an NWP 12 verification, but rather is simply demanding that the Corps give GCs some attention when faced with “abundant information.”
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SRST Reply at 43; see also id. (“While it need not necessarily conduct a ‘full and thorough’
analysis of each and every GC, it must deal with the information in front of it.”).
The Tribe, however, offers no case law to support its position. Other district courts in
this circuit, moreover, have articulated the Corps’ obligations as it presents them here. See
Sierra Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9, 27 (D.D.C. 2013) (“When a
prospective permittee files a pre-clearance notice [under the general permit process], the only
thing left to be done is for the Corps’s district engineers to verify that the planned project does,
in fact, fit within the category of activities that the Corps has already authorized.”). Given the
streamlining and efficiency goals behind the nationwide-permit program, this view makes sense:
[F]orcing the Corps to perform an extensive environmental review in the verification context under NWP 12 would (i) duplicate work already performed at the nationwide permit stage in pre-clearing this category of activities; (ii) contravene the purpose of the nationwide permit process; (iii) increase exponentially the documentation a permittee must submit to the Corps, including numerous items not specifically delineated as required documentation in the General Conditions; and (iv) multiply the delay and expense associated with verifications so as to render them functionally indistinguishable from individual permit decisions, thus collapsing two conceptually distinct regulatory processes into one.
Mobile Baykeeper, Inc. v. U.S. Army Corps of Eng’rs, No. 14-32, 2014 WL 5307850, at *15
(S.D. Ala. Oct. 16, 2014); see also id. at *16 (“[T]he Corps was not required to study compliance
with General Condition 7 before issuing NWP 12 verifications.”).
The Court thus agrees that the Corps need not have investigated compliance with General
Conditions 7 and 17 before issuing NWP verifications on the DAPL crossing at Lake Oahe, and
that its permitting decision was not arbitrary and capricious. This conclusion, however, does not
forever insulate the NWP 12 permitting decision from challenge. Dakota Access has a duty to
comply with these conditions if it wishes to maintain its eligibility for a Nationwide Permit.
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* * * To summarize its conclusions on Standing Rock’s claims, therefore, the Court finds that the Corps’ decision on July 25, 2016, and February 3, 2017, not to issue an EIS largely complied with NEPA. Yet there are substantial exceptions: the agency failed to adequately consider the impacts of an oil spill on Standing Rock’s fishing and hunting rights and on environmental justice, and in February 2017, it did not sufficiently weigh the degree to which the project’s effects are likely to be highly controversial in light of critiques of its scientific methods and data. D. Remedy So where does that leave us? The Court turns now to the question of remedy. The cure for the Corps’ NEPA violation is governed by the APA, which provides that the reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In this Circuit, vacatur is the “standard remedy” for a NEPA violation. Pub. Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 189 F. Supp. 3d 1, 2 (D.D.C. 2016) (quoting Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007)); see also Realty Income Tr. v. Eckerd, 564 F.2d 447, 456 (D.C. Cir. 1977) (“[W]hen an action is being undertaken in violation of NEPA, there is a presumption that injunctive relief should be granted against continuation of the action until the agency brings itself into compliance.”). In other words, the Court would vacate DAPL’s permits and easement, thus forcing it to cease operations until the Corps fully complied with the aforementioned NEPA requirements. Such a move, of course, would carry serious consequences that a court should not lightly impose. In fact, courts have discretion to depart from that presumptive remedy and decide not to vacate an EA, FONSI, and corresponding authorizations pending NEPA compliance. Allied-
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Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993). “The decision whether to vacate depends on ‘the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.’” Id. (quoting Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1990)). “[A] serious possibility that the [agency] will be able to substantiate its decision on remand” cautions in favor of remanding rather than vacating. Id. at 151.
Here, Standing Rock argues that “[v]acatur is the appropriate remedy,” SRST MSJ at 45, whereas Dakota Access counters that the Allied-Signal factors require remand without vacatur. See DA SRST Opp. at 44-45. These discussions, however, are quite brief, and the Corps never even addresses the issue. This is not surprising — absent knowledge of whether or to what extent the Court would remand, the parties were unable to fully address the Allied-Signal factors in their summary-judgment briefs. That mystery now solved, the Court will order the litigants to submit briefing on whether remand with or without vacatur is appropriate in light of the deficiencies herein identified and any disruptive consequences that would result given the current stage of the pipeline’s operation. As is set out in a contemporaneous Order, the Court will discuss the schedule of that briefing and the remand at an upcoming status conference to be held next week. IV. Analysis of Cheyenne River’s Claims
The Standing Rock Sioux are not the only Tribe at the table. The Court thus now turns to Cheyenne River’s Motion for Partial Summary Judgment and the Corps’ and Dakota Access’s Cross-Motions. Cheyenne River seeks summary judgment on four claims: (1) The Corps’ issuance of the Section 408 permit was arbitrary, capricious, and unlawful; (2) The Corps’
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issuance of the MLA easement was arbitrary, capricious, and unlawful; (3) The Corps’ issuance of both constituted a breach of trust responsibility; and (4) The Corps issued both in violation of its pre-decisional consultation duty.
Before addressing each of these separately, a few preliminaries: First, certain aspects of these claims have been addressed in the Standing Rock analysis above — namely, the sufficiency of the EA’s spill-risk analysis and the nature of the Corps’ trust responsibilities — and the Court will refer back to those conclusions rather than repeat them here. Second, in light of the principles regarding extra-record evidence in administrative-law cases discussed in Section III.A.1.a, supra, the Court will consider only documents created on or before July 25, 2016, when evaluating the Corps’ Section 408 decision and only documents created on or before February 8, 2017, when assessing the Corps’ easement decision.
A. Section 408 Decision Section 408 of the Rivers and Harbors Act makes it unlawful for a person to “take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, . . . or in any manner whatever impair the usefulness of any . . . work built by the United States, . . . in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods.” 33 U.S.C. § 408(a). The Corps “may,” however, permit the alteration, permanent occupation, or use of such public works when, in its judgment, such activity (1) “will not impair the usefulness of such work” and (2) “will not be injurious to the public interest.” Id. The Corps so concluded here. See ECF No. 183-9 (Section 408 Decision Package) at 6. Cheyenne River contends that those conclusions were arbitrary, capricious, and contrary to law. In evaluating that argument, the Court considers the two Section 408 factors separately.
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1. Impairment As to the first prong, the Corps’ objective “is to ensure that the proposed alteration will not limit the ability of the project to function as authorized and will not compromise or change any authorized project conditions, purposes or outputs.” ECF No. 73-15 (Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Eng’rs Civil Works Projects Pursuant to 33 USC 408, Engineering Circular 1165-2-216 ¶ 7.c.(4)(b)i. (2015)). To do so, “[a]ll appropriate technical analyses including geotechnical, structural, hydraulic and hydrologic, real estate, and operations and maintenance requirements, must be conducted and the technical adequacy of the design must be reviewed.” Id. If the Corps concludes “at any time . . . that the usefulness of the authorized project will be negatively impacted,” its inquiry ends. Id. To challenge the Corps’ decision that DAPL would not impair the ability of the Lake Oahe project to function as authorized and would not compromise or change any of its conditions, purposes, or outputs, the Tribe first points to 33 U.S.C. § 701-1(b), a provision of the Flood Control Act of 1944. Cheyenne River reads § 701-1(b) to establish that consumptive uses of Lake Oahe’s waters “may not be subrogated . . . to non-consumptive uses,” and that no activity with the potential to have an adverse effect on the water’s use — e.g., an oil pipeline with some potential to leak — may be lawfully authorized. See CRST MSJ at 11-12. Section 701-1(b), however, does not apply here. That provision provides:
The use for navigation, in connection with the operation and maintenance of such works herein authorized for construction, of waters arising in States lying wholly or partly west of the ninetyeighth meridian shall be only such use as does not conflict with any beneficial consumptive use, present or future, in States lying wholly or partly west of the ninety-eighth meridian, of such waters for domestic municipal, stock water, irrigation, mining, or industrial purposes.
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33 U.S.C. § 701-1(b) (emphasis added). As is clear from the statutory language, the provision applies to navigational uses of water, which DAPL is not. See also 33 U.S.C. § 701-1 (stating federal policy is to “limit the authorization and construction of navigation works to those in which a substantial benefit to navigation will be realized therefrom and which can be operated consistently with appropriate and economic use of the waters of such rivers by other users”) (emphasis added).
The Tribe next maintains that the Corps did not adequately consider the risk of an oil spill or the environmental impacts of the pipeline; as a result, it could not reasonably have concluded that DAPL would not impair the purposes of the Lake Oahe project. Cheyenne River asserts, for example, that the Corps failed to assess the risk of landslides after mitigation efforts, the effects of a landslide or earthquake, or the impacts of a spill on vegetation, recreation, water quality, or the Tribe’s water intake. See CRST MSJ at 16-18. It also points to the Missouri River Mainstem Reservoir System Master Water Control Manual, which explains that Congress “authorized the System to be operated for the purposes of flood control, navigation, irrigation, power, water supply, water quality control, recreation, and fish and wildlife.” Missouri River Mainstem Reservoir System Master Water Control Manual, U.S. Army Corps of Engineers (March 2006), § 1-02, http://www.nwd-mr.usace.army.mil/rcc/reports/mmanual/ MasterManual.pdf. Cheyenne River interprets the Manual to “make[] clear that the Corps lacks authority to approve an oil pipeline crossing of the Missouri River that could impair the beneficial consumptive uses of the river both present and future.” CRST MSJ at 12; see also id. at 14 (“The Master Manual does not provide any authorization to the Corps to permit the use of the Mainstem System for oil pipeline rights-of-way when they place any of the authorized purposes at risk.”).
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As the Court explained in Section III.A.1.b, supra, however, considering the record as of July 25, 2016, when the Corps issued the Section 408 permit, it had taken a hard look at the risk of an oil spill and provided sufficient explanation to support its conclusion that such a risk was low. The Corps’ July 2016 determination that the Lake Oahe project’s purposes would not be impaired by DAPL’s construction and operation was therefore not arbitrary or capricious. Nothing in the Manual mandates a different result.
2. Injurious to Public Interest As to the second prong, the Corps must compare “[t]he benefits that reasonably may be expected to accrue from” a proposed alteration or use of the federal project “against its reasonably foreseeable detriments.” Engineering Circular 1165-2-216 ¶ 7.c.(4)(b)ii. “If the potential detriments are found to outweigh the potential benefits, then it may be determined that the proposed alteration is injurious to the public interest.” Id. In making that evaluation, the Corps may consider factors such as “conservation, economic development, historic properties, cultural resources, environmental impacts, water supply, water quality, flood hazards, floodplains, residual risk, induced damages, navigation, shore erosion or accretion, and recreation.” Id. Cheyenne River raises two challenges to the Corps’ determination that permitting DAPL to cross under Lake Oahe would not be injurious to the public interest. First, the Tribe contends that it was improper for the Corps to consider “benefits to Dakota Access, the oil industry, and the economy generally” in assessing the public interest. See CRST MSJ at 20-21 (citing EA at 105-06 (stating that DAPL’s construction “would contribute more than $1 billion in direct spending” on materials and “$195 million in easement payments to landowners” with property crossed by the pipeline, and “would provide a benefit to local merchants and vendors” and
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“temporary employment opportunities to the local workforce”)). This argument fares poorly. The Corps’ Policy and Procedural Guidance on Section 408 expressly permits consideration of “economic development” in determining a proposed project’s benefits. See Engineering Circular 1165-2-216 ¶ 7.c.(4)(b)ii.
Second, the Tribe argues that the Corps did not explain how it “weighed the risks against the claimed benefit,” CRST Reply at 17, failed to consider the consequences from an oil spill, see CRST MSJ at 18-19, did not adequately consider landslide risk or the impacts of a spill on vegetation or recreation, id. at 16-17, and never considered effects on Cheyenne River or its water intake. See CRST Reply at 18-19. This argument gains more traction because, as the Court previously explained, see Sections III.A.1.c, III.A.2.b., supra, the Corps’ assessment of the impacts of a spill, although largely adequate, fell short as to fishing rights, hunting rights, and environmental justice. Because the Corps must submit its assessment of those impacts upon remand, see Section III.D, supra, the Court will await receipt of such information to decide whether the agency’s conclusion that DAPL will not be injurious to the public interest was arbitrary and capricious.
3. Other Arguments Finally, in addition to its arguments regarding the impairment and public-injury prongs, Cheyenne River asserts that the Corps’ spill-risk and spill-impact conclusions were cursory, that the permit should not have been granted absent an EIS, and that the Corps did not satisfy its obligation to independently review the EA. See CRST MSJ at 2, 10, 18-21. The Court has already addressed the first two of these points. See Sections III.A.1, III.A.2, III.B.1, supra. As to the third, it is not persuaded.
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CEQ regulations permit an applicant — here, Dakota Access — to prepare the EA as long as the agency independently evaluates the information submitted, “make[s] its own evaluation of the environmental issues[,] and take[s] responsibility for the scope and content of the environmental assessment,” including its accuracy. See 40 C.F.R. § 1506.5(a)-(b). Here, the EA states that it was “prepared in accordance with” those regulations, and that the Corps “independently evaluated and verified the information and analysis undertaken in this EA and takes full responsibility for the scope and content contained herein.” EA at 1. The record supports this assertion.
First, the Corps provided ample input to Dakota Access on the proper EA drafting procedure and on its substance. See ECF No. 183-3 (Email from Brent Cossette to Corps & Dakota Access Personnel, Mar. 5, 2015) (announcing start of “routine bi-weekly meetings to discuss the status of the Dakota Access Pipeline project”) at 2; ECF No. 183-4 (Email from Brent Cossette to Monica Howard, Apr. 24, 2015) at 2 (advising Dakota Access that public and tribes had 30 days to submit comments, company had to address Corps’ comments, Corps could not grant Section 408 permit absent certain geotech investigation, and Corps could not issue decision regarding historical properties absent concurrence of North Dakota State Historic Preservation Office); ECF No. 183-5 (Email from Brent Cossette, Sept. 18, 2015) (soliciting comments from twenty-two Corps employees on Draft EA and associated plans); ECF No. 18312 (Email from Brent Cossette to Larry Janis, Corps, Recreation & Natural Resources Branch, May 6, 2016) (summarizing meeting with Dakota Access where Corps pushed company to use different spill-model data and disagreed with its assessment that potential impact to water intakes did not need to be in EA); ECF No. 183-11 (Email from Brent Cossette to Tom Sigauw & William Harlon, Dakota Access, May 11, 2016) (discussing need for sufficient information “to
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ensure no negative impacts on irrigation and water supply”); ECF No. 212-2 (ProjNet: Environmental Review of DAPL) (record of 178 comments from Corps); ECF No. 209-16 at 147-56 (EA Comment Matrix) (spreadsheet of Corps’ comments on Draft EA and Dakota Access’s responses); Section 408 Decision Package at 23 (confirming Dakota Access satisfactorily addressed geotechnical comments from Corps reviewers); ECF No. 183-10 (Geotechnical Investigation Package) at 13-16.
To illustrate the meaningful back-and-forth engagement between the Corps and Dakota Access about the EA’s content, the Court highlights one comment on the draft EA from the Corps and the exchange it sparked. In June 2015, a Corps official noted, “I did not see reference of a risk analysis for pipeline spills in the EA. Recommend inclusion of such analysis into the EA due to the size and scope of this transportation pipeline.” ECF No. 183-6 at 24 (Comment 6139320). After Dakota Access supplied the spill model for Lake Oahe, the Corps asked the company to “include booming strategies and collection points for worst case scenario discharges” and “where [it] would gain access via water for response.” Id. It also asked Dakota Access to show how spill volume and response times were calculated and to explain its plans for “cultural up front inspections/clearances at the control points.” Id. at 25. Several more comments, document submissions by Dakota Access, and telephone calls between the company and the Corps followed. Id. at 25-26. The Corps only considered the initial comment in May 2016, nearly a year later, after Dakota Access agreed to insert the requested risk analysis into the EA and to adopt certain mitigation measures. Id. at 27.
Ultimately, seventeen different Corps officers are listed as having been involved in the EA’s review, see EA at 126, and a range of Corps personnel reviewed the Section 408 application and certified that DAPL would not be injurious to Lake Oahe or the public interest.
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See Section 408 Decision Package at 2, 5. On this record, the Court concludes that the Corps met its responsibility to make its own evaluation of the environmental issues and take responsibility for the scope and content of the EA. See City of Roseville v. Norton, 219 F. Supp. 2d 130, 165-66 (D.D.C. 2002) (holding agency satisfied 40 C.F.R. § 1506.5(a)-(b) where record showed contractor worked with agency employees on EA and included “extensive copies of email communications between the agency staff discussing their comments on, and edits of, the EA”).
B. Easement Decision Cheyenne River’s next claim is that the Corps’ issuance of the easement was arbitrary, capricious, and inconsistent with the requirements of the Mineral Leasing Act, 30 U.S.C. § 185. This stance makes minimal headway. The Mineral Leasing Act was enacted by Congress in 1920 “to promote wise development of [the nation’s] natural resources and to obtain for the public a reasonable financial return on assets that ‘belong’ to the public.” Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1033 (D. C. Cir. 2008) (quoting California Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir. 1961)). It permits “appropriate agency head[s]” to grant “[r]ights-of-way through any Federal lands . . . for pipeline purposes for the transportation of oil . . . to any applicant possessing” the requisite statutory qualifications. See 30 U.S.C. § 185(a). The Tribe challenges the Corps’ decision to grant Dakota Access a right-of-way to cross Lake Oahe on the basis of three provisions in the MLA: (1) The Corps did not adequately analyze whether the easement would be “inconsistent with the purposes of the reservation,” as required by 30 U.S.C. § 185(b)(1), and instead simply cross-referenced its Section 408 approval; (2) The Corps failed to impose stipulations protecting the “interests of individuals living in the
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general area . . . who rely on the fish, wildlife, and biotic resources of the area for subsistence purposes,” as required by 30 U.S.C. § 185(h)(2); and (3) The Corps did not impose sufficient liability on Dakota Access, as required by 30 U.S.C. § 185(x). See CRST MSJ at 37-44; CRST Reply at 20-22. Each is discussed separately.
1. Section 185(b)(1) Section 185(b)(1) of the MLA provides that “[a] right-of-way through a Federal reservation” — i.e., federally owned or managed land, rather than a federal Indian reservation — “shall not be granted if the Secretary or agency head determines that it would be inconsistent with the purposes of the reservation.” 30 U.S.C. § 185(b)(1); see also Corps CRST MSJ at 22 n.11. Here, the reservation is the Lake Oahe project, and its “Congressionally-authorized purposes . . . include flood control, navigation, hydropower, recreation, water supply, and water quality.” Henderson Memo at 3. The Tribe contends that the Corps ran afoul of Section 185(b)(1) because it did not “articulate any rationale” for its conclusion that DAPL was consistent with the purposes of the Lake Oahe project and improperly relied on the documents and analysis from its Section 408 determination in undertaking its easement decision. See CRST MSJ at 40; Henderson Memo at 3 (explaining Corps’ easement decision was “supported by the Final EA . . . and various memoranda supporting the District Commander’s Section 408 approval”). But Cheyenne River cites no authority for the proposition that the Corps could not rely on its Section 408 decision in making its easement decision, and the Court can think of no reason why that would be so. While the approval procedures set out in the RHA and the MLA are not identical, compare 33 U.S.C. § 408 with 30 U.S.C. § 185 — a point acknowledged by the Corps in its briefing on Dakota Access’s now-dismissed cross-claim, see ECF No. 73 at 15-16, 21-22 — the inquiry concerning
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project impairment, injury to the public interest, and inconsistency with project purpose are certainly related and largely overlapping.
Cheyenne River also contends that any pipeline for which a right-of-way is sought that has the potential to have a high negative impact necessarily “is not ‘consistent’ with the authorized purposes” and cannot satisfy Section 185(b)(1). See CRST MSJ at 40. In other words, the MLA requires the Corps to reject every right-of-way application that poses any level of risk of serious harm because such risk renders the right-of-way inconsistent with the purposes of the federal project. The Court cannot accept this view, which is in direct tension with the text and purpose of the statute. The MLA expressly contemplates that agencies may grant rights-ofway through federal lands for pipelines used to transport “oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom.” 30 U.S.C. § 185(a). Such pipelines necessarily involve some level of risk; no reasonable engineer, scientist, or agency official could assert that a pipeline project — or any construction or transportation project, for that matter — involves absolutely zero risk. It would be nonsensical for Congress to have created a mechanism for granting rights-of-way for oil pipelines if that mechanism could never be used.
Last, in arguing that DAPL specifically is inconsistent with the purposes of the Lake Oahe project, the Tribe relies on its already-discussed position that the Corps failed to consider impacts on most of the Lake’s authorized purposes and underestimated the risks posed by the pipeline. Because the Corps did not adequately consider certain effects of a spill should one occur and because it did not, as of February 8, 2017, when it granted the easement, demonstrate that it had considered the degree to which DAPL’s effects are likely to be highly controversial, see Sections III.A.1.c, III.A.2.b, supra, the Court will reserve its ultimate conclusion on this issue until the Corps submits its additional analysis after remand.
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2. Section 185(h)(2)
The Tribe next turns to Section 185(h)(2), which instructs that the agency in charge of
granting the right-of-way
shall issue regulations or impose stipulations which shall include, but shall not be limited to: (A) requirements for restoration, revegetation, and curtailment of erosion of the surface of the land; (B) requirements to insure that activities in connection with the right-of-way or permit will not violate applicable air and water quality standards nor related facility siting standards established by or pursuant to law; (C) requirements designed to control or prevent (i) damage to the environment (including damage to fish and wildlife habitat), (ii) damage to public or private property, and (iii) hazards to public health and safety; and (D) requirements to protect the interests of individuals living in the general area of the right-ofway or permit who rely on the fish, wildlife, and biotic resources of the area for subsistence purposes.
30 U.S.C. § 185(h)(2). According to Cheyenne River, the Corps “ignore[d] the requirement to
protect the ‘interests of individuals living in the general area . . . who rely on the fish, wildlife,
and biotic resources of the area for subsistence purposes’” because the EA does not address
impacts of an oil spill on vegetation, recreational fishing, or land-based wildlife. See CRST MSJ
at 42 (quoting 30 U.S.C. § 185(h)(2)(D)); CRST Reply at 21.
The Corps, however, imposed several stipulations on the easement granted to Dakota
Access. See Easement, Exh. D (listing 36 special conditions). Those conditions relate to the
construction, operation, and maintenance of the pipeline in order to minimize the risk of a spill
and the effects from any spill that might occur. Id. For example, the Corps has required Dakota
Access to perform certain girth-weld and pressure-level tests; use specific pipe and field-joint
coatings; install mainline valves to be remotely controllable and equipped with automatic-
shutdown capabilities; install adequate pressure sensors; implement particular mitigation
measures to avoid impacts on soils; protect against overpressure in the pipeline; install a cathodic
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protection system within six months; perform interference and corrosion surveys within six months of DAPL’s entry into operation; patrol the pipeline at least twenty-six times per year; undertake specific training exercises; establish a storage facility for spill-response equipment; keep records of spill-response plans; and adopt all mitigation measures set out in the EA. Id.
By aiming to reduce the likelihood of an oil spill and to mitigate the impacts of a spill should one occur, these requirements clearly constitute “requirements designed to control or prevent . . . damage to the environment (including damage to fish and wildlife habitat)” and “to protect the interests of individuals living in the general area . . . who rely on the fish, wildlife, and biotic resources of the area for subsistence purposes.” 30 U.S.C. § 185(h)(2)(C)(i), (D). The Corps thus satisfied its responsibilities under 30 U.S.C. § 185(h)(2).
3. Section 185(x) Finally, the Tribe takes issue with the liability provisions set out in the easement. The easement provides that Dakota Access “shall be strictly liable to the United States for damage or injury which may arise from or be incident to” its activities under the easement, and it limits strict-liability damages to $10 million per incident. See Easement, ¶ 12(a), (b). Liability for damages in excess of $10 million is to be determined according to “ordinary rules of negligence.” Id., ¶ 12(b). The easement also contemplates liability to third parties — e.g., Standing Rock and Cheyenne River. It states: “The Grantee does hereby accept liability, if any, imposed by Federal and state statutes to third parties for injuries incurred in connection with the use and occupancy of the pipeline right-of-way.” Id., ¶ 12(c). Cheyenne River contends that these liability provisions are “an abdication of [the Corps’] fiduciary responsibility to protect the resources it pervasively regulates and controls,” CRST MSJ at 44, and inconsistent with the requirements of 30 U.S.C. § 185(x). See CRST Reply at 22.
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Setting aside the fiduciary-duty question, which the Court deals with in Section IV.C, infra, the Tribe is mistaken in believing that the Corps has run afoul of 30 U.S.C. § 185(x). That provision permits the Corps to “impose stipulations specifying the extent to which holders of rights-of-way and permits under [the MLA] shall be liable to the United States for damage or injury incurred by the United States in connection with the right-of-way or permit.” 30 U.S.C. § 185(x)(1). It further permits the Corps to “impose a standard of strict liability” and requires that if it does so, it must “include a maximum limitation on damages commensurate with the foreseeable risks or hazards presented.” Id. § 185(x)(2), (4).
The Corps has complied with these requirements. Although the Tribe asserts that “Dakota Access’[s] statistics on the cost of cleanup of oil spills in the Environmental Justice Considerations Memo to the Corps demonstrates that $10 million will not begin to cover the cost of a cleanup,” CRST Reply at 22 (citing ECF No. 203-1, Exh. BBB (Incident Rate Documents) at 3), that memo demonstrates just the opposite. It includes a table of PHMSA pipeline incidents between 1996 and 2015 in terms of number, fatalities, injuries, total cost in current-year dollars, barrels spilled, and net barrels lost. Between 1996 and 2015, there were 1,191 incidents with a total cost of $2,640,408,583, making the average cost per incident $2,216,968 — i.e., far less than $10 million. The $10 million strict-liability-per-incident figure, then, is certainly commensurate with the foreseeable risks or hazards presented by an oil pipeline running under Lake Oahe.
C. Trust Responsibilities Cheyenne River’s next claim is virtually identical to one pursued by Standing Rock: the Corps’ issuance of the Section 408 permit and the easement violated its trust responsibility to protect the Tribe’s treaty rights. Cheyenne River contends that several sources give rise to such
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a fiduciary obligation: the 1851 and 1868 Fort Laramie Treaties; the Oahe Taking Act, Pub. L. 83-776, 68 Stat. 1191-1193 (1954); Winters v. United States, 207 U.S. 564 (1908); the Master Water Control Manual, § 7-01.1 (explaining one of four objectives behind development of Missouri River Mainstem Reservoir System Water Control Plan was “to fulfill the Corps’ responsibilities to Federally recognized Tribes”); the Corps’ “pervasive[] and exclusive control over the Missouri River . . . and the entire project area”; 25 U.S.C. § 1632(a)(5) (“The Congress hereby finds and declares that . . . it is in the interest of the United States, and it is the policy of the United States, that all Indian communities and Indian homes, new and existing, be provided with safe and adequate water supply systems and sanitary sewage waste disposal systems as soon as possible.”); and 30 U.S.C. § 185(x)(1) (permitting federal agencies to impose stipulations specifying permit holder’s liability to United States for damage or injury incurred in connection with permit). See CRST MSJ at 5, 31-33, 35. None of these sources, however, establishes specific fiduciary or other duties. Cheyenne River’s breach-of-trust cause of action thus meets the same fate as Standing Rock’s. See Section III.B.2., supra.
D. Consultation Last, Cheyenne River argues that the Corps violated various duties when it granted the Section 408 permit and easement absent the requisite pre-decisional tribal consultation. See CRST MSJ at 22-30. Whereas Standing Rock — joined by Cheyenne River — brought a failure-to-consult claim in its preliminary-injunction motion under Section 106 of the National Historic Preservation Act, which requires a federal agency to consult with Indian tribes that attach cultural or religious significance to property affected by the agency’s “undertakings,” Standing Rock I, 205 F. Supp. 3d at 7-8, Cheyenne River here takes a different tack. Instead of
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relying on the NHPA, it invokes Department of Defense Instruction 4710.02 and NEPA’s implementing regulations.
The Defense Instruction sets out “procedures for DoD interactions with federallyrecognized tribes” and requires all organizational entities in the Department — e.g., the Corps — to “involve tribal governments early in the planning process for proposed actions that may have the potential to affect protected tribal rights, land, or resources.” Department of Defense Instruction 4710.02 (2006), §§ 1, 6.6, http://www.dtic.mil/whs/directives/corres/pdf/ 471002p.pdf. “Early involvement,” the Instruction explains, “means that a tribal government is given an opportunity to comment on a proposed action in time for the tribal government to provide meaningful comments that may affect the decision.” Id. § 6.6. If an action “ha[s] the potential to significantly affect protected tribal resources, tribal rights, or Indian lands,” the agency is to “[c]onsult with federally-recognized tribal governments on a government-togovernment basis.” Id. § 5.3.4 (emphasis added); see also id. §§ 6.1-6.5. Similarly, NEPA’s implementing regulations require agencies to “consult[] early with appropriate State and local agencies and Indian tribes and with interested private persons and organizations” when actions are planned by private applicants. See 40 C.F.R. § 1501.2(d)(2). Based on the record of communication between the Corps and Cheyenne River in the lead-up to the EA’s publication in July 2016, the Court concludes that the Corps did endeavor to consult early with the Tribe and gave it the opportunity to offer meaningful comments on the proposed crossing at Lake Oahe. It thus need not address the Corps’ alternative contention that the DoD Instruction and NEPA’s implementing regulations do not impose binding consultation duties. See Corps CRST MSJ at 39.
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The Corps first contacted Cheyenne River about DAPL in October 2014, when it sent a letter with information about proposed soil borings and maps illustrating portions of the pipeline and nearby cultural sites. See ECF No. 185-1, Exh. MM (Form Letter from Corps, Oct. 24, 2014); ECF No. 185-1, Exh. NN (Letter from Steve Vance to Richard Harnois, Aug. 17, 2015) (acknowledging receipt of Corps’ October 2014 letter); EA at 80. The letter invited “comments or concerns regarding this project” within 30 days, see Form Letter, but Cheyenne River did not respond until March 23, 2015, when the Corps’ Regulatory Project Manager in the South Dakota Regulatory Office spoke with Steve Vance, Cheyenne River’s Tribal Historic Preservation Officer, by phone. See Standing Rock II, 2017 WL 908538, at *5; ECF No. 218-2 at 154 (Email from Jeff Breckenridge, Regulatory Project Manager, South Dakota Regulatory Office, to Corps Personnel, Mar. 23, 2015). Vance stressed the Tribe’s request for formal consultation, involvement in the NHPA Section 106 process, and ability “to review any EA’s/NEPA documentation for the project.” Id. Several months then passed, however, without any comments submitted from Cheyenne River.
Richard Harnois, the Corps’ Senior Field Archaeologist, spoke with Vance on August 17, 2015, to “express[ his] concerns that [the Corps] had gotten no comments back yet.” ECF No. 183-15 (Richard Harnois Notes, Aug. 17, 2015). Vance explained that he had been “promoting a coordinated response from the tribes through SRST,” but Harnois encouraged the Tribes to respond individually, as “the way [the Corps] see[s] it, each response is like a vote — the more the better.” Id. Vance committed to submitting a letter and requested an onsite meeting with “all of the interested tribal parties to inspect the crossing alignment and initiate a discussion of the pipeline as a whole.” Id. His letter, sent that same day, acknowledged the “opportunity to comment [on] the proposed Dakota Access Pipeline . . . project,” asked whether Standing Rock’s
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previously submitted questions and comments had been addressed, and expressed concerns about, inter alia, impacts of DAPL on birds, fish, and wildlife, as well as pipeline corrosion, faulty welding, and oil spills. ECF No. 183-14 (Letter from Steve Vance to Richard Harnois, Aug. 17, 2015). Julie Price, Manager of the Corps’ Cultural Resource Program, later followed up with Vance to thank him for his letter and inform him that a copy of the Draft EA would be “distributed for Tribal . . . comments in mid-December, 2015.” ECF No. 183-17 (Letter from Julie Price, Manager, Cultural Resource Program, Corps, to Steve Vance, Nov. 19, 2015).
Around the same time Harnois was reaching out to Vance, Col. John Henderson, the Corps’ Omaha District Commander, sent a letter to Harold Frazier, Cheyenne River’s Chairman. See ECF No. 218-2 at 14-16 (Letter from John Henderson to Harold Frazier, Sept. 3, 2015). Henderson described the DAPL project and explained that the purpose of his letter was “to initiate Section 106 consultation and review, determine [Frazier’s] interest in consulting, . . . and to gather information that will assist the Corps in identifying historic properties.” Id. at 14. He also noted that DAPL was “currently working to obtain the necessary easements for crossing federal lands, as well as” authorization under Section 408 of the RHA, and advised Frazier that “consultation on the project has also been initiated as part of the Corps Section 408 review process for the areas located on Corps Project Lands.” Id. at 16. Henderson requested “engagement and/or comments by September 30, 2015,” and supplied the contact information for three different Corps officials. Id.
Martha Chieply, the Corps’ Regulatory Chief for the Omaha District, sent a follow-up letter to Frazier at the end of November 2015 to notify him of an NHPA Section 106 consultation meeting that was to be held on December 8-9, 2015, in Sioux Falls, South Dakota. See ECF No. 183-18 (Letter from Martha Chieply to Harold Frazier, Nov. 20, 2015). She also emphasized the
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Corps’ interest in hearing from the Tribe about “any culturally significant concerns that may affect” areas within the Corps’ jurisdiction along the pipeline’s route. Id.
When the Corps released the Draft EA on December 8, 2015, it sent a notification to the Tribe and requested comments by January 8, 2016. See ECF No. 185-1, Exh. VV (Declaration of Jonathan Shelman, Environmental Resource Specialist, Corps, Aug. 18, 2016), ¶ 8; EA at 1.
Shortly thereafter, Vance attended the December consultation meeting, at which five Corps officials and Dakota Access personnel were present. See ECF No. 183-25 (Dakota Access Tribal Consultation Meeting Roster, Dec. 8, 2015); ECF No. 218-1 at 108 (DAPL Tribal Consultation Meeting Agenda); ECF No. 218-1 at 111 (Dakota Access Tribal Consultation Meeting, Dec. 8, 2015). According to the Corps’ “[s]ummary of meeting results,” Dakota Access agreed to provide the Tribes with inadvertent-discovery plan drafts and “information related to spill response plans” by December 18, and the Tribes agreed to review the data within 30 days. See ECF No. 218-1 at 112 (Email from Joel Ames, Tribal Liaison, Corps, to Corps Personnel, Dec. 10, 2015).
Vance then attended two more meetings — one on January 25, 2016, and one on February 18-19, 2016, held at Ponca Tribal Headquarters. See ECF No. 185-1, Exh. DD (Declaration of Martha Chieply, Aug. 18, 2016), ¶¶ 21-22. Cheyenne River maintains that “[t]he January and February 2016 meetings were . . . Section 106 meetings only,” CRST Reply at 41, but the agenda for the February meeting lists a “Section 408 and Draft EA Update” to be given by “Brent Cossette, Omaha 408 Coordinator.” ECF No. 218-2 at 1 (DAPL Tribal Consultation Agenda, Feb. 18-19, 2016). A transcript from that meeting confirms that the Corps’ role under Section 408 and concerns relating to that permit were discussed. See ECF No. 143-1 (Transcript of DAPL Meeting, Feb. 18-19, 2016) at 1, 4. Vance also used that meeting to communicate to
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the Corps the Tribe’s preference that the agency undertake an EIS rather than an EA, see ECF No. 183-26 (Tribal Consultation Meeting Notes, Feb. 18-19, 2016), and its concerns about DAPL’s impact on water quality, fish, and birds. See Transcript of DAPL Meeting at 3-4.
After that meeting, Chieply and two other Corps personnel “agreed to meet again” with Standing Rock and Cheyenne Rock together, as Vance and Standing Rock’s Tribal Archaeologist “wanted to discuss specific cultural resource issues of importance to their Tribes.” Chieply Decl, ¶ 24. As a result of concerns Standing Rock expressed at that meeting regarding certain tribal cultural resources, including burial sites, at the James River crossing, the Corps successfully urged Dakota Access to move the pipeline’s route to avoid them. Id.
In addition to those meetings, the Corps vainly tried for several months to contact and meet with Chairman Frazier. In response to a voicemail Frazier left for Joel Ames, the Corps’ Tribal Liaison, on February 8, Ames left several phone messages with Frazier’s secretary, called his cell phone, sent multiple emails, and even asked Vance and the Tribe’s Vice Chairman for help, all to no avail. See ECF No. 183-22 (Emails from Joel Ames to Harold Frazier, Feb. 22 – Mar. 7, 2016) (listing five emails from Corps to Frazier requesting phone call); ECF No. 185-1, Exh. EE (Declaration of Joel Ames, Aug. 18, 2016), ¶¶ 23-24 (describing repeated attempts to return Frazier’s Feb. 8, 2016, voicemail), ¶ 26 (explaining how, in response to Vance’s request that the Corps consult with Cheyenne River, he told Vance of his efforts to contact Frazier, and Vance “agreed to help make it happen”); ECF No. 218-1 at 292 (Emails between Julie Price and Larry Janis, Mar. 3, 2016) (discussing Price’s communications with Vance and Frazier’s secretary to arrange meeting with Frazier); ECF No. 185-1, Exh. QQ (Email from Joel Ames to Corps Personnel, May 9, 2016) (stating Ames had recently met Cheyenne River’s Vice Chairman and communicated that he was trying to reach Chairman Frazier to arrange meeting).
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On May 6, Henderson sent an email to Frazier explaining that the Corps had “been unsuccessful in identifying any potential meeting dates” with the Tribe and expressing his desire “to meet to discuss not only the DAPL project, but any other topics you may want to discuss.” ECF No. 183-21 (Letter from John Henderson to Harold Frazier, May 6, 2016).
Vance sent two letters to the Corps in May that articulated concerns about DAPL’s impact on the Tribe’s historic sites, expressed frustrations with the lack of consultation to date, and repeated Standing Rock’s comments that the draft EA was “insufficient for oil pipelines” and an EIS should be completed. See ECF No. 185-1, Exh. II (Letter from Steve Vance to Richard Harnois, May 2, 2016); ECF No. 183-19 (Letter from Steve Vance to John Henderson, May 19, 2016). Frazier, however, did not respond to the Corps’ repeated outreach efforts until June, when he sent a letter stating that it had not initiated the requisite consultation and that the draft EA insufficiently analyzed DAPL’s impact on the Tribe’s cultural resources and historic sites and did not contain “proper environmental analysis.” ECF No. 183-20 (Letter from Harold Frazier, June 3, 2016). The Corps responded to these letters with “recent Question and Answer summar[ies]” from recent consultation meetings that addressed, inter alia, actions the Corps was considering regarding DAPL, its expected decisionmaking timeline, and the impact of HDD on cultural resources. See ECF No. 183-23 (Letter from Martha Chieply to Steve Vance, June 13, 2016); ECF No. 185-1, Exh. JJ (Letter from John Henderson to Harold Frazier, June 22, 2016).
When the Corps published the EA in July 2016, it included an appendix with the various comments received in response to the public notice of the Draft EA. See ECF No. 172-4 (Appendix J) at 38-58. No comments from Cheyenne River appear in the appendix, and the EA does not list Cheyenne River as a consulting party on the EA. See EA at 111-14 (list of “all individuals and agencies consulted during preparation of the EA”). On this point, the Court must
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briefly digress from its review of the communication between the Corps and the Tribe. Cheyenne River protests its exclusion from Appendix J “even though the Corps received comments from the Tribe” as evidence of “the length to which the Corps went to exclude the Tribe from its analysis.” CRST MSJ at 29. Rather than responding, as Dakota Access did, that the Tribe did not submit any timely comments to the Draft EA, but rather sent letters much later, see DA CRST MSJ at 2, 5, the Corps puzzlingly accuses Cheyenne River of misstating the facts. “Appendix J explicitly states Cheyenne River provided comments and also states those comments,” it asserts. See Corps CRST MSJ at 35 n.18. But the Corps cites to comments from Northern Cheyenne, an entirely different tribe. See CRST Reply at 43 n.19. The Court trusts this error is simply a clerical oversight, albeit one with unfortunate connotations regarding how distinct Tribes may be perceived.
Appendix J confusion aside, the record clearly indicates that the Corps solicited Cheyenne River’s views on the DAPL project well before publishing the EA and issuing the Section 408 permit and easement, and communicated regularly with Vance and Frazier via phone calls, letters, and in-person meetings. These actions were sufficient to satisfy the early-comment and consultation goals articulated in the Defense Department Instruction and NEPA’s implementing regulations.
Cheyenne River’s protests to the contrary do not persuade the Court otherwise. First, the cases on which the Tribe relies to demand a more robust consultation process rest on federal statutes governing the Bureau of Indian Affairs’ consultation responsibilities and the NHPA’s Section 106 substantive-consultation requirements, not the DoD Instruction and NEPA. See CRST MSJ at 23-24, 27-28 (citing Wyoming v. Dep’t of Interior, 136 F. Supp. 3d 1317, 1345-46 (D. Wyo. 2015), vacated and remanded sub nom. Wyoming v. Sierra Club, No. 15-8126, 2016
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WL 3853806 (10th Cir. July 13, 2016); Cheyenne River Sioux Tribe v. Jewell, 205 F. Supp. 3d 1052, 1057-58 (D.S.D. 2016); Quechan Tribe of Fort Yuma Indian Reservation v. Dep’t of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010); Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774, 784 (D.S.D. 2006)).
The Tribe also argues that many of the contacts from the Corps were focused on the protection of cultural, religious, and historic sites implicated by Section 106 of NHPA and thus cannot “constitute consultation on the impact of DAPL on trust and treaty resources under NEPA.” CRST MSJ at 30; see also CRST Reply at 40. The Corps, however, repeatedly invited the Tribe to share comments on the project that went beyond Section 106 concerns. And NHPA’s implementing regulations encourage federal agencies “to coordinate compliance” with Section 106 and NEPA. See 36 C.F.R. § 800.8(a)(1); see also id. (“Agencies should consider their section 106 responsibilities as early as possible in the NEPA process, and plan their public participation, analysis, and review in such a way that they can meet the purposes and requirements of both statutes in a timely and efficient manner.”); Apache Survival Coal. v. United States, 21 F.3d 895, 906 (9th Cir. 1994) (“NHPA’s implementing regulations contemplate that NEPA and NHPA review should be integrated closely.”).
Cheyenne River further maintains that the Corps made its decision on the Section 408 permit long before the EA was published, thus truncating the time period for meaningful comment. See CRST MSJ at 24-25. Its support for that proposition is wanting. The Tribe relies, for example, on a December 10, 2015, memorandum from the Chief of the Corps’ Geotechnical Engineering and Sciences Branch that it characterizes as “sign[ing] off” on the permit, and points to the lack of comments from the Water Control and Water Quality Branch on the draft EA and the absence of a “Record of Decision for the Recreation and Natural Resource
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Branch.” Id. at 24-25. The cited memo, however, simply explains that the thirteen “geotechnical comments . . . generated during the technical review” had been “satisfactorily addressed by the Engineer-of-Record, Dakota Access LLC and GeoEngineers” and so “were closed out.” ECF No. 209-10 at 73. In direct conflict with the Tribe’s early-decision claim, it states: “The comments herein pertain only to the geotechnical and flowable easement issues related [to] HDD and Geotechnical investigations in the floodway and do not constitute USACE approval of any permits that may be required.” Id. (emphasis added). The Water Quality Branch, moreover, did review the Lake Oahe crossing. See Section 408 Decision Package at 1.
The Tribe last argues that it could not have been adequately consulted prior to the permitting decisions because the Corps did not provide it with the Scoping Comments in Appendix J or the environmental-justice-considerations memo until December 2016, and it did not release the Spill and Analysis and Facility Response Plans to the Tribe’s experts until February 2017. See CRST MSJ at 28; CRST Reply at 40. As the Court has previously explained, however, some of those documents were appropriately withheld from public disclosure. Standing Rock III, 2017 WL 1316918, at *5-6. More important, Cheyenne River does not explain how lacking access to those documents hindered its ability to meaningfully comment and consult on the EA when it was given access to the draft several months before the final version was published and offered repeated access to Corps personnel.
* * * In sum, then, the Court reaches the same decision on Cheyenne River’s claims as it did on Standing Rock’s. Aside from the discrete issues that will be the subject of remand, the Court concludes that the Corps complied with its statutory responsibilities. In addition, it will similarly
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permit Cheyenne River to participate in the briefing on vacatur pending remand, as set forth in Section III.D, supra. V. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part Standing Rock’s Motion for Partial Summary Judgment and grant in part and deny in part the Corps’ corresponding Cross-Motion for Partial Summary Judgment. The Court also will deny in part Cheyenne River’s Motion for Partial Summary Judgment and defer a decision on those claims that may be affected by the remand ordered in response to Standing Rock’s Motion. It accordingly grants in part the corresponding Cross-Motions for Partial Summary Judgment from the Corps and Dakota Access. A contemporaneous Order so stating will issue this day.

Date: June 14, 2017

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:16-cv-01534-JEB Document 284 Filed 10/11/17 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and
CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor and CrossClaimant.

Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-1769 and 16-267)

MEMORANDUM OPINION The dispute over the Dakota Access Pipeline has now taken nearly as many twists and turns as the 1,200-mile pipeline itself. On June 14, 2017, in its third Opinion on the case, this Court held that the U.S. Army Corps of Engineers had failed to fully follow the National Environmental Protection Act when it determined that the pipeline would not have a significant environmental impact. Although the Court found that the agency had “substantially complied” with the statute, the Opinion identified three discrete deficiencies in the Corps’ analysis and
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remanded the matter to the agency for further evaluation. In doing so, the Court asked the parties to submit further briefing on the question such an action raised: what is the proper remedy during this remand period? Specifically, the Court must determine whether or not to vacate the Corps’ environmental assessment, as well as the easement granted to Dakota Access in reliance on that determination. Without such an easement, the oil cannot flow through the pipeline.
The propriety of vacatur during remand is determined by a two-prong test that requires the Court to consider (1) the seriousness of the deficiencies in the agency action and (2) the disruptive consequences of vacating that prior approval. As to the first, the Court ultimately concludes that the three errors identified in the prior Opinion are not fundamental or incurable flaws in the Corps’ original analysis; rather, the agency has a significant possibility of justifying its prior determinations on remand. Although the Court finds that the equities of disruption do not tip sharply in Defendants’ favor on the second factor, prevailing on the first is enough here for them to avoid vacatur. I. Procedural History
The lengthy factual history of this case is set forth in this Court’s prior Opinion, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 2017 WL 2573994 (D.D.C. June 14, 2017), and need not be repeated here. Suffice it to say that Plaintiffs, the Standing Rock and Cheyenne River Sioux Tribes (and other intervenors and consolidated Plaintiffs), strongly oppose the current route of the Dakota Access Pipeline (DAPL), a nearly 1,200-mile domestic pipeline running from North Dakota to Illinois. In particular, the Tribes protest DAPL’s crossing at Lake Oahe, a federally regulated body of water that borders their reservations. Created by the Corps in 1958 via a dam constructed on the Missouri River, the
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Lake is a primary source of water for the Tribes, and it is considered sacred to their spiritual

practices. Id. at *3.

A.

History of Litigation

For the past fourteen months, the Tribes have attempted to prevent oil from flowing

under Lake Oahe. The instant case began on July 25, 2016, when Standing Rock filed its

Complaint against the Corps for declaratory and injunctive relief pursuant to the National

Historic Preservation Act, National Environmental Policy Act, Clean Water Act, and the River

and Harbors Act. See ECF No. 1 (SRST Complaint), ¶¶ 128-212. The following month, Dakota

Access LLC successfully moved to intervene in support of the Corps, see ECF No. 7, and the

Cheyenne River Sioux Tribe intervened as a Plaintiff, subsequently filing its own Complaint.

See ECF No. 11-12 (CRST Complaint). The Tribes’ first pass at preventing the pipeline was a

motion for a preliminary injunction based solely on the NHPA, asserting that the ongoing

clearing and grading of the land along DAPL’s route disrupted sacred Tribal sites. See Standing

Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock I), 205 F. Supp. 3d 4, 8–9

(D.D.C. 2016). On September 9, 2016, the Court denied emergency relief, and construction

proceeded. Id. at 37.

On February 8, 2017, the Corps finally granted Dakota Access an easement pursuant to

the Mineral Leasing Act, authorizing it to cross federal lands at Lake Oahe and complete the

pipeline. See ECF No. 172-11 (Easement). The next day, Cheyenne River filed a motion for

preliminary injunction and an application for a temporary restraining order, this time alleging

violations of RFRA. See ECF Nos. 98, 99; Standing Rock Sioux Tribe v. U.S. Army Corps of

Engineers (Standing Rock II), 239 F. Supp. 3d 77, 81 (D.D.C. 2017), appeal dismissed, No. 17-

5043, 2017 WL 4071136 (D.C. Cir. May 15, 2017). Believing these religious-freedom claims

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unlikely to succeed, the Court issued a second Opinion denying the preliminary injunction. See Standing Rock II, 239 F. Supp. 3d at 80.
B. Motions for Summary Judgment As these emergency motions were ongoing, the parties filed cross-motions for summary judgment. See ECF Nos. 117 (SRST MSJ); 131 (CRST MSJ); 172 (Corps MSJ); 185 (DA MSJ). Now focusing on their environmental claims, the Tribes challenged the Corps’ decision to issue the easement on the basis of its July 25, 2016, Environmental Assessment (EA) and Mitigated Finding of No Significant Impact (FONSI), asserting that the agency had violated NEPA by failing to complete an Environmental Impact Statement (EIS). NEPA requires that federal agencies evaluate the environmental effects of major government actions, but it does not “mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Instead, the statute “imposes only procedural requirements.” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004). If a project will “significantly” affect the “quality of the human environment,” NEPA requires that the agency complete a detailed EIS. See 42 U.S.C. § 4332(C). To determine whether or not there will be such significant effects, however, the agency first prepares a shorter EA. This “concise public document” discusses the need for the proposal, the alternatives, the environmental impacts of the proposed action, and the agencies and persons consulted. See 40 C.F.R. § 1508.9(b). If the EA concludes that there will be no significant environmental impact, the agency may forgo completing a full EIS. This was the route chosen by the Corps in this case. See ECF Nos. 172-1, 172-2 (EA and FONSI). The agency’s EA and FONSI explained that, given the proposed mitigation measures and Defendants’ assessment of DAPL’s “anticipated environmental, economic, cultural . . . social[, and] cumulative effects,” the pipeline’s crossing at Lake Oahe would not “significantly
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affect the quality of the human environment.” FONSI at 6. The Tribes argued in their briefing that “[t]he Corps’ conclusion that the Oahe crossing was not significant enough to warrant an EIS” was “arbitrary, capricious, and contrary to law.” SRST MSJ at 17.
C. Prior Opinion and Remand On June 14, 2017, two weeks after DAPL became fully operational, the Court granted in part and denied in part the parties’ motions and remanded certain issues to the Corps. See Standing Rock III, 2017 WL 2573994, at *40. It rejected Plaintiffs’ motion with respect to their claims under the Clean Water Act and the Mineral Leasing Act, and it also upheld the majority of the Corps’ determinations under NEPA – including the agency’s “top-line conclusion” that the risk of an oil spill was sufficiently low so as to not require an EIS. Id. at *12, 16. It granted the Tribes’ motion, however, with respect to three discrete flaws in the Corps’ environmental analysis. The Court held that the Corps had insufficiently addressed: (1) the degree to which the project’s effects are likely to be highly controversial; (2) the consequences of a spill for the Tribes’ fishing and hunting rights; and (3) the environmental-justice impacts of the project. Id. at *1. Although the Court remanded these issues to the Corps for further analysis, it did not decide whether the easement should be vacated pending such remand. Instead, it ordered the parties to submit briefing on “whether remand with or without vacatur is appropriate in light of the deficiencies herein identified and any disruptive consequences that would result given the current stage of the pipeline's operation.” Id. at *29. This briefing is now complete, and the Court must determine whether or not oil may continue to flow under Lake Oahe. Although the parties dispute what, precisely, vacatur would entail, see ECF Nos. 277 (DA Reply) at 1 n.1; 276 (Corps Reply) at 9; 280 (Tribes Sur-reply) at 1, the prior Opinion clearly stated that vacatur would require that DAPL “cease operations”
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during remand. Standing Rock III at *28. The Court therefore assumes at this stage that such a remedy would vacate the Corps’ prior EA and FONSI, as well as the easement it granted to Dakota Access in reliance on these determinations. Without this authorization, DAPL cannot lawfully continue to operate the pipeline on federal land. II. Legal Standard
Under the caselaw of this Circuit, “vacating a rule or action promulgated in violation of NEPA is the standard remedy.” Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001)); see Reed v. Salazar, 744 F. Supp. 2d 98, 118–20 (D.D.C. 2010) (finding NEPA violation and ordering vacatur); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78–80 (D.D.C. 2010) (finding NEPA violation and ordering remand with partial vacatur); Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183, 204–05, 210 (D.D.C. 2008) (finding NEPA violation and ordering vacatur). Yet, although vacatur is the “presumptively appropriate remedy,” it is not the only option. See Sierra Club, 719 F. Supp. 2d at 78. Instead, as equity requires, the reviewing court has discretion leave the agency action in place. See, e.g., Advocates for Hwy. & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (remanding without vacatur); Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 966-67 (D.C. Cir. 1990) (same).
The test for whether or not a court should vacate a deficient agency action during remand comes from this Circuit’s decision in Allied-Signal v. U.S. Nuclear Regulatory Commission, 988 F.2d 146, 150–51 (D.C. Cir. 1993). As Allied-Signal explained, “[T]he decision whether to vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that
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may itself be changed.” Id. at 150-151 (internal citation omitted). Put otherwise, this Court must determine whether there is “at least a serious possibility that the [agency] will be able to substantiate its decision on remand,” and whether vacatur will lead to impermissibly disruptive consequences in the interim. See Nat'l Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d 7, 20 (D.D.C. 2014); Williston Basin Interstate Pipeline Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008) (declining to vacate when “significant possibility that the [agency] may find an adequate explanation for its actions”). The question for the Court today is thus whether this is the “type of case that merits departure from the presumptive remedy of vacatur.” Pub. Employees for Envtl. Responsibility v. United States Fish & Wildlife Serv., 189 F. Supp. 3d 1, 2–3 (D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 6915561 (D.C. Cir. Oct. 31, 2016). It therefore examines the two prongs of Allied-Signal separately below, bearing in mind that “[t]here is no rule requiring either the proponent or opponent of vacatur to prevail on both factors.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 270 (D.D.C. 2015). III. Analysis
A. Seriousness of Deficiencies The first prong of the Allied-Signal test requires the Court to determine the “seriousness” of the deficiencies in the underlying agency action. Here, Defendants argue that the three inadequacies identified by the Court – namely, the Corps’ failure to adequately address the degree to which the project’s effects are likely to be highly controversial, the impacts of a spill on fish or game, and the environmental-justice impacts of a spill – are not significant deficiencies in the agency’s prior analysis. See ECF No. 258 (Corps Brief). Noting that the Court previously rejected the majority of Plaintiffs’ challenges, Defendants contend that there are “only a few remaining tasks for the Corps to complete on remand” in order to substantiate the prior EA. See
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ECF No. 260 (DA Brief) at 19. Plaintiffs, unsurprisingly, cast the Court’s Opinion in quite a different light. The Tribes assert that the Court granted their motion for summary judgment on “three grounds that go to the heart of this dispute, and that are fundamental to the Tribes and their treaty rights.” ECF No. 272 (Tribes Brief) at 1. These issues, the Tribes contend, cast “considerable doubt” upon the Corps’ decision to forgo a full EIS. See Tribes’ Sur-reply at 10.
Under Allied-Signal, the severity of an agency’s errors below turns on “the extent of doubt whether [it] chose correctly.” 988 F.2d at 150-51. The Court therefore must assess the likelihood that, on remand, the Corps will be able to justify its prior decision to issue an EA and FONSI, rather than preparing a full EIS. Such assessment looks at each issue in turn.
1. Highly Controversial The prior Opinion found that the Corps had failed to fully consider “the degree to which [DAPL’s] effects on the quality of the human environment are likely to be highly controversial.” Standing Rock III, 2017 WL 2573994, at *13-14 (citing 40 C.F.R. § 1508.27(b)(4)). This factor must be addressed in “cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Town of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003). Here, the Court found that certain of the Tribes’ expert reports submitted after July 24, 2016, created such a controversy and thus directed the Corps to address those “scientific critiques.” Standing Rock III, 2017 WL 2573994, at *14. Plaintiffs contend that doing so on remand will require Defendants to “explicitly . . . find[] meritless each of the many technical criticisms and supporting data” in the expert reports. See Tribes Brief at 19. They therefore assert that the Court’s holding reflects not an “easily explained oversight,” but a “substantial legal flaw.” Id. at 20. Defendants feel differently. The Corps argues that, as noted in the prior Opinion, the record after remand may demonstrate that
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Defendants “reasonably” determined that the Tribes’ reports had “material flaws.” Corps Brief at 10; Standing Rock III, 2017 WL 2573994, at *14. The agency asserts, moreover, that there is a serious possibility that the 36 conditions on the existing easement already address any of the experts’ legitimate concerns. See Corps Brief at 10-11.
The Court recognizes that the “lack of a reasoned explanation is a serious failing in an agency’s decision, because it leaves the Court in doubt as to whether the agency chose correctly in making its decision.” AARP v. United States Equal Employment Opportunity Comm’n, 2017 WL 3614430, at *16 (D.D.C. Aug. 22, 2017) (internal citation omitted). The question with respect to vacatur, however, is the extent of that doubt. See Allied–Signal, 988 F.2d at 150. In this case, the Court did not find that the expert reports submitted after July 25, 2016, presented an insurmountable obstacle to justifying the Corps’ prior EA. Rather, the Opinion stated that “[i]t may well be the case that the Corps reasonably concluded that these expert reports were flawed or unreliable and thus did not actually create any substantial evidence of controversial effects.” Standing Rock III, 2017 WL 2573994, at *14. What was missing, the Court found, was that the Corps “never said as much.” Id.
Correcting this flaw does not require that Defendants begin anew, but only that they better articulate their reasoning below. Courts have declined to grant vacatur in similar circumstances, finding that agencies should instead be “afford[ed] a reasonable opportunity to . . . provide a reasoned explanation” of their choices. See Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 242 (D.C. Cir. 2008); Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“When an agency may be able readily to cure a defect in its explanation of a decision, the first factor in Allied–Signal counsels remand without vacatur.”); Black Oak Energy, LLC v. FERC., 725 F.3d 230, 244 (D.C. Cir. 2013) (declining to vacate agency action when
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“plausible that [agency] can redress its failure of explanation on remand while reaching the same result”); Williston Basin, 519 F.3d at 504 (declining to vacate when “significant possibility that the [agency] may find an adequate explanation for its actions”). This Court agrees. Although the Corps must give careful consideration to the expert critiques, it is well positioned to provide such explanation on remand. Indeed, addressing the degree to which the project is likely to be highly controversial fits squarely within the realm of those “factual disputes” committed to agency expertise. See Wis. Valley Improvement Co. v. FERC, 236 F.3d 738, 746 (D.C. Cir. 2001) (citation omitted); FBME Bank Ltd. v. Lew, 209 F. Supp. 3d 299, 342 (D.D.C. 2016) (finding that the “fair likelihood that the agency will be able to make use of its expertise to justify its reliance on data and information” counsels in favor of remand without vacatur). On remand, the Corps must exercise its judgment in analyzing Plaintiffs’ expert critiques. The Court finds a serious possibility that, in doing so, it will be able to substantiate the prior EA.
2. Fishing and Hunting The second deficiency identified in the prior Opinion was the Corps’ neglecting to properly assess the impact of an oil spill on fish and game – two resources protected by the Tribes’ treaty rights. Standing Rock III, 2017 WL 2573994, at *16-17. As with the first issue, Plaintiffs assert that remedying this error will necessitate in-depth analysis through an EIS. See Tribes Brief at 21. Defendants counter that, given the minimal risk of an oil spill, there is a substantial possibility that DAPL will have “no significant impacts” on the Tribes’ hunting and fishing rights. See Corps Brief at 11. They therefore maintain that the Corps will likely substantiate that DAPL’s effects on fishing and hunting, if any, do not require an EIS. On this issue, Defendants’ task on remand is a narrow one. As the Court previously noted, the agency did not “wholly ignore the consequences of a possible oil spill” on the Tribes’
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treaty rights. Standing Rock III, 2017 WL 2573994, at *16. The Corps’ analysis fell short, however, when it “stat[ed] simply that ‘[t]he primary issue related to impacts on the aquatic environment from operation of [DAPL] would be related to a release from the pipeline,’” without explaining “what those effects would be.” Id. at *17. Likewise, although the agency addressed the effects of pipeline construction on wildlife, it failed to consider the consequences of a spill. Id. These two gaps in the Corps’ analysis were improper under NEPA, but they are far from incurable. Although the Tribes assert that the record on remand will support the need for an EIS because it “is replete with evidence of the significance of these rights to the Tribe[s],” Tribes Brief at 20, the Court already held that NEPA does not require any such “existential-scope analysis.” Standing Rock III, 2017 WL 2573994, at *15. While the Tribes now reiterate that they place a “high importance . . . on hunting and fishing,” Tribes Brief at 21, the Corps on remand must take a “hard look” at the impact of DAPL on only the resources themselves.
Here, the record shows that the agency is well situated to conduct such an inquiry. It has already gathered information regarding Lake Oahe’s fish and wildlife, and it has conducted a lengthy analysis of the possible toxicity arising from various spill scenarios. See Standing Rock III, 2017 WL 2573994, at *17; ECF No. 172-1 at 58-59 (discussing wildlife near Lake Oahe); 104 (same); 101 (discussing exposure of Lake Oahe fish to oil spill); 47-48 (same); 45-46 (discussing potential toxic effects of spill). On remand, the Corps must simply connect the dots. This, then, is not a case in which the agency “must redo its analysis from the ground up.” North Carolina v. EPA, 531 F.3d 896, 929 (D.C. Cir. 2008). The agency already has the data it needs to determine the impact of a spill on fish and game – indeed, it has already concluded that “under no spill scenario would the acute toxicity threshold for aquatic organisms be exceeded.” Standing Rock III, 2017 WL 2573994, at *17. The Corps, moreover, will assess the significance
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of any consequences on fish and game in light of its prior determination that the risk of rupture under Lake Oahe is low. See New York v. NRC, 681 F.3d 471, 478-79 (D.C. Cir. 2012) (holding that agency “may find no significant impact if . . . the combination of probability and harm is sufficiently minimal”). The record suggests, therefore, that the Corps “may be able readily to cure a defect in its explanation of [the prior] decision.” Heartland Reg'l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009). Although the agency may ultimately conclude that this issue nonetheless requires a full EIS, the Court finds that there is a strong likelihood that it will instead substantiate its prior decision to issue an EA.
3. Environmental Justice The last issue concerns the environmental-justice impacts of the Lake Oahe crossing. The Tribes challenged the selection of that site over an alternative location upstream of Bismarck, North Dakota, arguing that the Corps had failed to properly analyze whether the current placement of the pipeline could disproportionately affect low-income, minority communities. See ECF 117-19 (SRST MSJ). The Court agreed. It held that the Corps’ “cursory” analysis did not “reasonably support the conclusion that the [Standing Rock Sioux] Tribe will not be disproportionately affected by an oil spill in terms of adverse human health or environmental effects.” Standing Rock III, 2017 WL 2573994, at *23. In particular, the Court cast doubt upon the Corps’ decision to use census tracts upstream from the Lake Oahe site – when oil spills flow downstream – and to consider the communities within only a half-mile radius of the crossing, given that the Standing Rock Reservation is located .55 miles downstream. Id. at *20-21. In light of these flaws and the “minimal” discussion of environmental justice in the EA, the Court concluded that the agency “did not properly consider the environmental-justice implications of the project.” Id. at *23.
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Characterizing the Corps’ environmental-justice assessment as “fatally flawed,” Tribes Brief at 22, Plaintiffs contend that a valid analysis would “inevitably conclude” that the pipeline disproportionately affects Native American and low-income populations, and thus would “yield a different outcome on the core question of whether an EIS is required.” Id. at 23. Defendants, of course, disagree, rejoining that “given the low risk of an oil spill, it is unlikely that . . . a different buffer and environmental justice analysis” will yield a new result on remand. See Corps Brief at 10.
Although it is a closer call than the first two issues, the Court concludes that the flaws in the Corps’ environmental-justice analysis do not support vacatur. The agency’s action was not, in this case, so lacking as to cast serious doubt on its decision to issue an EA. The prior Opinion explicitly stated that the Corps “need not necessarily have addressed” each concern raised by the Tribes, but only that it must “offer more than a bare-bones conclusion that Standing Rock would not be disproportionately harmed by a spill.” Standing Rock III, 2017 WL 2573994, at *23; see Sierra Club v. FERC, 867 F.3d 1357, 1370 (D.C. Cir. 2017) (holding that the “goal of an environmental-justice analysis is satisfied if an agency recognizes and discusses a project's impacts on predominantly-minority communities”); Latin Americans for Soc. & Econ. Dev. v. Adm'r of Fed. Highway Admin., 756 F.3d 447, 477 (6th Cir. 2014) (noting that “[e]nvironmental impacts and environmental justice issues are a consideration in agency decision making, but are not controlling”). Although the Corps must provide a more robust analysis on remand, there is reason to think that, in doing so, it has a substantial possibility of validating its prior conclusion.
Indeed, contrary to the Tribes’ statement that a finding of a disproportionate impact would necessitate an EIS, the relevant agency guidance expressly contemplates the use of an EA to address such concerns. See ECF No. 117–19 (CEQ, Environmental Justice Guidance Under
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the National Environmental Policy Act, Dec. 10, 1997) at 15 (“Where a potential environmental justice issue has been identified by an agency, the agency should state clearly in the EIS or EA whether, in light of all the facts and circumstances, a disproportionately high and adverse human health or environmental impact on . . . Indian tribe[s] is likely to result from the proposed action.”) (emphasis added). As a result, even if Defendants did conclude on remand that a crossing at the Lake Oahe site may disproportionately affect minority or tribal populations, such an outcome would not compel the Corps to alter its prior decision to issue an EA and FONSI.
Additionally, multiple aspects of the record suggest that the Corps is likely to justify issuing an EA, rather than completing an EIS. First, as with the hunting-and-fishing analysis, the minimal risk of an oil spill under Lake Oahe reduces the likelihood that the project will have a significant impact on the surrounding communities. See Sierra Club, 867 F.3d at 1369 (upholding environmental-justice analysis when agency concluded, in part, that “the project would not have a ‘high and adverse’ impact on any population, meaning, in the agency’s view, that it could not have a ‘disproportionately high and adverse’ impact on any population, marginalized or otherwise”); Allen v. Nat'l Institutes of Health, 974 F. Supp. 2d 18, 47 (D. Mass. 2013) (upholding environmental-justice analysis when project was located in area with larger low-income and minority populations, but agency concluded that “the likelihood of [adverse effects] is extremely low”).
Second, the impact of any such spill, if it were to occur, is in part mitigated by the relocation of the Standing Rock water-intake structure. The new structure is situated approximately 50 miles further downstream from the Lake Oahe crossing than the old site, and it is outside even the furthest radius suggested by Standing Rock as appropriate for evaluating the environmental-justice impacts of the pipeline. See Standing Rock III, 2017 WL 2573994, at
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*19; ECF No. 117–24 (Memorandum from David Cooper, Chief Counsel, Corps, Oct. 20, 2016) at 19. Plaintiffs assert that the old intake structure is still in operation, see ECF No. 272-3 (Third Decl. of Dave Archambault, II), ¶ 10, but they cannot dispute that the new site will mitigate at least some of their concerns regarding the relative impact of a spill on the Tribes’ drinking water.
Finally, the Corps’ already-conducted assessment of the alternative pipeline route through Bismarck increases the likelihood that the agency will find that DAPL’s environmentaljustice impacts do not require an EIS. Under NEPA, the consideration of such alternative routes is relevant to the Corps’ environmental-justice review on remand, as the statute requires only that the agency “grapple[] with the disparate impacts of the various possible pipeline routes.” Sierra Club, 867 F.3d at 1369. As the CEQ guidance states, “The identification of a disproportionately high and adverse human health or environmental effect on a[n] . . . Indian tribe does not preclude a proposed agency action from going forward, nor does it necessarily compel a conclusion that a proposed action is environmentally unsatisfactory.” CEQ at 10. “Rather, the identification of such an effect should,” inter alia, “heighten agency attention to alternatives (including alternative sites).” Id.
As the prior Opinion discussed, the alternative Bismarck crossing would pass much closer to a drinking-water intake than the Lake Oahe location does. See Standing Rock III, 2017 WL 2573994, at *18-19; ECF No. 209–16 at 5 (Memorandum from Tom Siguaw, Dakota Access, & Steve Rove, HDR Engineering, Apr. 12, 2016). The two water intakes downstream from the Bismarck site serve 84,504 people, while those downstream from the Oahe intakes serve 8,037. See Standing Rock III, 2017 WL 2573994, at *18-19. Risks presented to this tenfold increase in population must, of course, be considered when the Corps evaluates the environmental-justice impacts, if any, of the Lake Oahe crossing. See Sierra Club, 867 F.3d at
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1371 (noting that, in conducting its environmental-justice analysis, agency “also considered four route alternatives . . . but rejected them all, mainly on the ground that they would have had a greater overall impact on residences and populated areas”); Latin Americans for Soc. & Econ. Dev., 756 F.3d at 477 (finding that agency took requisite hard look at environmental-justice issues when it considered alternatives to avoid or minimize disproportionately high adverse impacts and “reasonably determined its priorities based on all the comparative information available”). Under NEPA, an agency is “not required to select the course of action that best serves environmental justice, only to take a ‘hard look’ at environmental justice issues.” Sierra Club, 867 F.3d at 1368; see Latin Americans for Soc. & Econ. Dev, 756 F.3d at 476 (“Just as the [agency] is not required to select an alternative with the least environmental impact under NEPA, the [agency] is not required to select an alternative with the least environmental justice impact.”). The Court finds that there is a substantial possibility that the Corps will meet this standard on remand and will substantiate its prior decision to proceed with the Lake Oahe crossing without an EIS.
In reaching this decision, however, the Court does not seek to minimize the importance of the Tribes’ environmental-justice concerns. The purpose of this analysis under NEPA is to ensure that the government properly accounts for the “interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects” of agency actions. See CEQ Guidance at 9. There is no doubt that our nation’s history is replete with examples of Native American tribes bearing the brunt of government action. See ECF No. 270-1 (Brief of Amici Curiae Great Plains Tribal Chairmen’s Association, et al.) at 6-8. And Chairman Archambault is eloquent on why the Tribes believe that this pipeline embodies another transgression. See Archambault Decl., ¶¶ 12-20. Yet the Court’s role here is not to determine
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the wisdom of agency action or to opine on its substantive effects. See Robertson, 490 U.S. at 351 (holding that “NEPA merely prohibits uninformed - rather than unwise - agency action”). Instead, it must consider only the Corps’ likelihood on remand of fulfilling NEPA’s procedural environmental-justice requirements and justifying its prior decision.
* * *
In cases in which the agency’s reasoning is “so crippled as to be unlawful,” vacatur is generally the appropriate remedy. See Radio-Television News Directors Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999). If, however, the action is “potentially lawful but insufficiently or inappropriately explained,” remand without vacatur may instead be imposed. Id. As is evident from the discussion above, this case falls within the latter category. Here, the Corps’ decision to produce only an EA, rather than an EIS, is “potentially lawful.” The errors below were substantial, but they do not present fundamental flaws in Defendants’ reasoning. Although Plaintiffs contend that the issues on remand go to the “heart” of their opposition to this project, see Tribes Brief at 1, the question for vacatur is not the importance of the issue, but the extent of the error. Here, the Court cannot say that the deficiencies in the prior EA and FONSI are “crippling” flaws in the Corps’ analysis. The Court previously found that the Corps “largely complied” with NEPA’s requirements, and it granted remand on only a narrow subset of the Tribes’ NEPA claims. See Standing Rock III, 2017 WL 2573994, at *28. The lengthy procedural history of this case shows, moreover, that there has been nothing hasty about the Corps’ decisionmaking thus far. There is no reason to think that it will be any less thorough in analyzing the three deficiencies on remand. In light of the agency’s substantial compliance with NEPA, the Court finds that that the Corps has a significant likelihood of being able to substantiate its prior conclusions and determines that the first prong of the Allied-Signal framework thus counsels in favor of remand without vacatur.
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B. Disruptive Consequences The second consideration in determining whether to remand without vacatur is “the disruptive consequences of an interim change that may itself be changed.” Allied-Signal, 988 F. 2d at 150–51; see Conservation Law Found. v. Pritzker, 37 F. Supp. 3d 254, 271 (D.D.C. 2014). On this issue, the parties have much to say about the disruption, or lack thereof, that will result if the Court vacates the Corps’ prior decisions. As discussed below, the Court concludes that this factor weighs only slightly in favor of remand without vacatur.
1. Direct Disruption Defendants and their amici spend much of their briefing spelling out what they believe are potentially dire economic consequences of vacatur. Dakota Access, for example, asserts that if the pipeline is paused, North Dakota’s oil producers will face severe costs and delays. See DA Brief at 14; ECF No. 279 (Amici Curiae Brief of American Fuel and Petrochemical Manufacturers) at 6 (stating that “direct financial impact” of taking DAPL out of service “would be staggering”). The company contends that other pipelines, refineries, and downstream users of the oil currently transported in DAPL would also “suffer greatly” and would be forced into “emergency arrangements” to compensate for the shutdown. See DA Brief at 14. The impact of vacatur, Dakota Access posits, would place in peril the jobs of all those currently involved in DAPL’s operations and would prevent Dakota Access from being able to perform the contracts it has entered into with producers. Id. at 18. Defendants assert that such a halt in pipeline operations would also deprive state and local governments of millions of dollars in tax revenue and would undermine new industries that support DAPL operations. See Brief of American Fuel Manufacturers, et al. at 8, 10. Finally, Defendants argue that these effects would be passed on to consumers, claiming that the disruptive market effects of vacatur would have “significant ripple
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effects.” DA Brief at 15. In total, Dakota Access declares that issuing vacatur in this case would incur costs of hundreds of millions of dollars. Id. at 18.
The Tribes contest both the accuracy and the relevance of Defendants’ economic concerns. As to the former, Plaintiffs have submitted declarations asserting that “DAPL revenues” are likely “substantially less than indicated” by Defendants and stating that a DAPL shutdown “will not result in the severe disruptions claimed by the Corps and Dakota Access.” ECF No. 272-5 (Declaration of Ian Goodman), ¶¶ 41, 43. They therefore argue that the company’s claims “regarding loss of revenues and other potential impacts of a DAPL shutdown should not be relied upon to determine the likely impacts” of vacatur. Id., ¶ 41. As to the latter, the Tribes question whether “financial impacts” carry “much or even any weight” when evaluating the second Allied-Signal factor in NEPA cases. See Tribes’ Brief at 25.
As an initial matter, the Court rejects Plaintiffs’ suggestion that it should wholly disregard the potential for financial disruption. Although this perspective has been suggested in at least one district court decision, see Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948, 953 (N.D. Cal. 2010), it is clear that courts in this Circuit have repeatedly considered the economic implications of vacatur – including in cases addressing environmental harms. See Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1273 (D.C. Cir. 1994) (declining to vacate rule addressing lead in drinking water in part because “vacatur would be unnecessarily disruptive to the [affected] industries”); Sierra Club v. U.S. Dep't of Agric., Rural Utilities Serv., 841 F. Supp. 2d 349, 363 (D.D.C. 2012) (NEPA decision considering potential “substantial financial loss if the Court were to vacate” under second Allied-Signal prong); Friends of the Capital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 60 (D.D.C. 2016) (acknowledging that “delay in [agency] project could impose significant financial costs”); see also California Communities
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Against Toxics v. U.S. EPA, 688 F.3d 989, 993–94 (9th Cir. 2012) (declining to vacate in part because stopping construction of power plant would be “economically disastrous”).
That the Court will consider Defendant’s allegations of financial harm does not, however, mean that it will necessarily give determinative effect to such claims. Defendants’ cri de coeur over lost profits and industrial inconvenience is not fully convincing. Such is the nature of doing business, especially in an area fraught with bureaucracy and litigation. Dakota Access began pumping oil into the pipeline with full knowledge that Plaintiffs were contesting the easement allowing them to do so. By nonetheless proceeding with its venture, the company assumed some risk of economic disruption. See ECF No. 259-2 (Declaration of David Murk), ¶ 8 (stating that impact of vacatur would not have been severe “had DAPL not begun operations in June 2017”).
There is, moreover, some cause for skepticism regarding Dakota Access’s predictions of economic devastation. This is not the first time the company has staked out this position – it previously claimed that delays in the pipeline would have disastrous economic effects. During the first preliminary-injunction briefing, the company warned that contracts for DAPL could be canceled if it was not able to start delivering oil by January 1, 2017. See ECF No. 22-1 (Declaration of Joey Mahmoud, Aug. 18, 2016), ¶¶ 69-70. Yet the pipeline did not come on line until June, and no apparent calamity ensued. See ECF 277-12 (Second Declaration of Lee Hanse), ¶ 4 (stating that “no contracts have been renegotiated or terminated”). The Court thus cannot conclude that, in the case of a halt in DAPL operations, the company would have no alternative option.
The empirical basis for Defendants’ assertion that vacatur would have catastrophic economic effects is, additionally, sharply contested by the Tribes. See Goodman Decl., ¶¶ 4348, 75 (asserting that impacts to energy systems and market due to vacatur would likely be
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“small to very small”). Indeed, it is unclear from the current record how much oil is even flowing through the pipeline at this time. Compare id., ¶¶ 19-25 (stating that DAPL appears to be operating at partial capacity) with DA Brief at 13 (claiming that DAPL carries equivalent of 500,000 barrels per day) with DA Reply at 6 (citing figure of 300,000 barrels per day). The parties ask the Court to wade into this war of the crude-oil experts. Yet, because it declines to rely heavily on economic impact as a justification for issuing vacatur, the Court need not resolve this factual dispute. See Pub. Employees for Envtl. Responsibility, 189 F. Supp. 3d at 3 (stating that “absent a strong showing . . . that vacatur will unduly harm economic interests . . . [,] the Court is reluctant to rely on economic disruption” in denying vacatur).
Beyond the data, there are broader concerns with Defendants’ economic claims. Dakota Access and its amici focus almost exclusively on the financial and industrial implications of a temporary DAPL shutdown. In doing so, they address the “potentially disruptive effects of vacatur as if they occur in a vacuum,” thus giving short shrift to the “potentially disruptive effects that could flow from remand without vacatur.” Friends of the Capital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 60 (D.D.C. 2016). Here, there is no doubt that allowing oil to flow through the pipeline during remand risks the potentially disruptive effect about which the Tribes are most concerned – a spill under Lake Oahe. The likelihood of any such rupture may be low, but pausing the operation of the pipeline would mitigate even this small risk. By emphasizing the financial impacts of vacatur, Defendants ignore the “devastating” consequences that the Tribes allege could result from remand without such a remedy in place. See Archambault Decl., ¶ 10-11.
This economic myopia ignores the fact that the possible effects of an oil spill on the Tribes’ treaty rights and communities were at the center of this Court’s prior Opinion. See
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Standing Rock III, 2017 WL 2573994, at *10. Defendants unfairly downplay these concerns. Indeed, the Corps alleges that “loss of life is notably absent from Plaintiffs’ discussion of potential worse-case spills.” Corps Reply at 8. Yet one need only refer to the Tribes’ declarations to see that they do, in fact, assert that such drastic harms could flow from a spill under Lake Oahe. See ECF Nos. 117-16 (Declaration of Jeff Kelly), ¶¶ 5-9 (stating that many Tribal members rely on hunting and fishing to survive); 272-3, Exh. B (Letter from Dave Archambault to Acting Assistant Sec. Lamont and Colonel Henderson) at 4 (discussing serious, life-threatening health and safety consequences of potential oil spill); 131-4 (Declaration of Harold Frazier) (stating that water shortage on reservation previously caused “death of four children in a house fire” due to insufficient water supply for firefighting). Although the Court acknowledges the potential for economic disruption, these interests do not inherently trump the risk of environmental disruption if vacatur is withheld. See Pub. Employees for Envtl. Responsibility, 189 F. Supp. 3d at 3 (stating that it is “not clear that economic concerns are as relevant in an environmental case”) (emphasis added).
The Court notes, moreover, that denying vacatur on the basis of alleged economic harm risks creating undesirable incentives for future agency actions. If projections of financial distress are sufficient to prevent vacatur, the Court fears that agencies and third parties may choose to devote as many resources as early as possible to a challenged project – and then claim disruption in light of such investments. Such a strategy is contrary to the purpose of NEPA, which seeks to ensure that the government “looks before it leaps.” ECF No. 269-1 (Brief of Amici Curiae of Law Professors and Practitioners) at 5. Finding that vacatur’s alleged financial harms are dispositive under the second prong of Allied-Signal may encourage agencies to instead act first and ask later. In sum, although the Court concludes that there is likely to be some economic
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disruption from vacatur, this factor does not weigh heavily in Defendants’ favor under the Allied-Signal test.
2. Alternative Transport In addition to asserting that vacatur would have devastating economic effects, Defendants also argue that such a remedy would not, in fact, ameliorate Plaintiffs’ concerns during the remand period. Dakota Access contends that, if vacatur is granted, the oil currently flowing through the pipeline will be re-routed onto trains. See DA Brief at 15-16. The company states that this form of transport involves a greater risk of accidents and thus argues that vacatur would put the Tribes in more environmental peril than the current status quo. Id. Plaintiffs dispute both the facts and the premise of this position. The Tribes contend that there is little data supporting the proposition that train transport would be used in lieu of DAPL. They point instead to expert reports stating that, if DAPL were shut down, “much of” the crude currently flowing under Lake Oahe would “shift back to . . . other pipelines, rather than to rail.” Goodman Decl., ¶ 62. The Tribes also contest the relative safety of the two modes of transport, referring to their expert’s conclusion that it is “incorrect to state that pipelines are ‘undeniably safer’ than rail,” and that pipelines such as DAPL are “capable of releasing substantially more oil than trains.” Id., ¶¶ 8788. Examining the respective routes and capacities of train lines and DAPL, the report concludes that, for the Tribes, “DAPL has [a] . . . much greater risk than does crude by rail.” Id., ¶ 114. Finally, the Tribes contend that Defendants miss the mark by relying upon the overall risks presented by train transport versus pipelines. Instead, Plaintiffs contend that the Court should concern itself solely with the risk to the Tribes from DAPL and its current crossing at Lake Oahe. See Tribes’ Sur-reply at 15.
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In considering the transport question, both parties acknowledge that this Circuit has “previously remanded without vacatur . . . if vacating ‘would at least temporarily defeat . . . the enhanced protection of the environmental values covered by [the statute at issue].’” Ctr. for Biological Diversity v. Envtl. Prot. Agency, 861 F.3d 174, 188 (D.C. Cir. 2017). In Davis Cty Solid Waste Mgmt. v. US EPA, 108 F.3d 1454 (D.C. Cir. 1997), for instance, this Circuit found emissions guidelines to be legally inadequate, but declined to vacate them during the remand process because “greater pollution emissions would occur” without leaving the guidelines in place. Id. at 1459-60. Similarly, in American Farm Bureau Federation v. EPA, 559 F.3d 512 (D.C. Cir. 2009), the court remanded but did not vacate a deficient agency standard governing air pollutants, reasoning that “vacating a standard because it may be insufficiently protective would . . . mak[e] the best an enemy of the good.” Id. at 528. Put otherwise, this Circuit has recognized that, at times, a flawed agency action is better than no action at all.
Yet this is not such a case. On this record, Defendants have failed to persuade the Court that transport by train is significantly more dangerous than allowing oil to continue to flow beneath Lake Oahe. The record contains no concrete figures or substantiated studies regarding the risks presented by rail transportation versus DAPL’s Lake Oahe crossing. Instead, the Court is left with vague projections such as Defendants’ assertion that vacatur “could result in at least some portion” of the oil being moved via train and their broad claim that rail transport “poses a higher accident risk” than the use of pipelines. See Corps Brief at 13 (emphasis added). These forecasts do little to assure the Court that vacatur would in fact put the environment in any greater peril. See Pub. Employees for Envtl. Responsibility, 189 F. Supp. 3d at 3–4 (granting vacatur when agency’s forecasted harms were imprecise or speculative). Plaintiffs and one amicus for Defendants, moreover, cast doubt on whether the oil currently flowing through the
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pipeline would, in fact, be re-routed onto rail. See Brief of Am. Fuel Manufacturers, et al. at 10; Goodman Decl., ¶ 62 (stating that most oil would be transferred to other pipelines). Given that it is not “guaranteed that . . . producers or shippers would choose in the near term to ship oil on transportation modes other than DAPL,” Defendant’s argument is speculative at best. See Brief of Am. Fuel Manufacturers, et al. at 10.
What is clear is that accidents and spills, however they may occur, have the potential to wreak havoc on nearby communities and ecosystems. The effects that concern the Court today are not general environmental ones throughout the Midwest, but those that may result from this pipeline in this location at Lake Oahe. Those are the impacts that the Court found were insufficiently addressed by the Corps, and those are the impacts that Plaintiffs fear during the remand period. For this reason, and because the Court does not find that alternative modes of transport required by vacatur, if any, will necessarily increase the risk of an oil spill, it rejects this argument against vacatur.
3. Other Considerations The Corps also attempts to argue that vacatur here would “have greater disruptive consequences than in the typical NEPA case” because the pipeline has already been completed. See Corps Brief at 12. The agency contends that vacatur is the standard remedy in NEPA cases only when it would affect the “prospective application of rules or agency actions,” rather than situations in which the challenged outcome has already gone into effect. Id. Plaintiffs counter that this distinction finds little footing in the facts of the case. See Tribes Sur-reply at 5-6. The Tribes have the better of this dispute. Although construction is complete and oil is flowing, Plaintiffs are not asking for the pipeline itself, or for any existing infrastructure, to be dismantled. Id. at 2. Instead, their concerns in this case, and the deficiencies identified in the
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prior Opinion, involve the risks presented by the continued passage of oil under the Lake. This is clearly an ongoing, and prospective, event. This is thus not a case in which “[t]he egg has been scrambled and there is no apparent way to restore the status quo ante.” Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (remanding in lieu of vacating agency action where agency had already administered program disbursing large quantities of sugar to farmers who had already plowed under their crops). The oil may currently be flowing, but Defendants do not dispute that it could be stopped. Although courts have declined to vacate improper agency actions when doing so would be an “invitation to chaos,” id. at 97, in this case vacatur would be, at most, an invitation to substantial inconvenience. Contracts may have to be renegotiated and alternative modes of transportation found, but there is no indication in the record that Defendants’ actions under the improper EA cannot be undone.
Finally, the Corps’ assertions regarding the timing of the remand process are also relevant to analyzing the disruption in this case. The agency now states that it anticipates completing its independent review and analysis of the remand issues by April 2018, which is several months after its initial estimate. See ECF No. 281 (Notice of Revised Schedule); Corps Brief at 1. This timeline aids both parties’ positions with respect to the impact of vacatur. On one hand, the multiple-month period of review increases the risk that a spill will occur prior to the new analysis and thus strengthens the Tribes’ assertion that such an incident could occur during the remand process. On the other hand, this timing also supports Defendants’ position that vacatur would have severe disruptive effects. To vacate the easement during the remand process would stop oil from flowing under Lake Oahe for at least six months – an interruption that could cause significant harms to numerous people and entities. The remand period thus supports both sides’
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arguments regarding the real-world impact of the Court’s choice today, but does not dictate the outcome either way.
* * *
The second prong of Allied-Signal, consequently, does not counsel strongly in favor of remand without vacatur. It is undeniable that stopping the flow of oil beneath Lake Oahe will have some disruptive effect, but all the considerations on this prong tip only narrowly in favor of Defendants. Because the Court has concluded that the Corps’ errors are likely to be cured under the first prong, it need not define the precise scale of the potential disruption. This is because in circumstances in which the first prong of Allied-Signal supports remand without vacatur, the second prong “is only barely relevant.” Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1049 (D.C. Cir. 2002), opinion modified on reh’g, 293 F.3d 537 (D.C. Cir. 2002). In those instances, “though the disruptive consequences of vacatur might not be great, the probability that the [agency] will be able to justify retaining [its prior decision] is sufficiently high that vacatur . . . is not appropriate.” Id. This is such a case. The Court therefore need not rely upon disruption in deciding that vacatur is not the appropriate outcome.
C. Other Relief In their briefing the Tribes request that, if the Court declines to vacate, it instead impose a series of conditions on the continued operation of DAPL under Lake Oahe. Defendants, in their response, do not address the merits of these proposed remedies; rather, they assert only that the Court lacks jurisdiction to enter such an order. See Corps Brief at 4. This is not so. A reviewing court may craft relief as equity requires. W. Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (“[A] reviewing court has discretion to shape an equitable remedy.”); Montana Wilderness Ass'n v. Fry, 408 F. Supp. 2d 1032, 1034 (D. Mont. 2006) (“The district court’s equitable powers are broad, and it is within the court's authority to fashion a remedy that fits the
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particular facts of the case before it.”); Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100, 1106 (E.D. Cal. 2013) (“Vacatur is clearly a form of equitable relief that the Court may award, withhold, and craft to fit the circumstances of the case before it.”) (emphasis added); Conservation Cong. v. United States Forest Serv., 2017 U.S. Dist. LEXIS 82440, at *9 (E.D. Cal. May 26, 2017) (finding NEPA violation, declining to vacate agency decision, but enjoining Defendants from “removing any trees with 20 inches [diameter at breast height] or greater in implementing the Project”).
Because Defendants should have an opportunity to express their views on the substance of Plaintiffs’ requests, the Court will permit abbreviated further briefing on this issue. IV. Conclusion
In light of the “serious possibility” that the Corps will be able to substantiate its prior conclusions, the Court finds that vacatur is not the appropriate remedy in this case. That determination does not, however, excuse Defendants from giving serious consideration to the errors identified in this Court’s prior Opinion. Compliance with NEPA cannot be reduced to a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc. After the agency’s further work on remand, the parties may well disagree over the sufficiency of its conclusion. If and when such a dispute arises, they will again have the opportunity to address whether Defendants have in fact fulfilled their statutory obligations.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 11, 2017
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 Case 1:16-cv-01534-JEB Document 304 Filed 12/04/17 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and
CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor and CrossClaimant.

Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-1769 and 16-267)

MEMORANDUM OPINION Two months ago, this Court determined that oil could continue to flow through the Dakota Access Pipeline while the U.S. Army Corps of Engineers conducted further environmental analyses. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock IV), 2017 WL 4564714 (D.D.C. Oct. 11, 2017). Although the prior Opinion declined to vacate the agency’s easement approval, it left open the question of whether to impose any conditions during the remand period. Plaintiffs, the Standing Rock and Cheyenne River
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Sioux Tribes, have asked for a series of interim measures to monitor the ongoing operation of the pipeline. Defendants oppose such conditions, arguing that the Tribes have not demonstrated a need for injunctive relief and that the proposed measures are unnecessary during remand.
As a threshold matter, the Court concludes that the interim conditions are not a request for injunctive relief; they are instead a means by which the Court can ensure that it receives upto-date and necessary information about the operation of the pipeline and the facts on the ground. It next determines that the requested measures, each of which is tailored to keeping the Court abreast of the conditions at Lake Oahe pending further Corps analysis, are reasonable and appropriate. I. Background
As explained in prior Opinions, the parties here are engaged in a protracted dispute over the placement of the Dakota Access Pipeline (DAPL) under Lake Oahe in North Dakota. See, e.g., Standing Rock IV, 2017 WL 4564714, at *1-3. The Lake is a federally regulated body of water that borders the Tribes’ reservations, and it is considered sacred within their spiritual practices. Id.
In their most recent challenge to the project, Plaintiffs alleged that the Corps had erred in its analysis of the environmental impact of the pipeline crossing, in violation of the National Environmental Policy Act. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 255 F. Supp. 3d 101 (D.D.C. June 14, 2017). The Court agreed in part and remanded the case to the Corps for further analysis. Id. at 140. In a subsequent Opinion, issued on October 11, 2017, the Court examined whether the NEPA violations warranted vacatur of the agency’s decisions – and thus a stoppage in the oil flow – during remand. See Standing Rock IV, 2017 WL 4564714. Finding a “significant likelihood” that the Corps could substantiate its
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prior conclusions, the Court answered that question in the negative. Id. at *8. In denying such relief, however, it left open the possibility of imposing other, interim conditions during remand. Id. at *12. It ordered further briefing on the issue from both sides, which is now complete. II. Analysis
A. Authority to Issue Conditions The Court turns first to the matter of its authority to impose conditions during remand. As the Tribes correctly note, this question has already been decided by the prior Opinion, in which the Court found that it possessed jurisdiction to order interim remedies other than vacatur. Id. at *12 (rejecting Defendants’ argument that Court lacks jurisdiction to enter interim relief). Although the Court therefore considers this matter largely settled, Defendants nonetheless continue to contend that the proposed conditions are beyond the scope of the Court’s power. This is not so. The fundamental flaw in Defendants’ argument is in how they characterize the relief Plaintiffs seek. Defendants assert that the Tribes are, in effect, asking for an injunction. According to the Corps, “Plaintiffs’ request for ‘alternative measures’ is . . . nothing more than a request for additional injunctive relief.” ECF 287 (Corps Brief) at 1-2. Asserting that the Tribes fail to meet the test for such a remedy, the Corps contends that Plaintiffs are not entitled to interim relief. Id. Yet the conditions sought do not constitute injunctive relief. They do not affect Defendants’ ongoing environmental analysis, nor do they constrain the outcome of the remand process. Rather, they are largely a means of providing the Court with relevant information during this period. Each of the interim conditions is tailored to address the Court’s ongoing concern with the risk of a spill at Lake Oahe – a hazard that the previous Opinion described as “at the center of this Court’s prior” decision to remand the matter to the Corps. See Standing
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Rock IV, 2017 WL 4564714, at *10. Such information-gathering measures are within the Court’s managerial discretion over this pending case. See also West Virginia v. EPA, Order, No. 15-1363 (D.C. Cir. 2017) (ordering EPA to file status reports at 30-day intervals while case held in abeyance).
Because the interim conditions here do not affect the remand process, Defendants’ reliance on Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), is misplaced. The Court there held that the district court had exceeded its authority when, after vacating the Animal and Plant Health Inspection Service’s decision to completely deregulate a genetically engineered crop, it additionally entered an injunction preventing the agency from partially deregulating the crop during the remand period. Id. at 156, 158-59. Such an injunction, the Court concluded, interfered with the agency’s authority “to decide whether and to what extent it would pursue a partial deregulation” and thus impermissibly “pre-empt[ed] the very procedure by which the agency could determine . . . that a limited deregulation would not pose any appreciable risk of environmental harm.” Id. at 159, 164. The holding in Monsanto thus resolved an issue unconnected with the facts of this case – whether a district court may impose constraints on an agency’s authority and decisionmaking during remand. The interim measures proposed here do not have any such effect.
Other cases addressing the scope of a court’s supervision during remand are similarly inapposite. These decisions all concern the imposition of injunctive relief relating to the relevant agency’s analysis or discretion on remand. See Bennett v. Donovan, 703 F.3d 582, 588-89 (D.C. Cir. 2013) (noting that court would not direct agency on remand “to take [a] precise series of steps” with respect to plaintiffs’ mortgage, including “accept[ing] assignment of the mortgage, pay[ing] off the balance . . . and then declin[ing] to foreclose”); Palisades Gen. Hosp. Inc. v.
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Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005) (stating that district court lacked authority to “order specific relief” after vacating agency decision); Berge v. United States, 949 F. Supp. 2d 36, 47 (D.D.C. 2013) (noting no district court jurisdiction to “order specific relief that deprives an agency of the ability to reconsider the matter in light of the Court’s decision”).
Yet here, as explained in more detail below, the conditions are not constraints on the Corps’ analysis or a grant of “specific relief” to the Tribes. They do not concern the scope of the remand, nor do they affect the agency’s authority over the pipeline. They are instead means by which the Court can gather information about the risks posed by the pipeline pending remand and can ensure that the status quo is preserved for both sides. As discussed in the prior Opinion, such an interim remedy clearly falls within the Court’s general equitable powers.
Recent events have made clear, moreover, that there is a pressing need for such ongoing monitoring. Earlier this month, the Keystone Pipeline leaked 210,000 gallons of oil in Marshall County, South Dakota. See Mitch Smith and Julie Bosman, Keystone Pipeline Leaks 210,000 Gallons of Oil in South Dakota, N.Y. TIMES (Nov. 16, 2017), https://www.nytimes.com/2017/ 11/16 /us/keystone-pipeline-leaks-south-dakota.html. The spill occurred near the boundaries of the Lake Traverse Reservation, home of the Sisseton Wahpeton Oyate Tribe, thus highlighting the potential impact of pipeline incidents on tribal lands. Id. Although the Court is not suggesting that a similar leak is imminent at Lake Oahe, the fact remains that there is an inherent risk with any pipeline. As stated in the prior Opinion, “[T]here is no doubt that allowing oil to flow through the pipeline during remand risks the potentially disruptive effect about which the Tribes are most concerned – a spill under Lake Oahe.” Standing Rock IV, 2017 WL 4564714, at *10. Such incidents, the Court noted, “have the potential to wreak havoc on nearby communities and ecosystems.” Id. at *11. In light of these concerns, it is in the Court’s interests to stay
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abreast of any relevant changes during the remand period and to order the parties to provide upto-date information about the pipeline’s operation. Such reporting will allow the Court to ensure that remand without vacatur remains the appropriate remedy and to monitor any factual developments in this ongoing case.
The Corps is thus incorrect that the interim conditions are “unwarranted” and “unlikely to address Plaintiffs’ stated concerns with the operation of the pipeline.” Corps Brief at 4. Indeed, Defendants’ assertion that the Tribes’ “rights, resources, and land are fully protected by the existing easement” presupposes that the status quo will be maintained during the remand process. Id. at 5. Yet without measures to ensure that Defendants share information about ongoing operations, there is no clear way for the Court, the parties, or the public to evaluate the efficacy of the extant safety measures.
B. Interim Conditions Plaintiffs request three specific conditions during the remand period: (1) the finalization and implementation of oil-spill response plans at Lake Oahe; (2) completion of a third-party compliance audit; and (3) public reporting of information regarding pipeline operations. See ECF 272 (Tribes’ Brief Regarding Remedy) at 36-39. The Court agrees that each of these measures is appropriately tailored to monitoring the status of the pipeline during remand. As to the first, the Corps contends that the Tribes and Dakota Access “either have resolved, or are in the process of resolving, the Tribe’s request” and that the relief sought is therefore not “necessary because it appears that the parties have already engaged in the requested coordination.” Corps Brief at 6. Dakota Access similarly states that it is “already coordinating” with the Tribes’ emergency-management personnel. See ECF 288 (Dakota Access Brief) at 4. The Court, of course, encourages the parties to collaborate in efforts to resolve any pipeline-
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related dispute. Yet, in light of the case’s history of contested versions of discussions between Plaintiffs and Defendants, it will not rest on such representations. Instead, the Court will order that the Corps, Dakota Access, and the Tribes coordinate to finalize spill response plans at Lake Oahe, and that the parties file such plans with the Court by April 1, 2018. Such a condition is directly related to the risk of a spill during remand, and it is directed to keeping the Court informed as to all parties’ efforts to preserve the status quo pending the Corps’ further environmental analysis.
The Court will additionally impose the second requested condition – namely, the completion of a third-party compliance audit. In contesting this measure, Dakota Access relies heavily on the ongoing authority of the Pipeline and Hazardous Materials Safety Administration to ensure DAPL’s compliance with federal laws and regulations. See DA Brief at 5-6. The Tribes note, however, that PHMSA itself recognized the potential benefit of having an independent, third-party review. See Tribes Brief at 10. Defendants’ assertion that such a process would be duplicative of PHMSA oversight is therefore unavailing. As to the Tribes’ involvement in the process, the Corps asserts that Plaintiffs are asking for their “own experts [to] actually participate in the audit,” Corps Brief at 6, and Dakota Access contends that the Tribes are seeking to “insert[]” themselves into the process. See DA Brief at 6. Yet the Tribes in fact request only that they be permitted to participate in the selection of the auditor and have the opportunity to share their relevant data during the audit process. See Tribes Brief at 10. This seems reasonable. The Court will therefore order that Dakota Access select an independent, third-party auditor in consultation with the Tribes. Because these conditions are imposed in order to keep the Court informed of the circumstances at Lake Oahe pending remand, it will require that the results of this audit process be filed with the Court by April 1, 2018.
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Finally, the Court will require that Dakota Access file bi-monthly reports regarding the status of the pipeline during remand, beginning at the end of this month. With respect to this condition, the Corps contends that such reporting is “unnecessary” and “unlikely to lead to any meaningful differences in the safety of the pipeline.” Corps Brief at 7. Yet it never explains how additional information and transparency during the remand process would not enhance public safety and the Court’s understanding of the facts on the ground. In light of Dakota Access’s agreement to “voluntarily” report on many of the issues raised by the Tribes, there is similarly no concern that this condition will be unduly burdensome for the company. See DA Brief at 7. The Court will therefore order that Dakota Access file bi-monthly reports of any repairs or incidents occurring at the segment of the pipeline crossing Lake Oahe. III. Conclusion
The Court, the parties, and the public all have an interest in ensuring that the status quo at Lake Oahe is preserved pending remand. In order to obtain the information necessary to monitor the conditions in North Dakota, and to mitigate the risk of any potential spill, the Court will thus impose a series of interim measures. A separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: December 4, 2017
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 Case 1:16-cv-01534-JEB Document 341 Filed 03/19/18 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and
CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor and CrossClaimant.

Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-1769 and 16-267)

MEMORANDUM OPINION Once more into the breach over the Dakota Access Pipeline goes this Court, though for the first time addressing claims of the Yankton Sioux Tribe and Robert Flying Hawk, the Chairman of the Tribe’s Business and Claims Committee. While the Plaintiffs may have changed, the underlying claims are quite familiar. As with the Standing Rock and Cheyenne River Sioux Tribes before them, the Yankton Sioux challenge the construction and operation of the Dakota Access Pipeline under the National Historic Preservation Act, the National Environmental Protection Act, and the 1851 Treaty of Laramie. Specifically, Plaintiffs allege
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that Defendants – the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and an assortment of federal employees of both agencies – violated the NHPA by failing to adequately consult with the Tribe regarding historical and cultural sites, violated NEPA by unlawfully segmenting their analyses of the pipeline’s environmental impacts, and violated the 1851 Treaty by granting approvals for DAPL without first obtaining the Tribe’s consent.
Both sides have now filed Cross-Motions for Summary Judgment on the Tribe’s NEPA and Treaty-based claims. Defendants additionally urge the Court to dismiss as moot Plaintiffs’ NHPA counts, asserting that they are no longer viable in light of DAPL’s completed construction. Agreeing that it can provide no effective remedy on this last score, the Court will dismiss the NHPA claims. It will also grant summary judgment for Defendants with respect to Plaintiffs’ Treaty-based count, which the Tribe essentially withdrew during briefing. Finally, the Court concludes that Plaintiffs have not shown that the Corps and FWS improperly “segmented” their analysis of the pipeline’s environmental consequences, thus yielding summary judgment for Defendants on the NEPA claims as well. I. Background
A. Factual and Statutory Background The lengthy factual history of the Dakota Access Pipeline, a 1,200-mile domestic-oil pipeline running from North Dakota to Illinois, is set forth in this Court’s prior Opinions and need not be repeated here. See, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock I), 205 F. Supp. 3d 4, 12-15 (D.D.C. 2016). The Court will, however, provide a brief background of this Tribe’s participation in DAPL’s development and an overview of the specific federal actions related to the pipeline.
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A federally recognized Tribe that is headquartered in Wagner, South Dakota, the Yankton Sioux have approximately 9,000 enrolled members. See ECF No. 292 (Yankton MSJ) at 3. Their Reservation is located in South Dakota, hundreds of miles from the much-contested Lake Oahe crossing and at least 60 miles from any other part of DAPL’s path. See ECF No. 321 at 5 (Map 2). The Tribe nonetheless opposes the construction and routing of the pipeline, alleging that it will harm a number of its environmental interests.
Since the pipeline project was proposed, Plaintiffs insist that they have “continually sought to protect” their tribal lands from the “serious risk of harm” it poses. See Yankton MSJ at 4. This assertion is somewhat belied, however, by the record regarding the Tribe’s cooperation (or lack thereof) with the federal agencies involved in the project. The Yankton did not attend multiple meetings held by the Corps and FWS to discuss DAPL (meetings that were attended by other interested tribes), see Exhs. I (January 25, 2016, Corps Meeting Log), J (December 8, 2015, Corps Meeting Log), V (List of Invitees to FWS Meetings), W (FWS Meeting Log), nor did they respond to numerous efforts by the Corps and FWS to engage in discussion regarding the pipeline. See Exhs. N (Letter from Col. Henderson, May 10, 2016), O (Letter from Col. Henderson, May 6, 2016), P (Email Chain Discussing Corps’ Attempts to Contact Yankton, May 2, 2016), Q (Email Chain Discussing Consultation, April 15-22, 2016), T (Letter from FWS to Chairman Flying Hawk), U (Letter from FWS to Tribal Officer Little). Regardless of the Tribe’s level of participation in the consultation process, however, the Yankton have since objected to the pipeline’s construction and routing.
In particular, Plaintiffs contest the process by which the Corps and FWS issued a series of permits and permissions necessary for the pipeline to cross federally regulated lands and waters. Although DAPL runs almost entirely across private property, 3% of the pipeline is on federally
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managed land and thus required governmental approval. See Standing Rock I, 205 F. Supp. 3d at 13. The permits needed for these portions of the pipeline were issued by four separate entities – three districts of the Corps and one district of FWS. In evaluating these permissions, each agency division conducted an environmental assessment under the National Environmental Protection Act.
NEPA requires that federal agencies evaluate the environmental effects of major government actions, but it “imposes only procedural requirements.” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004). If a project will “significantly” affect the “quality of the human environment,” NEPA requires that the agency complete a detailed Environmental Impact Statement (EIS). See 42 U.S.C. § 4332(C). To determine whether or not there will be such significant effects, however, the agency first prepares a shorter Environmental Analysis (EA). This “concise public document” discusses the need for the proposal, the alternatives, the environmental impacts of the proposed action, and the agencies and persons consulted. See 40 C.F.R. § 1508.9(a), (b). If the EA concludes that there will be no significant environmental impact, the agency may forgo completing a full EIS and may instead issue the EA and a Finding of No Significance (FONSI).
This was the route chosen by the federal agencies charged with evaluating the DAPLrelated permissions. In July 2016, the Corps’ Omaha District issued an EA and FONSI related to the crossings of Corps-managed lands and flowage easements at Lake Oahe and Lake Sakakawea in North Dakota. See Exh. A (Omaha District EA and FONSI). In August of that year, the Corps’ St. Louis District issued its own EA and FONSI, which addressed four crossings in Illinois, three of which spanned less than 700 feet, and one of which crossed a federal flowage easement for approximately 2.5 miles. See Exh. B (St. Louis District EA and FONSI). The
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Corps’ Rock Island District also issued a permission under Section 408 of the Rivers and Harbors Act for a crossing of the Mississippi River, after the district determined that the proposal qualified for a categorical exclusion under NEPA. See Exh. C (Rock Island District Memorandum). Finally, the FWS issued an EA in May 2016 and a FONSI in June of that year, and it granted Dakota Access permission to cross five wetland easements and one grassland easement in North Dakota. See Exhs. D (FWS EA), E (FWS FONSI). These easements, which were over 60 miles from the water crossings evaluated by the Corps, affected 71.8 acres of the pipeline route, or less than 1% of the total North Dakota and South Dakota project area. See FWS EA at 18. In total, therefore, the federal agencies issued three EAs and complementary FONSIs and one categorical exclusion, each of which in turn facilitated the various permissions and permits needed for DAPL to cross federally managed lands. It is these NEPA analyses, and the process by which they were conducted, to which Plaintiffs now object.
B. Procedural History 1. History of DAPL Litigation
The Yankton Sioux Tribe initiated the instant suit on September 9, 2016, when it filed a Complaint against the United States Army Corps of Engineers, the United States Fish and Wildlife Service, and four individual Defendants – Dan Ashe, Director of FWS; John W. Henderson, Commander of the Corps’ Omaha District; Anthony Mitchell, Commander of the Corps’ St. Louis District; and Todd Semonite, the Corps’ Commanding General and Chief of Engineers. See Case No. 16-1796, ECF No. 1 (Yankton Sioux Compl.). In February 2017, Defendant Dakota Access moved to intervene in support of federal Defendants, a motion that was not opposed by the Tribe and was subsequently granted by the Court. Id., ECF No. 17 (Dakota Access Motion to Intervene); Minute Order of March 13, 2017 (Granting Motion to
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Intervene as Unopposed). That March, upon an unopposed motion by the Corps, the Tribe’s case was consolidated with challenges to DAPL filed by the Standing Rock, Cheyenne River, and Oglala Sioux Tribes. See Minute Order of March 17 (Consolidation Order).
For the past fourteen months, others among the consolidated Plaintiffs have made multiple attempts to prevent oil from flowing through the pipeline. Indeed, this Court has now issued five Opinions in this case – all addressing various claims by the Standing Rock and Cheyenne River Sioux Tribes. These Tribes’ first pass at preventing pipeline construction was a motion for a preliminary injunction based solely on the NHPA, asserting that the ongoing clearing and grading of the land along DAPL’s route disrupted sacred tribal sites. See Standing Rock I, 205 F. Supp. 3d at 7-9. On September 9, 2016, the Court denied emergency relief, and construction proceeded. Id. at 37.
On February 8, 2017, the Corps granted Dakota Access an easement pursuant to the Mineral Leasing Act, authorizing it to cross federal lands at Lake Oahe and complete the pipeline. See ECF No. 172-11 (Easement). The next day, Cheyenne River filed another motion for preliminary injunction and an application for a temporary restraining order, this time alleging violations of the Religious Freedom Restoration Act. See ECF Nos. 98, 99; Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock II), 239 F. Supp. 3d 77, 81 (D.D.C. 2017), appeal dismissed, No. 17-5043, 2017 WL 4071136 (D.C. Cir. May 15, 2017). Believing these religious-freedom claims unlikely to succeed, the Court issued an Opinion denying this preliminary injunction as well. See Standing Rock II, 239 F. Supp. 3d at 80. As these emergency motions were ongoing, Standing Rock and Cheyenne River filed cross-motions for summary judgment. See ECF Nos. 117 (SRST MSJ), 131 (CRST MSJ), 172 (Corps MSJ), 185 (DA MSJ). Now focusing on their environmental claims, the Tribes challenged the Corps’
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decision to issue the easement on the basis of its July 25, 2016, EA and FONSI, contending that the agency had violated NEPA by failing to complete a full EIS.
On June 14, 2017, two weeks after DAPL became fully operational, the Court granted in part and denied in part the parties’ motions and remanded certain issues to the Corps. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 255 F. Supp. 3d 101 (D.D.C. 2017). It rejected Plaintiffs’ motion with respect to their claims under the Mineral Leasing Act and upheld the majority of the Corps’ determinations under NEPA. Id. at 152, 147. It granted the Tribes’ motion, however, with respect to three discrete flaws in the Corps’ environmental analysis. Id. at 147. Although the Court remanded these issues to the Corps for further analysis, it did not decide whether the easement should be vacated pending such remand. Id. at 147-48. That determination followed in the Court’s October 11, 2017, Opinion, in which it concluded that there was a “serious possibility” that the Corps would be able to substantiate its prior determinations and thus denied vacatur pending remand. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock IV), 2017 WL 4564714 (D.D.C. Oct. 11, 2017). Finally, this past December, the Court issued an Opinion imposing a series of interim measures during the remand process, each tailored to keeping the Court informed as to the conditions at Lake Oahe pending further analysis by the Corps. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock V), 2017 WL 6001726 (D.D.C. Dec. 4, 2017). The remand process remains ongoing and will extend past April 2, 2018. See ECF No. 338 (Corps’ Notice).
2. Yankton Motion for Summary Judgment Only now, as that remand is ongoing and further analysis is underway, have the Yankton Sioux and Robert Flying Hawk chosen to enter the fray. On November 13, 2017, they brought
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the instant Motion for Partial Summary Judgment on the basis of their claims arising under NEPA and the Tribe’s 1851 Treaty of Laramie with the United States. See Yankton MSJ. Specifically, the Tribe asserts that Defendants violated NEPA by segmenting their evaluation of DAPL’s environmental impacts among multiple federal agencies and Corps divisions. Id. at 516. Arguing that the various federal permissions for the pipeline are “connected” or “similar” actions under the meaning of NEPA’s implementing regulations, Plaintiffs contend that Defendants were thus required to conduct a consolidated, programmatic assessment of the approvals. Id. at 5-6. Plaintiffs additionally move for summary judgment on their claim that, by failing to obtain the Tribe’s free and informed consent prior to granting authorizations for DAPL’s construction, the Corps and FWS violated the Tribe’s 1851 Treaty of Fort Laramie and the federal government’s trust responsibilities to the Tribe. Id. at 19-29.
On January 10, 2018, federal Defendants filed their Opposition to Plaintiffs’ claims and cross-moved for partial summary judgment. See ECF No. 320 (Corps Opp.) Dakota Access, as a Defendant-Intervenor and Cross-Claimant, also filed its own Opposition and brief in support of federal Defendants’ Cross-Motion. See DA Opp. In their briefing, Defendants additionally moved to dismiss the Tribe’s NHPA claims as moot in light of DAPL’s completed construction and current operation. Plaintiffs filed their Reply and Opposition on January 26, 2018, in which they continue to request summary judgment on their NEPA counts, but “withdraw” their Motion with respect to their Treaty- and trust-based claims. See ECF No. 324 (Yankton Reply). They also oppose Defendants’ Motion with respect to the dismissal of their NHPA claim, asserting that the related counts in their Complaint remain viable. With briefing complete, the Court must now determine whether summary judgment is appropriate for either party.
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II. Legal Standard The parties have cross-moved for partial summary judgment on the administrative record.
The summary-judgment standard set forth in Federal Rule of Civil Procedure 56(c), therefore, “does not apply because of the limited role of a court in reviewing the administrative record.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006); see also Bloch v. Powell, 227 F. Supp. 2d 25, 30 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003). “[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Sierra Club, 459 F. Supp. 2d at 90 (quotation marks and citation omitted). “Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the [Administrative Procedure Act] standard of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (citation omitted), aff'd, 408 Fed. App’x. 383 (D.C. Cir. 2010).
The Administrative Procedure Act “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if, for example, the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983). This is a “narrow” standard of review, under which “a court is not to substitute its
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judgment for that of the agency.” Id. Rather, the Court “will defer to the [agency's] interpretation of what [a statute] requires so long as it is ‘rational and supported by the record.’” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. 2011) (quoting C & W Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991)). Although a reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given,” a decision that is not fully explained may, nevertheless, be upheld “if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (citations omitted). III. Analysis
A. Preliminary Issues Before turning to the crux of this case – the Tribe’s NEPA challenge to Defendants’ environmental assessments – the Court first pauses to address four preliminary issues.
1. LCvR 7(h) First, and simplest, is the question of whether Plaintiffs are correct that, because Defendants “failed to controvert any facts identified by [the Tribe] in the statement of material facts[,] . . . this Court should assume Plaintiffs’ facts are admitted” under Local Rule 7(h). See Yankton Reply at 3. They are not. Indeed, as Defendants accurately note, Rule 7(h) does not apply in cases such as this one in which judicial review is based solely on the administrative record. See All. for Nat. Health U.S. v. Sebelius, 775 F. Supp. 2d 114, 118 (D.D.C. 2011) (noting that “in cases in which judicial review is based solely on the administrative record, the parties are not required to submit statements of disputed or undisputed material facts”) (internal quotations omitted). The Court, therefore, will not treat Plaintiff’s facts as admitted and will instead evaluate the parties’ claims on the basis of the underlying administrative record.
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2. Treaty and Trust Claims The Court next looks at the Tribe’s Treaty-based claims. Plaintiffs’ Motion relies in part on the first count of their Complaint, which alleged that Defendants violated the 1851 Treaty of Laramie, the federal trust responsibilities to the Tribe, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). See Compl., ¶¶ 81-90. More specifically, Plaintiffs assert that Defendants failed to “consider the impacts of [their] actions to the Tribe’s 1851 Treaty Rights” and that the Corps breached its “fiduciary duty to consider how its actions may affect a tribe’s treaty rights.” Yankton MSJ at 20, 29. In their Oppositions and Cross-Motions, Defendants contend that this matter was already disposed of in Standing Rock II. They argue, moreover, that regardless of this Court’s prior Opinion, Plaintiffs are unable to identify any retained tribal rights in land or waters that would be affected by DAPL’s construction. See Corps Opp. at 18-19 (stating that “Plaintiffs offer no “compelling reason why this Court should reconsider” its prior Opinion addressing treaty rights), 27-28 (noting that Yankton’s current lands are 230 miles away from the Lake Oahe crossing and the Tribe has “not identified any possibility . . . that a spill would impact [its] lands”); DA Opp. at 21 (“Yankton’s arguments based on treaty and trust obligation are indistinguishable from those the Court already considered and resolved.”). Plaintiffs were apparently persuaded by such arguments. In its Reply, the Tribe stated that “after reviewing [f]ederal Defendants’ response, and given the complexities of rules for interpretation of treaties, Plaintiffs hereby withdraw the [] claim presented in their motion for partial summary judgment regarding [Defendants’] failure to consider the Tribe’s treaty rights, and choose not to pursue that claim at this time.” Yankton Reply at 2.
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This attempt at a limited “withdrawal” is, unfortunately for the Tribe, not a fruitful legal tactic. Parties are not permitted to float trial balloons in motions for summary judgment, only to retract but preserve their claims when the opposing party makes a stronger argument. Instead, by retreating from their Treaty-based claims “after reviewing” Defendants’ response, the Tribe has essentially conceded that the Court should grant the Corps’ Cross-Motion for Summary Judgment on this issue. See Abraham v. Diagnostic Ctr. Hosp. Corp. of Texas, 138 F. Supp. 2d 809, 816 (S.D. Tex. 2001) (granting summary judgment for opposing party when plaintiff “cho[se] not to pursue” a given claim raised in initial motion for summary judgment).
Yet even if the Tribe had not withdrawn the relevant portions of its Motion, it would not have prevailed. Defendants are correct that in light of this Court’s prior Opinion rejecting nearly identical trust and treaty arguments made by the Standing Rock and Cheyenne River Sioux Tribes, Yankton’s claims are ultimately futile. See Standing Rock III, 255 F. Supp. 3d at 145. Indeed, Plaintiffs make no attempt to distinguish their position from that deemed deficient in Standing Rock III. They instead assert that they “object to this Court’s holding in [its] June 14, 2017, Memorandum Opinion” and “incorporate[] Standing Rock Sioux Tribe’s arguments . . . as to why treaties and U.S. trust responsibilities can provide the law to apply.” Yankton MSJ at 30 n.4; see id. at 29 n.3 (“adopt[ing]” Standing Rock’s arguments regarding federal Defendants’ “enhanced responsibility to consider Tribe’s treaty rights”). Disagreement, however, is not a legal basis for this Court to reverse its prior conclusions. Having already held that the Corps did not have to address the 1851 “Treaty rights qua Treaty Rights” and that the “general trust relationship between the Government and Indian tribes . . . alone does not afford an Indian tribe with a cause of action against the Government,” Standing Rock III, 255 F. Supp. 3d at 131, 145, the Court finds no grounds for letting the Tribe proceed on this portion of Count I.
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The Court will additionally grant summary judgment with respect to Plaintiffs’ UNDRIP claim. As Defendants accurately note, courts have consistently held that UNDRIP is a nonbinding declaration that does not create a federal cause of action. See Corps Opp. at 19 n.8; Isaac v. Sigman, 2017 WL 2267264, at *6 (D.N.J. May 24, 2017) (collecting cases). The Tribe makes no argument as to why this Court should find otherwise. It will thus grant summary judgment in favor of Defendants on this entire count.
3. Standing Defendants additionally contend that the Tribe falls short of establishing standing for the purpose of bringing their NEPA and NHPA claims. See Corps Opp. at 29. In particular, the Corps asserts that Plaintiffs “do not provide a specific and concrete plan to return to or use Lake Oahe specifically or identify how any federal action causes them harm.” Id. at 30. The Tribe’s declarations, according to Defendants, “do not establish current or future use of the areas around Lake Oahe” and instead only “mention past visits” to the area and the fact that “unnamed tribal members hunt, gather and perform ceremony with water including the Missouri River in North and South Dakota.” Id. The Corps casts these assertions as “generalized grievance[s]” and thus insufficient to confer standing under Article III. Id. at 29. In order to establish standing, a plaintiff must show that: (1) she has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, rather than conjectural or hypothetical; 2) the injury is caused by, or fairly traceable to, the challenged action; and 3) it is likely, rather than merely speculative, that the injury will be redressed by a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000). Because Plaintiffs here seek to enforce a procedural right – namely, Defendants’ alleged violation of NEPA by conducting separate environmental analyses – they may, however, “assert that right
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without meeting all the normal standards for redressability and immediacy.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). To defeat a defendant’s summary-judgment motion, a plaintiff must make these required showings by averring specific facts; conclusory allegations in a complaint or other pleading are insufficient to establish standing on summary judgment. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888–89 (1990). In environmental cases, “plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, 528 U.S. at 183 (quoting Sierra Club, 405 U.S. at 735).
Here, the Court concludes that the Tribe adequately pled these requisites for standing. Plaintiffs’ declarations discuss Tribe members’ past use of the areas affected by DAPL’s construction and operation, including those surrounding Lake Oahe, as well as the injuries they fear from the pipeline’s presence on such lands. See Decl. of Faith Spotted Eagle, ¶¶ 12, 19-23 (stating that she has “performed ceremony and prayer at Lake Oahe and near the proposed Missouri River crossing site” and “[i]n doing so . . . used water” for “medicine and for spiritual purposes,” “gathered medicine very near the pipeline corridor at Lake Oahe,” and that DAPL will “result in . . . emotional, spiritual, psychological, and cultural damage” to the Yankton people via the potential destruction of such resources); Decl. of Kip Spotted Eagle, ¶¶ 10-13 (stating that Tribal members “continue[] to hunt, gather and perform ceremony with water . . . including near the pipeline,” and that he has “been invited to hunt and fish in this area by members of the Standing Rock Sioux Tribe”); Decl. of Glenn Drapeau, ¶¶ 9-10 (stating that the Tribe, of which he is a member, “depend[s] on a number of plants that grow . . . near and within the pipeline corridor, including the Lake Oahe crossing area, for prayer, ceremony, and
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medicine,” and that “[o]peration of the Pipeline will harm . . . [the Tribe’s] sacred water, sacred burial sites, and . . . way of life and spirituality”).
Such averments of use of the areas affected by the pipeline and allegations of specific harms that may befall declarants and the Tribe from DAPL’s presence are sufficient for Plaintiffs to establish injury in this case. See Friends of the Earth, 528 U.S. at 181; W. Land Exch. Project v. U.S. Bureau of Land Mgmt., 315 F. Supp. 2d 1068, 1078–79 (D. Nev. 2004) (finding standing under NEPA when “colorable, if somewhat attenuated, geographical nexus between the areas visited by [Plaintiff] and BLM’s action”). Standing is thus no bar here.
4. NHPA Claims The Court last considers whether Plaintiffs’ NHPA claims should be dismissed as moot, in light of the fact that “construction is complete and oil is flowing.” Standing Rock IV, 2017 WL 4564714, at *11. The Tribe brings four claims for relief under the NHPA, alleging that: (1) “[i]n the development of the Corps Omaha EA[,] . . . [the] Corps violated the consultation requirement contained in the NHPA” and unlawfully found that no historical properties would be affected by its actions; (2) “[i]n issuing NWP 12, [the] Corps violated . . . the NHPA,” and its decision to approve NWP was thus “arbitrary, capricious, an abuse of discretion, and not in accordance with law”; (3) by “issu[ing] letters verifying more than 200 [pre-construction notifications] for [DAPL] located in North Dakota, South Dakota, Iowa, and Illinois without meaningfully consulting with the Tribe,” including “at least eleven of which are on the Tribe’s aboriginal title lands,” the Corps violated the NHPA; and (4) the Corps violated the Act by defining the area of potential effects “unlawfully narrowly” and thus failed to account for the fact that “[t]he clearing, grading, excavation, and construction that would occur along [DAPL’s] route would destroy . . . historic or culturally significant sites encountered.” Compl., ¶¶ 91-92,
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103-104, 115-117, 122-129, 131-140. Defendants respond that all of these counts are now moot, as “the alleged injury complained of . . . has already occurred and cannot be redressed by a favorable judicial decision.” Corps Reply at 10.
Article III of the U.S. Constitution limits federal courts to resolving actual cases or controversies and thus “prevents their passing on moot questions – ones where intervening events make it impossible to grant the prevailing party effective relief.” Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996) (citing Church of Scientology v. United States, 506 U.S. 9, 11 (1992)). Put otherwise, mootness is established when no opportunity remains for the court to provide “any meaningful relief to Plaintiffs’ alleged injuries.” Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 44 (D.C. Cir. 2015) (quotation omitted).
Here, Plaintiffs claim that the Corps violated the NHPA’s requirement that a “federal agency . . . consult with Indian tribes that attach cultural or religious significance to property affected by the agency’s undertakings.” Standing Rock III, 255 F. Supp. 3d at 155 (internal quotation marks and citation omitted). The Tribe alleged in its Complaint that, as a result of this inadequate consultation, DAPL’s ongoing construction would pose an impermissible risk to tribal sites. The question now is whether, in light of DAPL’s completion, there remains any means by which the Court can still grant Plaintiffs “meaningful relief.”
The Court concludes that the answer is in the negative. The alleged “injuries” arising from Defendants’ NHPA violations are tethered to the timeline of DAPL’s construction and operation; in other words, tribal consultation and the granting of relevant federal permissions are actions that take place prior to the execution of a given project. See Standing Rock I, 205 F. Supp. 3d at 7 (NHPA “encompasses sites of cultural or religious significance to Indian tribes and
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requires that federal agencies consult with tribes prior to issuing permits that might affect these historic resources”). Indeed, in its very first Opinion in this case, the Court found as much. A year and a half ago, addressing Standing Rock’s similar contention, this Court wrote that “[t]he risk that construction may damage or destroy cultural resources is now moot for the 48% of the pipeline that has already been completed.” Id. at 35. It noted that “whatever harms may have occurred from DAPL construction, the Court’s intervention . . . can no longer avoid them”; as a result, for those sites at which construction was complete, the “die [was] cast.” Id. This conclusion, moreover, reflected Standing Rock’s own understanding of the Act, as the Tribe explicitly acknowledged the potential for construction activities to moot its NHPA claims against Defendants. See ECF No. 24 (Standing Rock Reply) at 19-20, 23-24 (stating that “should DAPL be permitted to continue construction[,] . . . then the [] consultation process sought by the Tribe would be rendered moot” and noting that such consultation would “no longer be meaningful in those areas” in which “construction (including clearing and grading) has been completed”).
The specter of mootness raised in Standing Rock’s earlier filings has now come to pass – construction is complete and oil is flowing through the pipeline. This advancement in DAPL’s development in turn dooms Yankton’s NHPA efforts. The Tribe’s first three claims mentioned above are explicitly premised on alleged violations of the consultation requirements under § 106 of the Act. Now that construction of the pipeline has occurred, the Court agrees with Defendants (and the Standing Rock Sioux) that such consultation would no longer be “meaningful.” Similarly, the Court is unable to order effective relief with respect to Plaintiff’s final NHPA claim, which alleges that the Corps improperly defined the area of potential effects. This count relies on the Tribe’s assertion that “the clearing, grading, excavation, and construction that would occur along the duration of the [p]ipeline route would destroy any historic or culturally
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significant sites encountered.” Compl., ¶ 139. These construction-related activities have now occurred, and, accordingly, the potential for the preservation of historic or cultural sites no longer exists. Cf. Sierra Club, 803 F.3d at 43-44 (stating that, in the NEPA context, “claims relating to the construction of [a] pipeline” may be moot and citing cases in which “the completion of the [challenged] project . . . eliminated the opportunity for any meaningful relief,” but finding that claims “addressing the environmental impacts resulting from the enhanced use of” the pipeline remained viable).
Although the Tribe asserts in its Reply that meaningful relief remains available because the “risk of a spill through operation and maintenance of the Pipeline still . . . threatens the Tribe’s cultural and historic sites,” such an emphasis on ongoing harms is nowhere to be found in Plaintiffs’ Complaint, nor are such prospective injuries supported by the record. See Yankton Reply at 3, 30-31; Benavides v. Hous. Auth. of San Antonio, Tex., 238 F.3d 667, 670 (5th Cir. 2001) (dismissing NHPA claims as moot when challenged project was partially constructed and “there [was] no evidence on the record that further agency review could possibly affect” the “substantially-completed” project). Instead, Plaintiffs’ NHPA claims and relevant declarations are predicated upon a concern with pre-construction consultation and assessments. See Yankton Reply at 29 (requesting relief under NHPA based on Defendants’ alleged errors in “identifying the area of potential effects too narrowly and violat[ing] duties to consult with the Tribe . . . [on] protection of historic and cultural locations”). The time for such conversations and evaluations has passed. The Court therefore concludes that there are no “live remedial implications” to Plaintiffs’ claims. See Sierra Club, 803 F.3d at 43; Finca Santa Elena, Inc. v. U.S. Army Corps of Engineers, 62 F. Supp. 3d 1, 5 (D.D.C. 2014) (discussing “long line of cases in the courts of appeal holding environmental challenges to completed construction projects to be moot”); Bayou
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Liberty Ass'n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 397–98 (5th Cir. 2000) (finding no ability to grant “meaningful relief” when challenged construction had “been substantially completed”).
This conclusion is not altered, moreover, by the fact that the Tribe sought both injunctive and declaratory relief with respect to its NHPA claims. See Compl. at 32-33. Plaintiffs assert that the Court is still able to grant its requested declaratory remedies, and that their NHPA claims thus remain viable. See Yankton Reply at 31. Yet, as is evident from the discussion above, any declaration by the Court at this point in time – after construction is complete and the clearing, grading, and excavation have taken place – would be of no practical effect. To issue declaratory relief would be tantamount to issuing an advisory opinion, a result not within this Court’s power. See Weiss v. Sec'y of U.S. Dep't of Interior, 459 F. App'x 497, 500 (6th Cir. 2012) (dismissing NHPA claims as moot when “effects on the [site’s] historic character have already occurred,” as Court could not “give any meaningful relief and any declaratory judgment would be an advisory opinion”) (internal citation and quotation marks omitted); Bayou Liberty Ass'n, 217 F.3d at 397– 98 (finding request for declaratory judgment in NHPA suit after challenged construction had occurred “amounts to a request for an advisory opinion from this court”). Because it can provide no meaningful remedy to address Plaintiffs’ alleged injuries arising from their NHPA claims, the Court will dismiss the relevant counts of the Tribe’s Complaint as moot.
B. NEPA The Court at last turns to what remains of the Cross-Motions for Summary Judgment – i.e., Plaintiffs’ NEPA claims. The Tribe’s Motion focuses on Count VI of its Complaint, which alleges that federal Defendants “unlawfully piecemealed and segmented approval and analysis of the Pipeline utilizing three separate EAs and FONSIs.” Yankton Compl., ¶ 168. Specifically,
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Plaintiffs allege that the Corps and FWS violated NEPA’s “anti-segmentation principle” by choosing to issue discrete EAs for the various components of the pipeline requiring federal permissions. Id., ¶ 166. This principle seeks to prevent agencies from “avoid[ing] the NEPA requirement that an EIS be prepared for all major federal actions with significant environmental impacts by dividing an overall plan into component parts.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987). The Tribe claims that here, such “segmentation of Federal approvals” violated NEPA’s implementing regulation, 40 C.F.R. § 1508.25, which addresses the environmental analysis of “connected, cumulative, or similar” actions. See Yankton MSJ at 9-14. Defendants respond that the decision to issue separate EAs and FONSIs was well within their discretion. See Corps Reply at 2. They assert that the three EAs at issue – the Omaha Corps District, St. Louis Corps District, and FWS assessments – were not “connected” or “similar” actions, and that § 1508.25 thus did not require any omnibus analysis of the various federal approvals.
1. Deference to Agencies In evaluating the parties’ Cross-Motions, the Court begins with the question of deference. According to federal Defendants, “[A]n agency’s scoping decision is entitled to deference,” including the Corps’ and FWS’s decision to “limit[] their review to areas within their jurisdiction.” Corps Opp. at 8. Plaintiffs counter, somewhat confusingly, that because federal Defendants “are part of the same entity – the United States – and the United States is required to conduct the NEPA analysis,” no deference is due to the agencies’ independent scoping determinations. See Yankton Reply at 13. This line of argument is unavailing, as the scoping process clearly falls under the authority of each agency charged with conducting a NEPA analysis. As the Supreme Court has held, “An agency enjoys broad discretion in determining
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how best to handle related, yet discrete, issues in terms of procedures and priorities.” Mobil Oil Exploration & Producing Se. Inc. v. United Distribution Cos., 498 U.S. 211, 230 (1991) (citations omitted); see also Weiss v. Kempthorne, 580 F. Supp. 2d 184, 188 (D.D.C. 2008) (discussing deference given to agency decision in context of NEPA’s connected-actions regulation); Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985) (noting that agencies are given “considerable discretion” in defining scope of an environmental analysis), abrogated on other grounds by Cottonwood Envtl. Law Ctr. v. US Forest Serv., 789 F.3d 1075, 1090 (9th Cir. 2015). Plaintiffs’ suggestion that agency discretion is somehow subsumed by the ultimate oversight of the “United States” is simply untethered from any legal support. Similarly futile is the Tribe’s contention that because “[s]coping informs the rest of the analysis[,] . . . a defective scoping should not be entitled to deference.” Yankton Reply at 13-14. This statement puts the cart of conclusion before the horse of deference. In other words, the initial question is whether an agency’s scoping decision is due deference as a matter of law. If so, the Court then considers whether this presumption is rebutted by any arbitrary or capricious action during the decisionmaking process.
Here, the Court agrees with Defendants that the Corps’ and FWS’s scoping determinations are entitled to deference under NEPA. As this Circuit has held, “[T]he linedrawing decisions necessitated” in agencies’ “treatment of [a] project’s relation to other government activities” are “vested in the agencies, not the courts.” Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987). The “latters’ role,” therefore, “is simply to ensure that” the agency’s scoping decision does not violate the law. Id. (quotation omitted). Indeed, even when an environmental analysis “addresses one of a series of closely related proposals, the decision whether to prepare a programmatic impact statement is committed to the agency’s
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discretion.” Grunewald v. Jarvis, 776 F.3d 893, 904-05 (D.C. Cir. 2015). The Court addressed this standard in Standing Rock I, when it held that the determination of “the scope of the effects” of federal permission related to DAPL fell “squarely within the expertise of the [agency]” and was “entitled to deference under the APA.” 205 F. Supp. 3d at 31. In light of this deferential standard, it is up to Plaintiffs to show that the agencies acted “arbitrarily in refusing to prepare one comprehensive” evaluation or in “determin[ing] the region, if any, with respect to which a comprehensive statement is necessary.” Kleppe v. Sierra Club, 427 U.S. at 412, 416; see Grunewald, 776 F.3d at 905 (in determining whether comprehensive environmental analysis was “necessary,” court will overturn agency decision only if it “is arbitrary and capricious”); Earth Island Inst. v. Elliott, 2017 WL 5526572, at *13 (E.D. Cal. Nov. 17, 2017) (“A plaintiff must show that an agency’s decision not to prepare a single EIS was an arbitrary action.”).
2. Framework of Segmentation Analysis Deference thus established, the Court next discusses the general parameters of Plaintiffs’ claim that the Corps and FWS impermissibly “segmented” their environmental analysis. Under NEPA, an agency acts unlawfully when it “divides connected, cumulative, or similar federal actions into separate projects and thereby fails to address the true scope and impact of the activities that should be under consideration.” Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1314 (D.C. Cir. 2014); see PEACH v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1247 (11th Cir. 1996) (stating that anti-segmentation rule ensures agencies “cannot evade [their] responsibilities under [NEPA] by artificially dividing a major federal action into smaller components, each without a significant impact”) (internal quotation marks and citation omitted).
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The initial task in addressing a segmentation claim is identifying the “overall plan” or “major federal action” that has allegedly been sub-divided. See Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129, 1139 (5th Cir. 1992) (noting that “[t]he case law which deals with . . . improper segmentation almost always involves a situation where a ‘major Federal action’ is found to exist and then the [issue] of segmentation is evaluated”). Here, both sides struggle somewhat with this definitional question.
According to Defendants, the Tribe is identifying the federal action at issue as “the entire pipeline” project, see Corps Opp. at 9, which they contend is squarely precluded by the D.C. Circuit’s holding in Sierra Club, 803 F.3d at 44. There, the court disagreed with the plaintiff’s position that the Corps had violated NEPA by failing to conduct a “review of the entire pipeline” at issue. Id. at 44. It found instead that the “connected actions regulation . . . does not dictate that NEPA review encompass private activity outside the scope of the sum of the geographically limited federal actions.” Id. at 49. The court thus rejected the plaintiff’s contention that the entire pipeline, the vast majority of which fell outside federal control, should have been addressed in a programmatic environmental analysis. Id. at 50-51.
The Tribe, Defendants assert, is making “functionally the same argument” here. See Corps Opp. at 9. If Plaintiffs were in fact asserting that NEPA required a DAPL-wide assessment, the Corps would be correct in deeming such a claim futile. The Tribe would, moreover, be precluded from making such an argument not only by the holding in Sierra Club, but also by one of the Court’s prior Opinions in this case. In Standing Rock I, it rebuffed Standing Rock’s argument that federal Defendants were required to engage in a whole-pipeline analysis. The Court denied the need for any such comprehensive evaluation, finding that “a federal agency with limited jurisdiction over specific activities related to a pipeline” is not
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“required to consider all the effects of the entire pipeline.” 205 F. Supp. 3d at 31; see also Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 1051-54 (10th Cir. 2015) (holding Corps was not required to prepare NEPA analysis of entire pipeline when verifying permits for 485-mile oil pipeline crossing over 2,000 waterways); Winnebago Tribe of Neb. v. Ray, 621 F.2d 269, 272-73 (8th Cir. 1980) (concluding same for electric utility line).
Yet the Court believes that the Yankton Sioux’s segmentation claim is more nuanced than Defendants contend. Although the Tribe certainly confuses the matter somewhat by referring repeatedly to the “entire pipeline project” and the “impacts of the [p]ipeline,” it also raises the narrower argument that NEPA required a “comprehensive agency action review of the connected and similar federal actions” related to DAPL. See Yankton Reply at 1, 8, 10; Yankton MSJ at 6 (emphasis added). Plaintiffs contrast this claim with “whole pipeline review,” explaining that they are limiting their challenge to the series of actions within federal permitting authority. See Yankton Reply at 9-10.
This narrower claim, contrary to Defendants’ assertions, is not precluded by Sierra Club. Rather, it fits within a line of argument explicitly left open by that opinion. As the court there noted, plaintiff had, at oral argument, advanced the claim that “the connected action regulation require[s] that the federal actions in this case – the easements, the other areas within federal jurisdiction” – should have been considered connected and “analyzed together” under NEPA. See 803 F.3d at 51. The court stated that such a claim “for NEPA analysis limited to the [federal] verification and easement areas” was “an accurate statement of the connected actions doctrine.” Id. at 44, 51. Because plaintiffs had forfeited such an argument below, however, the Circuit “had no occasion to consider it.” Id. at 51, 44.
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For this Court, then, the decision in Sierra Club serves only to identify a lacuna in the binding precedent – how to apply the anti-segmentation rule to federal actions encompassed within a larger, private project. Here, Plaintiffs are challenging federal Defendants’ decision to issue “three separate and distinct EAs, three separate and distinct FONSIs, and one categorical exclusion classification for their own respective actions related to the Pipeline project,” in lieu of a consolidated analysis of all such federal permissions related to DAPL. See Yankton MSJ at 11. This limited anti-segmentation claim appears to fit within the narrow opening left ajar by the holdings of Sierra Club and this Court’s prior Opinion. See Sierra Club, 803 F. 3d at 49 (recognizing potentially viable claim that an agency “unlawfully failed to perform NEPA analysis on sections . . . short of the entire length of the pipeline” that fell under federal control). The Court treats in turn the Tribe’s arguments on “connected actions” and “similar actions.”
3. Connected Actions Having established the framework of the anti-segmentation rule and the parameters of Plaintiffs’ NEPA claims, the Court begins with the Tribe’s allegation that Defendants violated the Act’s implementing regulation, 40 C.F.R. § 1508.25, by not treating the DAPL-related permissions as “connected” actions requiring a programmatic environmental analysis. Under § 1508.25(a)(1), connected actions are those that “(i) automatically trigger other actions which may require [an EIS]; (ii) cannot or will not proceed unless other actions are taken previously or simultaneously; or (iii) are interdependent parts of a larger action and depend on the larger action for their justification.” Although Defendants argue that this regulation applies only to EIS analyses, and not EAs (as were issued in this case), this contention conflicts with Circuit precedent stating that “when determining the contents of an EA or an EIS, an agency must consider all connected actions.” Delaware Riverkeeper, 753 F.3d at 1314 (emphasis
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added). The Court will therefore proceed with the assumption that, if the various DAPL permissions are in fact “connected actions” under NEPA, Defendants were required to include them within the scope of a consolidated environmental review – whether it took the form of an EIS or an EA.
So, are the discrete federal permissions here in fact “connected”? Plaintiffs offer four major arguments in favor of finding such a relationship: (1) the federal projects do not have “substantial independent utility”; (2) the approval of each federal permit constrained the consideration of alternatives for other portions of the pipeline; (3) the permits and permissions were “justified by” a larger federal action; and (4) the federal projects are “interdependent” and have a “synergistic” environmental effect. The Court addresses each separately.
a. Substantial Independent Utility Under this Circuit’s decision in Taxpayers, federal projects can only be analyzed separately if each project has, inter alia, “substantial independent utility.” 819 F. 2d at 298. In other words, this test asks “whether one project will serve a significant purpose even if a second related project is not built.” Hammond v. Norton, 370 F. Supp. 2d 226, 247 (D.D.C. 2005) (quoting Coal. on Sensible Transp., 826 F.2d at 69). On this issue, Plaintiffs argue that “no separate component of the Pipeline considered by Federal Defendants and analyzed in three separate EAs can possibly have independent utility” because “[i]f one federal approval for the Pipeline had been denied, Pipeline construction could not have been completed and the whole project would have been rendered utterly useless.” Yankton MSJ at 13. This line of argument, as Defendants accurately note, ignores the facts on the ground. Most significantly, 97% of DAPL runs through private land. This means that vast swaths of the pipeline could be constructed without any federal permissions or permits whatsoever, and that, if
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a given federal authorization was denied for a portion of the remaining 3%, the project could be re-routed to avoid the contentious crossing or easement. See Standing Rock I, 205 F. Supp. 3d at 32 (noting that “the route taken by the pipeline through private lands . . . is driven by factors that have little to do with the discrete activities that the Corps needs to permit”). Indeed, such rerouting occurred throughout the lifespan of the pipeline project, including in response to the findings of the FWS EA. See FWS EA at 7, 13-16 (discussing route modifications and alternatives); Standing Rock I, 205 F. Supp. 3d at 14 (noting that pipeline route was “modified 140 times in North Dakota alone to avoid potential cultural resources”); Exh. Y (Letter from Jackie Rodgers of Osage Nation confirming DAPL reroute at Mississippi River crossing); Corps Opp. at 14 n.7 (noting prior re-routing). Far from rendering the “whole project . . . entirely useless,” the denial of one federal approval could simply result in a shift in the pipeline’s course.
It follows, therefore, that each discrete federal permission had “substantial independent utility,” as each would allow that portion of the pipeline to proceed as planned, while any denial would result in re-routing – with no apparent impact on the other federally regulated components of the project. Cf. City of Williams v. Dombeck, 151 F. Supp. 2d 9, 19–20 (D.D.C. 2001) (finding water-transportation system connected to larger federal action because construction of water pipeline “[would] not proceed unless [the other action] proceeds previously or simultaneously”) (internal quotation marks omitted).
The limited federal involvement with DAPL and the potential for re-routing additionally distinguishes this case from Delaware Riverkeeper, upon which Plaintiffs rely. In that case, the projects at issue addressed upgrades to a natural-gas pipeline, meaning that a federal agency – FERC – had jurisdiction over projects along its entire length. See 753 F.3d at 1307-08. Because FERC was tasked with analyzing the environmental impacts of construction and operation for
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the whole pipeline, there was simply no way for it to be re-routed so as to not require agency approval. Id. at 1308 (noting that the approvals were “physically, functionally, and financially connected and interdependent”). If FERC had approved certain segments and denied others, the project could not proceed. As the court in Delaware Riverkeeper found, each phase of the pipeline’s approval and permitting process “fit with the others like puzzle pieces,” and thus the “agency was obliged to assess the entire pipeline for environment[al] effects.” Id. at 1319.
DAPL, by contrast, is not so beholden to overall federal approval; as this Court noted in Standing Rock I, “[N]o permitting” does not mean “no pipeline.” 205 F. Supp. 3d at 31. The project’s construction and routing could instead be tailored or modified to avoid problematic federal lands or water. Id. This conclusion remains as true today as when the Court issued its first Opinion in this case. It follows, therefore, that the Corps’ and FWS’s actions related to the pipeline have “substantial independent utility.” The denial of one federal approval for this pipeline does not preclude, or even necessarily affect, the remaining federal actions.
b. Consideration of Alternatives The Tribe next posits that “each approval issued [by the Corps and FWS] sufficiently constrained the consideration of alternatives for other portions of the pipeline to mandate consideration of all approvals in a single NEPA document.” Yankton MSJ at 13. According to Plaintiffs, the “approval of one segment clearly foreclosed the opportunity to consider other reasonable alternatives, as the approval of one segment at a specific location decreased route options for other segments of the pipeline.” Id. Defendants counter that their consideration of alternatives to each permit and permission was not so constrained, pointing to the fact that the EAs each “contains a section devoted to alternatives to the federal action.” DA Opp. at 19
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Defendants have the better of this argument. Indeed, a review of the three EAs at issue demonstrates that the two Corps districts and FWS clearly considered a full panoply of alternatives – including, in each case, a “no-action” alternative that consisted of a scenario in which the pipeline was not constructed. See Omaha Dist. EA at 12-13; St. Louis Dist. EA at 1215; FWS EA at 15. As made evident by the agencies’ analyses, the approval for any one crossing or permission did not restrict the consideration of different route options or alternatives for the other proposed actions. See also Coal. on Sensible Transp., 826 F.2d at 69 (rejecting claim that project approval would “restrict consideration of alternatives for related projects” because no indication that each permission would “effectively commit [federal] decisionmakers to a future course of action”).
c. Larger Federal Action Plaintiffs next assert that the various federal permits and permissions are “connected” because they “are justified by a larger federal action” – that is, but for an overarching federal project, the discrete approvals would not have been required. They contend that the actions of the Corps and FWS were “clearly parts of a larger action,” stating that “the permits and permissions issued by Federal Defendants were part of, and justified by, the . . . greater implementation of the Pipeline.” Yankton Reply at 10-11. Yet, as discussed above, any suggestion that DAPL as a whole constitutes a “federal action” is unavailing in light of Sierra Club and Standing Rock II. The narrower question, therefore, is whether the federal permits and permissions were justified by any larger federal action and thus required a consolidated NEPA analysis. See Yankton Reply at 12 (acknowledging that Tribe “do[es] not argue that the entire pipeline should have been analyzed, but rather, that the permits and permissions . . . should have been analyzed together in a single NEPA process”); see also Sierra Club v. U.S. Army Corps, 64
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F. Supp. 3d 128, 154 (D.D.C. 2014), aff’d, 803 F.3d 31 (stating that “connected actions regulation requires that the impact on the environment of all aspects of a particular major federal action be evaluated together”) (emphasis added).
Here, Plaintiffs can identify no such overarching federal project upon which the various permissions rely. Instead, the record is clear that federal permission was needed for only limited, discrete components of DAPL’s construction. See Corps Opp. at 10 (noting that “there was no single proposal for the pipeline submitted to Corps and FWS”). Although all of the federal authorizations were part of the pipeline project, the project was not itself a federal undertaking. See Sierra Club, 803 F.3d at 49 (noting that while oil pipeline at issue was “undoubtedly a single physically, functionally, and financially connected project,” “less than five percent [was] subject to federal review,” and thus agency was not required to evaluate impact of entire pipeline) (internal quotation marks omitted). This again distinguishes the facts of this case from those of Delaware Riverkeeper, in which FERC had jurisdiction over the entire pipeline, and each related permission was thus contingent upon the agency’s approval of the pipeline’s overall certification. The agency actions at issue here, by contrast, are not “justified by” or reliant upon any broader federal permission. See Sierra Club v. US Army Corps of Eng’rs, 990 F. Supp. 2d 9, 37 (D.D.C. 2013) (noting “general reluctance to conclude that federal action with respect to a small portion of a pipeline” is sufficient to “federalize the entire project”).
d. Synergistic Effect Last, the Tribe is unable to demonstrate that the discrete federal permissions were “interdependent” or that they had any “synergistic effect.” Plaintiffs cite to Kleppe v. Sierra Club, 427 U.S. 390 (1976), which held that proposals that have a “synergistic environmental impact upon a region . . . must be considered together.” Id. at 410. Here, however, the Tribe is
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unable to identify any such synergy connecting the discrete DAPL permissions. Each of the EAs and FONSIs addresses geographically isolated crossings or easements, and there is no suggestion in the record that environmental impacts in one location would have repercussions for another. Indeed, it is difficult to imagine how the construction of a river crossing in Illinois could possibly affect the environment at Lake Oahe, which is located hundreds miles away and separated by the states of Iowa and South Dakota. See DA Opp. at 1 (Map 1). This, therefore, is not a case in which the environmental impacts or harms arising from a set of discrete federal permissions would, if combined, be greater than the sum of the parts.
This lack of interaction between the sites addressed in each EA distinguishes this case from NRDC v. Hodel, 865 F.2d 288 (D.C. Cir. 1988). Hodel involved the federal review of permissions for a series of offshore drilling leases in two ecologically sensitive locations. Id. at 297. The Secretary of the Interior had determined that each lease would not have a significant environmental effect, a conclusion plaintiff challenged under § 1508.25. Id. at 298. The court in Hodel agreed. It held that the Secretary had erred by separately evaluating the lease permissions because, acting together, the discrete drilling locations would affect marine mammals and migratory species. Id. at 299-300. While a single drilling lease may not have had such effect, the court found that the actions were connected by their interdependent and synergistic impacts. By failing to consider the cumulative effects of all the leases, the Secretary impermissibly ignored the actual environmental repercussions of granting the multiple permissions.
Here, by contrast, the permissions at issue are for ecologically distinct waters and lands. Counter to Plaintiffs’ assertion that the sites are “interdependent,” Yankton MSJ at 14, there is no indication that DAPL’s passage through one crossing or easement would have spillover environmental effects at another. The Court, consequently, finds no basis upon which to deem
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the federal approvals “interdependent” or as having any synergistic environmental impact. See Earth Island Inst., 2017 WL 5526572, at *14 (separate NEPA review appropriate where actions in question were located in different watersheds on opposite sides of Greenhorn Mountains).
4. Similar Actions In addition to maintaining that the approvals were “connected actions,” Plaintiffs assert that the Corps’ and FWS’s assessments were “similar actions” under § 1504.25. The Court begins with the threshold issue of whether the Tribe has in fact forfeited this claim. According to Defendants, the “similar actions” contention is unavailable, as “neither Plaintiffs nor any other commenter raised the argument that FWS and the Corps’ actions should be considered together as ‘similar actions,’” Corps Opp. at 13 n.5, and “[i]t is well-established that issues not raised in comments before the agency are waived.” DA Opp. at 24 (quoting Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002)). In response, the Tribe asserts that it need not have identified the similar-actions claim during the comment period “because a different entity . . . had explicitly raised the issue.” Yankton Reply at 25. Plaintiffs then refer to a lone comment on the proposed St. Louis District EA that quoted the text of § 1508.25, including the “connected, cumulative, or similar actions” language. Id. at 27 (citing St. Louis EA, Comment 2-2). Plaintiffs also argue that, regardless of whether the similar-actions argument was raised in comments, the Court should not consider it forfeited because it falls within the realm of those “so obvious that there is no need for a commentator to point [it] out specifically in order to preserve its ability to challenge a proposed action.” Id. at 28 (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765 (2004)). After examining the underlying record, the Court agrees with Defendants that the “similar actions” issue was not raised “with sufficient specificity reasonably to alert the agency”
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during the comment period. See Tex Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C. Cir. 1991). The single mention of the word “similar” in the comments appears to be the one Plaintiffs cite from the St. Louis EA, which arises in the context of reciting verbatim the full language of § 1504.25. Neither that comment, nor any other, makes any attempt to apply that “similar actions” text to the DAPL decisionmaking process or argues that federal Defendants erred in failing to consider their respective permissions and permits under that prong of the regulation. As Defendants acknowledge, this is in contrast to the “connected actions” issue, which was explicitly raised and addressed in depth by a number of commenters. See, e.g., Exh. 14 (Sierra Club Comment) (discussing § 1504.25, but addressing only “connected actions” prong of regulation). While the Tribe is correct that it may rely on the comments of other entities in arguing against waiver, see Nat. Res. Def. Council v. EPA, 824 F.2d 1146, 1151 (D.C. Cir. 1987), here it cannot show that any entity sufficiently raised the “similar actions” claim before the agencies so as to give them notice of the issue. See Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1519 (D.C. Cir. 1988) (holding that “by neglecting timely to put the [agency] on proper notice of its objections, [Plaintiff] has forfeited its right to have this court examine those objections on the merits”).
Similarly, Plaintiffs cannot demonstrate that the issue is “so obvious” that it need not have been pointed out in order to be preserved as a basis for a later legal challenge. See Dep't of Transp., 541 U.S. at 765. Indeed, it stands to reason that if the “similar actions” argument was so self-evident, the multiple commenters who addressed the issue of segmentation would have at least referred to such an allegedly straightforward claim. The fact that the comments instead discussed only the “connected actions” prong of § 1508.25 speaks to the relative obscurity of the “similar actions” issue. Because no commenter made any substantive contention that the
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agencies’ actions were similar, and because such an argument was not “obvious,” the Court will deem this issue forfeited.
Out of an abundance of caution, however, the Court also notes that even if this claim were preserved, the Tribe would still not prevail. Under § 1508.25, similar actions are those that, “when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.” Plaintiffs contend that the federal permissions at issue in this case share such a resemblance. In particular, the Tribe focuses on the “common timing” of the Corps’ and FWS’s actions, noting that the agencies’ decisionmaking processes “took place at roughly the same time,” with the relevant federal permits and permissions issued within a span of ten months. See Yankton MSJ at 15; Reply at 19.
Simultaneity of agency actions is not, however, dispositive of their similarity. Instead, § 1508.25 clearly states that the ultimate question is whether a set of actions “ha[s] similarities that provide a basis for evaluating their environmental consequences” in a single assessment. As this Circuit has put it, a comprehensive analysis is appropriate under § 1508.25 when the “sufficiently similar character of actions is such that [a programmatic analysis] is the ‘best way’ to assess their combined impacts.” Coal. on Sensible Transp., 826 F.2d at 70 n.8 (citation omitted). Such a standard does not, contrary to the Tribe’s suggestion, mandate that all actions with temporal proximity are “best” assessed in a single EIS or EA.
The implementing regulation, moreover, also lists common geography as another potential indicator of similarity – a factor that, in this case, cuts against finding such commonality between the DAPL-related permissions. As discussed above, the three EAs and FONSIs were for geographically and ecologically distinct areas of federal control. As
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Defendants note, the assessments addressed actions that were “not physically connected” and instead were “spread over hundreds of miles across multiple states.” Corps Opp. at 16. The permissions and permits, moreover, were for different environmental resources: the Omaha District EA addressed the crossing of Lakes Oahe and Sakakawea; the St. Louis EA looked at a series of lake, creek, and channel crossings and drainage districts in Illinois; and the FWS EA was concerned with the agency’s jurisdiction over wetland and grassland easements.
Such geographic isolation and ecological diversity, the Corps contends, defeat any suggestions of similarity between the federal actions. Plaintiffs counter that “[w]hile the geographic locations for the various agency actions are not the same, they all occurred along the same linear pipeline route,” and thus “[t]here can be no doubt that Federal Defendants’ actions were ‘similar.’” Yankton MSJ at 16 (emphasis omitted). The Court does not share the Tribe’s certainty on this issue. Instead, it finds that the geographic and substantive differences among the three actions demonstrate that they are not “similar” within the meaning of § 1508.25.
Plaintiffs also vaguely allude to other alleged similarities among the DAPL-related actions. Although it focuses largely on the temporal overlap between the various federal permissions, the Tribe asserts that “Defendants’ actions involved the same singular pipeline which would transport the same crude oil, rendering the actions’ potential impacts similar if not identical.” Yankton MSJ at 15. Again, this argument does not reflect the reality of the pipeline – a project that spans four states over its 1,200-mile route. The discrete parcels of federal lands and easements the pipeline encounters along this corridor are not, simply by virtue of being in DAPL’s path, “similar.” Indeed, one need only reference the EAs at issue in this case to understand that, far from presenting “identical” environmental considerations, each federal permission reflects site-specific and distinct ecological concerns. Although the pipeline may be
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a “singular” private undertaking, its environmental impacts and the related federal assessments are far more diverse.
* * * In sum, the Court concludes that Defendants’ environmental assessments are not “connected” or “similar” federal actions. Instead, they are discrete analyses that address ecologically and geographically disparate areas of federal jurisdiction. The Corps and FWS, accordingly, were under no obligation to consider these authorizations together. The Court observes, moreover, that a major rationale for the anti-segmentation rule is especially inapplicable in this case. Enforcement of the principle seeks, in large part, to prevent agencies from disguising the actual environmental impacts of a given governmental project by dividing the action into artificially created components. See Macht v. Skinner, 715 F.Supp. 1131, 1135 (D.D.C. 1989), aff'd, 889 F.2d 291 (D.C. Cir. 1989) (anti-segmentation principle serves to “weed out projects which are pretextually segmented, and for which there is no independent reason to exist”). Yet this is not a case in which a broader agency action was fragmented into arbitrary parts in order to hide its total environmental effect. DAPL is a largely private project, and Defendants’ decision to treat the limited federal involvement with the pipeline as discrete agency actions evinces no bad faith or attempt to circumvent NEPA’s environmental protections. Such a determination was instead a reasonable exercise of the agencies’ discretion, and the Court will therefore defer to Defendants’ decision to conduct three separate EAs and FONSIs in this case. C. Harmless Error Finally, even if Defendants’ actions did violate NEPA, the Court concludes that such violations did not prejudice Plaintiffs, as there is no indication that the agencies would have reached a different outcome if they had in fact considered the DAPL-related actions in toto.
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The Tribe argues that the Court should not apply harmless-error doctrine in this context, noting that certain cases finding improper segmentation of NEPA analyses have not explicitly addressed the question of prejudice. See Yankton Reply at 21. Yet just because other courts have not applied harmless error does not prevent this Court from doing so. Rather, the inquiry into whether a NEPA plaintiff suffered prejudice is well established in the relevant precedent. See, e.g., Pub. Employees for Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1087–88 (D.C. Cir. 2016) (applying harmless-error analysis in NEPA context); Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 59–62 (1st Cir. 2001) (same); Laguna Greenbelt, Inc. v. U.S. Dep't of Transp., 42 F.3d 517, 527 (9th Cir. 1994) (same).
Defendants assert that the Tribe has identified “no concrete environmental impact that was missed by the alleged segmenting of the discrete permissions” by the Corps and FWS. See Corps Opp. at 17-18. The Court agrees. The Tribe describes the actual impact of Defendants’ allegedly improper segmentation in only the vaguest of terms, stating that the use of separate analyses left the Tribe “with no means to truly understand or weigh in on the vast cumulative impacts this project can and will have on the human environment” and generally alleging that by using three separate EAs, Defendants “concealed the cumulative environmental impacts of the project.” Yankton MSJ at 2.
Yet there is no indication in the record that Defendants “concealed” any cumulative environmental impacts or that they “faile[ed] to do the analysis . . . to determine the cumulative impacts” of all of the federal actions. See Yankton Reply at 5-6. On the contrary, each of the three EAs contains a section explicitly titled “cumulative impacts,” discussing the potential cumulative effects of each permission and addressing the potential for the relevant permit to interact with other federal actions – including those related to the pipeline. See Omaha EA at 98-
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107; FWS EA at 33-35; St. Louis EA and FONSI at 83-94. If the agencies were attempting to “hid[e] the ball” as to DAPL’s cumulative impacts, see Yankton MSJ at 19, they did a poor job indeed.
Beyond providing no evidence of Defendants’ alleged “concealment,” Plaintiffs have not identified any actual harms that arose from the division of the agencies’ analysis. The goal of NEPA is to ensure that the public is provided with relevant information and the opportunity to participate in agency decisionmaking. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision”). In this case, Plaintiffs provide no explanation as to how Defendants’ alleged segmentation of the DAPL-related permissions frustrated such ends.
In fact, the high volume of comments and active public dialogue throughout the permitting process undermine any conclusion that NEPA’s participatory goals were somehow stymied by the use of three separate EAs. See Yankton MSJ at 5 (acknowledging “multitude of comments” regarding Defendants’ actions). Although the Tribe may have preferred that the assessments be combined into a single document, there is no indication in the record that such consolidation would have had any meaningful effect. Plaintiffs, like the rest of the public, seem to have had no difficulty reviewing the three discrete documents – or voicing their concerns regarding the agencies’ conclusions. See Nevada v. Dep't of Energy, 457 F.3d 78, 90–91 (D.C. Cir. 2006) (finding lack of prejudice from alleged NEPA violation when “[t]he many comments submitted in response to the []EIS manifest that the public had sufficient information to comment”).
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Contrary to the Tribe’s assertion that “had [Defendants] not broken the analysis into three pieces, it would seem a foregone conclusion that the cumulative impact would have easily crossed the threshold for requiring an EIS” rather than an EA, see Yankton Reply at 5, the record in this case does not support such an assumption. Because the Tribe is unable to specifically explicate, much less demonstrate, how Defendants’ discrete analyses “inherently lowered the level of environmental review that they conducted,” id. at 22, the Court is unconvinced that any omnibus assessment would have altered the agencies’ analysis. As Plaintiffs can demonstrate no actual harm arising from the use of the three EAs, the Court concludes that any improper segmentation in this case constitutes harmless error.
* * * As a final note, the Court observes that its conclusions today are not necessarily the end of the road for the Yankton Sioux’s involvement with DAPL. As of October 20, 2017, the Tribe has been contacted by Defendants and asked to provide input during the ongoing remand analysis. See ECF No. 306, Exh. 1 (Letter from Corps requesting information from Yankton to assist in remand). Plaintiffs will therefore have the opportunity to voice their remaining concerns regarding the Corps’ environmental assessments and, if they choose, to engage in an active dialogue with Defendants as this case continues to move forward. IV. Conclusion For the foregoing reasons, the Court will deny Plaintiffs’ Motion for Summary Judgment, grant Defendants’ Cross-Motion for Summary Judgment, and dismiss Plaintiffs’ Count I as moot. A contemporaneous Order so stating will issue this day. .
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Date: March 19, 2018

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,
Plaintiff,
and
CHEYENNE RIVER SIOUX TRIBE,
Plaintiff-Intervenor, v.
U.S. ARMY CORPS OF ENGINEERS,
Defendant-Cross Defendant,
and
DAKOTA ACCESS, LLC,
Defendant-IntervenorCross Claimant.

Case No. 1:16-cv-1534-JEB (and Consolidated Case Nos. 16-cv-1796 and 17-cv-267)
FIRST SUPPLEMENTAL COMPLAINT

INTRODUCTION

1. Pursuant to Fed. R. Civ. P. 15(d), plaintiff, Standing Rock Sioux Tribe (“Tribe”)

hereby files this supplemental complaint in connection with federal actions relating to the Dakota

Access Pipeline (“DAPL”). DAPL is a 1,168-mile-long crude oil pipeline that crosses the

Missouri River at Lake Oahe half a mile upstream of the Tribe’s reservation, on the Tribe’s

treaty lands.

2. This supplemental complaint addresses events that have occurred since this Court

granted in part the Tribe’s motion for partial for summary judgment on June 14, 2017. Standing

Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp.3d 101 (D.D.C. 2017). In that

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decision, this Court found unlawful and remanded the environmental analysis conducted by defendant U.S. Army Corps of Engineers (“Corps”) for additional consideration on specific issues. It further admonished the Corps to give “serious consideration” to the errors identified in its decision, warning that compliance with the law “cannot be reduced to a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc.” Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 282 F.Supp.3d 91, 109 (D.D.C. 2017).
3. The remand process is now complete and has resulted in another final decision by the Corps. Regrettably but not surprisingly, the Corps ignored this Court’s admonition to approach the remand with an open mind. Instead, it treated the remand as a post hoc effort to justify its unlawful decision to circumvent an adequate review of the pipeline and its impacts on the Tribe and the Tribe’s rights. In the remand decision, the Corps’ without qualification affirmed its original decision to authorize the pipeline without a comprehensive environmental review under the National Environmental Policy Act (“NEPA”). Rather than “serious consideration” of the remand issues, the Corps produced a one-sided analysis that failed to provide a fair or transparent review of the matters this Court remanded to it.
4. This supplemental complaint challenges the Corps’ remand decision, which is a final agency action subject to review by this Court under the Administrative Procedure Act, 5 U.S.C. § 701, et seq., (“APA”), and the process underlying it. As directed by Fed. R. Civ. P. 15(d), it focuses on the additional background and claims that have arisen since the original complaints were filed.
5. The Tribe seeks a declaration that the Corps’ decision to affirm its original decision without a comprehensive environmental review and adequate consultation with the

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Tribe was arbitrary, capricious and in violation of the APA, NEPA, and the Tribe’s Treaty rights. The Tribe asks that the Corps’ permits authorizing DAPL under Lake Oahe be vacated pending full compliance with NEPA and the APA.
JURISDICTION AND VENUE 6. This supplemental complaint presents claims under the APA, which authorizes a federal court to find unlawful and set aside any final agency action that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. The Tribe brings these claims on its own behalf and on behalf of its members. 7. Jurisdiction arises under 28 U.S.C. § 1362 (“district courts shall have original jurisdiction of all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States”); § 1331 (general federal question jurisdiction); § 2201 (declaratory relief); § 2202 (injunctive relief). 8. Venue in this district is appropriate under 28 U.S.C. § 1391(e) because it is the district in which the defendant resides and in which “a substantial part of the events or omissions giving rise to the claim occurred.” No party has contested jurisdiction or venue during this litigation to date.
PARTIES 9. The Standing Rock Sioux Tribe is a federally recognized Indian tribe. Since time immemorial, the Tribe’s ancestors lived on the landscape crossed by DAPL. The pipeline crosses areas of great historical and cultural significance to the Tribe, the damage or destruction of which greatly injures the Tribe and its members. The pipeline crosses waters of utmost cultural, religious, spiritual, ecological, and economic significance to the Tribe and its members.

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The Tribe and its members have been, are being, and, unless the relief sought herein is granted, will be harmed by the Corps’ failure to comply with environmental and administrative statutes and the Tribe’s Treaties.
10. The U.S. Army Corps of Engineers is an agency of the United States government, and a division of the U.S. Army, part of the U.S. Department of Defense. It is charged with regulating any dredging and filling of the waters of the United States under § 404 and § 408 of the Clean Water Act, issuing leases under the Mineral Leasing Act (“MLA”), fulfilling the United States’ trust responsibility to Tribes, and complying with NEPA in the course of undertaking major federal actions. Issuance of permits for DAPL is a major federal action subject to NEPA and other laws.
11. Intervenor-Defendant Dakota Access, LLC is a limited liability company formed to construct and own Dakota Access Pipeline. Energy Transfer Partners, L.P., Sunoco Logistics Partners, L.P. and Phillips 66 are the beneficial owners of Dakota Access, LLC.
12. By filing this action, the Tribe does not waive its sovereign immunity and does not consent to suit as to any claim, demand, offset, or cause of action of the United States, its agencies, officers, agents, or any other person or entity in this or any other court.
FACTUAL ALLEGATIONS 13. The Tribe originally filed this action on June 27, 2016, two days after the Corps issued an initial set of permits authorizing construction of DAPL at Lake Oahe, immediately upstream of the Tribe’s reservation and on territory that was part of the Tribe’s Treaty lands. In its original complaint, the Tribe raised multiple statutory and common law claims against the Corps regarding its authorization of DAPL. Shortly thereafter, DAPL moved to intervene as a

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defendant, and the Cheyenne River Sioux Tribe (“CRST”) moved to intervene as a plaintiff. This Court granted both motions.
14. The Tribe immediately moved for a preliminary injunction pursuant to its claims under the National Historic Preservation Act (“NHPA”), seeking to prevent further construction of the pipeline around Lake Oahe pending resolution of the legal claims in the case. By the time of the Court’s consideration of that motion, the Tribe’s peaceful and principled opposition to DAPL at Lake Oahe had garnered global attention.
15. On September 9, 2016, this Court denied the motion for a preliminary injunction. Standing Rock Sioux Tribe v. Corps, 205 F. Supp.3d 4 (D.D.C. 2016). That same day, multiple federal agencies affirmed that the Tribe had raised serious concerns that necessitated a closer look at the Corps’ permits at Lake Oahe and their underlying environmental analysis. The Corps affirmed that the remaining authorization needed to construct the pipeline under Lake Oahe—an easement to cross federally owned land at Lake Oahe issued under the MLA—would not be issued at that time.
16. After several months of additional consideration, the Corps announced on Dec. 4, 2016, that the MLA easement would not be granted without a comprehensive analysis of alternatives and impacts, including an analysis of the Tribe’s Treaty rights, and that this analysis would most likely be undertaken through an environmental impact statement (“EIS”). Shortly thereafter, the Corps formally initiated that process with a notice of intent to prepare an EIS, requesting public input on the critical issues and scope of the EIS. The Tribe, and many others, provided the Corps with extensive comments in response to the notice of intent.
17. A new President was inaugurated on January 20, 2017. On January 24, the new President executed a “Presidential Memorandum” directing the Corps to abandon the December

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4 decision and the recently initiated EIS process. The Corps shortly thereafter issued the MLA easement at Lake Oahe without additional environmental review, and formally terminated the EIS process. Construction of the pipeline under Lake Oahe resumed immediately.
18. After filing an amended complaint, the Tribe moved for partial summary judgment on its NEPA, Treaty, and APA claims against the Corps. The Corps and DAPL crossmoved for summary judgment, and briefing was completed on April 4, 2017. Construction of the pipeline was finished soon thereafter, and DAPL announced that it had commenced commercial operations of the pipeline on June 1, 2017.
19. This Court issued its opinion on the Tribes’ summary judgment motion on June 14, 2017. While rejecting some of the Tribe’s claims, the Court agreed that the Corps’ analysis of three specific issues was arbitrary, capricious, and in violation of NEPA. First, the Court ruled that the Corps failed to adequately analyze the impacts of an oil spill on the Tribe’s treaty hunting and fishing rights. Second, the Court held that the Corps’ consideration of environmental justice implications of the permit was flawed. Finally, the Court held that the Corps failed to address the significant scientific “controversy” around its dismissal of oil spill risk and impacts. The Court remanded the analysis back to the Corps for further consideration in light of its decision.
20. This Court subsequently denied the Tribe’s request that the permits be vacated during the remand process, finding a “serious possibility” that the Corps could substantiate its decision on remand. Standing Rock, 282 F. Supp.3d at 109. In a further decision, this Court granted the Tribe’s request to impose interim conditions on DAPL’s operation during the remand, finding that they were necessary to keep the Court informed of conditions and address its “ongoing concern with the risk of a spill at Lake Oahe.” Standing Rock Sioux Tribe v. U.S.

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Army Corps of Engineers, 2017 WL 6001726, at *2 (D.D.C. Dec. 4, 2017). The Court cited a recent oil spill from another nearby pipeline, noting that such events “have the potential to wreak havoc on nearby communities and ecosystems.” Id. at *3. The Court directed the finalization of oil spill response plans; completion of a third-party audit; and directed public reporting on various measures.
21. The Tribe repeatedly attempted to engage with the Corps in good faith during the remand process, submitting many requests for information and for meetings, and submitting extensive technical and other information intended to inform the Corps’ analysis of the remand issues. The Tribe retained multiple experts on oil spill risk and response in order to assist it in participating in the remand and in preparing for a potential oil spill affecting the reservation. The Tribe also dedicated significant staff and other resources to providing information to the Corps and participating in the remand.
22. The Corps largely refused to provide any of the critical information requested by the Tribe, nor did it take steps to address the Tribe’s request for meaningful consultation. For example, on multiple occasions, the Tribe asked the Corps to share with it the oil spill modeling that the Corps was relying on, so that the Tribe’s technical team could review it and provide input to the Corps as to its reliability and accuracy. The Corps never provided this information, leaving the Tribe’s technical advisors to provide input on analyses that they were never permitted to see.
23. Despite these handicaps, the Tribe on February 21, 2018, provided the Corps with a substantial body of technical material (“Remand Report”) for the Corps to consider in its review. Accompanied by multiple technical appendices, the Tribe’s Remand Report provided extensive expert input on the critical issues of spill risk and impact, authored by a team of

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engineers, attorneys, a former federal safety regulator, a Ph.D. economist, and the directors of several of the Tribe’s governmental agencies. The report also included detailed information on the Tribe’s Treaty rights, supported by numerous declarations from hunters, elders, staff members, and others.
24. For example, the Remand Report and supplementary material provided by the Tribe provided extensive expert information on how the Corps had seriously underestimated the “worst case spill” (“WCD”) discharge volume. It provided extensive expert information on how the Corps’ reliance on generic spill statistics understated the risk of an oil spill, which was considerably higher than the Corps had estimated due in part to the abysmal safety and compliance record of DAPL’s corporate parents. It provided extensive information about unique health and environmental risks presented by Bakken crude oil. It provided extensive independent analysis on the issue of environmental justice.
25. While the remand process was underway, DAPL’s corporate parents publicly announced their intention to expand the capacity of DAPL by 100,000 barrels a day. On information and belief, expansion could take place without additional Corps authorization at Lake Oahe. A significant increase in operation volume would render obsolete much of the spill risk and impact analysis and emergency response planning conducted by DAPL and the Corps to date.
26. The Corps concluded the remand process on August 31, 2018, with a two-page “memorandum for record” documenting the Corps’ conclusion that there was no need to formally reconsider its July 2016 environmental assessment, and stating that an EIS was not necessary. As to the three flaws identified by this Court, the Corps concluded that its review of the Tribe’s hunting and fishing Treaty rights would not be impacted “because the risk of an

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incident is low and any impacts to hunting and fishing resource [sic] will be of limited scope and duration.” As to the issue of environmental justice, the Corps concluded that the Oahe crossing “does not result in disproportionately high and adverse human health or environmental effects on minority populations, including Tribes, and low-income populations.” And as to the issue of whether the Corps conclusions were likely to be “highly controversial,” the Corps incorrectly characterized the Tribe’s significant technical input as simply being opposed to the pipeline authorizations, stating that they did not “provide information that a substantial dispute exists as to the size, nature, or effect of the federal action.”
27. The Memorandum stated that the rationale supporting these findings was contained in the “enclosed document” and in the administrative record. However, at the time the Memorandum was filed, no such “document” was enclosed or provided to the Tribe or the Court. It was not until October 1, 2018, that undersigned counsel was provided with a copy of the enclosed analysis supporting the remand decision (“Remand Analysis”), which was subject to confidentiality restrictions and could not be shared publicly. On October 24, 2018, a redacted version of the remand analysis was made available for the public.
28. The Remand Analysis entirely ignores much of the information provided to the Corps by the Tribe. It mostly reiterates the flawed conclusions of the Corps’ earlier analyses without even mentioning, let alone addressing, most of the Tribe’s information critiquing that analysis. For example, the Remand Analysis continues to calculate risk based on generic national statistics, without regard to any of the unique risk factors of this project in this place, in light of DAPL’s parent companies’ abysmal safety record. Like previous versions, it fails to grapple with extensive evidence that the risks of slow leaks that cannot be detected is higher than it claims. The Remand Analysis ignores DAPL’s failure to utilize vital industry pipeline safety

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standards despite the Corps claim in the EA to do so. Similarly, it continues to underestimate the impacts of an oil spill (which rely on its erroneous WCD and risk estimates), the elevated hazards of Bakken crude oil, and to overestimate the ability of responders to clean it up—all of which place emergency responders at risk.
29. A key shortcoming of the remand analysis is its failure to provide a lawfully adequate WCD. In the remand analysis, the Corps essentially repeats the identical WCD from before the remand—without so much as a word about the Tribe’s extensive explanations of why the Corps’ original estimate was deeply inaccurate. Furthermore, the Corp fails to address the impact of circumstances listed in the 49 C.F.R. § 194.5 definition of WCD, including adverse weather conditions. The WCD also fails to implement the formula required by 49 C.F.R. § 194.105(b)(1), including consideration of the operators’ “historic discharge[s]” and relies on unrealistic shutdown times that bear little resemblance to multiple real-world pipeline incidents. As noted, DAPL’s parent companies have among the industry’s worst safety records, which by law should have been considered in developing the WCD, but was not.
30. The remand also ignored critical findings regarding DAPL’s failure to comply with easement conditions, for example, the requirement of independent power to shutoff valves near Lake Oahe and an undocumented spill incident.
31. The remand analysis calculates the risk and impacts of an oil spill based on DAPL’s original capacity. The Corps conducted no new analyses to respond to DAPL’s announced intention to increase capacity by 100,000 barrels a day. Such an increase fundamentally alters both the risks of a spill as well as its potential impacts. As such, the remand analysis is already out of date and inapplicable to anticipated future operations of the pipeline.

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32. The above examples are intended as illustrations of the flaws in the Corps’ analysis, not a comprehensive list.
33. These and other fundamental flaws in the Corps’ estimate of the risk and impact of oil spills infect all three of the remand topics. For example, the Remand Analysis dismisses the potential impacts to the Tribe’s Treaty hunting and fishing rights by reasoning that the risk of an oil spill is low and its impacts manageable—a conclusion that is fundamentally flawed due to the underestimated WCD and the other reasons discussed above. Similarly, the Remand Analysis dismisses the environmental justice implications of the pipeline permits by, again, relying on the claimed low likelihood and manageable impacts of a spill. And it simply ignores most of the technical input provided by the Tribe in the Remand Report, thereby sidestepping the Court’s directive to address the “controversy” over the Corps’ conclusions on spill risk and impact. Contrary to the Corps’ conclusions, the record reflects extensive unaddressed “controversy” over its WCD, risk analysis, impact analysis, and other conclusions.
34. The Remand Analysis incorporates and relies on a number of technical documents that are cited throughout the document. For example, the “Spill Model Report” is a technical document describing the results of various oil spill scenarios. The “Downstream Receptor Report” is a technical document assessing fate and transport of spilled crude. The “Submission Review” is an assessment of the various comments submitted by the Tribe and other Tribes. None of these documents, or any other technical documents, was ever made available to the Tribe during the course of the remand, despite many requests. Nor have they been made available to the Tribe or its counsel subsequent to the finalization of the Remand Analysis, again despite requests.

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CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF – VIOLATION OF NEPA 35. Plaintiff hereby alleges and incorporates and restates all previous paragraphs of this complaint and of the Amended Complaint. 36. Under NEPA, federal agencies are required to prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). 37. Binding Council of Environmental Quality (“CEQ”) regulations further define whether impacts are “significant” enough to warrant a full EIS, requiring consideration of both “context” (i.e., the various scales, regions, and interests affected by the action) and “intensity” (i.e., the “severity of the impact”). 40 C.F.R. § 1508.27. With respect to the latter, the regulations lay out several factors that are to be considered. Examples of these criteria include: “the degree to which the proposed action affects public health or safety”; “unique characteristics of the geographic area such as proximity to historic or cultural resources…”; the degree to which the effects on the environment “are likely to be highly controversial,” are “highly uncertain” or “involve unique or unknown risks”; and “the degree to which the action … may cause loss or destruction of significant scientific, cultural, or historical resources.” Id. 38. In June of 2017, the Court found “significant” flaws in the Army Corps’ analysis of the risk and impacts of its decision to authorize DAPL underneath Lake Oahe, and ordered the Corps to conduct a remand to give “serious consideration” those flaws. The three flaws identified by the Court—involving the Tribe’s treaty rights, the environmental justice implications, and the “controversy” attending its spill and impact analysis—struck at the heart of the Tribe’s concerns with the Corps’ review of DAPL.

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39. By concluding the remand by affirming its original decision, the Corps acted arbitrarily, capriciously, contrary to the evidence before it, and in violation of NEPA and the CEQ regulations and contrary to the APA. The Corps also acted arbitrarily, capriciously, and in violation of NEPA and the CEQ regulations by failing to meaningfully engage with the Tribe by providing information so that the Tribe could provide input during the remand.
SECOND CLAIM FOR RELIEF – FAILURE TO CONSIDER IMPACTS TO TREATY RIGHTS 40. Plaintiff incorporates by reference all preceding paragraphs and of the Amended Complaint. 41. The Tribe holds vested Treaty rights in the Tribe’s lands within the Standing Rock Sioux Reservation and the waters of Lake Oahe. These rights include reserved water rights and Treaty rights to hunt, fish, and gather natural resources within the Reservation including the waters of Lake Oahe. The Tribe’s rights include the right to clean, safe water to sustain a livable permanent homeland and self-sufficiency for the Tribe and its people. By virtue of various acts of Congress including the Pick-Sloan Act of 1944, the Corps manages and controls in many respects the waters of Lake Oahe, where the Tribe exercises its Treaty rights. 42. The Corps, by virtue of the Treaties, federal statutes, and the federal trust responsibility, has a duty to consider the Tribe’s Treaty rights, including the Reservation, reserved water rights, and rights to hunt, fish, and gather, when taking other actions, and to avoid taking actions that would damage, degrade or destroy these rights. The Corps must fully assess, in consultation with the Tribe, the impacts of its actions like authorizations, permits, and easements for a pipeline crossing Treaty rights areas, and ensure that the Tribe’s Treaty rights will be safeguarded.

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43. In issuing the original permit, and in affirming them at the conclusion of the remand process, the Corps failed to adequately consider the Tribe’s treaty rights and its obligations to protect those rights. It further ignored policies related to consultation with Tribes on actions that impact treaty rights. As a result, its conclusions were arbitrary, capricious, and otherwise not in accordance with the Corps’ duties under the Treaties, its trust responsibility, and its obligation to consult appropriately under its U.S. government policies, in violation of the APA.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief: 1. Declare that the Remand Analysis, and the underlying MLA easement which it attempted to address, is arbitrary, capricious, and in violation of the NEPA and APA; 2. Vacate the Remand Analysis, the final environmental analysis and finding of no significant impact, and the underlying MLA easement pending full compliance with the law; 3. Direct the Corps to resume the EIS process initiated in November 2016, and provide the Tribe with all technical documents related to oil spill and impact so that it can participate meaningfully in such EIS process; 4. Retain jurisdiction over this matter to ensure that the Corps complies with the law; 5. Award Plaintiff its reasonable fees, costs, expenses, and disbursements, including attorneys’ fees, associated with this litigation; and 6. Grant Plaintiff such further and additional relief as the Court may deem just and proper.

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Respectfully submitted this 1st day of November, 2018.
/s/ Jan E. Hasselman Jan E. Hasselman, WSBA # 29107 (Admitted Pro Hac Vice) Stephanie Tsosie, WSBA # 49840 (Admitted Pro Hac Vice) Patti A. Goldman, DCBA # 398565 Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 Telephone: (206) 343-7340 jhasselman@earthjustice.org stsosie@earthjustice.org pgoldman@earthjustice.org
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on November 1, 2018, I electronically filed the foregoing First Supplemental Complaint with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the attorneys of record and all registered participants.
/s/ Jan E. Hasselman Jan E. Hasselman

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE; )

YANKTON SIOUX TRIBE; ROBERT )

FLYING HAWK; OGLALA SIOUX )

TRIBE,

)

)

Plaintiffs, )

)

and

)

)

CHEYENNE RIVER SIOUX TRIBE, )

)

Intervenor Plaintiff, )

)

v.

)

)

U.S. ARMY CORPS OF ENGINEERS, )

)

Defendant, )

)

and

)

)

DAKOTA ACCESS, LLC,

)

)

Intervenor Defendant.

)

Case No. 1:16-cv-01534-JEB (and consolidated case nos. 16-cv-1796 and 17-cv-267)
SUPPLEMENTAL COMPLAINT OF THE OGLALA SIOUX TRIBE

[PROPOSED] SUPPLEMENTAL COMPLAINT

INTRODUCTION

1. This supplemental complaint challenges the decision of the United States Army

Corps of Engineers (“Corps”), issued in a Memorandum for Record dated August 31, 2018 (Doc.

362-1), following a remand in this case, reaffirming earlier decisions approving the construction

and operation of the Dakota Access Pipeline (DAPL) across Lake Oahe. In the Memorandum

for Record, the Corps erroneously found that (1) the potential impacts of an oil spill on hunting

and fishing resources did not reveal any significant impacts, (2) approval of the DAPL crossing

at Lake Oahe does not result in disproportionately high and adverse human health or

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environmental effects on minority populations, and (3) no substantial dispute exists as to the size, nature and effect of the environmental action. The Corps concluded that its July 2016 Final Environmental Assessment (Final EA) and Finding of No Significant Impact (FONSI) need not be reconsidered, and that the preparation of supplemental documentation pursuant to the National Environmental Policy Act (NEPA) was not required. This decision, together with the Corps’ earlier decisions approving the DAPL crossing at Lake Oahe, violates NEPA and the Administrative Procedure Act (APA), as well as the Tribe’s Treaty rights and rights under the Mni Wiconi Project Act and the Mineral Leasing Act (MLA).
JURISDICTION AND VENUE 2. This Court has jurisdiction under 28 U.S.C. § 1331 because it arises under the Constitution, laws, and treaties of the United States, including but not limited to the Treaty of Fort Laramie, 11 Stat. 749 (Sep. 17, 1851); the 1868 Sioux Nation Treaty, 15 Stat. 635 (Apr. 29, 1868); NEPA, 42 U.S.C. §§ 4321–4370f; the Mineral Leasing Act, 30 U.S.C. §§ 181 et seq.; the Mni Wiconi Project Act of 1988, 102 Stat. 2566 (Oct. 24, 1988), as amended1 (Mni Wiconi Project Act); the APA, 5 U.S.C. § 701 et seq., which authorizes the Court to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “contrary to constitutional right, power, privilege, or immunity,” 5 U.S.C. § 706(2)(A)–(B); 28 U.S.C. § 1362 (“district courts shall have original jurisdiction of all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States”); 28 U.S.C. § 2201 (declaratory relief); and 28 U.S.C. § 2202 (“necessary or proper relief based on a declaratory judgment”).
1 Pub. L. 103-434 (October 21, 1994); Pub. L. 105-277 (October 21, 1998); Pub. L. 106-53 (August 17, 1999); Pub. L. 107-367 (December 2, 2002); and Pub. Law 110-161 (December 26, 2007).
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3. Venue in the District of Columbia is appropriate under 28 U.S.C. § 1391(e) because this is an action in which the Defendant is an agency of the United States and a substantial part of the events or omissions giving rise to the claim occurred within this judicial district.
PARTIES 4. Plaintiff Oglala Sioux Tribe is an Indian Nation that is part of the Oceti Sakowin (the Seven Council Fires), which is also known as the Great Sioux Nation. The Tribe is federally recognized and maintains a government-to-government relationship with the United States of America. The Oglala Sioux Tribe is a party to the 1851 Fort Laramie Treaty, 11 Stat. 749, and the 1868 Sioux Nation Treaty, 15 Stat. 635. The DAPL runs through lands that are the Oglala Sioux Tribe’s aboriginal territory as well as its ancestral Treaty lands. The Oglala Sioux Tribe, along with its sister Sioux Tribes, has rights to the water in the Missouri River based on the 1851 and 1868 Treaties. The Oglala Sioux Tribe operates the Oglala Sioux Rural Water Supply System, a part of the Mni Wiconi (meaning “Water is Life”) Project, which provides drinking water to the Pine Ridge (Oglala Sioux Tribe) Indian Reservation as well as to the Rosebud Sioux Reservation, Lower Brule Sioux Reservation, and the non-Indian West River/Lyman Jones Water District. The Mni Wiconi Project draws its water from the Missouri River downstream from the DAPL crossing. 5. Defendant U.S. Army Corps of Engineers is an agency in the Executive Branch of the Federal government and a division of the Department of the Army. It is charged with regulating any dredging and filling of the waters of the United States under § 404 of the Clean Water Act and § 10 of the Rivers and Harbors Act. It also has the authority to issue rights-of-
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way or easements for pipeline purposes for the transportation of oil through federal land over which it has jurisdiction under the Mineral Leasing Act. 30 U.S.C. § 185.
6. Intervenor-Defendant Dakota Access, LLC is a limited liability company formed to construct and own Dakota Access Pipeline. The beneficial owners of Dakota Access, LLC (Dakota Access) are Energy Transfer Partners, L.P. (ETP), Sunoco Logistics Partners, L.P., Energy Transfer Equity, which recently purchased ETP, and Phillips 66.
SUPPLEMENTAL FACTS 7. Plaintiff Oglala Sioux Tribe initially filed a complaint challenging the Corps’ approval of the DAPL crossing on February 11, 2017, three days after the Corps granted the easement at Lake Oahe to Dakota Access, LLC. (case no. 17-cv-00267) That case was later consolidated with this case which was brought by the Standing Rock Sioux Tribe, and in which Cheyenne River Sioux Tribe had intervened. The Court granted Dakota Access leave to intervene as Defendant in the Oglala case. 8. On June 14, 2017, this Court decided motions for partial summary judgment as to environmental impact claims brought by plaintiffs Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe. Doc. 239. Although the Court upheld some of the Corps’ environmental analysis, it determined that the Corps’ analysis of three specific issues was arbitrary, capricious, and in violation of NEPA. First, the Court held that the Corps had failed to address the significant scientific “controversy” around its dismissal of oil spill risk and impacts by not addressing expert reports submitted by the Oglala Sioux Tribe, the Standing Rock Sioux Tribe, and the Cheyenne River Sioux Tribe before the easement was granted. In addition, the Court ruled that the Corps failed to adequately analyze the impacts of an oil spill on the Standing Rock Sioux Tribe’s treaty hunting and fishing rights, and that the Corps’ consideration of
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environmental justice implications of the permit was flawed. The Court remanded the analysis back to the Corps for further consideration in light of its decision.
9. During the remand, the Corps received various submittals from Dakota Access or ETP. Although the Oglala Sioux Tribe requested that information provided by Dakota Access relating to the remand be provided to the Tribe, none was provided, and the Tribe had no opportunity to review or comment on any information provided by Dakota Access or generated by the Corps during the remand.
10. During the remand, ETP publicly announced its intention to expand the capacity of DAPL by 100,000 barrels a day. On information and belief, expansion could take place without additional Corps authorization at Lake Oahe. A significant increase in operation volume would render obsolete much of the spill risk and impact analysis and emergency response planning conducted by Dakota Access, ETP, and/or the Corps to date.
11. The Corps concluded the remand process with the issuance of the Memorandum for Record dated August 31, 2018 (Doc. 362-1), in which the Corps concluded that there was no need to formally reconsider its July 2016 Final EA, or to perform further NEPA studies, and that an EIS was not necessary. The Memorandum for Record briefly addressed the three flaws in its environmental analyses which the Court directed the Corps to review on remand. As to tribal hunting and fishing Treaty rights, the Corps concluded that they would not be impacted “because the risk of an incident is low and any impacts to hunting and fishing resources [sic] will be of limited scope and duration.” As to the issue of environmental justice, the Corps concluded that the Oahe crossing “does not result in disproportionately high and adverse human health or environmental effects on minority populations, including Tribes, and low-income populations.” Finally, as to the issue of whether the Corps conclusions were likely to be “highly controversial,”
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the Corps incorrectly characterized information provided by the Oglala Sioux Tribe and other tribal plaintiffs as simply being opposed to the pipeline authorizations, stating that the Tribes did not “provide information that a substantial dispute exists as to the size, nature or effect of the federal action.”
12. The Memorandum of Record stated that the rationale supporting these findings was contained in the “enclosed document” and in the administrative record, but no document was enclosed or provided to the Tribe or the Court on August 31. On October 9, 2018, undersigned counsel were provided with a copy of the enclosed analysis supporting the remand decision (“Remand Analysis”), which was subject to confidentiality restrictions pending agreement of the parties or Court decision on protected information contained therein. On October 24, 2018, after all parties reached agreement as to what information was subject to the Protective Order in this case, a redacted version of the Remand Analysis was made available for the public.
13. Although the Oglala Sioux Tribe has been provided a copy of the Remand Analysis, it has not been provided copies of any other materials contained in the administrative record. The Remand Analysis relies extensively upon two documents that have not been provided—the “Spill Model Report,” a technical document describing the results of various oil spill scenarios, and the “Downstream Receptor Report,” a technical document assessing rate and transport of spilled crude. The Oglala Sioux Tribe therefore reserves its right to challenge the analyses in those documents and the Corps’ reliance on them once provided in this litigation.
14. Even without access to the underlying studies relied upon, it is plain that the Remand Analysis itself is highly flawed. For instance, in addressing the highly controversial intensity issue, the Remand Analysis unsuccessfully attempted to dismiss or refute the study
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submitted by Earthfax Engineering Group, LLC (EarthFax) on behalf of the Oglala Sioux Tribe. The Corps’ effort in this regard fell far short. As one example, the Remand Analysis justifies the Final EA’s worst case scenario focus on benzene alone, ignoring other constituents of crude oil. In doing so, the Remand Analysis relies in part on a study identified only as “(O’Reilly 2001)” that cannot be located, even while admitting “that benzene is volatile and that other hydrocarbon components are present and responsible for impacts beyond benzene.” The Remand Analysis, like the EA, thus fails to adequately address whether a worst case spill would present a significant risk to drinking water.
15. Like the Final EA, the Remand Analysis failed to provide a lawfully adequate “worst case spill” (WCD). In the Remand Analysis, the Corps fails to address the impact of circumstances listed in the definition of WCD in 49 C.F.R. § 194.5, including adverse weather conditions. The WCD also fails to correctly implement the formula required by 49 C.F.R. § 194.105(b)(1), including consideration of the operators’ “historic discharge[s]” and relies on unrealistic shutdown times that bear little resemblance to multiple real-world pipeline incidents. Furthermore, the WCD calculation fails to take into account Dakota Access’s parent companies’ abysmal safety record, as required by the regulation.
16. As another example of a serious flaw, the Remand Analysis errs in finding no significant impact to tribal hunting and fishing rights, despite its findings in Table I-7 that predict 100% mortality to aquatic biota in the event of a spill. The table shows, for example, that, depending on various factors, a spill from the ND-380 valve located just west of the Lake Oahe crossing could result in 100% mortality to sensitive aquatic species over an area of up to 74.7 square kilometers (28.8 mi2 or 18,400 acres). The predicted extent of this mortality impact area is substantially higher than estimated by the Final EA and contradicts the Final EA, which, as
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noted in the Remand Analysis, concluded that “under the conservative assumptions, a large oil spill over 10,000 barrels would still not result in sufficient benzene concentrations large enough to surpass the acute toxicity threshold for aquatic organisms.” The Remand Analysis also acknowledges that ingestion of contaminated fish could create human health issues.
17. Unlike the Final EA, which never addressed the Mni Wiconi intake serving the Oglala Sioux Tribe, the Remand Analysis does address it, but it assumes that there would be no impact to the intake because of its location south of the Oahe Dam, and the depth of the dam’s discharge pipes. The Remand Analysis predicts there will be no hydrocarbons that flow through the discharge pipes in the event of a spill. This assumption is incorrect for many reasons, including the erroneous WCD calculation, and because the Corps relied upon a 10-day spill model, although a spill would take longer to reach the dam. This assumption also fails to account for the fact that even if spilled oil and the associated dissolved constituents may initially be concentrated within the upper 10 meters of the Lake Oahe water column, it is likely that some of the oil will combine with the suspended sediment in the water to form OPAs and sink within the water column. It also fails to account for the hydroelectric plant at the Oahe Dam which pulls water from various depths and creates turbulence. In its 2010 Final Master Plan for Oahe Dam, the Corps has noted that “[t]he area around the intakes is a good fishery because the turbulent water attracts many species of fish.”
18. The Remand Analysis also relies upon the Facility Response Plan (FRP) and the Geographic Response Plan (GRP). These plans, which address response to an oil spill, are themselves flawed. For example, they do not provide, either through on-site storage or by contract, for sufficient containment boom or sorbent boom in the event of a spill at the Oahe crossing.
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19. The above examples are intended as illustrations of the flaws in the Corps’ analysis, not a comprehensive list.
20. These and other fundamental flaws in the Corps’ estimate of the risk and impact of oils spills infect all three of the remand topics.
CAUSES OF ACTION (The Causes of Action in this Supplemental Complaint are numbered consecutively beginning
with VI, because the Oglala Sioux Tribe’s initial Complaint contains Counts I-V.) VI. SIXTH CAUSE OF ACTION: VIOLATION OF NEPA AND THE APA
21. Plaintiff reincorporates the allegations in all preceding paragraphs. 22. Under NEPA, federal agencies are required to prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). 23. Binding Council of Environmental Quality (“CEQ”) regulations further define whether impacts are “significant” enough to warrant a full EIS, requiring consideration of both “context” (i.e., the various scales, regions, and interests affected by the action) and “intensity” (i.e. the severity of the impact”). 40 C.F.R. § 1508.27. With respect to the latter, the regulations lay out several factors that are to be considered. Examples of these criteria include: “the degree to which the proposed action affects public health or safety”; “unique characteristics of the geographic area such as proximity to historic or cultural resources…”; the degree to which the effects on the environment “are likely to be highly controversial,” are “highly uncertain” or “involve unique or unknown risks”; and “the degree to which the action … may cause loss or destruction of significant scientific, cultural, or historical resources.” Id. 24. Full and effective public participation in agency decision-making is a cornerstone of NEPA. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA
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“guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience,” including the public, “that may also play a role in the decisionmaking process and implementation of the decision.”); 40 C.F.R. § 1500.1(b) (“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.”) See also id. §1500.2 (d).
25. In June of 2017, the Court found “significant” flaws in the Army Corps’ analysis of the risk and impacts of its decision to authorize DAPL underneath Lake Oahe, and ordered the Corps to conduct a remand to give “serious consideration” to those flaws.
26. By concluding the remand by affirming its original decision, the Corps acted arbitrarily, capriciously, contrary to the evidence before it, and in violation of NEPA and the CEQ regulations and contrary to the APA. The Corps also acted arbitrarily, capriciously, and in violation of NEPA and the CEQ regulations by failing to meaningfully engage with the Tribe by providing information so that the Tribe could provide input during the remand.
VII. SEVENTH CAUSE OF ACTION: VIOLATION OF MINERAL LEASING ACT AND THE APA
27. Plaintiff reincorporates the allegations in all preceding paragraphs. 28. Section 28 of the Mineral Leasing Act (MLA), 30 U.S.C. § 185, known as Section 185, provides federal agencies with the authority to grant rights-of-way over federal lands for pipeline purposes, including for oil and natural gas pipelines. Section 185 imposes specific environmental review and public hearing requirements, without altering the applicability of NEPA. 30 U.S.C. § 185(h)(1)–(2). 29. In its June 14, 2017 Memorandum Opinion, the Court reserved its decision on the Cheyenne River Sioux Tribe’s MLA claim, pending the Corps’ analysis on remand as to the
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three issues identified above. For the reasons explained above, the Corps’ decision on remand is flawed.
30. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of the MLA and the APA.
VIII. EIGHTH CAUSE OF ACTION: BREACH OF TREATY RIGHTS AND THE APA
31. Plaintiff reincorporates the allegations in all preceding paragraphs. 32. The Oglala Sioux Tribe holds vested Treaty Rights in the waters of Lake Oahe and the Missouri River. The Tribe enjoys reserved water rights to the waters in the Missouri River and its tributaries, including sufficient water to fulfill the purpose of the reservation to provide for a permanent livable homeland. The Tribe’s reserved waters rights “are vested property rights for which the United States has a trust responsibility, with the United States holding legal title to such water in trust for the benefit of the Indians.” Notice, Department of the Interior, Working Group in Indian Water Settlements, Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed. Reg. 9223, 9223 (Mar. 12, 1990). These rights include water rights, including the right to clean and safe drinking water. 33. The Corps, by virtue of the Treaties, has a duty to consider the Tribe’s Treaty rights when taking actions, so as not to destroy or impair those rights, and to consult the Tribe with regard to any action that may destroy or impair those rights, and to assess any such impairment. 34. In issuing the approvals for the DAPL crossing at Lake Oahe, and in reaffirming its decision following the remand, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of its trust responsibility and the APA.
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IX. NINTH CAUSE OF ACTION: BREACH OF TRUST, MNI WICONI PROJECT ACT, AND THE APA
35. Plaintiff reincorporates the allegations in all preceding paragraphs. 36. The Mni Wiconi Project Act provides: “the United States has a trust responsibility to ensure that adequate and safe water supplies are available to meet the economic, environmental, water supply, and public health needs of the Pine Ridge Indian Reservation….” Id. § 2(a). Among the purposes of the Act are to “ensure a safe and adequate municipal, rural, and industrial water supply for the residents of the Pine Ridge Indian Reservation….” Id. §§ 2(b)(1). The United States holds the title to the Oglala Sioux Rural Water Supply System of the Mni Wiconi Project in trust for the Tribe. Id. § 3(e). 37. In issuing the approvals for the DAPL crossing at Lake Oahe, and in reaffirming its decision following the remand, the Corps has breached its trust obligations to the Tribe by failing to ensure compliance with federal law in authorizations for the DAPL, which threaten the Tribe’s rights in the Mni Wiconi Project. 38. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of trust responsibility, the Mni Wiconi Project Act, and the APA.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests this Court grant the following relief: 1. Declare that the Remand Analysis, and the underlying Final EA/FONSI, are inadequate because the Corps failed to conduct a full EIS that analyzed impacts to the Tribe’s Treaty-protected water rights and rights in the Mni Wiconi Project and failed to make a reasoned analysis of the risks and potential impacts of a spill;
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2. Declare that the Corps has breached its trust responsibility to the Tribe by issuing a Final EA/FONSI without assessing impacts to the Tribe’s Treaty rights and rights in the Mni Wiconi Project, and by reaffirming that decision in the Remand Analysis and Memorandum for Record;
3. Declare that the Corps has violated the Mineral Leasing Act by failing to fulfill its independent environmental review requirements, and by not correcting such failure in the Remand Analysis and Memorandum for Record;
4. Vacate the Final EA/FONSI, and the Remand Analysis; 5. Enjoin the Corps and direct it to vacate the easement issued on February 8, 2017, and any
rights-of-way for DAPL on lands within the Corps’ jurisdiction; 6. Enjoin the Corps from allowing Dakota Access to drill or transport oil under Lake Oahe
until such time as a full EIS is completed that assesses impacts to the Tribe’s rights; 7. Retain jurisdiction over this matter to ensure that the Corps complies with the law; 8. Award Plaintiff its reasonable fees, costs, expenses, and disbursements, including
attorney’s fees, associated with this litigation; and
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9. Grant such further and additional relief as the Court may deem just and proper.

Respectfully submitted,

November 26, 2018

s/ Michael L. Roy Michael L. Roy (DC Bar No. 411841) mroy@hobbsstraus.com Jennifer P. Hughes (DC Bar No. 458321) jhughes@hobbsstraus.com Elliott A. Milhollin (DC Bar No. 474322) emilhollin@hobbsstraus.com Hobbs, Straus, Dean & Walker, LLP 2120 L Street NW, Suite 700 Washington, DC 20037 202-822-8282 (Tel.) 202-2968834 (Fax) Attorneys for the Oglala Sioux Tribe
Mario Gonzalez Gonzalez Law Office 522 7th St 202 Rapid City, SD 57701 (605) 716-6355 Of Counsel for the Oglala Sioux Tribe

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 Case 1:16-cv-01534-JEB Document 378-1 Filed 11/26/18 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,

Plaintiff,

Case No. 1:16-cv-01534-JEB

and

FIRST SUPPLEMENTAL COMPLAINT

CHEYENNE RIVER SIOUX TRIBE,

Intervenor-Plaintiff,

v.

U.S. ARMY CORPS OF ENGINEERS,

Defendant – CrossDefendant.

and

DAKOTA ACCESS, LLP,

Intervenor-Defendant Cross-Claimant.

INTRODUCTION 1. Pursuant to Fed R. Civ. P. 15(d), Intervenor-Plaintiff Cheyenne River Sioux Tribe (“Tribe”) hereby supplements its Second Amended Complaint in the above-captioned case. 2. This Supplemental Complaint sets out the claims the Tribe now brings forth against the Army Corps of Engineers (“Corps”) and Dakota Access, LLC (“Dakota Access”) following this Court’s Order dated June 14, 2017 granting in part and denying in part the Tribe’s Motion for Partial Summary Judgement. ECF 238. In that Order, this Court held the Corps’ granting of
1
EXHIBIT A

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permits to Dakota Access to construct an oil pipeline under Lake Oahe to be unlawful and remanded for additional consideration on specific issues.
3. The Court further ordered the Corps to give “serious consideration” to the errors identified in the Corps’ decision, warning that compliance with the law “cannot be reduced to a bureaucratic formality, and that the Court expects the Corps not to treat remand as an exercise in filling out the proper paperwork post hoc.” ECF 284 at p. 28.
4. The Corps’ Remand Analysis unlawfully affirms the Corps’ pre-remand decision authorizing the Dakota Access Pipeline (“DAPL”) without an environmental impact statement (“EIS”) as required by the National Environmental Policy Act (“NEPA”).
5. Rather than conduct a comprehensive analysis of available data, including data disfavorable to Dakota Access, the Corps merely relied upon the same data used in its pre-remand analysis to conclude that DAPL would not result in significant harm to the environment, the Tribe, or the hunting and fishing rights reserved by the Tribe in its Treaties.
6. The Corps’ decision to authorize DAPL without a NEPA-required EIS is a final agency action that is reviewable by this Court under the Administrative Procedure Act (“APA”).
7. The Corps’ decision not to require an EIS is arbitrary, capricious, an abuse of discretion, and not in accordance with law, and therefore violates the APA.
8. The Tribe seeks a declaration that the Corps’ affirmation of its pre-remand decision to authorize DAPL without an EIS (as required by NEPA), and without an adequate tribal consultation violates the APA, NEPA, and the Tribe’s Treaty rights.
9. The Tribe asks this Court to vacate the permits issued to Dakota Access by the Corps pending the Corps’ compliance with the APA and NEPA.
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JURISDICTION AND VENUE 10. The Tribe’s Supplemental Complaint is brought pursuant to the APA, which authorizes a federal court to find unlawful and set aside any final agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706. 11. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1362 (Indian tribe as a plaintiff), 28 U.S.C. § 2201 (declaratory relief), and 28 U.S.C. § 2202 (injunctive relief). 12. Venue in this district is appropriate pursuant to 28 U.S.C. § 1391(e) because this is the district where the Defendant resides and in which a substantial part of the events or omissions giving rise to the claim occurred. No party has contested jurisdiction or venue during this litigation.
PARTIES 13. The Tribe is a federally-recognized Indian tribe whose ancestors, since time immemorial, lived on the land that DAPL crosses. DAPL crosses the Tribe’s sacred waters which hold cultural, religious, and economic significance to the Tribe and its members. DAPL also crosses areas of great historical, cultural, and religious significance to the Tribe. The damage DAPL causes to the Tribe in these areas is substantial and irreparable. This harm is the direct result of the Corps’ failure to abide by the APA, NEPA, and the Tribe’s Treaties. 14. The U.S. Army Corps of Engineers is an agency of the United States federal government. Among the Corps’ duties is fulfilling the United States’ trust responsibility to the Tribe and other federally-recognized tribes, complying with the APA, and complying with NEPA when undertaking major federal actions that significantly affect the quality of the human
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environment. Issuing permits for the continued construction and operation of DAPL is a major federal action that significantly affects the quality of the human environment.
15. Intervenor-Defendant Dakota Access, LLC is a limited liability company formed to construct and own DAPL.
16. By filing this action, the Tribe does not waive its sovereign immunity and does not consent to suit as to any claims, demand, offset, or cause of action of the United States, its agencies, officers, agents, or other persons or entities in this or any other court.
FACTUAL ALLEGATIONS 17. The Corps issued an initial set of permits on July 25, 2016 to construct DAPL at Lake Oahe. 18. The Standing Rock Sioux Tribe (“SRST”) filed its initial complaint two days later on July 27, 2018 raising several statutory and common law claims against the Corps. 19. Shortly thereafter, this Court granted motions by Dakota Access to intervene as defendant and the Tribe to intervene as plaintiff. 20. On September 9, 2016, this Court denied SRST’s motion for a preliminary injunction pursuant to the National Historic Preservation Act. On that same day, multiple federal agencies affirmed that the tribes had raised serious concerns that necessitated a closer look at the Corps’ permits at Lake Oahe and the underlying environmental analyses of these permits. The Corps affirmed that the remaining authorization needed to construct the pipeline under Lake Oahe—an easement to cross federally-owned land at Lake Oahe issued under the Mineral Leasing Act (“MLA”)—would not be issued at that time. 21. On December 4, 2016, the Corps announced that the MLA easement would not be granted without a comprehensive analysis of alternatives and impacts, including an analysis of the
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Tribe’s Treaty rights. The Corps then formally initiated that process by publishing a Notice of Intent to prepare an EIS and the Corps requested public comments on the critical issues and scope of the EIS.
22. On January 24, 2017, the newly-inaugurated President executed a “Presidential Memorandum” directing the Corps to abandon its December 4, 2016 decision to initiate the EIS process. The Corps then changed course, terminated the EIS process, issued the MLA easement at Lake Oahe, and allowed construction of DAPL to begin immediately without further environmental review.
23. The Tribe moved this Court for partial summary judgment on its APA, NEPA, and Treaty claims against the Corps. The Corps and Dakota Access cross-moved for summary judgment.
24. This Court ruled on June 14, 2017 that the Corps’ failure to adequately analyze the impacts of an oil spill on the Tribe’s Treaty rights to hunt and fish on the land, in Lake Oahe, and in the Missouri River violated the requirements of NEPA. Additionally, this Court held that the Corps did not adequately consider issues of environmental justice as required by federal law. Finally, this Court held that the Corps failed to address issues of significant scientific controversy regarding the risk of an oil spill and the potential impacts therefrom.
25. This Court remanded the Corps’ analysis back to the Corps and ordered the Corps to correct its errors in the initial analysis. The Court ordered that the Corps must complete oil spill response plans, that a third-party audit of the project must be completed, and that public reporting of the project must occur.
26. During the time when the Corps was ordered to conduct its Remand Analysis, the beneficial owners of Dakota Access, LLC publicly announced their intention to expand the
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capacity of DAPL by 100,000 barrels of crude oil per day. On information and belief, this expansion could take place without additional Corps’ authorization at the Lake Oahe crossing. Such a significant increase in crude oil flow would make the Corps’ spill risk and impact analysis and emergency response planning useless as these analyses would be based on, at best, inaccurate data, and at worst, false data.
27. The Corps completed its Remand Analysis on August 31, 2018 and concluded that it did not need to reconsider its 2016 environmental assessment nor was it required to complete an EIS. The Corps affirmed its pre-remand conclusion that the risk of an oil spill is low, and therefore, “. . . any impacts on hunting and fishing resource [sic] will be of limited scope and duration.” ECF 362-1 at p. 1. Additionally, the Corps concluded that the Lake Oahe crossing “does not result in disproportionately high and adverse human health or environmental effects on minority populations, including Tribes, and low-income populations.” Id. Finally, as to whether the Corps’ conclusions were likely to be highly controversial, the Corps incorrectly characterized technical input and data from interested stakeholders as mere opposition to the pipeline and stated that these stakeholders did not “provide information that a substantial dispute exists as to the size, nature, or effect of the federal action.” Id. at p. 2.
28. The Corps’ Remand Analysis ignores much of the information provided to the Corps during the remand period by interested stakeholders, it does not provide a critical response to these data, and it simply reiterates the Corps’ flawed pre-remand conclusions. The Remand Analysis continues to calculate risk based on generic national statistics rather than accounting for DAPL’s specific risk factors particular to its specific route. The Remand Analysis fails to address the extensive evidence that the risks of slow pipeline leaks that cannot be detected is higher than the Corps acknowledges. The Remand Analysis relies heavily upon an ill-founded worst case
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discharge (“WCD”) analysis that grossly underestimates the impacts of an oil spill, does not adequately account for the unique hazards of Bakken crude oil, and severely overestimates the ability of responders to clean up oil after it has spilled.
29. The Remand Analysis fails to address adverse weather conditions and the impact of circumstances listed in the regulatory definition of “worst case discharge” in 49 C.F.R. § 194.5.
30. The Remand Analysis fails to implement the formula required by 49 C.F.R. § 194.105(b)(1), including consideration of the operators’ historic discharges.
31. The Remand Analysis relies heavily upon unrealistic shutdown times that bear little-to-no resemblance to multiple real-world oil pipeline spills.
32. The Remand Analysis ignored DAPL’s failure to comply with easement conditions, including the requirement that shutoff valves near Lake Oahe have independent power sources to ensure operational safety.
33. The Remand Analysis fails to calculate the risks and impacts of an oil spill based upon Dakota Access’s publicly-stated intention to increase DAPL’s capacity by 100,000 barrels of crude oil per day. Such a drastic increase changes both the risks of a spill as well as the potential impacts of a spill. By not accounting for this volume of crude oil flow through the pipeline, the WCD analysis is rendered useless and constitutes little more than the Corps merely checking an administrative box to proceed with its pre-determined decision.
34. The failures in the Remand Analysis endanger the Tribe’s hunting and fishing Treaty rights, disproportionately endanger low-income and Tribal residents along the pipeline route, and do not adequately address the controversy over the Corps’ conclusions that the risk of oil spill is low and the effects therefrom are minimal.
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CLAIMS FOR RELIEF I. VIOLATION OF NEPA
35. Intervenor-Plaintiff hereby alleges, incorporates, and restates all previous paragraphs of this Supplemental Complaint and of Intervenor-Plaintiff’s prior Second Amended Complaint.
36. Federal agencies are required under NEPA to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
37. In determining whether any federal action is significant, Council of Environmental Quality (“CEQ”) regulations require consideration of both the context of the action and the intensity of its impacts. 40 C.F.R. § 1508.27.
38. Factors to be considered when determining the intensity of an action include “the degree to which the proposed action affects public health or safety”; “unique characteristics of the geographic area such as proximity to historic or cultural resources…”; the degree to which the effects on the environment “are likely to be highly controversial,” are “highly uncertain” or “involve unique or unknown risks”; and “the degree to which the action … may cause loss or destruction of significant scientific, cultural, or historical resources.” Id.
39. In June of 2017, this Court found significant flaws in the Corps’ analysis of the risk and the impacts of its decision to authorize DAPL beneath Lake Oahe. The three flaws identified by the Court failed to adequately consider effects to the Tribe’s Treaty rights to hunt and fish, failed to adequately consider the environmental justice effects of DAPL on low-income and tribal communities, and failed to consider the controversy of the Corps’ spill and impact analysis.
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40. The Corps’ decision to affirm its pre-remand analysis without adequately considering the Tribe’s Treaty rights, environmental justice implications, or controversy of DAPL violated NEPA’s requirement to take a hard look at the action.
II. VIOLATION OF THE APA 41. Intervenor-Plaintiff hereby alleges, incorporates, and restates all previous
paragraphs of this Supplemental Complaint and of Intervenor-Plaintiff’s prior Second Amended Complaint.
42. The APA requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706.
43. The Corps’ Remand Analysis largely affirms its pre-remand analysis of the risk of oil spills and the effects of those spills on Tribal members and the Treaty rights secured to these members and to the Tribe.
44. This Court found the Corps’ pre-remand analysis to be deficient with regard to Treaty rights to hunt and fish, with regards to environmental justice concerns, and with regard to the controversy surrounding DAPL.
45. The Corps’ Remand Analysis fails to provide a WCD analysis that complies with the requirements of 49 C.F.R. § 194.5 because the Corps relies on its pre-remand WCD that does not account for the impact of circumstances such as adverse weather conditions and other factors listed in 49 C.F.R. § 194.5.
46. The Corps’ Remand Analysis fails to comply with the requirements of 49 C.F.R. § 194.105(b)(1), including the requirement to consider the historic discharges from DAPL’s pipeline operators, even though DAPL’s parent companies have among the industry’s worst safety records.
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47. The Corps’ Remand Analysis fails even to consider Dakota Access’s public statement that it intends to increase the flow of crude oil through DAPL by 100,000 barrels per day.
48. Given the Corps’ failure to abide by CEQ regulations in its Remand Analysis, and its failure to consider the increased crude oil flow through DAPL, the Corps’ decision to reaffirm its pre-remand analysis is arbitrary, capricious, an abuse of discretion, and not in accordance with the law.
III. FAILURE TO ADEQUATELY CONSIDER IMPACTS TO TREATY RIGHTS 49. Intervenor-Plaintiff hereby alleges, incorporates, and restates all previous
paragraphs of this Supplemental Complaint and of Intervenor-Plaintiff’s prior Second Amended Complaint.
50. The Tribe holds vested Treaty rights in the lands within the Cheyenne River Sioux Reservation, the waters of Lake Oahe, and the Missouri River. These rights include reserved water rights and Treaty rights to hunt, fish, and gather natural resources from the lands within the Cheyenne River Sioux Reservation, including the waters of Lake Oahe and the Missouri River. These rights include the right to clean, safe water to sustain a livable permanent homeland and self-sufficiency for the Tribe and its people. The Corps manages and controls the waters of Lake Oahe where the Tribe exercises its treaty rights.
51. The Corps, by virtue of the Treaties, federal statutes, and the federal trust responsibility, has a duty to consider the Tribe’s treaty rights when taking action. The Corps also has a duty to avoid taking actions that would damage, degrade, or destroy the Tribe’s reserved water rights and the Tribe’s Treaty rights to hunt, fish, and gather. The Corps must fully assess, in consultation with the Tribe, the impacts of its actions such as authorizing, permitting, or granting
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easements for pipelines to cross areas where the Tribe retains rights guaranteed to the Tribe and its members by Treaties.
52. The Corps’ Remand Analysis renews its pre-remand assertion that the likelihood of an oil spill is minimal, and concludes therefrom that the effects and impacts of an oil spill on the Tribe’s hunting and fishing rights are minimal. This conclusion relies upon a narrow selection of data used to confirm the Corps’ pre-remand decision, and fails to analyze data critical of the Corps’ pre-remand decision. This conclusion excludes much of the feedback provided by the Tribe, the Standing Rock Sioux Tribe, and other Tribal parties to this action in violation of the Corps’ obligation to consult with the Tribes before taking action that could jeopardize the Tribes’ treaty rights and resources.
53. By reaffirming its pre-remand decisions, the Corps’ Remand Analysis failed to adequately consider the Tribe’s Treaty rights and failed to consider the Corps’ duty to act as trustee to protect those rights.
IV. VIOLATION OF THE RIVERS AND HARBORS ACT 54. Intervenor-Plaintiff hereby alleges, incorporates, and restates all previous
paragraphs of this Supplemental Complaint. 55. Section 408(a) of the Rivers and Harbors Act prohibits the alteration, occupation,
or use of public works if such activity will be “injurious to the public interest.” In determining if the activity will be injurious to the public interest, the Corps must consider the benefits that reasonably may be expected to accrue from the activity against the reasonably foreseeable detriments.
56. The Corps is required to consider the effects on the Tribe’s hunting and fishing rights in its determination of whether DAPL will be injurious to the public interest.
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57. This Court found the Corps’ pre-remand analysis to be deficient with regards to

Treaty rights to hunt and fish.

58. The Corps’ Remand Analysis does not take into account Dakota Access’s intention

to expand the capacity of DAPL by 100,000 barrels of crude oil per day.

59. The Corps’ Remand Analysis does not provide an adequate analysis of how the

Corps weighed the risks of DAPL to the Tribe’s Treaty rights against the reasonably anticipated

benefits of DAPL. The Remand Analysis fails to even consider Dakota Access’s public statement

that it intends to increase the flow of crude oil through DAPL by 100,000 barrels per day.

60. By failing to provide an adequate analysis of how the Corps weighed the risks and

benefits of DAPL, the Corps violated its duty under Section 408 of the Rivers and Harbors Act to

ensure that any alteration to a public works project is not injurious to the public interest.

PRAYER FOR RELIEF

WHEREFORE, Intervenor-Plaintiff respectfully requests that this Court grant the

following relief:

i.

Declare that the Remand Analysis and the underlying MLA

easement which it attempted to address is arbitrary, capricious, and in violation of

NEPA and the APA;

ii.

Vacate the Remand Analysis, the final environmental analysis and

finding of no significant impact, and the underlying MLA easement pending full

compliance with the law;

iii.

Direct the Corps to resume the EIS process initiated in November

2016, and provide the Tribe with all technical documents related to oil spill and

impact so that it can meaningfully participate in the EIS process;

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iv.

Retain jurisdiction over this matter to ensure that the Corps complies

with the law;

v.

Award Intervenor-Plaintiff its reasonable fees, costs, expenses, and

disbursements, including attorneys’ fees, associated with this litigation; and

vi.

Grant Intervenor-Plaintiff such further and additional relief as the

Court may deem just and proper.

Dated this 26th day of November, 2018.
CHEYENNE RIVER SIOUX TRIBE, Intervenor-Plaintiff,
By: /s/ Nicole E. Ducheneaux Nicole E. Ducheneaux Joseph V. Messineo Fredericks Peebles & Morgan LLP 3610 North 163rd Plaza Omaha, NE 68116 Telephone: (402) 333-4053 Facsimile: (402) 333-4761 Email: nducheneaux@ndnlaw.com jmessineo@ndnlaw.com

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of November, 2018 a copy of the foregoing was filed electronically with the Clerk of the Court. The electronic filing prompted automatic service of the filing to all counsel of record in this case who have obtained CM/ECF passwords.
/s/ Nicole E. Ducheneaux

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 Case 1:16-cv-01534-JEB Document 392 Filed 01/10/19 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and
CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor and CrossClaimant.

Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-267 and 16-1769)

MEMORANDUM OPINON AND ORDER In this long-running battle between American Indian Tribes and the U.S. Army Corps of Engineers over the Dakota Access Pipeline, the parties have engaged in an extensive motions practice, requiring the Court to issue myriad substantive Opinions. Now, as the litigants focus on the Corps’ remand efforts, one Tribe – the Oglala Sioux – asks to rewind the clock and amend its Complaint to return to an issue long since decided. As such amendment is both prejudicial to

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Defendants and futile, inasmuch as the Court has already addressed it, the Motion to Amend will be denied. I. Background
Although the parties have briefed a congeries of complex issues throughout this litigation, the one relevant to this Motion is the allegation by a number of Tribes that the Corps violated the National Environmental Policy Act in early 2017 when it withdrew its notice of intent (NOI) to prepare an environmental-impact statement (EIS) and issued an easement to Dakota Access to build its pipeline under Lake Oahe on the Missouri River. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 117-20 (D.D.C. 2017). This was one subject (of many) that the Court addressed in its summary-judgment Opinion, issued in June 2017, in which it held that the Corps’ reversal of field on this point was not arbitrary and capricious. Id. at 143. In that Opinion, the Court granted Defendants summary judgment in part, finding that the Government had substantially complied with NEPA, but remanding certain matters unrelated to the NOI for the Corps to reconsider. Id. at 112.
The remand is now complete, and the Court has set a briefing schedule relating to the administrative record on remand and will then proceed to entertain another round of summaryjudgment briefing, this time about the remand issues. It permitted all Plaintiffs an opportunity to seek to supplement or amend their Complaints relating to remand. Many have done so, which the Court has permitted, see Minute Order of Jan. 3, 2019, as the supplementation relates solely to the remand process. The Oglala Sioux alone have also sought to augment a claim unrelated to remand. The Tribe asks for permission to add only one sentence of additional allegations. More specifically, it wishes to allege that the Corps’ decision to withdraw the NOI and issue the easement was made without reviewing thousands of submissions in response to the NOI. See
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ECF No. 376 (Motion to Amend) at 3. The Corps and Defendant-Intervenor Dakota Access resist, arguing that this ship has long since sailed. II. Legal Standard
A plaintiff may amend her complaint once as a matter of course within 21 days of serving it or within 21 days of being served a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Otherwise, she must seek consent from the defendant or leave from the court. See Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. In deciding whether to grant leave to file an amended complaint, the court may consider “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). In this Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Furthermore, under Rule 15, “the non-movant generally carries the burden in persuading the court to deny leave to amend.” Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).
It is clear, however, that amendment should not be permitted if it would be futile. In other words, if the proposed amendment would render the complaint deficient, the court need not grant leave. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (“[A] district court may properly deny a motion to amend if the amended pleading would not survive a motion to dismiss.”); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.”).
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III. Analysis In contesting Plaintiff’s Motion to Amend, Defendants argue that the proposed
amendment here is both prejudicial and futile. As to the former, Defendants correctly point out first that this is no simple litigation. The docket’s heft bears this out. Three cases have been consolidated involving multiple Tribes, numerous individuals, and many amici. Parties have intervened on both Plaintiffs’ and Defendants’ side. The Court has issued numerous lengthy Opinions, including expedited ones on preliminary-injunction motions. Through it all, the Court has endeavored to manage the litigation in a way that permits all parties to be heard and that devotes significant time and attention to the claims and defenses raised. The current Motion seeks to derail and substantially delay that train. See Thorp v. Dist. of Columbia, 325 F.R.D. 510, 514 (D.D.C. 2018) (“Such prejudice is particularly pronounced because Plaintiff’s Motion arrives at a critical juncture of [the] case . . . [where] the issues in this case . . . [have] been narrowed by the Court’s prior Opinion . . . [and] the parties’ cross-motions for summary judgment are now ripe.”) (internal quotation marks and citations omitted).
Although the principal Plaintiffs – the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe – filed their suits in July and August 2016, the Oglala Sioux waited to file their initial Complaint until February 2017. See No. 17-267, ECF No. 1. The Tribe has also now waited almost two years to seek amendment, even though the litigation has been proceeding through different stages. In so doing, it offers no explanation whatsoever for such delay. This delay alone is sufficient grounds to deny the Motion.
Once the Court granted summary judgment to the Corps on most claims while remanding others, moreover, it fully expected that only the remanded claims would remain to be decided. While the Oglala Sioux argue that the Court permitted amendment following remand, this was
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simply for Plaintiffs to refine any claims relating to remand, not to return to the starting blocks. To permit one Plaintiff among many to reset the litigation would prejudice at least Dakota Access, which has long had to balance its obligations regarding the operation of the pipeline with the demands of this litigation. To require it and the Government to relitigate issues already decided at an earlier stage would impose substantial expense and concomitant uncertainty.
In addition, the Tribe has already raised the points it seeks to include in an Amended Complaint, thus showing the futility of amendment now. In previously setting forth NEPA claims, the Tribe alleged in its initial Complaint that “[t]he Corps’ decision to withdraw the NOI for the EIS before the end of the public comment period and without holding a scoping session violated NEPA.” Id., ¶ 88. In its summary-judgment briefing on the NEPA allegations, furthermore, the parties directly contested the propriety of the Corps’ issuance of the NOI. The Oglala Sioux, appearing as amicus for Standing Rock’s motion for summary judgment, specifically asserted that “[t]he withdrawal of the NOI is arbitrary and capricious because it does not take into account the comments of the [Oglala Sioux] and its expert . . . , or other numerous comments received by the Corps subsequent to the EA.” ECF No. 138 (Oglala Sioux Amicus Brief) at 20. Cheyenne River, similarly, contended that the Corps did not consider “more than 200,000 comments filed in response to the EIS Notice.” ECF No. 131 (Cheyenne River MSJ) at 5 n.3. This Court nonetheless determined that the withdrawal of the NOI and the issuance of the easement was not arbitrary and capricious. Standing Rock Sioux Tribe, 255 F. Supp. 3d at 143. While its earlier Opinion may not have specifically addressed the comments issue the Tribe seeks to include now, that question was subsumed in the NEPA claim regarding the issuance of the easement. The Tribe’s desire to offer slightly different arguments would not change the result.
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Case 1:16-cv-01534-JEB Document 392 Filed 01/10/19 Page 6 of 6 The Court, accordingly, ORDERS that the Oglala Sioux’s Motion to Amend is DENIED. IT IS SO ORDERED.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 10, 2019
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 Case 1:16-cv-01534-JEB Document 418 Filed 05/08/19 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and
CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor, et al., v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor and CrossClaimant.

Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-267 and 16-1769)

MEMORANDUM OPINION For three years, this Court has presided over a dispute regarding the legality of the construction and operation of the Dakota Access Pipeline. In 2017, it remanded several National Environmental Policy Act issues to the Army Corps of Engineers for reconsideration. The Corps has now issued its decision on remand, which is the subject of challenges from Plaintiffs, assorted American Indian Tribes. The substance of those challenges is not yet at issue; instead, the Court now addresses a threshold matter. Plaintiffs have moved for the inclusion of several documents and sets of documents in the administrative record that they believe were considered

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by the agency but improperly excluded. Finding merit in some of these requests but not in others, the Court will grant in part and deny in part the Motion to Complete the Administrative Record. I. Background
The legal and factual background of this case has been laid out extensively in the Court’s prior Opinions. Only a small subset is relevant to the present dispute.
On June 14, 2017, the Court ruled on cross-motions for partial summary judgment relating to “the Corps’ alleged failure to comply with the National Environmental Policy Act” when it “grant[ed] permits to Dakota Access to construct and operate [the pipeline] under Lake Oahe.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock III), 255 F. Supp. 3d 101, 112 (D.D.C. 2017). NEPA requires that an agency “prepare an Environmental Impact Statement [(EIS)] for any proposed major federal action ‘significantly affecting the quality of the human environment.’” Id. at 113 (quoting 42 U.S.C. § 4332(2)(C)). To determine whether it must prepare an EIS, an agency “first drafts an Environmental Assessment [(EA)].” Id. “If, after preparing an EA, the agency determines that an EIS is not necessary, it must prepare a Finding of No Significant Impact (FONSI) setting forth the reasons why the action will not have any significant impact on the environment.” Id. If there will be no significant impact on the environment because of the agency’s commitment to ensure mitigation measures are performed, it prepares a Mitigated FONSI. Id. In this case, the Corps determined, after preparing an EA, that a Mitigated FONSI was all that was required. Id. at 116.
The Court found that “the Corps’ decision . . . largely complied with NEPA,” but with “substantial exceptions.” Id. at 147. Consequently, it remanded to the Corps to consider: “(1) the degree to which the project’s effects are likely to be highly controversial; (2) the
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consequences of a spill for the Tribes’ fishing and hunting rights; and (3) the environmentaljustice impacts of the project.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock IV), 282 F. Supp. 3d 91, 96 (D.D.C. 2017) (citing Standing Rock III, 255 F. Supp. 3d at 111–12).
The Corps completed the remand process on August 31, 2018. See ECF No. 407, Exh. A-1 (Remand Administrative Record) at 1. It “conclude[d] that a formal reconsideration of the . . . [EA] and [FONSI] or the preparation of supplemental [NEPA] documentation [was] not required.” Id. That is, upon further analysis, it stood by its prior conclusions. Plaintiffs have now moved to complete the Administrative Record on which the Corps relied in reaching its decision after remand. See ECF No. 401 (Plaintiffs’ Motion). In doing so, they seek to have the Corps add documents that they contend it actually considered in its decision. Id. at 4. Plaintiffs request, consequently, that the Court “direct the Corps to complete the record” with the documents they enumerate. Id. at 5. The purpose of their effort is to ensure that the Court has certain material before it when assessing the merits of the Corps’ decision on remand. II. Legal Standard
In any regulatory challenge, the Court’s “review is to be based on the full administrative record that was before the Secretary at the time [s]he made h[er] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); see also 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party.”). As part of the record, the Court may consider “any document that might have influenced the agency’s decision” and not merely those documents the agency expressly relied on in reaching its final determination. See Nat’l Courier Ass’n v. Bd. of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975); see also Amfac Resorts, LLC v. U.S. Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C.
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2001). The goal, ultimately, is for the Court to have before it a “record that delineates the path by which [the agency] reached its decision.” Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 338 (D.C. Cir. 1989).
And so the agency is responsible for producing such administrative record. See Univ. of Colo. Health at Mem. Hosp. v. Burwell, 151 F. Supp. 3d 1, 12 (D.D.C. 2015). When the agency does so, the record “is entitled to a strong presumption of regularity.” Sara Lee Corp. v. Am. Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008); see also Marcum v. Salazar, 751 F. Supp. 2d 74, 78 (D.D.C. 2010). A plaintiff may show that the record is “[i]nsufficien[t]” — i.e., incomplete — only if she is able to “specif[y] . . . documents that ha[ve] been omitted.” NRDC v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). In other words, “a plaintiff must put forth concrete evidence” and “identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record.” Marcum, 751 F. Supp. 2d at 78 (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006)). Then, if the Court finds that the record produced “clearly do[es] not constitute the ‘whole record’ compiled by the agency,” it will order the agency to complete the record. See Overton Park, 401 U.S. at 419 (quoting 5 U.S.C. § 706). III. Analysis
The instant dispute revolves around three categories of documents Plaintiffs believe should have been included in the record. They originally sought five but have apparently accepted the Corps’ representation that the other two either were not considered or already appear in the record — namely, those relating to a third-party audit and final versions of documents they believed were provided only in draft. See ECF No. 405 (Plaintiffs’ Reply) at 11–12. At issue here, consequently, are: (1) sources discussed in the Remand Analysis; (2)
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documents Plaintiffs maintain should have been included in the prior Administrative Record underlying the Corps’ original NEPA decision; and (3) documents related to the terms of Dakota Access’s easement to operate the pipeline at Lake Oahe. The Court will address each in turn.
A. Sources Discussed in Remand Analysis Plaintiffs first contend that the “Remand Analysis cites to and relies on a number of technical supporting documents that are not in the record.” Pl. Mot. at 8. Several of these the Corps has agreed should properly have been included and has thus committed to add them. See ECF No. 402 (Defendant’s Opposition) at 4, 17. Remaining at issue, therefore, are a report on pipeline spills and the Pipeline and Hazardous Materials Safety Administration (PHMSA) data underlying it; technical citations from the EA cited in the Remand Analysis; and the list of references and sources cited within “two key supporting technical documents that support the Remand Decision” — the “Downstream Receptor Report” (DRR) and the “Spill Model Report” (SMR). See Pl. Mot. at 8, 9. In addition to specifically enumerating those documents, Plaintiffs also request generally that the “Corps . . . complete the record with all sources cited in the Remand Analysis.” Id. at 10. The Court will begin with the report derived from PHMSA data before moving to the sources cited in the Remand Analysis and, finally, the sources cited within the DRR and SMR. The Tribes believe that, rather than including the report on pipeline spills or underlying PHMSA data in the record, the Corps provided only a website where one could generate a new report. Id. at 8. Inclusion of the website, they contend, is no substitute. Id. The Corps rejoins that the information Plaintiffs request is “already contained within the record.” See Def. Opp. at 6. In the Remand Analysis, the Corps — based on annual reporting data from PHMSA’s website — “analyzed the frequency of reported hazardous liquid ‘accidents.’” RAR 14 & n.4; see Def.
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Opp., Exh. 1 (Declaration of Colonel John L. Hudson), ¶ 3. The Remand Analysis expresses that data in a series of tables. See RAR 15–16. Plaintiffs have not offered reasonable, nonspeculative grounds to believe that the agency had access to additional data or reports that are not included. Indeed, they barely press this claim in their Reply. See Pl. Reply at 2–5. The Court, accordingly, finds that no additional documents are required on this score.
Next, Plaintiffs posit that the record ought to include, apparently, both the material underlying the technical citations from the EA that appears in block quotations in the Remand Analysis and “all sources cited in the Remand Analysis.” Pl. Mot. at 10. Rather than contending that these documents lack sufficient indicia of consideration, the Corps instead responds only that Plaintiffs’ request fails for lack of specificity. Plaintiffs must, in the Corps’ view, request particular documents, rather than this broad category. See Def. Opp. at 6. The Corps’ exacting position finds no support in the case law, however. While requesters may not satisfy their burden to identify specific documents by asking for amorphous categories of information that may or may not exist or have been before the agency, see, e.g., Charleston Area Med. Ctr. v. Burwell, 216 F. Supp. 3d 18, 25–26 (D.D.C. 2016); Comm. of 100 on the Fed. City v. Foxx, 140 F. Supp. 3d 54, 60–61 (D.D.C. 2015), it is not legally necessary for Plaintiffs to enumerate every document they want in a list or appendix.
Additional specificity would, however, have been helpful since the Remand Analysis is well over a hundred pages. It is clear, at least, that Plaintiffs are entitled to more than what the Corps has now agreed to include in the record. For example, the Tribes specifically request an O’Reilly study cited by the Remand Analysis, contending its use is sufficient indication that agency decisionmakers considered it. See Pl. Mot. at 8–9. The Corps has agreed that that study is properly included in the record. See Def. Opp. at 17. Yet, as Plaintiffs point out, see Pl. Reply
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at 4–5, the Remand Analysis cites several additional studies on the same page for similar propositions. The Corps has not agreed to include those, nor explained how, in its view, the O’Reilly study is distinguishable from the others. There seem also to be additional sources in the Remand Analysis that, like those studies, are cited to support a factual proposition. And while the Corps is correct that a mere reference to a document is not sufficient to meet a movant’s burden to show that the agency actually considered it, see Franks v. Salazar, 751 F. Supp. 2d 62, 70 (D.D.C. 2010), citation of a source to support a factual proposition is generally enough to manifest actual consideration by the agency and support inclusion in the record. See Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 79–80 (D.D.C. 2018) (reasoning that “documents . . . that were cited substantively, i.e. to justify a factual statement or assertion made in the [decisional document] . . . [were] clearly considered” while “mere mention of a document’s existence” does not show agency consideration). The Court, accordingly, will require Plaintiffs, within fourteen days, to file a Notice containing a list of sources substantively cited in the Remand Analysis to support a factual proposition. The Corps should, in the fourteen days thereafter, indicate which, if any, of those documents it objects to including in the record. The Court will resolve any disagreement that persists.
Finally, Plaintiffs request all sources cited in the DRR and SMR. See Pl. Mot. at 9. These reports themselves are heavily cited in the Remand Analysis, and they appear in the record. Plaintiffs’ request to include all documents cited within the DRR and SMR, however, falls short because they have offered no reasonable, non-speculative basis to believe that the agency considered those citations. The DRR and SMR were prepared by a third party, and although the Corps relied on them, there is no suggestion the agency also actually relied on the sources those reports cite. Plaintiffs cite to a case holding that documents cited in an EIS must
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be included in the record. See Pl. Mot. at 10 (citing Oceana, 290 F. Supp. at 79). Yet the EIS is prepared by the agency itself; the reports in question were not. Plaintiffs protest that, although the SMR and DRR were prepared by a third party, the Corps relied on them so heavily that they are functionally part of the decision and that the sources cited therein are equivalent to those cited by the Remand Analysis. See Pl. Reply at 5–6. Yet the Corps’ heavy reliance on the reports suggests only that they should be in the record, as they are. Requiring otherwise would stretch the chain of indirect consideration ad infinitum. Plaintiffs offer no authority for the proposition that agencies must include in the record all sources cited within the documents on which they rely — or even heavily rely — in preparing their decision. That absence makes sense, since there is no indication here that agency decisionmakers considered not only the reports but every source they cite.
B. Documents from Original Administrative Record Plaintiffs next explain that they have now reviewed the original administrative record — the one the Corps lodged in March 2017, related to its February 2017 Lake Oahe easement decision — and identified several “documents that were missing from it.” Pl. Mot. at 10–11. In particular, they identify the absence of a “spill model” in the original record, which would be “important to the Tribes’ challenge of the remand decision.” Id. at 11. In addition, they contend that a “key document in the original administrative record was a lengthy review compiling and responding to internal technical comments,” and that it “in turn references several critical comments that bear directly on the adequacy of the Corps’ analysis.” Id. Those comments referred to or elicited responses that are not themselves in the record. Id. Finally, Plaintiffs point to “other examples,” including a mention of an email — not itself in the record — that “provided the rationale” for certain calculations. Id. at 12. In Plaintiffs’ view, these documents “were
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directly relevant to the Corps’ decision, . . . plainly relate to whether the Corps’ original decision was arbitrary and capricious,” and “will help the Tribes explain why the Corps’ conclusions on remand ignore critical information and fail to address contrary conclusions.” Id.
As an initial matter, the Court is dubious about the Tribes’ contention that it is raising these claims now because “there was never an opportunity for any plaintiff Tribe to challenge the scope or adequacy of the original administrative record during the initial round of summary judgment motions.” Id. at 10. The Corps lodged the record at issue over two years ago — in March 2017 — and Dakota Access challenged the record’s completeness not long afterward. See ECF No. 216 (Dakota Access’s Motion to Compel Prompt Completion of the Administrative Record). In June 2017, the Court ruled on Plaintiffs’ claims challenging the decision that the record underlies. While the Tribes are correct, therefore, that they have not flouted a specific deadline to challenge that record’s completeness, see Pl. Reply at 7, their claims are less than timely and, in any event, are moot given that the Court has already passed on the lawfulness of the agency decision supported by that record.
It would not be appropriate to add those documents to the record at issue here, moreover, because Plaintiffs have not made any showing that any of these documents were actually before agency decisionmakers in the remand process. Their assertions that the documents were relevant to the lawfulness of the original decision or provide additional information Plaintiffs could use to rebut the Corps’ conclusions on remand do not conform to that standard. The question is not whether the documents would now be useful to Plaintiffs, but whether they can provide “reasonable, non-speculative grounds for [the] belief that the documents were considered by the
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agency and not included in the record.” Marcum, 751 F. Supp. 2d at 78 (quoting Pac. Shores, 448 F. Supp. 2d at 6). That they have not done.
C. Documents Relating to Easement Finally, Plaintiffs point out that under the terms of the easement, Dakota Access is “required to submit to the Corps” an “extensive body of technical information . . . related to the integrity and ongoing safe operation of the pipeline at Lake Oahe.” Pl. Mot. at 13. Three reports — including any root-case-failure analyses, inspection reports from the cathodic protection systems, and an annual report with any deviations from limits imposed to reduce corrosion — are at issue. Id. at 13–14. (Plaintiffs concede, however, based on the Corps’ representation that the first of those does not exist — because no failure has occurred requiring its generation — that it need not be included in the record, leaving two at issue. See Pl. Reply at 10.) Additionally, Dakota Access is required to submit an operations and maintenance manual, an integritymanagement plan, and “as-built drawings” for the Lake Oahe crossing. See Pl. Mot. at 13. The record should be completed with these documents, Plaintiffs maintain, because they “are centrally relevant to the issues before the Corps on remand, [since] they bear[] on the integrity and safe operation of the pipeline.” Id. at 14. These contentions are a mixed bag for the Tribes. Because the documents require differing treatment, the Court will analyze them in order, beginning with the two reports and proceeding to the O & M manual, integrity-management plan, and as-built drawings. As to the two remaining reports, Plaintiffs have not made the required showing. As before, they emphasize the relevance of these documents to the Corps’ action. But that is not the proper inquiry. See Pac. Shores, 448 F. Supp. 2d at 6 (“Pacific Shores cannot meet its burden simply by asserting that the documents are relevant[.]”); Stand Up for Cal.! v. U.S. Dep’t of
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Interior, 315 F. Supp. 3d 289, 295 (D.D.C. 2018) (“Plaintiffs’ mere assertion that these documents ‘are obviously important to the decision’ do not warrant supplementing the record.”). The Tribes must identify reasonable, non-speculative grounds to support their contention that the Corps considered them in formulating the remand decision but did not include them in the record. The fact that Dakota Access is required to submit them to the agency is not enough. See Pac. Shores, 448 F. Supp. 2d at 5 (“[I]nterpreting the word ‘before’ so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless.” (citation omitted)). That Plaintiffs have not been able to make the required showing is perhaps not surprising. It is not obvious that the agency would consider any of that material during the course of the remand, given that those three reports relate to the pipeline’s ongoing operation but not necessarily on the precise set of issues the Corps had to resolve.
The Court moves next to the O & M manual and the integrity-management plan. Both of those documents do, in fact, appear in the record. See RAR 4507, 4827, 4830. Plaintiffs protest that the included O & M manual and integrity-management plan are generic documents, rather than being specific to the pipeline, as required by the terms of the easement. See Pl. Reply at 9– 10 (citing RAR 4499–4500, 4741–42). The Corps insists that they are appropriately specific in that they are plainly applicable to this pipeline. See Def. Opp. at 13–14. This dispute only demonstrates, however, that the Tribes are really taking issue with Dakota Access’s compliance with the easement conditions, not with whether the agency considered some additional set of documents on remand. Indeed, Plaintiffs suggest as much themselves. See Pl. Mot. at 13 (“Either [Dakota Access] is out of compliance with . . . easement conditions, or the Corps has failed to provide materials that have been provided to it that are salient to its decision on
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remand.”). Dakota Access’s compliance with easement conditions during the pendency of the Corps’ remand analysis is separate from the question of whether the Corps considered documents it did not include in the record.
Last at issue are the as-built drawings. These present a different issue from the previous sets of documents because they are in the record but are redacted. See RAR 4894–4901. The record index indicates that they are redacted because they contain critical infrastructure data, although the Corps now avers that this is incorrect and that they are instead “properly redacted in accordance with PHMSA guidance.” See Hudson Decl., ¶ 5. Plaintiffs protest that this explanation is “inscrutable” because the “Corps does not cite to any guidance, or any statute or regulation, which allows this material to be redacted.” Pl. Reply at 10. As a result, Plaintiffs believe, this “information is protected by the existing protective order,” and “the Corps should be required to complete the record with an unredacted version of this document.” Id.
Without the precise provision the Corps is invoking to support the redaction, the Court cannot resolve this dispute. Some categories of information can properly be excluded from the record based entirely on their sensitive status. See, e.g., Amfac Resorts, 143 F. Supp. at 13 (information subject to deliberative-process privilege); Serono Labs., Inc. v. Shalala, 35 F. Supp. 2d 1, 3–4 (D.D.C. 1999) (trade secrets). Information redacted pursuant to agency guidance, however, is not in one of those entirely excludable categories. Whether it can remain redacted, therefore, is a harder question that courts in this circuit have not clearly resolved. What is clear, however, is that at least some information redacted pursuant to a specific statutory scheme may properly remain withheld, even where subject to a protective order. See Pub. Emps. for Envtl. Responsibility v. Beadreau, 2012 WL 12942599, at *8 (D.D.C. Nov. 9, 2012) (affirming as “proper” withholding of six photographs “in accordance with the National Historic Preservation
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Act” notwithstanding that protective order was in effect). The Court will thus require the Corps

to submit, within two weeks, an affidavit detailing its legal rationale for the redaction of the as-

built drawings and the reasons, if any, that the information could not be revealed to Plaintiffs

subject to the protective order.

IV. Conclusion

For these reasons, the Court will grant in part and deny in part Plaintiffs’ Motion to

Complete the Administrative Record. A separate Order so stating will issue this day.

Date: May 8, 2019

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:16-cv-01534-JEB Document 496 Filed 03/25/20 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs, v.
U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants.

Civil Action No. 16-1534 (JEB)

MEMORANDUM OPINION The Court returns once more to the segment of the Dakota Access Pipeline running under the Missouri River and to its effects on the Indian Tribes living nearby. In February 2017, Defendant U.S. Army Corps of Engineers concluded that granting an easement for the crossing would yield no significant environmental impact, thus exempting the agency from having to prepare an Environmental Impact Statement under the requirements of the National Environmental Policy Act. In these consolidated cases, several Tribes whose reservations lie near Lake Oahe challenge that decision. In one of its many prior Opinions in this case, the Court held that the agency’s decision “not to issue an EIS largely complied with NEPA.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock III), 255 F. Supp. 3d 101, 147 (D.D.C. 2017). “Yet there [we]re substantial exceptions” to such compliance, one of which being the agency’s failure to address expert comments noting that the pipeline suffered from serious flaws that could result in extensive environmental harm in the event of a spill. Id. The Court thus ordered the Corps to

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consider these issues on remand. Id. at 160. That remand is now complete, and the Tribes, not surprisingly, strongly disagree with the Corps’ most recent conclusions.
In analyzing those conclusions, this Court has received significant guidance from a recent case decided by the D.C. Circuit, National Parks Conservation Association v. Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019). The appeals court there clarified the inquiry to be conducted by a district court when determining whether an agency has adequately dealt with expert criticisms such as these. Applying Semonite, this Court ultimately concludes that too many questions remain unanswered. Unrebutted expert critiques regarding leak-detection systems, operator safety records, adverse conditions, and worst-case discharge mean that the easement approval remains “highly controversial” under NEPA. As the Court thus cannot find that the Corps has adequately discharged its duties under that statute, it will remand the matter to the agency to prepare an Environmental Impact Statement. I. Background
In order to reacquaint the reader with the landscape against which this dispute unfolds, the Court will first briefly set out the statutory framework of NEPA. It will then separately discuss the factual background, the procedural history, and the recent remand and resulting claims.
A. Statutory and Regulatory Scheme The National Environmental Policy Act requires agencies to “consider every significant aspect of the environmental impact of a proposed action,” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (quoting Vt. Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519, 553 (1978)), so as to “inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Id. (citing Weinberger v. Catholic Action of Haw., 454 U.S. 139, 143
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(1981)). In order to achieve these goals, NEPA imposes on agencies certain procedural requirements, Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C. Cir. 1991), but it “does not mandate particular consequences.” Id. at 194.
First, an agency must draft an Environmental Assessment, see 40 C.F.R. § 1501.4(b), that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement [EIS] or a finding of no significant impact [FONSI].” Id. § 1508.9(a). “If any ‘significant’ environmental impacts might result from the proposed agency action[,] then an EIS must be prepared before agency action is taken.” Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)); see also 42 U.S.C. § 4332(2)(C) (requiring a statement of the environmental impact of any proposed action “significantly affecting the quality of the human environment”). If, on the other hand, the agency determines that no EIS is required, it must prepare either a FONSI or a Mitigated FONSI, depending on whether the lack of significant impact results from an agency’s commitment to mitigation measures. See 40 C.F.R. §§ 1501.4(e), 1508.13; Council on Environmental Quality, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact 2, 7 (2011), https://ceq.doe.gov/ docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
In order to determine whether its actions may result in “significant” environmental impacts — and therefore whether it must prepare an EIS — an agency must examine both the “context” and the “intensity” of the action. See 40 C.F.R. § 1508.27. When looking at intensity, an agency must consider ten factors, id. § 1508.27(b), and “[i]mplicating any one of the[se] factors may be sufficient to require development of an EIS.” Semonite, 916 F.3d at 1082 (citing Grand Canyon Trust, 290 F.3d at 347). Relevant here is the fourth of these factors — viz., “[t]he
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degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). This factor will be discussed at length below. See infra Section III.A.1.
Although not in the above-described list of ten factors, two other issues require the Corps’ attention under its NEPA obligations. First, in this Circuit, NEPA creates, through the Administrative Procedure Act, a right of action deriving from Executive Order 12,898. This order requires federal agencies to “make achieving environmental justice part of their mission” — “[t]o the greatest extent practicable and permitted by law” — “by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations.” 59 Fed. Reg. 7629 (Feb. 11, 1994), § 1-101; see Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 688–89 (D.C. Cir. 2004) (recognizing right to environmental-justice review under NEPA and APA). Indian tribes are one of the populations that must be considered. See Council on Envtl. Quality, Environmental Justice: Guidance Under the National Environmental Policy Act 9 (1997), https://ceq.doe.gov/docs/ceq-regulations-andguidance/regs/ej/justice.pdf.
Second, the parties agreed during the first round of summary-judgment briefing that NEPA additionally requires an agency to determine how a project will affect a tribe’s treaty rights, in this case those arising from the Fort Laramie Treaty of 1851. Standing Rock III, 255 F. Supp. 3d at 130–31 (citing Fort Laramie Treaty of 1851, art. 5, 11 Stat. 749, 1851 WL 7655). As relevant at this stage, the Corps is required to consider how the pipeline would affect the Tribes’ hunting and fishing resources. Id. at 130–32; see 11 Stat. 749, art. 5 (reserving to Tribes “the privilege of hunting” and “fishing” on treaty lands).
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B. Factual History As the issues present in the current round of briefing are fairly cabined, the Court will provide only an abbreviated version of the factual history laid out in its prior Opinions in this case. See, e.g., Standing Rock III, 255 F. Supp. 3d at 114–16. The Dakota Access Pipeline, designed to carry crude oil from North Dakota to Illinois, crosses several waterways along its 1,200-mile path. Id. at 114 (citing Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock I), 205 F. Supp. 3d 4, 7 (D.D.C. 2016)). One of these is Lake Oahe, an artificial reservoir in the Missouri created by construction of a dam in 1958. Id. (citing Standing Rock I, 205 F. Supp. 3d at 13). The “lake” begins near Bismarck, North Dakota, and extends about 231 miles south, ending at the Oahe Dam in South Dakota. See ECF No. 172-1 (Final EA) at 35. In creating Lake Oahe, Congress effected a taking of 56,000 acres from Standing Rock’s Reservation and 104,420 acres from the trust lands of the Cheyenne River Sioux Tribe. Standing Rock III, 255 F. Supp. 3d at 114 (citing Act of Sept. 2, 1958, Pub. L. No. 85-915, 72 Stat. 1762). The Tribes now rely on the waters of Lake Oahe in myriad ways, including for drinking, agriculture, industry, and sacred religious and medicinal practices. Id.; see, e.g., ECF No. 289-3 (Declaration of Faith Spotted Eagle), ¶¶ 5–22. As the first step in determining whether it would permit Dakota Access to construct a portion of DAPL under Lake Oahe, the Corps published a Draft EA, finding that it would not need to prepare the more involved EIS. Standing Rock III, 255 F. Supp. 3d at 115–16; ECF No. 6-19 (Draft EA) at 1. The Tribes and the Department of the Interior commented, both urging the Corps to go further and prepare an EIS. Standing Rock III, 255 F. Supp. 3d at 115–16. The EPA also commented, suggesting that the Corps must at least prepare a Mitigated FONSI. Id. at 116. In July 2016, the Corps published its Final EA — again finding that no EIS was required — and
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a Mitigated FONSI. See ECF Nos. 172-1 (Final EA), 172-2 (Mitigated FONSI). Both the Draft and the Final EA were prepared by Dakota Access with input from the Corps, as is permitted by NEPA regulations under certain circumstances. Standing Rock III, 255 F. Supp. 3d at 116 (citing 40 C.F.R. § 1506.5(a)-(b)).
C. Procedural History Shortly after the Corps published the Final EA, the Standing Rock Sioux Tribe filed suit against the agency in this Court, principally claiming that its decisions violated the National Historic Preservation Act and NEPA. See Complaint, ¶¶ 128–93. Dakota Access moved successfully to intervene as a defendant, see ECF No. 7; Minute Order of Aug. 8, 2016 (granting intervention), and the Cheyenne River Sioux Tribe so moved as a plaintiff. See ECF No. 11; Minute Order of Aug. 19, 2016 (granting intervention). On September 9, 2016, the Court denied Plaintiffs’ Motion to enjoin construction of the pipeline, finding that the Tribes were unlikely to prevail on their NHPA claims that the construction process desecrated sacred lands adjoining Lake Oahe. Standing Rock I, 205 F. Supp. 3d at 37. As political protests in the pipeline’s vicinity grew, the Departments of Justice, the Interior, and the Army that same day jointly announced that DAPL construction would be suspended pending the Corps’ reconsideration of its statutory obligations. See ECF No. 42-1 at 1–2. Reversing course, the Corps subsequently published notice of its intent to prepare an EIS as to Dakota Access’s request for an easement to cross Lake Oahe. See 82 Fed. Reg. 5,543 (Jan. 18, 2017). Following the change of administration in January 2017 and a presidential memorandum encouraging acceleration of the DAPL project, see 82 Fed. Reg. 8,661 (Jan. 24, 2017), the Corps again reconsidered its decision and ultimately decided to terminate its intent to prepare an EIS. See 82 Fed. Reg. 11,021 (Feb. 17, 2017). After notifying Congress on February 7, 2017, see
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ECF No. 172-10, the agency then issued the easement to Dakota Access on February 8, 2017. See ECF No. 172-11. The Court thereafter rejected a second preliminary-injunction motion, this time brought by Cheyenne River on Religious Freedom Restoration Act grounds, finding obstacles in both the doctrine of laches and the Tribe’s low likelihood of success on the merits. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock II), 239 F. Supp. 3d 77, 100 (D.D.C. 2017). Around this time, the case was consolidated with two others against the Corps, such that the Oglala Sioux Tribe and Yankton Sioux Tribe were added as Plaintiffs in this matter. See Minute Order of Mar. 16, 2017. All four Tribes currently remain in the suit.
Finally sending their ace pitcher out to the mound in Game 3 — after previously pushing weaker counts under the NHPA and RFRA — Standing Rock and Cheyenne River next sought summary judgment under NEPA, arguing that the Corps was required to prepare an EIS, and Defendants similarly cross-moved. In June 2017, the Court largely upheld the Corps’ decision, including on the ground that it had fulfilled any consultation duties toward the Tribes. Standing Rock III, 255 F. Supp. 3d at 147. Yet, it nonetheless found “substantial exceptions” warranting remand. Id. As to Standing Rock, there were three such deficiencies in the Corps’ work. The agency had inadequately considered, in accordance with its obligations under NEPA: (1) whether the project’s effects were likely to be “highly controversial,” id. at 127–29 (citing 40 C.F.R. § 1508.27(b)(4)); (2) the impact of a hypothetical oil spill on the Tribe’s fishing and hunting rights, id. at 132–34; and (3) the environmental-justice effects of the project. Id. at 136–40. The Court consequently remanded the matter to the agency to address these issues. Id. at 160. It also reserved decision on two of Cheyenne River’s arguments pending the results of the remand, id. at 150, 153, but the Tribe does not now re-assert those positions. See ECF No. 436 (Cheyenne River Second MSJ).
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Oglala’s and Yankton’s claims, meanwhile, were in earlier stages. Yankton and Defendants cross-moved for summary judgment the following year, and the Court found in favor of the Corps. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock V), 301 F. Supp. 3d 50, 75 (D.D.C. 2018). Both Yankton and Oglala later preserved issues they intended to pursue following a remand. See ECF Nos. 385 (Oglala); 386 (Yankton).
D. Remand and Results While the Court remanded to the agency a few of Standing Rock’s and Cheyenne River’s claims, it did not at that point determine whether the easement for the pipeline would be vacated during the remand. Standing Rock III, 255 F. Supp. 3d at 147–48. In October 2017, it found that “[i]n light of the ‘serious possibility’ that the Corps w[ould] be able to substantiate its prior conclusions,” vacatur was not appropriate. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock IV), 282 F. Supp. 3d 91, 109 (D.D.C. 2017) (quoting Nat’l Parks Conservation Ass’n v. Jewell, 62 F. Supp. 3d 7, 20 (D.D.C. 2014)). The Corps completed its remand analysis in February 2019, see ECF No. 398 (Notice of Service of Remand Analysis), and the parties filed a joint appendix containing that record the following month. See ECF No. 406 (Remand Analysis Record). The Corps’ work on remand will be discussed in more detail below. See infra Section III. All parties have now again moved for summary judgment — for the first time, in the case of Oglala. In their briefs, the Tribes raised not only the remanded issues but several others. All Tribes jointly argue that the Corps has failed to remedy its three NEPA violations on remand. In addition, Standing Rock, Cheyenne River, and Yankton attempt to resurrect their NHPA claims, which the Court rejected in earlier Opinions. See Standing Rock I, 205 F. Supp. 3d at 10; Standing Rock V, 301 F. Supp. 3d at 64. Yankton also raised a preserved non-NHPA
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consultation claim (as to the Corps’ actions before the remand), and Oglala argued its preserved claims under the Mni Waconi Act. All Tribes further contend that the Corps violated its consultation duties toward them during remand. The Court heard oral argument via teleconference on March 18, 2020, and it is now prepared to rule on the Motions. II. Legal Standard
Upon a party’s motion, Federal Rule of Civil Procedure 56(a) requires the Court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is material if it would change the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006), and a dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). “Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits[,] . . . declarations[,] or documentary evidence to the contrary.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)).
The above-described standard, however, does not apply to the Tribes’ NEPA claims, which will be analyzed under the Administrative Procedure Act’s judicial-review standard. Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir. 2017) (“[B]ecause NEPA does not create a private right of action, we can entertain NEPA-based challenges only under the [APA] and its deferential standard of review.”). That standard, set out below, applies in place of the typical
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summary-judgment standard of Rule 56: “[W]hen a party seeks review of agency action under the APA, . . . the district judge sits as an appellate tribunal.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). In other words, “[t]he entire case on review is a question of law.” Id. (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)).
The Administrative Procedure Act “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if, for example, the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
“‘The scope of review [in an APA case] is narrow and a court is not to substitute its judgment for that of the agency,’ provided the agency has ‘examine[d] the data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” Airmotive Eng’g Corp. v. FAA, 882 F.3d 1157, 1159 (D.C. Cir. 2018) (second and third alterations in original) (quoting State Farm, 463 U.S. at 43). While the Court “may not supply a reasoned basis for the agency’s action that the agency itself has not given, [it] will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)
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(citation omitted) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); then citing Colo. Interstate Gas Co. v. FPC, 324 U.S. 581, 595 (1945)). It is only these “certain minimal standards of rationality” to which a reviewing court holds an agency. Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C. Cir. 2012) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36–37 (D.C. Cir. 1976) (en banc)). III. Analysis
We now arrive at the crux of the matter: has the Corps remedied the three NEPA shortcomings that necessitated remand? And what of the other claims raised by the Tribes? The Court will focus on NEPA and then briefly address the remaining claims brought under two other statutes.
A. NEPA As noted above, while the Court “[found] that the Corps’ decision on July 25, 2016, and February 3, 2017, not to issue an EIS largely complied with NEPA,” it also concluded that there were three “substantial exceptions” — that is, the Corps had violated NEPA in three ways. Standing Rock III, 255 F. Supp. at 147. To wit, it found wanting the Corps’ analysis of: (1) whether the project’s effects were likely to be highly controversial, id. at 129; (2) the impact of an oil spill on the Tribe’s fishing and hunting rights under the Treaty of 1851, id. at 134; and (3) “whether,” under a required environmental-justice analysis, “Standing Rock would be disproportionately harmed by a spill.” Id. at 140. The Court will begin its analysis by discussing relevant aspects of the standard of review of agency action under NEPA. It will then proceed to consider how the Corps fares under that standard. It will finish by explaining how its findings on the “highly controversial” factor
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obviate a need for discussion of the other two remand issues as well as some other claims raised by the Tribes.
NEPA Standard NEPA requires an agency to prepare an Environmental Impact Statement “[i]f any ‘significant’ environmental impacts might result from the proposed agency action.” Grand Canyon Trust, 290 F.3d at 340 (quoting Peterson, 717 F.2d at 1415). A court’s “role in reviewing an agency’s decision not to prepare an EIS is a limited one, designed primarily to ensure that no arguably significant consequences have been ignored.” Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015) (emphasis added) (internal quotation marks omitted) (quoting TOMAC v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006)). It “must review whether the agency: ‘(1) has accurately identified the relevant environmental concern, (2) has taken a hard look at the problem in preparing its EA, (3) is able to make a convincing case for its finding of no significant impact, and (4) has shown that even if there is an impact of true significance, an EIS is unnecessary because changes or safeguards in the project sufficiently reduce the impact to a minimum.’” Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (quoting TOMAC, 433 F.3d at 861). While NEPA does not direct agencies “to take one type of action or another,” it does require courts to hold them accountable to its procedural requirements. Busey, 938 F.2d at 193–94. The decision not to prepare an EIS is part of the latter category — that is, courts may find that an agency was arbitrary and capricious not to prepare an EIS and order it to do so. See, e.g., Semonite, 916 F.3d at 1088. As noted above, an agency considering whether a project will have a “significant” effect on the environment — and thus whether it must prepare an EIS, see Peterson, 717 F.2d at 1415;
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42 U.S.C. § 4332(2)(C) — must analyze both the proposed action’s “context” and its “intensity.” 40 C.F.R. § 1508.27. “[I]n evaluating intensity,” the agency must consider ten factors, id. § 1508.27(b), only one of which is relevant here. “Implicating any one of these factors may be sufficient to require development of an EIS.” Semonite, 916 F.3d at 1082. For example, in Grand Canyon Trust, the D.C. Circuit found that, having decided that the FAA had not sufficiently considered one of the factors, it need not “reach[]” the plaintiff’s claim that the agency had also failed to adequately analyze another of the ten. See 290 F.3d at 347.
The § 1508.27(b) factor at issue here is “[t]he degree to which [the project’s] effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). Effects are “controversial” where “substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (emphasis added) (quoting Found. for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1182 (9th Cir. 1982)). While “what constitutes the type of ‘controversy’ that requires a full EIS is not entirely clear,” Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 33 (D.D.C. 2016) (quoting Nat’l Wildlife Fed’n v. Norton, 332 F. Supp. 2d 170, 184 (D.D.C. 2004)), “something more is required besides the fact that some people may be highly agitated and be willing to go to court over the matter.” Id. (quoting Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975)). In other words, the significant public protests near Lake Oahe do not transform the pipeline’s approval into a highly controversial action within the meaning of 40 C.F.R. § 1508.27(b)(4).
This “something more” is often “scientific or other evidence that reveals flaws in the methods or data relied upon by the agency in reaching its conclusions.” WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 81 (D.D.C. 2019) (quoting Nat’l Parks Conservation Ass’n, 177 F.
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Supp. 3d at 33). In its first summary-judgment Opinion, the Court found that “[t]he expert reports submitted to the Corps after the Final EA was published but before the Corps again decided in February 2017 that an EIS was not required . . . present such scientific critiques.” Standing Rock III, 255 F. Supp. 3d at 129 (emphases omitted); see also id. (listing, as examples, seven methodological critiques made in the Tribes’ expert reports). The agency’s failure to sufficiently respond to these critiques was one of the issues necessitating remand. Id.
While the remand in this case was ongoing, the D.C. Circuit issued a significant opinion clarifying a court’s role in reviewing an agency’s finding that a project was not “highly controversial.” In Semonite, the Corps examined the construction of power lines that would run through historic Jamestown and determined that it did not need to prepare an EIS. See 916 F.3d at 1078–80. Many commenters, including the National Park Service, the Advisory Council on Historic Preservation, the Virginia Department of Historic Resources, and “many nongovernmental organizations,” raised concerns about various aspects of the project. Id. at 1080. Some of these commenters “identified what they viewed as serious flaws in the Corps’s methodologies.” Id. In response, the Corps “twice directed [the power company building the lines] to revise its photo simulations,” but “[c]ommenters remained unsatisfied.” Id. The D.C. Circuit found that, contrary to the Corps’ position, the agency action was likely to be “highly controversial” — and thus the project must be halted while the Corps prepared an EIS — because there was “consistent and strenuous opposition, often in the form of concrete objections to the Corps’s analytical process and findings, from agencies entrusted with preserving historic resources and organizations with subject-matter expertise.” Id. at 1086.
Crucially, the Semonite court explicitly rejected the agency’s argument that it had fulfilled its duty under NEPA by “acknowledg[ing] and try[ing] to address concerns raised
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during the NEPA process by, for example, instructing [the equivalent of DAPL here] to revise its analyses to address the shortcomings identified by commenters.” Id. at 1085. That argument, the D.C. Circuit stated, “misse[d] the point.” Id. “The question is not whether the Corps attempted to resolve the controversy, but whether it succeeded. Given that many critical comments, including from [agencies and non-governmental organizations], post-dated [those] revisions, the Corps obviously failed.” Id. at 1085–86 (emphases added).
The Corps argues that Semonite does not control — and thus that “considering” responses “is all that is required,” Oral Arg. Tr. at 44:5–6 — because in that case both private organizations and federal agencies with subject-matter expertise raised concerns with the agency’s proposed plans. See ECF No. 458 (Corps Opp. to Standing Rock) at 29–30. Whereas “in Semonite, you had the neutral expert agency” objecting to the Corps’ plans, it contends, “[Y]ou have the opposite here.” Oral Arg. Tr. at 6:25–7:6. By “the opposite,” the agency means that in this case, the Pipeline and Hazardous Materials Safety Administration (PHMSA) “did not object to the worst case discharge methodology or underlying assumptions.” Corps Opp. to Standing Rock at 30.
The Court does not believe that these points distinguish the clear instruction of Semonite. First, the D.C. Circuit in that case did not rest its holding exclusively on the existence of federalagency criticisms, ignoring those raised by private organizations. See, e.g., 916 F.3d at 1085 (describing the “considered responses” of “highly specialized governmental agencies and organizations”). Second, both the Department of the Interior and the EPA, under the previous administration, did express concerns with the agency’s analysis here. Interior, for example, found that the Corps’ Draft EA “did not adequately justify or otherwise support its conclusion that there would be no significant impacts upon the surrounding environment and community.”
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USACE_DAPL 5750. EPA recommended, among other things, that the Corps analyze more closely the leak-detection system it had selected, including its “ability . . . to identify small volume leaks.” USACE_DAPL 5746. In fact, as the Corps itself noted, EPA’s own estimate for a spill from a pipeline of DAPL’s size in that region was many times the size of the Corps’. See USACE_DAPL 72184, 72252 (citing U.S. Nat’l Response Team, Mid-Missouri River Sub-Area Contingency Plan 9 (2015)). The agencies’ position changed after a new administration took office and President Trump urged the Corps to “review and approve [DAPL] in an expedited manner.” 82 Fed. Reg. 8661. This is certainly their prerogative, see State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part) (“A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations.”), but the existence of the prior comments undercuts the Corps’ emphasis on the lack of federal-agency critique in this case.
Third and finally, the Corps’ position treats the Tribes and their experts as more akin to the “non-governmental organizations” in Semonite, 916 F.3d at 1080, than governmental entities. As the Government well knows, however, “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.” Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831)). Here, these sovereign nations prepared expert comments with the help of not only third-party consultants but also their own relevant governmental departments. See, e.g., RAR 7453 (report submitted by Standing Rock in collaboration with, among others, its Department of Water Resources, Department of Game and Fish, Tribal Emergency Management Commission, Department of Environmental Regulation,
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and a five-member “Technical Consulting Team”). In sum, the Court does not find a reason to deviate from Semonite here.
In addition to the nature of the Court’s review, the parties also disagree as to its scope. Dakota Access maintains that, in determining whether the Corps has fulfilled its NEPA obligations, the Court should consider only the critiques raised between July 2016 and February 2017 — that is, those that generated the unresolved scientific controversy prompting the Court’s remand. See ECF No. 456 (Dakota Access Consolidated Opp.) at 14; Oral Arg. Tr. at 46:8–11 (arguing that Court should consider “the results of [the] new modeling” but not Plaintiffs’ responses to them). The Tribes, on the other hand, believe that the Court should also review their comments submitted during the remand and the Corps’ responses to those.
Once again, Semonite lights the way. Arguably, under that precedent, the Court could find the “highly controversial” factor met merely from the existence of “consistent and strenuous opposition” in the form of experts’ “concrete objections to the Corps’s analytical process and findings” that “post-dated” the Corps’ revision efforts. Semonite, 916 F.3d at 1085–86. But this case stands in a more developed procedural posture than Semonite: here the agency has had an additional chance to respond to these renewed criticisms during the remand. See RAR 103 (confirming Corps considered in its remand analysis “the letters, written comments, and expert reports” as well as “all information verbally communicated at the meetings with the Tribes” during remand); id. at 104 tbl.III-1 (listing documents considered and responded to, including those received after the easement and during remand). As a result, and particularly since both Defendants argued the sufficiency of those responses in their briefs, see, e.g., Dakota Access Consolidated Opp. at 25–27; ECF No. 446 (Corps Opp. to Standing Rock) at 28, the Court finds it prudent to analyze the substance of expert comments made both before and during the remand
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to determine whether they “succeed” in resolving the points of scientific controversy that continue to be raised by experts.
Points of Controversy Having thus delineated the nature and scope of its review, the Court may now engage in the business of reviewing. Given the volume of expert comments submitted both before the granting of the easement and during the remand, it finds that the best approach is to group these criticisms by subject matter. For each topic, the Court will discuss the concerns raised by the Tribes’ experts, the responses offered by the Corps, and whether the latter succeed in resolving the scientific controversy. Plaintiffs’ experts will be introduced as they appear in the below comments. The Corps also relied on reports prepared for Dakota Access by a third-party consulting expert. See, e.g., RAR 8743 (noting that Spill Model Analysis was done by private consulting group RPS for ETP); Final EA at 126–27 (including, in “List of Preparers and Reviewers,” three “Environmental Specialists” from a private environmental consulting company). Citations to Bates numbers beginning with USACE_ESMT, USACE_DAPL, USFWS_DAPL, and OAHE indicate references to the pre-remand administrative record, including the expert comments contained therein. Citations to Bates numbers beginning with RAR refer to the remand-analysis record, again including expert comments raised during that time. While there are many topics to choose from, the Court finds that examining four will be sufficient to demonstrate the amount of unresolved scientific controversy that remains. As will be explained, even this non-extensive selection suffices to show the necessity of an EIS.
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a. Leak-Detection System The Court begins by discussing concerns raised about DAPL’s leak-detection system — one of the areas of unaddressed scientific controversy noted in the first summary-judgment Opinion. Standing Rock III, 255 F. Supp. 3d at 129 (quoting USACE_ESMT 1081). Experts for both Standing Rock and Cheyenne River expressed their skepticism as to the effectiveness of this system both before and during the remand. First, they asserted that there was serious reason to doubt the efficacy of the system. As the above-mentioned report submitted by Standing Rock noted, “A 2012 PHMSA comprehensive leak detection study found one type of leak detection system[, called SCADA,] . . . detected hazardous liquid leaks 28 percent of the time,” and another, called CPM, “had a detection rate of 20 percent.” RAR 7505. Another expert for Standing Rock had also presented this data in October 2016, adding that “[t]his low success rate” was “consistent with Accufacts’ many liquid pipeline failure investigations spanning more than 40 years, especially more recent investigations.” ECF No. 117-15 (Accufacts Report of October 2016) at 4–5. DAPL, it should be noted, uses a CPM leak-detection system. See RAR 173–74. The Corps’ response to the first of these comments was to merely refer to its response to a different comment that did not specifically address the PHMSA data. See RAR 257 (directing reader to RAR 143–44); RAR 143–44 (addressing worst-case discharge generally and not PHMSA data from 2012). Its response to the second — which raised the same PHMSA data — addressed only Accufacts’s assertion that the PHMSA data was consistent with its 40 years of experience investigating pipeline failures: “ETP asserts that a comparison to data from 40 years ago, and from older pipelines installed prior to modern pipeline standards, overstates the risk of
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this modern pipeline.” RAR 173. It then went on to describe some features of DAPL’s “stateof-the-art pipeline monitoring tools” and practices. See RAR 173–74.
These responses plainly do not succeed in resolving the serious concerns raised. Most critically, the Corps failed entirely to respond to the 2012 PHMSA study that indicated an 80% failure rate in the type of leak-detection system employed by DAPL. Instead, it focused on the expert’s comment that its own experience corroborated the PHMSA data. The agency mischaracterized this comment as drawing only on “data from 40 years ago, and from older pipelines installed prior to modern pipeline standards,” RAR 173, when the expert had specifically stated that its experience was drawn from a 40-year period and “especially more recent investigations.” Accufacts Report at 5. Accufacts made no indication that its experience was only with “pipelines installed prior to modern pipeline standards.” The Corps’ statement that the expert’s comment “overstates” the risk of a leak-detection failure, therefore, holds no water (or oil, as the case may be).
Second, experts noted that the apparent likelihood that DAPL’s leak-detection system would not perform the detections for which it was designed was only part of the problem. In addition, the system was not even designed to detect leaks that constituted 1% or less of the pipe’s flow rate. See RAR 7683. At the current pipeline flow rate of about 600,000 barrels per day, this means that “6,000 bbs/day” — that is, about 25,200 gallons — “could be released continuously, over a long period of time, without detection.” Id. Oglala’s expert, a civil and environmental engineer working for an engineering consultancy group, made similar points in a December 2016 report. See RAR 1250. The Corps did not respond to these comments, see RAR 155–59, 274, but in responses to other related topics, it stated that “[a]ccording to ETP,” the leak-detection system in place for DAPL “is capable of detecting leaks down to 1 percent or
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better of the pipeline flow rate.” RAR 127. “In the event of a slow leak,” it continued, “even if pressure measurements do not show a significant drop in pressure, a detectable meter imbalance will develop over a period of time resulting in an alarm to the Control Center.” Id. “While the alarm threshold may be 1%,” DAPL’s leak-detection system is “sensitive to smaller changes in flow rate and pressure.” Id.
The Court similarly cannot find that the agency adequately disposed of the experts’ concerns here. Even while stating that the system was “sensitive to smaller changes in flow rate and pressure,” the Corps confirmed that the threshold for a leak-detection alarm was 1%. See RAR 127. Its further response that a less-than-1% leak would eventually be detected over an unspecified “period of time” after building up enough to cause a meter imbalance, id., was less than reassuring given that the amount of undetected leaking oil could be as much as 6,000 barrels per day. See RAR 7683. Indeed, one of the experts noted that Sunoco had experienced a spill of 8,600 barrels on one of its pipelines when it had not recognized a leak even when there was an “imbalance indication[]” because that imbalance did not exceed “established normal operating tolerances.” RAR 7491 (quoting PHMSA report of the incident). At oral argument, moreover, when asked why the spill modeling did not include such a slow-leak scenario, the Corps stated that “there was no particular reason that they didn’t look at a slow leak.” Oral Arg. Tr. at 12:8– 9.
Third, Accufacts commented that a “complete risk analysis require[s], inter alia, consideration of . . . location and type of ‘critical leak detection monitoring devices by milepost.’” RAR 7491 (quoting USACE_ESMT 1081); see also USACE_ESMT 1078–79 (same expert finding “key variables” such as “time to remotely recognize and react to a possible release” were not considered by Corps). The agency responded that the third-party engineering
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company that had performed the risk analysis had, according to representations made to the Corps by ETP, considered “[i]nformation on critical leak detection monitoring devices associated with the [leak-detection system] consisting of pressure transmitters and ultra-sonic flow meters by milepost location.” RAR 129.
This response does not quite succeed in resolving the issues raised. Stating that it had considered the information was a good start, but, while the Corps did indicate the type of monitoring devices that were used, it did not mention their locations, and, most critically, it did not point to any analysis that did in fact take these two details into consideration. Were this the only point of expert contention, it might be a closer call, but the Corps’ responses to the first two groups of expert comments show that the scientific controversy surrounding DAPL’s leakdetection system was not resolved.
b. Operator Safety Record The next topic is the safety record of DAPL’s operator, referred to interchangeably by the parties as ETP and Sunoco (the two completed a merger during this litigation). The thrust of these comments was that any analysis of the risk or magnitude of a spill for a certain pipeline should take into account the performance history of its operator. Donald Holmstrom, an “attorney, investigator, and process safety practitioner with many decades of experience in the oil industry and U.S. government,” ECF No. 272-4 (Declaration of Donald Holmstrom), ¶ 1, commented, “A valid risk analysis would recognize the history of the operator, but that didn’t happen here.” Id., ¶ 9. Standing Rock’s remand report made a similar comment. See RAR 7503 (“Nowhere d[id] DAPL explain why historic shutdown discharges from other Sunoco/ETP pipeline incidents are not discussed or relevant. . . . Leak detection estimates to be realistic or scientific need to be based on actual historic performance data.”). In this case, the operator’s
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history did not inspire confidence: “PHMSA data shows Sunoco has experienced 276 incidents resulting in over $53 million in property damage from 2006–2016,” which one expert described as “one of the lower performing safety records of any operator in the industry for spills and releases.” Holmstrom Decl., ¶ 9.
The Corps focused its responses on defending the operator’s performance record itself rather than on justifying its decision to not incorporate that record into its analysis. It did not directly reply to the comment that it had not explained “why historic shutdown discharges from other Sunoco/ETP pipeline incidents are not discussed or relevant.” RAR 7503; see RAR 255. And in response to the comment that “[a] valid risk analysis would recognize the history of the operator,” Holmstrom Decl., ¶ 9, it gave a verbatim repetition of its answer to the comment that “PHMSA data shows Sunoco has experienced 276 incidents resulting in over $53 million in property damage from 2006–2016.” Id.; compare RAR 235–36, with RAR 136–37. That response, which addressed only the safety record (and not the failure to consider it), noted that 70% of the 276 incidents were confined to operators’ property, and “if an incident is confined to the operators’ property, then it would not reach Lake Oahe or any other land or water used by the Tribe.” RAR 137. It also noted that Sunoco had increased inspections of its pipelines in recent years, see RAR 235, and stated that the commenter(s) “d[id] not identify a specific alternative methodology or particular criteria or performance metrics that the Corps should have considered” or studies “that would cause the Corps to doubt its previous methodologies and data supporting [its] conclusion to rely on ETP’s risk analysis.” Id.
This response does not resolve the issues raised by the Tribes’ experts. Two central concerns went unaddressed: (1) the 30% of spills — about 80 of them — that were not limited to operator property; and (2) the criticism that the spill analysis should have incorporated the
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operator’s record. Indeed, the 70% of spills that occurred on operator property may still be relevant to the latter point — for example, by showing how an operator’s practices might affect the risk of a spill, length of detection time, and speed of response. Finally, the Corps’ form language about lack of “specific alternative methodology” and studies “that would cause the Corps to doubt its previous methodologies” — which appears, without alteration or explanation, in many of its responses, see, e.g., RAR 116, 119, 125, 130, 132 — is a non sequitur and does nothing to resolve the specific issues raised by the Tribes’ experts.
c. Winter Conditions Another concern captured in expert comments was the Corps’ failure to consider the impact of harsh North Dakota winters on response efforts in the event of a spill. First, as Oglala’s expert noted, “[S]ubfreezing temperatures during winter months will affect emergency response conditions during cleanup of a spill,” creating “significant difficulties that are not present during other periods,” such as that “workers require more breaks and move slower due to the bundling of clothing,” “daylight hours are shorter,” and “slip-trip-fall risk increases significantly.” Earthfax Report at 7. The Final EA, then, “should have quantified the effect of these factors on response time and the subsequent impacts to human health and the environment.” Id. The same expert pointed out, moreover, that the EA’s statement that “ice itself often serves as a natural barrier to the spread of oil” by “naturally contain[ing]” pockets of oil, see Final EA at 39 (USACE_DAPL 71263), was an “oversimplification of oil recovery operations beneath ice.” Earthfax Report at 7. In the first place, the report stated, ice makes it “difficult to determine where the largest pockets of oil may occur.” Id. Beyond that, “[t]he trapped oil may move,” and “[i]ce will naturally break both on the river and on the reservoir, shifting recovery
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locations and increasing safety hazards.” Id. Because of the above-described complications of emergency response during the winter, moreover, “the time required to recover the oil will be increased,” in turn “increas[ing] the extent to which the oil dissolves into the water.” Id. at 8. The expert noted that the study cited by the Corps for the proposition that ice may benefit spill response also indicated the ways in which winter may simultaneously hinder it. Id. Ultimately, the expert concluded, “[T]he EA should have presented a more serious, quantitative evaluation of the winter spill scenario” to ensure that the above-described factors “were properly evaluated.” Id. Standing Rock and its experts made a similar point that will be discussed in the following section. See infra Section III.A.2.d.iii.
In its response to Oglala’s expert, the Corps “agree[d]” that “the recovery of oil under ice is difficult.” RAR 150. The agency stated that it had considered winter conditions in the EA, pointing to parts of the Final EA that the Oglala expert had criticized. Id. (citing Final EA at 39). It also stated that it had “mandated full-scale winter/ice exercises at . . . Lake Oahe as a condition to the easement,” and that such exercises were “tentatively scheduled” for February 2019. Id. Finally, it noted that “the Spill Model Report includes an assessment of the winter spill scenario of oil movement under the ice at Lake Oahe.” Id. (citing RAR 8875). That report “predicts that ice cover retards the movement of oil downstream by trapping the hydrocarbons in the vicinity of the release location.” RAR 151. Thus, “ETP anticipates that the difficult winter conditions will be counterbalanced by the slower movement of the oil beneath the ice.” Id.
The Court finds the Corps’ response insufficient to resolve the points raised by Oglala’s expert. To start, the agency’s reference to the Spill Model Report does not necessarily support ETP’s prediction. The report in fact found that, in simulations presuming 100% ice coverage, “[t]he ice effectively capped the oil, prevented evaporation, and resulted in enhanced dissolution,
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all of which led to the maximum mass of oil in the water column.” RAR 8875. This is in line with the expert’s prediction, see Earthfax Report at 8 (winter response complications will “increase the extent to which the oil dissolves into the water”), and does not support ETP’s conclusion that slow winter flow rates and the entrapment of oil pockets within the ice would counteract the response difficulties presented by winter conditions. The Corps’ reference, moreover, to the parts of the EA that formed the basis of the expert’s criticism does not “resolve” the scientific controversy. Semonite, 916 F. Supp. 3d at 1085–86. And practicing a winter response, while prudent and perhaps a good avenue for producing data as to how exactly winter conditions would delay response efforts, does not get to the point of addressing the concern that the spill model does not currently take that kind of data into account.
d. Worst-Case Discharge The largest area of scientific controversy, particularly during remand, was the worst-casedischarge estimate for DAPL used in the spill-impact analysis. As relevant here, the “worst case discharge” is
[t]he pipeline’s maximum release time in hours, plus the maximum shutdown response time in hours (based on historic discharge data or in the absence of such historic data, the operator's best estimate), multiplied by the maximum flow rate expressed in barrels per hour (based on the maximum daily capacity of the pipeline), plus the largest line drainage volume after shutdown of the line section(s) in the response zone expressed in barrels (cubic meters). 40 C.F.R. § 194.105(b)(1). In other words, WCD = ((maximum release time + maximum shutdown response time) × maximum flow rate) + largest line drainage volume The idea, then, is to calculate the maximum amount of oil that could possibly leak from the pipeline before a spill is detected and stopped. The regulations further provide that the “[w]orst
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case discharge means the largest foreseeable discharge of oil . . . in adverse weather conditions.” 49 C.F.R. § 194.5.
One final introductory note. Defendants argue that the PHMSA regulations cited above, which require calculation of a worst-case discharge, see 40 C.F.R. § 194.105(a), are not mandatory under NEPA and thus that the Corps need not have complied with them under that statute. See Corps Opp. to Standing Rock at 12 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)). But even if it was not required to do so, the agency did perform such calculations using 40 C.F.R. § 194.105(b)(1), which formed the basis for other conclusions about the effects of a spill. See id. at 12–13 (“[T]he Corps based some of its analysis on an extremely pessimistic “worst case discharge” figure derived from a Spill Model Report prepared pursuant to PHMSA regulations.”). Expert critiques raising serious doubts about the Corps’ application of 40 C.F.R. § 194.105(b)(1) cannot be resolved by the fact that the agency may not have been required to use this particular method in the first place. Such a rule would immunize vast swaths of the Corps’ analysis from judicial or expert review. Cf., e.g., Sierra Club v. Sigler, 695 F.2d 957, 966 (5th Cir. 1983) (“The purpose of judicial review under NEPA is to ensure the procedural integrity of the agency’s consideration of environmental factors in the EIS and in its decision to issue permits. If the agency follows a particular procedure, it is only logical to review the agency’s adherence to that procedure, not to some altogether different one that was not used.”). Indeed, the Corps seemed to concede this at oral argument. See Oral Arg. Tr. at 8:25–9:4 (“The Court: . . . But since you did [a WCD analysis] here, shouldn’t that analysis be subject to expert criticism?” Mr. Schifman: “Yes. It is absolutely, just as any analysis that the Corps or any agency does is subject to expert criticism in the appropriate comment period or whatever the case may be. So, it was subject to that criticism, the Corps evaluated the criticism
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in great depth . . . .”). The Court, therefore, will consider expert critiques of the agency’s calculation of the WCD as valid as any other critique.
Both before the easement was issued and during remand, experts raised myriad concerns with the WCD used by the Corps to evaluate impacts of a potential DAPL spill. While there were many axes on which the WCD was challenged, the Court will discuss only three, finding them sufficient to illustrate the unresolved scientific criticisms posed by the Tribes’ experts.
i. Leak-Detection Time In addition to the concerns raised about whether the leak-detection system would function as claimed and that it was not designed to detect spills of less than 1%, see supra Section III.A.2.a, experts also voiced strong criticisms of how quickly the Corps claimed the system would catch a spill in its WCD analysis. Standing Rock’s remand report commented that, while “[l]eak detection time is intended to be part of the WCD calculation formula,” RAR 7502, “no actual detection time was provided or utilized.” RAR 7501. (Recall that inclusion of detection time was also one of the areas for improvement suggested by EPA in its comment on the Draft EA. See USACE_DAPL 5746 (“recommend[ing] that the NEPA analysis describe . . . the time that would be required for detection and shutoff of the pipeline”).) Instead, “[t]he DAPL calculation multiplied only the pump shutdown time by the maximum flow rate and added the drain down volume.” RAR 7501. And far from being instantaneous, several experts noted, the worst-case leak-detection time was likely to be quite long. See, e.g., RAR 1347 (commenting that spills have been documented to continue undetected for “hours and sometimes weeks”); RAR 7689 (recommending that the WCD “release time assumption” be increased to 8 hours to “reflect[] the actual (proven in use) performance of the Leak Detection System and the track record of the pipeline operator to identify pipeline leaks in remote locations such as the Lake
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Oahe pipeline crossing”); Accufacts Report at 8 (“There appears to be considerable optimism in the EA in assuming a quick recognition and response by control room personnel.”).
The Corps countered that, after “review[ing] the Lake Oahe Crossing Report numerous times resulting in numerous revisions by the applicant,” it had determined that the estimated total time for leak detection, pump shutdown, and valve closure used in the WCD was “12.9 minute[s].” RAR 254. This was “based on the sum of the time to detect a break on the line and shutdown pumps (9 minutes) and the time to close the valves (3.9 minutes for standard valves).” Id. The agency stated that the 9-minute portion, to which it had previously referred only as the amount of time required to shut down mainline pumps, was in fact “not limited to pump shutdown time as it already includes 1 minute for time of detection.” Id. The 1-minute figure was used because, “[a]ccording to ETP, the typical time of detection for a WCD rupture is less than 1 minute.” Id.; see also RAR 126 (“According to ETP, the LeakWarn CPM system is . . . capable of providing rupture detection within 1 to 3 minutes.”); RAR 127 (same).
The Corps’ response does not resolve the issues raised by the experts’ comments on many levels. To start, the Court finds it difficult to make sense of the agency’s statement that its previous “reference to the mainline pumps being shutdown within 9 minutes of detection is not just limited to pump shutdown time as it already includes 1 minute for time of detection.” RAR 254 (emphasis added). The “reference” is in the spill-model analysis prepared for Dakota Access by a third-party private consultant. See RAR 14959–87. There, the consultant explains that the numbers “utilized in the DAPL computer model” allow 12.9 minutes for “Detection and Shutdown*.” RAR 14967. Below that, the asterisk is explained: “*The mainline pumps are shutdown within 9 minutes of detection and the adjacent block valves are completely closed within an additional 3.9 minutes.” Id. Given that the latter sentence is meant to explain the
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reference to “Detection and Shutdown,” the Corps’ statement that the 9 minutes include 1 minutes for detection appears unsupported. The clear meaning of “within 9 minutes of detection” is “9 minutes after detection.” At best, the Corps’ statement that the 9 minutes included time for detection requires more explanation.
But even if the Court accepted, arguendo, that the WCD did allow one minute for detection of the rupture, this does not resolve the serious concerns noted by experts about the propriety of using that number to calculate the WCD. Most obviously, what DAPL’s leakdetection system is “capable of,” RAR 126, 127, or what its “typical” performance would be, see RAR 254, are not necessarily the same as the figure that should be used in calculating its “maximum release time.” 40 C.F.R. § 194.105(b)(1). The Corps itself betrays that one minute is not the longest time it could take for a full-bore rupture to be detected, since it admits that DAPL’s leak-detection system is “capable of providing rupture detection within 1 to 3 minutes.” RAR 126, 127. The difference between one and three minutes is not insignificant when speaking of a full-bore rupture: the current maximum flow rate of the pipeline (only half of its full capacity) is 600,000 barrels a day, which translates to over 416 barrels per minute.
But the difference between the one-minute number used in the WCD and the actual maximum detection time may be much larger. In response to the many experts who commented that hours, rather than minutes, were more accurate figures for the WCD, the Corps merely repeated that ETP had assured it that DAPL’s system was capable of detecting a full-bore rupture one to three minutes after it occurred. See RAR 127, 205, 254. Of course, the fact that the system is capable of detecting a leak in this time does not mean that it will do so, only that it may. And in neither case does the one-to-three-minute timeframe purport to be the maximum
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release time the WCD regulation requires and which the experts posited could well be hundreds of times longer than ETP’s number.
ii. Shutdown Time Once a leak is detected, the pipeline’s pumps must be shut down in order to stop the flow of oil. In addition, valves help to “reduce the total volume of oil that could be released in the event of a spill,” RAR 120, by blocking already-pumped oil before it reaches the point of a leak or rupture. DAPL has two such valves near Lake Oahe; failure of these valves would cause the discharge amount to skyrocket. See RAR 121. Recall that the WCD regulations require calculation of “the maximum shutdown response time in hours (based on historic discharge data or in the absence of such historic data, the operator’s best estimate).” 40 C.F.R. § 194.105(b)(1). As noted above, the Corps used a total time of 12.9 minutes for shutdown — 9 minutes for the pumps and 3.9 minutes for the valves. See RAR 254, 14967. (As discussed, the 9-minute figure may also include 1 minute for leak detection, thus leaving 8 minutes for pump shutdown. See supra Section III.A.2.d.i.) Holmstrom contended that the 12.9 (or possibly 11.9) minutes “from leak detection to the closing of the shut-off valves lacks supporting data and is not credible.” Holmstrom Decl., ¶ 14. This number, he pointed out, was “based on a ‘best case’ scenario in which all systems function precisely as intended,” including that “the correct decision and response is immediately initiated, and all equipment such as controls, sensors, pumps and valves function as intended.” Id., ¶ 11. Such assumptions have no place in a worst-case scenario, experts said, since in reality “[m]ajor spill incidents typically occur with multiple system causes, when people, or equipment, or systems do not function exactly as they are expected to.” Id. By failing to consider such
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eventualities, which is the modern standard for major accident prevention, the model had not, in fact, given a worst-case discharge analysis. Id.
The Corps responded to this criticism by stating that the valves at Lake Oahe “have a closure time of no greater than three (3) minutes.” RAR 155 (quoting Final EA at 90); see RAR 236–37 (referring to RAR 155–59). The other parts of Holmstrom’s comment — i.e., those identifying why assuming a perfect valve-closure time was unrealistic for a WCD — were omitted from the Corps’ response to the relevant paragraph of his declaration. See RAR 236. In its limited answer, moreover, the agency largely focused on the fact that its WCD figure was lower than an earlier, non-WCD spill-volume estimate made by Oglala’s expert. See RAR 143– 44; see also RAR 236 (referring to RAR 143–44, 151–55). It further explained that, “during the design process, ETP evaluated the potential for incorrect operation and/or equipment failure at the . . . pump stations[ and] mainline valves,” resulting in a design that is “established to safeguard against incorrect operation using alarms and shutdowns to operate the pipeline within the guidelines of [the PHMSA pipeline regulations].” RAR 151.
The Corps’ responses are, again, inadequate. The agency’s statement that it takes no more than three minutes for the valve-closure process to occur, see RAR 155 (quoting Final EA at 90), does not respond to the fact that human or machine error might result in the valves’ not beginning the closure process at all (even after a leak has been detected). See Holmstrom Decl., ¶ 11; see also Oral Arg. Tr. at 10:4–5 (“It does assume the valves close as they are, you know, able to do.”); id. at 10:25–11:2 (“[T]here’s no portion of the remand analysis that directly says here’s what happened [if] the valves never closed.”).
The Corps’ myopic preoccupation with the Earthfax estimate, moreover, which pervades its responses to expert comments about flaws in the WCD, see RAR 143–44; see also RAR 155,
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175, 213, 225, 226, 236, 237, 247, 248, 249, 251, 253, 257, 258, 261 (referring reader to RAR 143–44 for discussion of WCD), is not the coup de grace the agency believes it to be. The spillvolume estimate provided by Earthfax, which responded to the July 2016 EA, was not intended as a WCD estimate, see Earthfax Report at 3, since the Tribes had not yet been provided with the amount or supporting calculations of the Corps’ WCD. See Final EA at 91 (USACE_DAPL 71315) (stating only that it had determined “a largest possible release volume” “[b]ased on a worst case discharge (WCD) scenario specific to . . . Lake Oahe”). Even had Earthfax’s estimate been a WCD estimate, the fact that it was lower than that calculated by ETP and the Corps would not resolve the many comments raising concrete disagreements about factual assumptions underlying the numbers used for the DAPL WCD.
Finally, that human error was considered in the design of the pumps and/or valves does not mean that it was considered in a worst-case-discharge analysis, nor does the Corps so contend. The Court does not understand the Corps to be claiming that the design of the pipeline precludes all opportunities for human error between detection of a leak and triggering of valve closure such that it need never be considered when determining a worst-case discharge. Indeed, such a statement would recall assurances like “God himself could not sink this ship” (RMS Titanic), or “You’re confused, RBMK reactor cores don’t explode” (Chernobyl). The Corps’ response, then, does not address the heart of the issue raised by experts — namely, that the numbers used in the WCD assume, contrary to the idea of a worst-case discharge, that “correct decision and response is immediately initiated, and all equipment such as controls, sensors, pumps and valves function as intended.” Holmstrom Decl., ¶ 11.
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iii. Adverse Conditions A third criticism of the worst-case-discharge calculation was that it did not comply with the portion of the WCD regulation that defines a WCD as “the largest foreseeable discharge of oil . . . in adverse weather conditions.” 49 C.F.R. § 194.5 (emphasis added); see RAR 7503 (quoting same). Standing Rock’s remand report expressed concern that “DAPL d[id] not address the adverse weather impact on the WCD for the shutdown of the pipeline.” RAR 7503–04. In so doing, the report continued, it ignored important complicating factors like “harsh ND winter conditions, deep snow, ice cover limitations on oil spill sighting, extreme cold and availability and operation of the . . . shutdown valves in extreme environments.” RAR 7504. The Corps did not respond to the first comment, see RAR 253–54, and in response to the second, it referred to the WCD response that, as noted above, focuses on a non-WCD estimate provided by Earthfax. See RAR 256 (referring to RAR 247–48, which in turn refers to RAR 143–44). It also provided information on equipment and personnel that are in place to respond to emergency situations and stated that “ETP provided design temperature specifications to . . . manufacturers to ensure that both high- and low-temperature concerns would be considered in the manufacturing of those materials and equipment.” RAR 248. As noted above, the Corps’ reference to its catch-all WCD discussion that focuses largely on an Earthfax estimate does not move the needle. The fact that DAPL manufacturers incorporated low-temperature considerations into their designs runs into the same problem as discussed in the previous section: assurances that a product was designed to prevent certain problems does not answer the question of what the worst-case discharge would be if those problems occurred. Again, the Court cannot find that these rebuttals do away with the controversy created by expert comments.
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* * * As shown at great length in the preceding analysis, the Corps has not “succeeded” in “resolv[ing] the controversy” created by “consistent and strenuous opposition, often in the form of concrete objections to the Corps’ analytical process and findings,” by “organizations with subject-matter expertise.” Semonite, 916 F.3d at 1086. As in Semonite, “[t]his demonstrates the ‘something more’ needed to show that the ‘effects on the quality of the human environment are likely to be highly controversial.’” Id. (quoting 40 C.F.R. § 1508.27(b)(4)). The Corps has thus violated NEPA by determining that an EIS was unnecessary even though one of the EIStriggering factors was met. The Court acknowledges that in projects of this scope, it is not difficult for an opponent to find fault with many conclusions made by an operator and relied on by the agency. But here, there is considerably more than a few isolated comments raising insubstantial concerns. The many commenters in this case pointed to serious gaps in crucial parts of the Corps’ analysis — to name a few, that the pipeline’s leak-detection system was unlikely to work, that it was not designed to catch slow spills, that the operator’s serious history of incidents had not been taken into account, and that the worst-case scenario used by the Corps was potentially only a fraction of what a realistic figure would be — and the Corps was not able to fill any of them. The Court will therefore remand to the agency for it to complete such EIS. See id. at 1082 (“Implicating any one of the factors may be sufficient to require development of an EIS.”) (citing Grand Canyon Trust, 290 F.3d at 347); Grand Canyon Trust, 290 F.3d at 340 (“If any ‘significant’ environmental impacts might result from the proposed agency action[,] then an EIS must be prepared before agency action is taken.”) (quoting Peterson, 717 F.2d at 1415).
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Effect on Other Claims Having directed the Corps to prepare an EIS because the pipeline’s “effects on the quality of the human environment are likely to be highly controversial,” 40 C.F.R. § 1508.27(b)(4), the Court need not discuss the other two NEPA issues on which it remanded, see Standing Rock III, 255 F. Supp. 3d at 132–34, 136–40, given that the remedy for them would be the same. See Semonite, 916 F.3d at 1088 (remanding for preparation of EIS without discussing all grounds for appeal because, as here, “[i]n preparing its EIS, the Corps [would] have to revisit” those issues in any case) (citing American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1008 (D.C. Cir. 1997)). This holding also obviates examination of three groups of consultation claims: (1) Yankton’s preserved claim that the Corps violated its consultation duties prior to granting the easement, see ECF No. 435-1 (Yankton Second MSJ) at 19–21; (2) Oglala’s similar, alsopreserved claim that the Corps did not consult with it under the Mni Waconi Act prior to issuing the EA and Mitigated FONSI; and (3) all Tribes’ claims that the Corps violated its consultation duties during remand. Id. at 22–24; ECF No. 433-2 (Standing Rock Second MSJ) at 39–45; ECF No. 434 (Oglala MSJ) at 16–17; ECF No. 436-1 (Cheyenne River Second MSJ) at 18–22. This is because the Court has already found the decisions on which they claim the Corps failed to consult — that is, the EA, the Mitigated FONSI, and the Remand Analysis — to be invalid. In other words, a favorable holding by the Court on those other issues would not change the result in this case or offer the Tribes any greater relief than their success on the “highly controversial” issue already has. B. NHPA Three of the Tribes also “ask[] the Court to revisit” its prior holding that their claims under the National Historic Preservation Act were moot. See Standing Rock Second MSJ at 46–
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47; see also Yankton Second MSJ at 19 (adopting this portion of Standing Rock’s brief); Cheyenne River Second MSJ at 17–18 (same). The Court so found because the construction of the pipeline under and around Lake Oahe had been completed, thus inflicting all damage that could have been enjoined by a successful NHPA claim. Standing Rock V, 301 F. Supp. 3d at 61–64 (finding no “means by which the Court can still grant Plaintiffs ‘meaningful relief’”) (quoting Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 44 (D.C. Cir. 2015)). The Tribes now contend that, even if the claim is moot, it falls into “an exception to the mootness doctrine for a controversy that is “capable of repetition, yet evading review.” Kingdomware Techs. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). The exception on which the Tribes rely “applies ‘only in exceptional situations’ where (1) ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation of or expiration,’ and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Id. (alterations in original) (quoting Spencer, 523 U.S. at 17). The parties here dispute both parts of this test.
The Court need only address the second element to find that this case does not qualify for the exception. The Tribes argue that “the legal questions presented” are “all but certain to arise again.” Standing Rock Second MSJ at 47. Standing Rock’s Historic Preservation Office, it states, “receives over 250 requests to consult with federal agencies annually, and participates in around 50,” including “other crude oil pipelines proposed in the Tribe’s ancestral homelands that will need Corps permits.” Id. Because of this, the Tribe states that “[i]t is possible, if not probable, that such permitting would trigger the same dispute over the scope of § 106 review [under the NHPA] that happened here.” Id.
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The Tribes misconstrue the scope of the exception. “The ‘wrong’ that is, or is not, ‘capable of repetition’ must be defined in terms of the precise controversy it spawns.” PETA v. Gittens, 396 F.3d 416, 422 (D.C. Cir. 2005). Here, that would not include all consultations with all agencies, as the Tribes suggest. Even narrowing the scope to the other pipelines mentioned by Standing Rock, the Tribe provides no evidence for its bare assertion that the same NHPA issue may arise in a hypothetical litigation over those pipelines. Without any supporting facts, the Court cannot call such a remote and unsubstantiated possibility a “reasonable expectation” that the same harm will befall the Tribe again.
In any event, even if the Tribes’ NHPA claims were not moot, they would fail on the merits for the reasons stated in the Court’s first Opinion in this case. See Standing Rock I, 205 F. Supp. 3d at 8–10 (finding Standing Rock unlikely to succeed on merits of its NHPA claim). The Tribes attempt to resurrect only one of the three NHPA issues considered in that Opinion — viz., whether the Corps used too narrow a scope when evaluating whether DAPL would have an adverse effect on an identified historic property by “alter[ing], directly or indirectly, any of the characteristics of a historic property that qualify it for inclusion in the National Register” under NHPA regulations. Standing Rock I, 205 F. Supp. 3d at 10 (quoting 36 C.F.R. § 800.5(a)(1)). The Court found the scope to be appropriate, rejecting the Tribes’ “sweeping claim that the Corps was obligated in permitting this narrow activity — i.e., certain construction activities in U.S. waterways — to consider the impact on potential cultural resources from the construction of the entire pipeline.” Id. at 30. Guided by highly relevant and binding precedent, the Court refused to find “that a federal agency with limited jurisdiction over specific activities related to a pipeline is required to consider all the effects of the entire pipeline to be the indirectly or directly
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foreseeable effects of the narrower permitted activity.” Id. at 31; see also id. (citing Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 34–35 (D.C. Cir. 2015)).
The Court now affirms this holding at the summary-judgment stage, finding that the Tribes’ arguments lack merit for the same reasons stated in that Opinion. See id. at 30–32. Even if correct that the controversy is not moot, Plaintiffs would not prevail on this count.
C. Mni Waconi Act Last up is the claim brought by Oglala under the Mni Waconi Act of 1988, Pub. L. No. 100-516, 102 Stat. 2566. (Mni wiconi means “water is life” in Lakota.) The Act declares that “the United States has a trust responsibility to ensure that adequate and safe water supplies are available to meet the economic, environmental, water supply, and public health needs of the Pine Ridge Indian Reservation,” id. § 2(a)(4), which is home to the Oglala Sioux Tribe. It directs the Secretary of the Interior to, among other things, “plan, design, construct, operate, maintain, and replace a municipal, rural, and industrial water system, to be known as the Oglala Sioux Rural Water Supply System.” Id. § 3(a). The Act further provides that “[t]itle to the [OSRWSS] shall be held in trust for the Oglala Sioux Tribe by the United States.” Id. § 3(e). After the passage of the Act, the Corps duly created the OSRWSS as part of the Mni Waconi Project. The OSRWSS has its water intake 205 miles down the Missouri River from where DAPL now crosses Lake Oahe. See RAR 92; USACE_ESMT 1358–59. Oglala argues that the Act imposes a continuing fiduciary duty on the Corps to “provid[e] clean drinking water to residents of the Reservation and ensur[e] that the OSRWSS is maintained and preserved for that purpose and others,” Oglala MSJ at 14, and that by failing to consider the effects of the pipeline’s Lake Oahe crossing on the Mni Waconi Project, the United States (through the agency) has breached that duty. The Corps rejoins that Oglala overstates the scope
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of the trust duty, that any duty was not breached by the approval of a project so far upstream from the OSRWSS, and that any breach of duty was remediated during the remand. The Court will first consider the nature of the duty owed to Oglala before taking up whether there has been a violation of such duty.
As the Court has had occasion to note previously in this case, “The trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law.” Standing Rock III, 255 F. Supp. 3d at 143 (alteration omitted) (quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 165 (2011)). In order to bring a breach-of-trust claim, therefore, Oglala “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” United States v. Navajo Nation, 537 U.S. 488, 506 (2003). It is not enough that a statute places land in trust for the benefit of a tribe — it must also impose a “correlative duty of management” over the trust corpus in order to give rise to a cause of action. El Paso Natural Gas Co. v. United States, 750 F.3d 863, 897 (D.C. Cir. 2014).
The parties agree that the Mni Waconi Act does impose a trust duty on the United States, see ECF No. 450 (Corps Opp. to Oglala MSJ) at 7, but they disagree as to the scope of that duty. Whereas the Tribe believes that the Act’s direction to “maintain . . . a municipal, rural, and industrial water system,” § 3(a) (emphasis added), requires the Corps to continue to provide “adequate and safe water supplies” for the reservation, id. § 2(a)(4), the agency argues that this duty is “cabined by limited Congressional appropriations” as set out in the Act. See Corps Opp. to Oglala at 7 (citing Mni Waconi Act § 10(a)–(b)). Rather than creating a “perpetual trust obligation,” the Corps argues, the Act limits any duty to the activities for which it provides
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funding. Id. at 8; see also id. at 7 (citing Cobell v. Salazar, 573 F.3d 808, 811 (D.C. Cir. 2009); then citing Mni Waconi Act § 6(b)).
The Court need not determine the precise contours of the United States’ trust duty toward Ogalala with respect to the OSRWSS because, regardless of scope, the Corps has not breached that duty by granting an easement under Lake Oahe for DAPL. The Tribe does not dispute that, at present, the OSRWSS does constitute an “adequate and safe water suppl[y].” Mni Waconi Act § 2(a)(4). The possibility of a future spill, which this Court has accepted is low, see Standing Rock III, 255 F. Supp. 3d at 127, does not render the drinking water inadequate and the Government’s duty breached. This is particularly true since the OSRWSS takes its water from a point 205 miles downstream from where DAPL passes under Lake Oahe. See RAR 92; USACE_ESMT 1358–59.
The Tribe rejoins that the Corps owed it a fiduciary duty to consider the impacts of the Lake Oahe crossing on the Mni Waconi Project. See Oglala MSJ at 13 (citing Nw. Sea Farms Inc. v. U.S. Army Corps of Eng’rs, 931 F. Supp. 1515, 1520 (W.D. Wash 1996); then citing Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1523 (W.D. Wash 1988)). But the cases it cites, which in any case are not binding on this Court, discuss treaty rights, not statutory rights, and only the latter are at issue here. Even if there were a duty to consider the project’s effects on the OSRWSS, moreover, the Court agrees with the Corps that, at the very least, it has done so during the remand. See, e.g., RAR 94 (finding the OSRWSS unlikely to be affected because of the predicted “near zero” concentration of hydrocarbons in water many miles upstream of the OSRWSS intake), 95 tbl.II-6 (listing predicted hydrocarbon concentrations at increasing points downstream of the DAPL crossing). The Court, accordingly, finds that the Corps has adequately performed any fiduciary duty imposed by the Mni Waconi Act.
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D. Remedy

The Corps must prepare an EIS, but what is the status of the easement — and, ultimately,

the oil — in the meantime? As it has done before in this case, the Court will order the parties to

brief the issue of whether the easement should be vacated during the remand. See Standing Rock

III, 255 F. Supp. 3d at 147–48. Certainly, “vacating a rule or action promulgated in violation of

NEPA is the standard remedy.” Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8, 37

(D.D.C. 2007) (citing Am. Bioscience, Inc. v. Thompson, 269 F. 3d 1077, 1084 (D.C. Cir.

2001)). Because “[s]uch a move” would “carry serious consequences that a court should not

lightly impose,” Standing Rock III, 255 F. Supp. 3d at 147, the Court will ask the parties for

dedicated briefing on the subject, which neither side addressed with much conviction in this

round of briefing. As before, “[t]his is not surprising — absent knowledge of whether or to what

extent the Court would remand, the parties were unable to fully address the Allied-Signal factors

in their summary-judgment briefs.” Id. (citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory

Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)). The Court will therefore allow the parties to

argue the issue of vacatur with the benefit of knowing the basis for remand set out above.

IV. Conclusion

For the foregoing reasons, the Court will grant in part and deny in part the Tribes’

Motions for Summary Judgment and grant in part and deny in part the Corps’ corresponding

Cross-Motion for Summary Judgment. A contemporaneous Order so stating will issue this day.

Date: March 25, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:16-cv-01534-JEB Document 379-1 Filed 11/26/18 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,

Plaintiff,

and

CHEYENNE RIVER SIOUX TRIBE, Intervenor-Plaintiff,
v. U.S. ARMY CORPS OF ENGINEERS,

Case No. 1:16-cv-1534-JEB [Consolidated with 1:16-cv-1796 and 1:17-cv-267]
FIRST SUPPLEMENTAL COMPLAINT

Defendant.

and

DAKOTA ACCESS, LLP,

Intervenor-Defendant.

INTRODUCTION

1.

Pursuant to Fed. R. Civ. P. 15(d), Plaintiffs Yankton Sioux Tribe and Robert

Flying Hawk (together, “Plaintiffs” or “Tribe”) hereby file this supplemental complaint in

connection with federal actions relating to the Dakota Access Pipeline (“DAPL”). DAPL is a

1,168-mile-long crude oil pipeline that crosses under the Missouri River at Lake Oahe.

2.

This supplemental complaint addresses events that have occurred since this Court

granted in part the Standing Rock Sioux Tribe’s (“SRST”) Motion for Partial Summary Judgment

on June 14, 2017. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101

(D.D.C. 2017). In that decision, this Court found unlawful and remanded the environmental 1

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analysis conducted by Defendant U.S. Army Corps of Engineers (“Corps”) for additional

consideration on specific issues. It further admonished the Corps to give “serious consideration”

to the errors identified in its decision, warning that compliance with the law “cannot be reduced to

a bureaucratic formality, and the Court expects the Corps not to treat remand as an exercise in

filling out the proper paperwork post hoc.” Standing Rock Sioux Tribe, 282 F. Supp. 3d at 109.

3.

The remand process is now complete and has resulted in another final decision by

the Corps.

4.

Regrettably but not surprisingly, the Corps ignored this Court’s admonition to

approach the remand with an open mind. Instead, it treated the remand as a post hoc effort to

justify its unlawful decision to circumvent an adequate review of the pipeline and its impacts on

the Tribe and the Tribe’s rights.

5.

In the remand decision, the Corps, without qualification, affirmed its original

decision to authorize the pipeline without the comprehensive environmental review required by

the National Environmental Policy Act (“NEPA”).

6.

Rather than “serious consideration” of the remand issues, the Corps produced a

one-sided analysis that failed to provide a fair or transparent review of the matters this Court

remanded to it.

7.

This supplemental complaint challenges the Corps’ remand decision, which is a

final agency action subject to review by this Court under the Administrative Procedure Act, 5

U.S.C. § 701, et seq. (“APA”), and the process underlying it. As directed by Fed. R. Civ. P. 15(d),

this supplemental complaint focuses on the additional background and claims that have arisen

since the Tribe’s Original Complaint was filed.

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8.

The Tribe seeks a declaration that the Corps’ decision to affirm its original

decision without a comprehensive environmental review and adequate consultation with the Tribe

was arbitrary, capricious, and in violation of the APA, NEPA, and the Department of Defense’s

(“DOD”) and the Corps’ tribal consultation policies. The Tribe asks that the Corps’ approval of

the Mineral Leasing Act (“MLA”) easement authorizing construction of DAPL under Lake Oahe

be vacated pending full compliance with the NEPA and the APA.

JURISDICTION AND VENUE

9.

This supplemental complaint presents claims under the APA, which authorizes a

federal court to find unlawful and set aside any final agency action that is “arbitrary and capricious,

an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. Plaintiffs bring

these claims on their own behalf and on behalf of the Yankton Sioux Tribe’s members.

10. Jurisdiction arises under 28 U.S.C. § 1362 (“district courts shall have original

jurisdiction of all civil actions, brought by any Indian Tribe or band with a governing body duly

recognized by the Secretary of the Interior, wherein the matter in controversy arises under the

Constitution, laws, or treaties of the United States”); § 1331 (general federal question jurisdiction);

§ 2201 (declaratory relief); § 2202 (injunctive relief).

11. Venue in this district is appropriate under 28 U.S.C. § 1391(e) because it is the

district in which the defendant resides and in which “a substantial part of the events or omissions

giving rise to the claim occurred.” No party has contested jurisdiction or venue during this

litigation to date.

PARTIES

9.

Plaintiff Yankton Sioux Tribe is a federally recognized Indian tribe that is not

incorporated under the Indian Reorganization Act, but rather, is governed by a duly adopted

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constitution and by-laws through its General Council. The Tribe is a member of the Oceti Sakowin (“Seven Council Fires,” also known as the Great Sioux Nation). Plaintiff Yankton Sioux Tribe brings this suit on its own behalf and as parens patriae on behalf of its members to protect its members’ cultural, historic, and environmental interests in its 1851 Treaty territory, its ancestral lands, and the Yankton Sioux Indian Reservation.
10. Plaintiff Robert Flying Hawk is the Chairman of the Yankton Sioux Tribe Business and Claims Committee. The claims against Defendants are made in Plaintiff Flying Hawk’s personal and official capacity as parens patriae on behalf of the enrolled members of the Yankton Sioux Tribe.
32. Defendant U.S. Army Corps of Engineers is a federal agency charged with administering and enforcing Sections 404 and 408 of the Clean Water Act regarding the discharge of dredged or fill material into waters of the United States and issuing leases under the MLA.
32. Defendant Colonel John Henderson was the Omaha District Commander for the Corps until July 26, 2017, when he was replaced by Colonel John Hudson. Until July 26, 2017, he oversaw the Corps’ consultation with the Tribe during the remand process.
33. Defendant Colonel John Hudson, current Omaha District Commander, oversaw the Corps’ consultation with the Tribe during the remainder of the remand process.
34. Lieutenant General Todd Semonite, Colonel Anthony Mitchell, U.S. Fish and Wildlife Service, and Director Dan Ashe are named defendants in the Tribe’s original complaint. Upon information and belief, the supplemental claims raised herein do not involve these Defendants.
35. Intervenor-Defendant Dakota Access, LLC is a limited liability company formed to construct and own the Dakota Access Pipeline (“DAPL”). Energy Transfer Partners, L.P.,
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Sunoco Logistics Partners, L.P., and Phillips 66 are the beneficial owners of Dakota Access, LLC. 36. By filing this action, the Tribe does not waive its sovereign immunity and does not
consent to suit as to any claim, demand, offset, or cause of action of the United States, its agencies, officers, agents, or any other person or entity in this or any other court.
FACTUAL ALLEGATIONS I. PROCEDURAL HISTORY
37. The Tribe filed this action on September 8, 2016, raising multiple statutory and common law claims against the Corps, Lieutenant General Semonite, Colonel Henderson, Colonel Mitchell, U.S. Fish and Wildlife Service, and Defendant Ashe regarding permits and other authorizations granted to Dakota Access, LLC that were necessary to construct DAPL.
38. On March 17, 2017, this Court issued an order consolidating the Tribe’s action with Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 16-1534 and Oglala Sioux Tribe v. U.S. Army Corps of Engineers, 17-267.
39. DAPL is a crude oil pipeline that runs approximately 1,168 miles from North Dakota, through South Dakota and Iowa, and into Illinois.
40. DAPL required multiple federal easements, authorizations, and permissions from multiple federal agencies to construct, operate, and maintain the pipeline. On July 27, 2016, the Corps’ Omaha District issued a Final EA and Finding of No Significant Impact (“FONSI”) and authorized several permits.
41. At that time, however, the Corps did not authorize an easement to cross federally owned land at Lake Oahe. On September 9, 2016, the Corps stated that it would not authorize DAPL construction on this land until it could determine whether it would need to reconsider prior decisions regarding the Lake Oahe site.
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42. After several months of additional consideration regarding the easement, the Corps announced on December 4, 2016, that the MLA easement would not be granted without a comprehensive analysis of alternatives and impacts. Shortly thereafter, the Corps formally initiated that process with a notice of intent to prepare an environmental impact statement (“EIS”), requesting public input on the critical issues and scope of the EIS.
43. A new U.S. President was inaugurated on January 20, 2017. On January 24, the new President executed a “Presidential Memorandum” directing the Corps to abandon the December 4 decision and the EIS process.
44. The Corps shortly thereafter issued the MLA easement at Lake Oahe without additional environmental review, and formally terminated the EIS process.
45. Construction of the pipeline under Lake Oahe resumed immediately. 46. Around this time, the SRST filed a Motion for Partial Summary Judgment on its NEPA, Treaty, and APA claims against the Corps. The Cheyenne River Sioux Tribe (“CRST”) joined the SRST’s Motion and filed its own Motion for Partial Summary Judgment on additional claims. 47. This Court issued its opinion on the SRST and CRST’s partial summary judgment motions on June 14, 2017. While rejecting some of the tribes’ claims, the Court agreed that the Corps’ analysis of three specific issues was arbitrary, capricious, and in violation of NEPA. First, the Court ruled that the Corps failed to adequately analyze the impacts of an oil spill on hunting and fishing rights. Second, the Court held that the Corps’ consideration of environmental justice implications of the permit was flawed. Finally, the Court held that the Corps failed to address the significant scientific “controversy” around its dismissal of oil spill risk and impacts. The Court remanded the analysis back to the Corps for further consideration in light of its decision.
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48. This Court subsequently directed the finalization of oil spill response plans, completion of a third-party audit, and public reporting on various measures. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2017 WL 6001726, at *2 (D.D.C. 2017). II. CONSULTATION POLICIES
49. Former President William J. Clinton promulgated Executive Order No. 13175 (“E.O. 13175”) on November 9, 2000. E.O. No. 13175, Sec. 2, 65 Fed. Reg. 67249 (November 9, 2000). E.O. 13175 reaffirmed the United States’ government-to-government relationship with tribes as well as the United States’ trust responsibility to tribes. Id.
50. E.O. 13175 required all agencies to establish procedures to ensure meaningful and timely consultation with tribes during the development of regulatory policies that have tribal implications. Id.
51. DOD Instruction 4710.02 regarding Interactions with Federally-Recognized Tribes (“DOD Instruction”) was issued in 2006 in order to implement E.O. 13175, as well as DOD policies and directives.1
52. The DOD Instruction applies to “[a]ll DoD operations, activities, and installations that require interactions with tribes.” DOD Instruction at 1. Pursuant to the DOD Instruction, agencies “shall consult with tribes whenever proposing an action that may have the potential to significantly affect protected tribal resources, tribal rights, or Indian lands.” Id. at 4.
53. The DOD Instruction’s Guidance for Consultation with Tribes specifically acknowledges that “[c]onsultation may require multiple meetings over a period of months.”
1 The DOD issued a new DOD Instruction effective on September 24, 2018. Because this DOD Instruction was not effective during the remand, the 2006 DOD Instruction is the version quoted herein.
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54. In 2012, the Corps formalized its tribal consultation procedures (“Corps Consultation Policy”). In its Corps Consultation Policy, the Corps defined consultation as:
Open, timely, meaningful, collaborative and effective deliberative communication process that emphasizes trust, respect and shared responsibility. To the extent practicable and permitted by law, consultation works toward mutual consensus and begins at the earliest planning stages . . . ; an active an respectful dialogue concerning actions taken by the USACE that may significantly affect tribal resources, tribal rights (including treaty rights) or Indian lands. Corps Consultation Policy at 2. 55. The Corps Consultation Policy further provides that the Corps “will ensure that it addresses Tribal concerns regarding protected Tribal resources, tribal rights (including treaty rights) and Indian lands.” Id. at 3. 56. Additionally, the Corps acknowledged that, “[i]n recognition of the varied organizations and customs of different Tribes, written protocols for consultation procedures may be considered and implemented at the local level with a specific Tribe.” Id. at 4. 57. The Tribal Consultation Policy was in fact kept “purposefully general in nature because each of the 565 federally recognized American Indian and Alaska Native Tribe are distinct and separate governments, requiring a consultation process that may be completely unique to them.” Mem. from U.S. Army Commanding Lieutenant General to U.S. Army Corps of Eng’rs (Nov. 1, 2012). III. CONSULTATION DURING THE REMAND PROCESS. 58. The Tribe repeatedly attempted to engage with the Corps in good faith during the remand process, submitting many requests for information and for meetings, and submitting information intended to inform the Corps’ analysis of the remand issues.
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59. The Corps mistakenly sent the Tribe letters requesting information from the Oglala Sioux Tribe in September, October, and November.2 In response to each of these letters, the Tribe explained that, while it could not provide information on behalf of the Oglala Sioux Tribe, it “intend[ed] to participate to the fullest extent possible in the remand process.”
60. In its very first response, the Tribe enclosed the Ihanktonwan Consultation Wo’ope (“Consultation Protocols”), the Tribe’s protocols for government-to-government consultation and requested that the Corps proceed to consult with the Tribe in accordance with those protocols. The Tribe repeated this request in the subsequent letters.
61. On April 20, 2018, the Tribe wrote to the Corps, inviting it to meet for a preconsultation on May 31, 2018, explaining that the “purpose of this preconsultation meeting shall be to exchange preliminary information and for the U.S. Army Corps of Engineers to provide an overview of the project at issue and the remand process.”
62. The Tribe also once again attached its Consultation Protocols to the April 20, 2018 letter.
63. Responding to the letter in a May 27, 2018 email, Thomas Tracy, District Counsel for the Corps Omaha District, stated that he “appreciate[s] the provision of the protocols from the Tribe that will help advise the Corps of Engineers of the general standards expected for consultation with the Yankton Sioux Tribe,” and that “[the Consultation Protocols are] an area where the parties may not always agree, but we certainly can aspire to reach an understanding, if not an agreement.” However, despite repeated prompting by the Tribe’s counsel, neither Mr. Tracy nor any other Corps official or employee has provided the Tribe with its final concerns or proposed
2 On December 14, 2017, the Corps submitted a letter to this Court dated October 20, 2017 requesting information from the Tribe to assist it in the remand process. The Tribe was not aware of this letter until it was submitted to the Court on December 14, 2017.
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changes to the Consultation Protocols or indicated that the Consultation Protocols would not be followed.
64. Responding to an email from the Tribe’s counsel sent July 25, 2018, Mr. Tracy stated that “[t]he protocols being [sic] further discussed within the Corps of Engineers. I will provide a more detailed response when I can.” To date, no such response has been provided.
65. Despite the Tribe’s efforts, no good faith effort has been made by the Corps to resolve this “important” matter.3
66. On May 30, 2018, the Tribe wrote to the Corps to reiterate that the May 31, 2018 meeting was not a consultation but a preliminary informational session which would give the Corps the opportunity to provide an overview of the remand process and the issues on remand. The Tribe also explained that the Tribe’s General Council, its governing body, would not be attending the information session, a prerequisite to consultation under the Consultation Protocols.
67. When Colonel Hudson responded to the letter, he noted that he understood that the entire General Council for the Tribe would not be attending the session. Notably, he did not mention that the Corps might later assert that this meeting constituted the required consultation with the Tribe’s government.
68. During the May 31, 2018 informational session, Chairman Flying Hawk and others repeatedly stressed that the Tribe had additional issues it would need to address with the Corps following the informational session.
3 Upon receipt of the Consultation Protocols in 2016, Charles Smith of the Office of the Assistant Secretary of the Army, which oversees the Corps, described the Consultation Protocols as an “important protocol,” stating that he would ensure that it was broadly distributed “from HQ to Division to Omaha District.”
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69. For example, Faith Spotted Eagle, Chair of the Ihanktonwan Treaty Steering Committee, explained at the end of the session that “we absolutely need another meeting because we have got like 3 pages of questions that we haven’t gotten to,” to which a representative from the Corps responded “Okay we will work on that.”
70. Following the meeting, the Tribe sent the Corps a letter stating that the Tribe felt “this preliminary meeting went well and looks forward to continuing conversations with you, leading up to actual consultation.”
71. Even though the Tribe had made it very clear that it had additional issues to discuss following the informational session, when the Corps responded to the Tribe’s letter two months later, it did not ask the Tribe for any additional information or seek a consultation meeting. Instead the Corps simply told the Tribe that it “expect[ed] to finish by August 10, 2018.”
72. Finally, throughout the remand process, the Corps largely refused to provide any of the critical information requested by the Tribe. For example, the Tribe asked the Corps twice to share with it a copy of the oil spill model, the data used in the model, and any associated report, so that the Tribe could review it and provide input to the Corps as to its reliability and accuracy. The Corps never provided this information. IV. THE CORPS’ CONCLUSION OF THE REMAND PROCESS
73. The Corps concluded the remand process on August 31, 2018, with a two-page “memorandum for record” documenting the Corps’ position that there was no need to formally reconsider its July 2016 Environmental Assessment (“EA”) and FONSI, and stating that an EIS was not necessary.
74. As to the three flaws identified by this Court, the Corps asserted that its review of the potential impacts to hunting and fishing resources “did not reveal any significant impacts
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because the risk of an incident is low and any impacts to hunting and fishing resource [sic] will be of limited scope and duration.”
75. As to the issue of environmental justice, the Corps asserted that the Oahe crossing “does not result in disproportionately high and adverse human health or environmental effects on minority populations, including Tribes, and low-income populations.”
76. As to the issue of whether the Corps’ conclusions were likely to be “highly controversial,” the Corps incorrectly characterized the tribes’ input as simply being opposed to the pipeline authorizations, stating that they did not “provide information that a substantial dispute exists as to the size, nature, or effect of the federal action.”
77. The Memorandum stated that the rationale supporting these findings was contained in the “enclosed document” and in the administrative record. However, at the time the Memorandum was filed, no such “document” was enclosed or provided to the Tribe or the Court. It was not until October 1, 2018, that undersigned counsel was provided with a copy of the analysis supporting the remand decision (“Remand Analysis”), which was subject to confidentiality restrictions and could not be shared publicly. On October 24, 2018, a redacted version of the remand analysis was made available for the public.
78. The Remand Analysis mostly reiterates the flawed conclusions of the Corps’ earlier analyses.
79. For example, the Remand Analysis continues to calculate risk based on generic national statistics, without regard to any of the unique risk factors of this project in this place, in light of DAPL’s parent companies’ abysmal safety record.
80. Like the prior EA, the Remand Analysis fails to grapple with extensive evidence that the risks of slow, undetectable leaks is higher than it claims.
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81. The Remand Analysis ignores Dakota Access’ failure to utilize vital industry pipeline safety standards despite the Corps claim in the EA to do so.
82. Similarly, it continues to underestimate the impacts of an oil spill (which rely on its erroneous worst case discharge (“WCD”) analysis and risk estimates) and the elevated hazards of Bakken crude oil, and to overestimate the ability of responders to clean it up—all of which place emergency responders at risk.
83. A key shortcoming of the remand analysis is its failure to provide a lawfully adequate WCD. In the remand analysis, the Corps essentially repeats the identical WCD from before the remand.
84. Furthermore, the Corps fails to address the impact of circumstances listed in the 49 C.F.R. § 194.5 definition of WCD, including adverse weather conditions.
85. The WCD also fails to implement the formula required by 49 C.F.R. § 194.105(b)(1), including consideration of the operator’s “historic discharge[s]” and its conclusion is dependent upon the Corps’ use of unrealistic shutdown times that bear little resemblance to multiple real-world pipeline incidents.
86. As noted, Dakota Access’ parent companies have among the industry’s worst safety records, which by law should have been considered in developing the WCD, but was not.
87. The remand also ignored critical findings regarding Dakota Access’ failure to comply with easement conditions; for example, the requirement of supplying independent power to shutoff valves near Lake Oahe and an undocumented spill incident.
88. The remand analysis also calculates the risk and impacts of an oil spill based on DAPL’s original capacity. While the remand process was underway, however, Dakota Access’
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corporate parents publicly announced their intention to expand the capacity of DAPL by 100,000 barrels a day.
89. On information and belief, expansion could take place without additional Corps authorization at Lake Oahe. The Corps conducted no new analyses to respond to DAPL’s announced intention to increase capacity by 100,000 barrels a day.
90. Such an increase fundamentally alters both the risks of a spill as well as its potential impacts.
91. As such, the remand analysis is already out of date and inapplicable to anticipated future operations of the pipeline.
92. The above examples are intended as illustrations of the flaws in the Corps’ analysis, not a comprehensive list.
93. These and other fundamental flaws in the Corps’ estimate of the risk and impact of oil spills infect all three of the remand topics.
94. For example, the Remand Analysis dismisses the potential impacts to fish and game by reasoning that the risk of an oil spill is low and its impacts manageable—a conclusion that is fundamentally flawed due to the underestimated WCD and the other reasons discussed above.
95. The Remand Analysis incorporates and asserts that it is based upon on a number of technical documents that are cited throughout the document.
96. For example, the “Spill Model Report” is a technical document describing the results of various oil spill scenarios. Neither this document nor any other technical document was ever made available to the Tribe during the course of the remand, despite many requests. Nor have
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they been made available to the Tribe or its counsel subsequent to the finalization of the Remand Analysis, again despite requests.
CLAIMS FOR RELIEF I. FIRST CLAIM FOR RELIEF – VIOLATION OF NEPA
97. Plaintiffs hereby allege and incorporate and restate all previous paragraphs of this complaint and of their Original Complaint.
98. Under NEPA, federal agencies are required to prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
99. Binding Council of Environmental Quality (“CEQ”) regulations further define whether impacts are “significant” enough to warrant a full EIS, requiring consideration of both “context” (i.e., the various scales, regions, and interests affected by the action) and “intensity” (i.e., the “severity of the impact”). 40 C.F.R. § 1508.27. With respect to the latter, the regulations lay out several factors that are to be considered. Examples of these criteria include: “the degree to which the proposed action affects public health or safety;” “unique characteristics of the geographic area such as proximity to historic or cultural resources . . . ;” the degree to which the effects on the environment “are likely to be highly controversial,” are “highly uncertain” or “involve unique or unknown risks;” and “the degree to which the action . . . may cause loss or destruction of significant scientific, cultural, or historical resources.” Id.
100. In June of 2017, the Court found “significant” flaws in the Corps’ analysis of the risk and impacts of its decision to authorize DAPL underneath Lake Oahe, and ordered the Corps to conduct a remand to give “serious consideration” to those flaws. Mem. Op. 28, ECF No. 3711.
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101. By concluding the remand by affirming its original decision, the Corps acted arbitrarily, capriciously, contrary to the evidence before it, and in violation of NEPA and the CEQ regulations and contrary to the APA.
102. The Corps also acted arbitrarily, capriciously, and in violation of NEPA and the CEQ regulations by failing to meaningfully engage with the Tribe by providing information so that the Tribe could provide input during the remand. II. SECOND CLAIM FOR RELIEF – VIOLATION OF DUTY TO CONSULT
103. Plaintiffs hereby allege, incorporate, and restate all previous paragraphs of this complaint and of their Original Complaint.
104. DOD and Corps policy and instructions required the Corps to engage in meaningful consultation with the Tribe during the remand. Corps Consultation Policy; DOD Instruction.
105. When an agency has established a policy requiring prior consultation with a tribe, and has thereby created a justified expectation on the part of the Indian people that they will be given a meaningful opportunity to express their views before [agency] policy is made, that opportunity must be afforded. Failure of the [agency] to make any real attempt to comply with its own policy of consultation not only violates those general principles which govern administrative decision-making, but also violates “the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.” Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 721 (8th Cir. 1979), quoting Morton v. Ruiz, 415 U.S. 199 (1975) (internal citations omitted) (emphasis added). 106. An agency’s actions that are entitled to the force and effect of law are arbitrary and capricious if they fail to comply with departmental policies requiring meaningful consultation with an affected tribe. Wyoming v. United States Dep't of the Interior, 136 F. Supp. 3d 1317, 1346
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(D. Wyo. 2015), vacated and remanded sub nom. Wyoming v. Sierra Club, No. 15-8126, 2016 WL 3853806 (10th Cir. July 13, 2016).
107. For the duration of the remand process, the Corps refused to engage in meaningful consultation with the Tribe.
108. Under the Corps Consultation Policy, consultation requires a meaningful and collaborative process that “emphasizes trust, respect and shared responsibility.” Corps Consultation Policy at 2. Additionally, under this policy the Corps “will ensure that it addresses Tribal concerns regarding protected Tribal resources, tribal rights (including treaty rights) and Indian lands.” Id. at 3. Further, the Corps’ Consultation Policy acknowledges that, “[i]n recognition of the varied organizations and customs of different Tribes, written protocols for consultation procedures may be considered and implemented at the local level with a specific Tribe.” Id. at 4.
109. Instead of collaboratively working with the Tribe to ensure that it addressed Tribal concerns, however, the Corps unilaterally informed the Tribe that the consultation process was over – even when it knew that the Tribe believed the consultation process was ongoing and had roughly “3 pages of questions that” it still needed to discuss. Meeting between U.S. Army Corps of Engineers and the Yankton Sioux Tribe (May 31, 2018) (statement by Faith Spotted Eagle).
110. The Corps never followed up regarding the Tribe’s request for an additional meeting and did not even request a list of the outstanding questions so that it could ensure that it addressed Tribal concerns.
111. Further, though the Tribe attempted to create a clear consultation procedure with the Corps by repeatedly sending the Corps and its counsel copies of the Consultation Protocols and requesting that the Corps’ counsel review and provide redlines indicating any concerns or
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desired changes, the Corps has failed to provide a substantive response to the Tribe’s request, preventing mutual agreement to the protocols.
112. The Corps did not alert the Tribe to its unilateral decision that consultation was over until the Tribe received a letter from the Corps on August 10 in response to the Tribe’s June 5, 2018 letter informing the Tribe that it looked forward to “continuing conversations with you, leading up to actual consultation” that the Corps “expect[ed] to finish by August 10, 2018.”
113. The Tribe, which had up to this point justifiably believed that consultation would be ongoing, never had the opportunity to have its entire General Council convened to meet with the Corps, a required by the Consultation Protocols, or to present its remaining questions and concerns to the Corps.
114. Thus, the Corps effectively ignored any potential concerns yet to be raised by the Tribe because it was the Tribe’s belief that there would be formal and ongoing tribal consultation on a government-to-government basis.
115. Consultation is intended to be government-to-government, and the consultation process must therefore be adapted to the Tribe’s form of government.
116. The governing body of the Yankton Sioux Tribe is its General Council, which consists of enrolled members age 18 and older, making the Tribe more of a pure democracy than many other tribal governments and mandating that consultation occur with the Tribe’s General Council.
117. The General Council has not delegated its consultation to any other entity, thus the lack of consultation with the General Council means that the required government-togovernment consultation has not occurred.
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118. Moreover, the Corps Consultation Policies provide that the Corps “will share information that is not otherwise controlled or classified information.” Corps Consultation Policy at 3.
119. However, throughout the remand process, the Corps consistently failed to provide requested documents to the Tribe in a timely manner, if at all.
120. The Corps and Colonel Hudson ignored policies related to consultation with Tribe. 121. The Corps’ “consultation” with the Tribe was a far cry from open, timely, meaningful, collaborative, and effective deliberative communication. 122. Moreover, by taking two months to respond to the Tribe’s letter indicating that it looked forward to ongoing consultation only to inform the Tribe that it would be finalizing its review very shortly thereafter, it fully failed to “maintain open lines of communication through consultation.” Corps Consultation Policy at 5. 123. Additionally, by ending the consultation process when it knew that the Tribe had outstanding questions, the Corps and Colonel Hudson did not “ensure that it address[ed] Tribal concerns regarding protected tribal resources, tribal rights (including treaty rights) and Indian lands.” Corps Consultation Policy at 3. 124. Finally, the Corps and Colonel Hudson undermined the consultation process by failing to provide the Tribe requested documentation necessary to its review. 125. As a result, the Corps’ conclusions were arbitrary, capricious, and otherwise not in accordance with the Corps’ duties under the DOD Instruction and the Corps Consultation Policy, in violation of the APA.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:
11. Declare that the Remand Analysis, and the underlying MLA easement which it
attempted to address, is arbitrary, capricious, and in violation of NEPA and theAPA;
12. Vacate the Remand Analysis, the final EA and FONSI, and the underlying MLA
easement pending full compliance with the law;
13. Direct the Corps to resume the EIS process initiated in November 2016 and
provide Plaintiffs with all technical documents related to oil spill and impact so that they can
participate meaningfully in such EIS process;
14. Retain jurisdiction over this matter to ensure that the Corps complies with the law;
15. Award Plaintiffs their reasonable fees, costs, expenses, and disbursements,
including attorneys’ fees, associated with this litigation; and
16. Grant Plaintiffs such further and additional relief as the Court may deem just and
proper.
Dated: November 26, 2018.
YANKTON SIOUX TRIBE, et al.
By:_s/ Jennifer S. Baker __________________ Jennifer S. Baker, OKBA# 21938 (Pro Hac Vice) Jeffrey S. Rasmussen, WA #21121 (Pro Hac Vice) Fredericks Peebles & Morgan LLP 1900 Plaza Drive Louisville, CO 80027 Phone: (303) 673-9600 Facsimile: (303) 673-9155 jbaker@ndnlaw.com jrasmussen@ndnlaw.com Attorneys for Plaintiffs
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s/ Patricia A. Marks Fredericks Peebles & Morgan LLP 401 9th Street, N.W., Suite 700 Washington, D.C. 20004 Phone: (202) 450-4887 Facsimile: (202) 450-5106 pmarks@ndnlaw.com Attorney for Plaintiffs
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Case 1:16-cv-01534-JEB Document 379-1 Filed 11/26/18 Page 22 of 22 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of November, 2018, a copy of the foregoing was filed electronically with the Clerk of the Court. The electronic filing prompted automatic service of the filing to all counsel of record in this case who have obtained CM/ECF passwords.
s/Catherine Wiland Catherine Wiland Legal Assistant
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 Case 1:16-cv-01534-JEB Document 531 Filed 05/20/20 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,
Plaintiff,
and
CHEYENNE RIVER SIOUX TRIBE,
Plaintiff-Intervenor, v.
U.S. ARMY CORPS OF ENGINEERS,
Defendant-Cross, Defendant,
and
DAKOTA ACCESS, LLC,
Defendant-Intervenor, Cross Claimant.

Case No. 1:16-cv-1534-JEB (and Consolidated Case Nos. 16-cv-1796 And 17-cv-267)

BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Case 1:16-cv-01534-JEB Document 531 Filed 05/20/20 Page 2 of 34
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF AMICI CURIAE ................................................................................................... 1 INTRODUCTION .......................................................................................................................... 2 I. This Court Should Vacate The Lake Oahe Easement During The Second Remand To
Protect The Integrity Of NEPA........................................................................................... 3 A. Leaving the Lake Oahe easement in place will encourage the Corps (and other
agencies) to act first and comply with NEPA later................................................. 5 B. There is no decision left for the Corps to justify under the first Allied-Signal
factor. ...................................................................................................................... 7 C. Federal pipeline safety regulations offer no shelter for “serious gaps in crucial
parts” of the Army Corps’ flawed analysis............................................................. 8 D. The second Allied-Signal factor does not favor remand without vacatur. .............. 9 II. Inadequate NEPA Analysis Erodes Tribal Sovereignty And Tribal Self-Determination and Potentially Violates Plaintiffs’ Treaty Rights, So Vacatur Is The Only Appropriate Remedy In This Case. ....................................................................................................... 11 A. Failure to vacate the easement may result in abrogation of Plaintiffs’ treaty rights
without an act of Congress, which is impermissible under Minnesota v. Mille Lacs Band of Chippewa Indians.................................................................................... 11 B. Failure to properly analyze the impacts of the DAPL on Plaintiffs’ treaty rights and their communities violates NEPA and Executive Order 12898 and only vacatur will ensure that a proper environmental justice analysis is completed. ... 14 C. Vacatur is proper because the Trump Administration’s disregard for treaty rights and tribal sovereignty erodes the laws and policies that Congress and the executive branch have carefully constructed Since 1962, in support of tribal selfdetermination. ....................................................................................................... 19 CONCLUSION............................................................................................................................. 23 APPENDIX:................................................................................................................................. A1
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TABLE OF AUTHORITIES
Cases
Allied-Signal v. NRC, 988 F.2d 146 (D.C. Cir. 1993) .......................................................................................4, 11
Cal. Cmtys. Against Toxics v. Envtl. Prot. Agency, 688 F.3d 989 (9th Cir. 2012.................................................................................................8
Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 499 F.2d 1109 (D.C. Cir. 1971) ...........................................................................................4
Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678 (D.C. Cir. 2004) ...........................................................................................15
Dine Citizens Against Ruining Our Env't v. Bernhardt, 923 F.3d 831 (10th Cir. 2019) ...........................................................................................22
Ex Parte Crow Dog, 109 U.S. 556 (1883)...........................................................................................................18
Friends of the River v. Fed. Energy Reg. Comm’n, 720 F.2d 93 (D.C. Cir. 1983) ...............................................................................................8
Herrera v. Wyoming, 139 S. Ct. 1686 (2019) .................................................................................................12, 13
Latin Americans for Soc. & Econ. Dev. v. Adm'r of Fed. Highway Admin., 756 F.3d 447 (6th Cir. 2014) .............................................................................................15
League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013 (D. Alaska 2019) ............................................................................21
Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 (1989). ..........................................................................................................5
Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983) ............................................................................................5, 6
Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) .............................................................................................8
Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003) .............................................................................................15
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Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)......................................................................................................12,14
Montana v. United States, 450 U.S. 544 (1981)...........................................................................................................18
Montana Wilderness Ass’n v. Fry, 408 F. Supp. 2d 1032 (D. Mont. 2006) ................................................................................6
Nat’l Labor Relations Bd. v. Pueblo of San Juan, 280 F.3d 1278 (10th Cir. 2000) ........................................................................................21
Nat'l Parks Conservation Ass'n v. Semonite, 422 F. Supp. 3d 92 (D.D.C. 2019) .............................................................................4, 7, 11
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)...........................................................................................................12
Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir. 2018) .........................................................................................3, 7
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).....................................................................................................3, 4, 7
Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357 (D.C. Cir. 2017) ...................................................................................15 ,18
Sioux Tribe of Indians v. United States, 7 Cl. Ct. 468 (1985) ...............................................................................................15, 16, 18
Sioux Tribe of Indians v. United States, 14 Cl. Ct. 94 (1987) ...........................................................................................................15
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 282 F. Supp. 3d 91 (D.D.C. 2017) ...........................................................................5, 6, 7, 9
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 2020 WL 1441923 (D.D.C. Mar. 25, 2020).....................................................................5, 6
United States v. Wheeler, 435 U.S. 313 (1978)...........................................................................................................18
Washington v. Wash. St. Comm. Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979).....................................................................................................13, 14
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White Mtn. Apache Tribe v. Bracker, 448 U.S. 136 (1980)...........................................................................................................12
Wood v. Burwell, 837 F.3d 969 (9th Cir. 2016) ...............................................................................................4
Treaties Treaty of Fort Laramie with Sioux, et al., April 29, 1868, 15 Stat. 635........................................17 Treaty of Fort Laramie with Sioux, et al., Art. I, Sept. 17, 1851, 11 Stat. 749 .......................16, 17
Statutes 33 U.S.C. § 1377............................................................................................................................20 42 U.S.C. § 470........................................................................................................................20, 21 42 U.S.C. § 4331..............................................................................................................................3 42 U.S.C. § 7601............................................................................................................................20 American Indian Religious Freedom Act,
42 U.S.C. §§ 1996–1996a ..................................................................................................20 Indian Civil Rights Act of 1968,
25 U.S.C. §§ 1301–1303....................................................................................................20 Indian Self-Determination and Education Assistance Act of 1975,
25 U.S.C. § 450a ................................................................................................................20 Indian Child Welfare Act of 1978,
25 U.S.C. §§ 1901–1903....................................................................................................20 Native American Graves Protection and Repatriation Act,
25 U.S.C. §§ 3001–3013....................................................................................................20 Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011,
125 Stat. 1904. .................................................................................................................. 9
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Regulations and Administrative Materials 40 C.F.R. § 1502 ..............................................................................................................................8 49 C.F.R. § 195.452 .........................................................................................................................8 49 C.F.R. § 192.935 .........................................................................................................................9 Council on Environmental Quality, Environmental Justice: Guidance under the National Environmental Policy Act (Dec. 10, 1997)..............................................................................15–18 Exec. Order 12898,
59 Fed. Reg. 7629 (Feb. 11, 1994) ....................................................................................15 Pipeline Safety: Valve Installation and Minimum Rupture Detection Standards,
85 Fed. Reg. 7162 (Feb. 6, 2020) ....................................................................................8, 9 Pres. Memorandum, Construction of the Dakota Access Pipeline,
82 Fed. Reg. 8661 (Jan. 24, 2017) .......................................................................................6 Pres. Procl. Modifying the Bears Ears National Monument,
82 Fed. Reg. 58081 (Dec. 5, 2017) ....................................................................................22
Other Authorities Michael Eitner, Meaningful Consultation with Tribal Governments: A Uniform Standard to Guarantee That Federal Agencies Properly Consider Their Concerns,
85 U. Colo. L. Rev. 867 (2014) .............................................................................18, 19, 21 Goldberg, Carol E., et al,
American Indian Law: Native Nations and the Federal System (7th ed. 2015) ................20 Mashpee Wampanoag Reservation Reaffirmation Act (H.R. 312) (2019)....................................23
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INTEREST OF AMICI CURIAE1 Amici curiae are members of Congress with a strong interest in preserving the integrity of the National Environmental Policy Act (NEPA), including those aspects of the statute that protect and respect the sovereign rights of federally recognized tribes. Congress passed NEPA 50 years ago to ensure federal agencies “look before they leap” into approving a project with possible consequences for the human environment. As members of Congress who wish to preserve the integrity of this historic act, amici are concerned with the Trump administration’s efforts to roll back NEPA’s strict procedural requirements through executive orders and by forging ahead with projects (including the Dakota Access Pipeline) without first taking the necessary “hard look” at the consequences of the proposed action in full view of the public. In this case, amici are particularly concerned that allowing the Lake Oahe easement to remain in place on remand will embolden federal agencies (and applicants) to avoid NEPA’s procedural requirements by strategically using the judiciary’s equitable powers to act first and justify their decision afterwards. Amici’s concerns are especially acute here because this Court has already forgiven the U.S. Army Corps of Engineers’ transgressions once without vacating the Lake Oahe easement. If the Court again allows the Army Corps to act first and comply later while leaving its three-year-old easement decision in place (for an indeterminate time), amici fear the precedent will cause incalculable harm to NEPA and the values Congress intended the statute to protect. Amici are similarly concerned that the Army Corps’ failures to adequately analyze Plaintiffs’ environmental justice concerns and treaty rights during its NEPA process, as well as the full
1 No person or entity other than amici and their counsel assisted in or made a monetary contribution to the preparation or submission of this brief.
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impacts of the pipeline on its communities and treaty rights, will impair Plaintiffs’ sovereignty and self-determination.
INTRODUCTION The undersigned members of Congress offer this brief in support of Plaintiffs’ request for this Court to vacate the U.S. Army Corps of Engineers’ (Army Corps) Lake Oahe easement for the Dakota Access Pipeline (DAPL). The Lake Oahe easement should never have been approved without the Army Corps first fully complying with the National Environmental Policy Act (NEPA). But it was approved, and the pipeline became fully operational on June 1, 2017. Within two weeks, this Court held that Army Corps’ easement decision violated NEPA, though it later decided to leave the easement in place on remand. Almost three years later, this Court again held that the Army Corps’ decision to grant the easement violated NEPA. The question now is whether the Court should, for a second time, allow the Corps’ unlawfully granted easement to remain in place while the Corps (again) is asked to comply with the law. With respect, it should not. NEPA requires federal agencies to “look before they leap.” The statute accomplishes this goal by establishing strict procedural requirements that agencies must comply with before acting. This charge, however, is only as strong as the judiciary’s willingness to vacate agency actions made in violation of the statute’s strict procedural requirements. If agencies can violate NEPA twice without significant consequences (including vacatur), the statute will be rendered meaningless and the values Congress sought to protect will suffer. These values include protecting Plaintiffs’ treaty rights in the Missouri River, Lake Oahe, and the surrounding off-reservation lands. The Army Corps’ failure to comply with NEPA has threatened the Plaintiffs’ treaty rights and undermined the decades-long efforts of the
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undersigned members, and previous Congress’s attempts to reverse the nation’s destructive past practice of diminishing tribal sovereignty, breaking treaties with indigenous nations, and undermining tribal self-determination. By allowing the pipeline to continue operating without first complying with NEPA, the momentary interests of a non-native corporation will be elevated above the long-term interests of the tribes — protected environmental justice communities — in the sanctity of the resources they rely on and that are protected by treaty.
In order to protect NEPA’s integrity and ensure the Army Corps takes seriously the issues raised by Plaintiffs in the primary pleadings and briefs, as well as to protect the Plaintiffs’ treaty rights, we respectfully ask this Court to vacate the Lake Oahe easement pending the Corps’ completion of an adequate environmental impact statement (EIS). I. This Court Should Vacate The Lake Oahe Easement During The Second Remand
To Protect The Integrity Of NEPA. When Congress passed NEPA 50 years ago, it recognized the “critical importance” of the environment to our nation and declared the “federal government’s responsibility to preserve important historic, cultural, and natural aspects of our national heritage.” 42 U.S.C. § 4331; see also Oglala Sioux Tribe v. NRC, 896 F.3d 520, 529 (D.C. Cir. 2018) (recognizing that “the environmental values protected by NEPA are of a high order.”). The statute seeks to protect these important values by instructing federal agencies to prepare an EIS before taking any major actions significantly affecting the quality of the human environment. Oglala Sioux Tribe, 896 F.3d at 523. By completing an EIS before approving a proposed action, NEPA “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). It also “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking
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process and the implementation of that decision.” Id. Otherwise, NEPA’s procedural requirements become a paper tiger—exactly what Congress did not intend. Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 499 F.2d 1109, 1114 (D.C. Cir. 1971).
Nothing in the statute’s text authorizes agency actions to continue in force when taken in violation of NEPA. Without a textual basis in the statute for allowing actions (like the Lake Oahe easement) to remain in force pending NEPA compliance, agencies have turned to the judiciary’s equitable powers to avoid vacatur. Under the framework for vacatur established by the D.C. Circuit, “[t]he decision whether to vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.” Allied-Signal v. NRC, 988 F.2d 146, 151 (D.C. Cir. 1993) (internal quotations omitted). Vacatur is the default remedy in cases where the plaintiffs have demonstrated an APA violation and the burden is on the defendants to “prove that vacatur is not necessary.” Nat'l Parks Conservation Ass'n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019). When analyzing the appropriateness of this remedy, this Court has ruled that the Allied Signal factors are not dispositive and that vacatur is appropriate based on a court’s assessment of the “overall equities and practicality of the alternatives.” Id. at 99; see Wood v. Burwell, 837 F.3d 969, 976 (9th Cir. 2016) (noting that remand without vacatur is remedy that should be “used sparingly.”). Forgiving NEPA violations by remanding uninformed agency decisions without vacatur (or the functional equivalent) means “there will be nothing left to the protections that Congress intended [NEPA] to provide.” Oglala Sioux Tribe, 896 F.3d at 534. If the judiciary is going to strip the statute of these protections on equitable grounds, it should do so only in the rarest circumstances, which are not present here.
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A. Leaving the Lake Oahe easement in place will encourage the Corps (and other agencies) to act first and comply with NEPA later.
More than two years ago, this Court held that remand without vacatur was an appropriate remedy for the Army Corps’ NEPA violations. The Court was satisfied the first Allied-Signal factor had been met having found there was a “serious possibility” that the Corps “[would] be able to substantiate the prior [environmental assessment].” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 282 F. Supp. 3d 91, 99 (D.D.C. 2017) (“Standing Rock IV”). But in hindsight, the Court’s faith in the Corps was undeserved — the Army Corps was unable to substantiate its decision to forego an EIS because there were “serious gaps in crucial parts of the Corps’ analysis” of pipeline safety issues and the Corps was “not able to fill any of them.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 2020 WL 1441923 *16 (D.D.C. Mar. 25, 2020) (“Standing Rock V”) (emphasis added). These gaps tainted the Corps’ evaluation of critical issues including: (1) DAPL’s leak detection system; (2) how quickly that system can catch spills; (3) the impact of “harsh North Dakota winters on spill response efforts”; (4) the operator’s safety record; (5) potential human or machine error; and (6) the Corps’ related evaluation of potential worse case discharges from the pipeline. Id. at *9–16. Thus, oil has continued to flow for almost three years through an unlawfully approved pipeline despite Congress’s “manifest concern with preventing uninformed action.” Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371 (1989). Given this history, the Court should not put its faith in the Corps again.
The Corps’ failure to comply with NEPA on the first remand is not surprising. Courts have warned against bureaucratic momentum upending NEPA for decades. In 1983, then Judge Breyer described the problem in Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983). He wrote that “once large bureaucracies are committed to a course of action, it is difficult to change that
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course—even if new, or more thorough, NEPA statements are prepared and the agency is told to ‘redecide.’” Id. at 952–53. But bureaucratic momentum is only part of the story here. The Corps is also facing pressure from the President who on his fourth day in office instructed the Secretary of the Army to “review and approve [the Dakota Access pipeline] in an expedited manner . . . .” 82 Fed. Reg. 8661 (Jan. 24, 2017) (emphasis added). With the White House and the Army Corps having already committed to approving the Lake Oahe easement, there is little incentive for the Army Corps to approach its earlier decision with an open mind and the rigor demanded by NEPA’s procedural requirements. The Corps’ actions during remand suggest it is more concerned with keeping the oil flowing and merely checking the box on NEPA. See, e.g., Standing Rock V, 2020 WL 1441923 *10 (finding that the pipeline operator’s history “did not inspire confidence” yet on remand the Corps “focused its response on defending the operator’s performance record”). This is precisely the kind of executive branch momentum and uninformed agency action that NEPA was meant to protect against and that has led courts to halt projects authorized in violation of NEPA. See, e.g., Montana Wilderness Ass’n v. Fry, 408 F. Supp. 2d 1032, 1037–38 (D. Mont. 2006) (enjoining an operational natural gas pipeline); Marsh, 490 U.S. at 371.
When the judiciary permits uninformed agency actions to remain in effect on remand, it undermines Congress’s command in NEPA that agencies “look before they leap.” Standing Rock IV, 282 F. Supp. 3d at 106. Allowing (or indeed encouraging) agencies to justify their actions in the face of NEPA violations a second time creates “undesirable incentives for future agency actions” similar to those this Court recognized in its first decision on vacatur. Id. Just as “agencies and third parties may choose to devote as many resources as early as possible to a challenged project—and then claim disruption in light of such investments” so too may they
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choose to approve projects without the rigor NEPA demands if courts are unwilling vacate that approval. Id. Strategic maneuverings like these are “contrary to the purpose of NEPA, which seeks to ensure that the government looks before it leaps,” id., and allows for meaningful public involvement in the decisionmaking process, especially by those members of the public likely to be impacted. Robertson, 490 U.S. at 349.
The D.C. Circuit recently admonished another agency for “disparaging” NEPA violation as “merely procedural” and leaving a federal license in place while the agency sought to cure it. See Oglala Sioux Tribe, 896 F.3d at 534 (internal quotations omitted). But agencies are left to believe NEPA’s requirements are “merely procedural” when their actions remain undisturbed despite repeated violations. If the Court does not vacate the Lake Oahe easement, it is unreasonable to believe that the Corps will fully and fairly evaluate the environmental impacts of operating the DAPL under Lake Oahe and seriously consider reasonable alternatives. Remanding without vacatur again would further signal to the Corps and other agencies that acting first and complying with NEPA later is a strategy worth taking.
B. There is no decision left for the Corps to justify under the first Allied-Signal factor.
Vacatur is warranted under the first Allied-Signal factor because there is no NEPA decision left for the Corps to justify. This court has previously held that “[o]n remand, the Corps cannot substantiate its initial procedural decision to forego an EIS, as the [court] has already found that such a decision would violate NEPA.” Semonite, 422 F. Supp. 3d at 99. The Corps must instead produce an EIS.
Even if there were a NEPA decision left to substantiate, asking whether the Army Corps can justify its decision to grant the Lake Oahe easement a second time is squarely at odds with “the EIS requirement [that] inhibits post hoc rationalizations of inadequate environmental
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decisionmaking.” Friends of the River v. Fed. Energy Reg. Comm’n, 720 F.2d 93, 106 (D.C. Cir. 1983); see also Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000) (noting that “[p]roper timing is one of NEPA’s central themes. An assessment must be ‘prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.’”) (quoting 40 C.F.R. § 1502.5). Courts should not remand without vacatur when doing so risks the very harm Congress sought to protect against in NEPA—uninformed agency action. See Cal. Cmtys. Against Toxics v. Envtl. Prot. Agency, 688 F.3d 989, 994 (9th Cir. 2012) (remanding without vacatur where vacatur could increase air pollution and undermine the Clean Air Act’s goals).
C. Federal pipeline safety regulations offer no shelter for “serious gaps in crucial parts” of the Army Corps’ flawed analysis.
The existence of federal pipeline safety regulations does not render the Corps’ NEPA violations any less serious. The regulations are simply not very stringent. For example, the Department of Transportation, Pipeline and Hazardous Materials Safety Administration’s (PHMSA) leak detection regulations merely require that an operator “have a means to detect leaks on its pipeline system.” 49 C.F.R. § 195.452(i)(3). The regulations do not set any particular standard that the leak detection system must meet. It is merely up to the operator to “evaluate the capability of its leak detection means.” Id.
Congress set out to improve pipeline safety regulations roughly 10 years ago after two major pipeline incidents. The first incident involved a crude oil pipeline rupture near Marshall, Michigan, which spilled approximately 800,000 gallons of crude oil into the Kalamazoo River causing $1 billion in damages. The second incident involved a natural gas pipeline rupture in San Bruno, California that killed 8 people, sent 51 people to the hospital, destroyed 38 homes, damaged 70 other homes, and required 300 households to evacuate. See Pipeline Safety: Valve
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Installation and Minimum Rupture Detection Standards, 85 Fed. Reg. 7162, 7163 (Feb. 6, 2020) (notice of proposed rulemaking). Congress responded by passing the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. 125 Stat. 1904. Section 4 of this statute requires PHMSA to issue regulations, if appropriate, requiring the use of automatic or remote-controlled shutoff valves, or equivalent technology to improve safety. 49 U.S.C. § 60102(n). Yet nine years after its passage, PHMSA has only recently given notice of a proposed rulemaking and soliciting comments on its proposals. 85 Fed. Reg. 7162 (Feb. 6, 2020). These rules, based on Congress’s 2011 statute, have not gone into effect.
The proposed rulemaking references significant shortcomings in PHMSA’s existing regulations that were identified by the Government Accountability Office. Id. at 7166. For example, current safety regulations for incident response are too general, requiring merely that operators respond in a “prompt and effective manner.” Id. at 7167. Regulations requiring operators to install automatic shutoff valves and remote-controlled valves are similarly vague. These valves are required only “if the operator determines, through risk analysis, such valves are necessary to protect [High Consequence Areas].” Id. (citing 49 C.F.R. § 192.935(c)) (emphasis added). Thus, PHMSA’s pipeline safety regulations do not make the “serious gaps in crucial parts of the Corps’ analysis” relating to pipeline leaks and spills any less serious for purposes of crafting an appropriate remedy on remand.
D. The second Allied-Signal factor does not favor remand without vacatur. In 2017, this Court held that the disruptive effect of remand “does not counsel strongly in favor of remand without vacatur” and “tip[ped] only narrowly in favor of [the Corps].” Standing Rock IV, 282 F. Supp. 3d at 108. Since 2017, the price and demand for oil has plummeted due to factors well beyond the operation of this pipeline. Those factors include international oil
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production wars between Russia and Saudi Arabia and the ongoing Covid-19 pandemic. At one point this year, U.S. oil prices fell to less than zero dollars per barrel.2 As of May 4, 2020, economic conditions have resulted in 6,800 shut-in wells and a 450,000 barrels per day drop in production.3 Factoring into these difficulties is the fact that Bakken oil is among the costliest to produce and must be transported longer distances to refineries when compared to other regions.4 As in other producing regions of the U.S., oil producers in the Bakken region that ship oil through the DAPL are curtailing investment in new production, shutting in oil wells, and investing in storing oil rather than shipping it to refineries.5 The reality is that these economic conditions are likely to continue for some time. For example, North Dakota state regulators are allowing companies to seek waivers so they can halt production from wells for longer than a year without deciding whether to permanently plug a well or start operating again. Id. Given the significantly reduced demand for Bakken oil, vacating the Lake Oahe easement during remand would likely have fewer and less severe disruptive impacts on oil markets than in 2017.
Without vacatur, the Tribes have borne the risk of the Corps’ unlawful decision to approve the Lake Oahe easement and will continue to bear those risks until the Corps prepares an adequate EIS and makes a fully informed decision about spill risks. While the Tribes’ resources have not yet been affected by a spill, it may be only a matter of time. Within six months of
2 Derek Brower, Bakken pain reflects long road back for US shale, FINANCIAL TIMES (May 7, 2020), https://www.ft.com/content/f62ba8aa-4304-4a66-b5ec-26b66b7e2a2b. 3 North Dakota Department of Mineral Resources, Bakken Restart Task Force 2 (May 4, 2020), https://www.dmr.nd.gov/oilgas/Bakken_Restart_Task_Force_Action_Report.pdf. 4 Brower, supra note 2 (“The average break-even price needed for a Bakken producer is about $45 a barrel . . . well above $26, where [one of the benchmarks] is now trading.”). 5 Amy Sisk, Bakken regulator talks latest pandemic developments: 4,600 oil wells idled, new tank farms on horizon, BISMARCK TRIBUNE, https://bismarcktribune.com/bakken/bakkenregulator-talks-latest-pandemic-developments-4-600-oil-wells-idled-new-tank-farmson/article_c9d06c8e-36ae-50fd-b34d-1b0f5b7b8561.html.
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operation, the DAPL leaked at least five times.6 As past pipeline spills have shown, the consequences of inadequate pipeline safety measures can be long-standing and severe. As noted above, the 2010 pipeline rupture in Marshall, Michigan cost approximately $1 billion to clean up over many years. II. Inadequate NEPA Analysis Erodes Tribal Sovereignty And Tribal Self-
Determination and Potentially Violates Plaintiffs’ Treaty Rights, So Vacatur Is The Only Appropriate Remedy In This Case. The Court should view the Allied-Signal/Semonite framework through the lens of the significant sovereign rights of the Plaintiffs, which may be potentially lost if the Court does not vacate this easement issued by the Army Corps. The seriousness of the Army Corps’ abovereferenced deficiencies cannot be overstated against the foundational backdrop of Plaintiffs’ treaty rights. Moreover, the Supreme Court has held that Congress is the only branch of government with the power to abrogate, eliminate, or alter treaty rights, guaranteeing that if this drastic outcome is to occur, it happens only after careful consideration by hundreds of members of Congress. A. Failure to vacate the easement may result in abrogation of Plaintiffs’ treaty
rights without an act of Congress, which is impermissible under Minnesota v. Mille Lacs Band of Chippewa Indians. The Allied-Signal decision, as interpreted by Semonite, instructs the court to evaluate “the seriousness” of an agency decision’s “deficiencies” in light of the “overall equities” involved. Semonite, 422 F. Supp. 3d at 99 (citing Allied-Signal, 988 F.2d at 150–51). When federal and tribal interests are in tension, the lens through which courts resolve that tension is different from that involved in a federal-state conflict, or a conflict between a private individual and an agency.
6 Alleen Brown, Five Spills, Six Months in Operation: Dakota Access Track Record Highlights Unavoidable Reality–Pipelines Leak, THE INTERCEPT (Jan. 9, 2018), https://theintercept.com/2018/01/09/dakota-access-pipeline-leak-energy-transfer-partners/.
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See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983) (noting “certain broad considerations” that guide the Court’s analysis of federal and tribal interests). The Supreme Court has held that courts should analyze statutory conflicts involving tribes using “traditional notions of Indian sovereignty [as] a crucial ‘backdrop.’” Id. (quoting White Mtn. Apache Tribe v. Bracker, 448 U.S. 136,143 (1980)). Moreover, courts should analyze conflicts arising from federal statutes in a way that respects the federal government’s commitment “to the goal of promoting tribal self-government, a goal embodied in numerous federal statutes.” Id. at 335. The Supreme Court has “stressed that Congress' objective of furthering tribal self-government encompasses far more than encouraging tribal management of disputes between members, but includes Congress’ overriding goal of encouraging ‘tribal self-sufficiency.’” Id. (quoting Bracker, 448 U.S. at 143).
Altering or abrogating treaty rights is a serious act that is not undertaken lightly, especially in the modern era. Herrera v. Wyoming, 139 S. Ct. 1686, 1698 (2019) (holding that Crow Treaty rights had not been abrogated by implication by Wyoming Enabling Act or act creating Bighorn National Forest). Moreover, the Supreme Court has long held that only an act of Congress can abrogate tribal treaty rights, and that the Executive branch lacks the authority to abrogate treaties unless it has been clearly delegated that authority by Congress. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188 (1999) (holding that President Taylor’s 1850 Executive Order could not terminate tribal hunting, fishing and gathering rights protected by 1837 Treaty). For a congressional abrogation to occur, there must be clearly expressed intent to eliminate the treaty rights; or, in the words of the Supreme Court, “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” Herrera,
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139 S. Ct. at 1698. The strength of treaty rights cannot be overstated—they survive statehood acts, establishment of protected public lands by Congress, and they do not “expire” with time or by implication. Id.
It is also well settled that tribal treaty rights are to be construed in a manner that is most beneficial to tribes, not the federal government. Washington v. Wash. St. Comm. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979), modified sub nom. Washington v. United States, 444 U.S. 816 (1979) (noting that “treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians”). When governmental actions threaten treaty rights, the actions must be paused, or vacated entirely, until the treaty rights can be fully defined, and in some cases, quantified. Id. at 695 (holding that district court may assume “direct supervision of the [Columbia River] fisheries if state recalcitrance or state-law barriers should be continued.”). Similarly, courts must take precautions to ensure that treaties impacted by government agency decisions are not violated, or worse yet, abrogated, without an express act of Congress. See id.
The undersigned members have the utmost respect for tribal treaty rights as an essential function of tribal self-government and self-determination. In the case of NEPA, it is the undersigned members’ view that NEPA requires an agency to thoroughly consider and respect treaty rights as part of the NEPA “hard look” analysis and applying NEPA in any other manner diminishes the respect for tribal sovereignty, tribal self-determination, and treaty rights that Congress and the Supreme Court have demonstrated since the beginning of the selfdetermination era. The undersigned are of the view that NEPA in no way abrogates treaty rights, nor does it delegate the authority to the executive branch to abrogate or alter treaty rights. Allowing the easement to stand, and a post hoc NEPA analysis to be conducted while oil flows
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through the pipeline, risks violation and potential abrogation of the Plaintiffs’ treaty rights at the hands of a federal agency, which would contravene the Supreme Court’s rules from Mille Lacs and Fishing Vessel. 526 U.S. at 188; 443 U.S. at 676.
Without knowing the full scope and extent of Plaintiffs’ treaty rights in Lake Oahe and the surrounding lands subject to the 1851 Treaty, neither the Army Corps, nor this Court, can be sure that they are adequately protected. It is entirely possible that the pipeline is currently interfering with Plaintiffs’ treaty rights in a way that only Plaintiffs truly understand, and it is impossible for the Army Corps to fully and meaningfully evaluate those treaty rights, their exercise in the modern context, and potential alternatives, while the pipeline is in situ and operating. The purpose and intent of NEPA is for agencies like the Army Corps to fully evaluate all facts and information about a proposed project before authorizing the project, and this analysis necessarily includes treaty rights. The doctrine of treaty abrogation holds that only Congress can abrogate or alter treaty rights, to ensure that this extreme consequence is not lightly or accidentally undertaken. Mille Lacs, 526 U.S. at 188. Only a complete evaluation of Plaintiffs’ treaty rights will ensure that they are not violated, abrogated, or altered, especially by implication due to the Army Corps’ NEPA decision on the pipeline easement. Those are the overall equities at stake in this case and remanding this matter to the agency for another bite at the NEPA apple, without vacating the easement, risks ongoing and perhaps even further and more permanent treaty violations.
B. Failure to properly analyze the impacts of the DAPL on Plaintiffs’ treaty rights and their communities violates NEPA and Executive Order 12898 and only vacatur will ensure that a proper environmental justice analysis is completed.
When conducting an environmental justice analysis, agencies must consider whether the projects they approve will have a “‘disproportionately high and adverse’ impact on low-income
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and predominantly minority communities.” Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357, 1368 (D.C. Cir. 2017) (quoting Exec. Order 12898, § 1-101, 59 Fed. Reg. 7629 (Feb. 11, 1994) (requiring each federal agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States.”); Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 689 (D.C. Cir. 2004). According to Executive Order 12,898, as interpreted by the D.C. Circuit, agencies must include an environmental justice analysis in their NEPA review and follow the guidance of the Council on Environmental Quality (CEQ) with respect to environmental justice analyses. Sierra Club, 867 F.3d at 1368.
The Clinton Executive Order also requires an agency engaged in a NEPA analysis “to consider alternatives to avoid or minimize disproportionately high adverse impacts on minority populations.” Latin Americans for Soc. & Econ. Dev. v. Adm'r of Fed. Highway Admin., 756 F.3d 447, 476–77 (6th Cir. 2014). In short, “NEPA requires . . . that the [agency] consider the environmental impacts of its projects in making its decisions.” Id. at 477. The purpose of conducting an environmental justice analysis “is to determine whether a project will have a disproportionately adverse effect on minority and low income populations,” including “Indian tribe[s].” Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 541 (8th Cir. 2003). Moreover, CEQ guidance provides that “[w]here a potential environmental justice issue has been identified by an agency, the agency should state clearly in the EIS . . . whether, in light of all of the facts and circumstances, a disproportionately high and adverse human health or environmental impact on minority populations, low-income populations, or Indian tribe is likely to result from the proposed action and any alternatives.” Council on Environmental Quality,
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Environmental Justice: Guidance under the National Environmental Policy Act 13 (Dec. 10, 1997) (CEQ Guidance) (emphasis added). Finally, CEQ guidance requires agencies to consider how to consult environmental justice communities regarding the potential adverse impacts of a proposed project, and notes that, “Participation of low-income populations [and] minority populations . . . may require adaptive or innovative approaches to overcome linguistic, institutional, cultural, economic, historical, or other potential barriers to effective participation in the decision-making processes of Federal agencies under customary NEPA procedures.” Id. (emphasis added).
The environmental justice communities squarely within the path of the pipeline and bearing the greatest risks of its leaks and malfunctions are those of the Plaintiff tribes. A primary reason these communities are environmental justice communities today is the historical failures of the federal government, and particularly, the Executive branch, to honor legal obligations to the Sioux in various treaties, starting with the Treaty of Fort Laramie, signed in 1851. Indeed, nearly “‘the entire course of dealings between the United States and the Sioux is marked, on the part of the Federal Government, primarily by broken promises, by the rapacious acquisition of land, by the repeated sacrifice of Sioux rights to non-Indian interests, and by the oppression of Sioux society.’” Sioux Tribe of Indians v. United States, 14 Cl. Ct. 94, 96–97 (1987), aff'd, 862 F.2d 275 (Fed. Cir. 1988) (quoting Sioux Tribe of Indians v. United States, 7 Cl. Ct. 468, 470 (1985)).
In the 1851 Treaty with the Sioux, the U.S. government made a promise to “maintain good faith and friendship” in all dealings, to ensure “an effective and lasting peace” with the tribes. Treaty of Fort Laramie with Sioux, et al., Art. I, 11 Stat. 749 (1851). Article V of the Treaty guaranteed the Sioux the lands along the western bank of the Missouri River in what are
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now the Standing Rock Sioux Nation and the Cheyenne River Sioux Reservation, along with rights in the river itself. Id. Art. V (describing rights extending “on the Missouri River” and “down the Missouri River.”). In 1868, a second treaty was signed, in an attempt to rectify the rights of non-Indian settlers and the federal government on Sioux lands, under pressure of continual white settlement on Sioux lands, but this treaty preserved the boundary of the 1851 Treaty with respect to the Missouri River and Sioux lands. Treaty of April 29, 1868, 15 Stat. 635. In violation of the Treaty, the federal government permitted miners and other settlers to invade the treaty lands, eventually securing to themselves the most culturally vital and sacred place to the Sioux people – the Black Hills. Sioux Tribe, 7 Cl. Ct. at 473-74. Congress also allotted Sioux lands, unlawfully reducing the Great Sioux Nation into smaller reservations, and built dams, including the one that created Lake Oahe, flooding Sioux bottomlands. Id. at 472. There are significant legal questions about the scope of rights preserved in the 1851 Treaty, which are before this Court in this action. Vacatur is the appropriate remedy in this case, to require the Army Corps to conduct a thorough analysis of the 1851 Treaty rights, and evaluate the potential impacts of the DAPL, before making the decisions required by NEPA (such as whether to draft an Environmental Impact Statement).
In addition, vacatur is the appropriate remedy given that the Army Corps did not properly consider the institutional barriers that arose as a result of the federal government’s continued breaching of treaties with the Sioux and the theft of its lands, which are significant. See CEQ Guidance (requiring agency to consider “institutional barriers” as part of environmental justice analysis). Had the federal government complied with the terms of the 1851 and 1868 treaties, the Sioux would have primary jurisdiction and some regulatory authority over the waters of the Missouri River within Lake Oahe, subject to specific limitations involving non-members and fee
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lands. Montana v. United States, 450 U.S. 544, 564 (1981). Their citizens would have direct access to the tribal government to raise concerns about the pipeline and its potential cultural and environmental consequences, and they would be able to raise these issues pursuant to tribal law, not federal law. See id. (citing United States v. Wheeler, 435 U.S. 313, 323 (1978) (tribes are “unique aggregations possessing attributes of sovereignty over both their members and their territory.”). Yet, that is not the history or present situation of the Plaintiff tribes. They were unlawfully divested of jurisdiction over their lands and waters, and Congress vested that authority in the Army Corps of Engineers and other federal agencies, which were delegated authority to design processes of accepting public comment on environmentally harmful projects according to federal law. Sioux Tribe of Indians, 7 Cl. Ct. at 474-75. The system in which they are forced to assert their legal rights is not their own, and in many ways, is designed to exclude them. See Ex Parte Crow Dog, 109 U.S. 556, 571 (1883) (noting the historical challenges tribal members faced when federal laws were applied to them without their consent). Vacatur of the DAPL easement would signal that the Army Corps’ lackluster attempts at rectifying the institutional barriers to Sioux participation in the NEPA process will not stand.
Finally, Executive Order 12898 and CEQ Guidance require agencies to adequately consult environmental justice communities about the potential impacts of a project on their communities. Sierra Club, 867 F.3d at 1368; CEQ Guidance. Despite the affirmative consultation requirement in the regulations, agencies are not required to adopt the proffered suggestions of tribes, and consultation often works against, rather than for, tribal interests. See Michael Eitner, Meaningful Consultation with Tribal Governments: A Uniform Standard to Guarantee That Federal Agencies Properly Consider Their Concerns, 85 U. Colo. L. Rev. 867, 900 (2014). Members of Congress, including some of the undersigned, have repeatedly
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emphasized the institutional obstacles and other shortcomings that tribes face in navigating the participation and consultation processes of statutes like NEPA and the National Historic Preservation Act. Eitner, 85 U. Colo. L. Rev. at 900 (quoting Letter from Lisa Murkowski, United States Senator from Alaska, to Barack Obama, 44th President of the United States, (June 22, 2012) & Press Release: Grijalva Introduces Bill to Mandate Federal Consultation With Native American Tribes During Rulemaking Process, Congressman Grijalva, http://grijalva.house.gov/news-and-press-releases/grijalva-introduces-bill-to-mandate-federalconsultation-with-native-american-tribes-during-rulemaking-process/ (last visited Mar. 20, 2014) (expressing concerns that “the current consultation process is inadequate and inefficient,” that “consultation is currently a ‘one way road of communication dissemination instead of discussion and dialogue,” that Indian tribes cannot be “an afterthought in federal policymaking” and that “[c]onsultation and discussion are a necessity, not a favor to be granted one day and denied the next.”). Given that this Court has concluded that the Army Corps did not adequately consider the Plaintiffs’ treaty rights in the lands and waters in the path of the pipeline, or the impacts of the pipeline on those treaty rights and communities, vacatur of the easement and a thorough examination and environmental justice analysis are the only result that ensures proper compliance with the NEPA process.
C. Vacatur is proper because the Trump Administration’s disregard for treaty rights and tribal sovereignty erodes the laws and policies that Congress and the executive branch have carefully constructed Since 1962, in support of tribal selfdetermination.
In addition to the “overall equities” mentioned previously, the Court should consider how the Army Corps’ decision to proceed with an environmental assessment and not complete a full EIS, including an analysis of Plaintiffs’ treaty rights and the impacts of the pipeline and related infrastructure on environmental justice communities, contravenes the current policy of the
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Case 1:16-cv-01534-JEB Document 531 Filed 05/20/20 Page 26 of 34
federal government towards sovereign indigenous nations and threatens to repeat tragic events of the past. The current policy of the United States with respect to sovereign tribal nations is one based on a government-to-government relationship, in which the United States recognizes and respects tribal sovereignty, tribal self-determination, and tribal treaty rights. This policy began with the election of President John F. Kennedy, who declared that, as of 1962, there would be “no change in treaty or contractual relationships without the consent of the tribes concerned. No steps . . . taken to impair the cultural heritage of any group . . . and [there] would be protection for the Indian land base.” Goldberg, Carol E., et al, American Indian Law: Native Nations and the Federal System, p. 35 (7th ed. 2015). In the 58 years since Kennedy’s promise, the Executive branch and Congress have taken tremendous strides to respect and further the government-togovernment relationship envisioned by tribes and the Founders in the earliest treaties signed with Indian nations. See Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301–1303; Indian SelfDetermination and Education Assistance Act of 1975, 25 U.S.C. § 450a; Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901–1903; American Indian Religious Freedom Act, 42 U.S.C. §§ 1996–1996a; Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001– 3013; Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721 (authorizing tribes to open and run high-stakes gaming on tribal lands); Clean Water Act, 33 U.S.C. § 1377 (authorizing tribes to obtain primacy over water quality standards, permitting, and other regulatory functions that states may perform); Clean Air Act, 42 U.S.C. § 7601(d)(2)(B) (authorizing tribes to regulate air quality in Indian Country). Congress has also begun to codify the requirement of tribal consultation into some federal environmental statutes, in part to ensure that treaty rights are adequately safeguarded during federal agency decision making processes. E.g. National Historic Preservation Act, 42 U.S.C. § 470(a)(d)(6) (requiring federal agencies to identify properties of
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Case 1:16-cv-01534-JEB Document 531 Filed 05/20/20 Page 27 of 34
religious and cultural significance to tribes and consult with tribes prior to authorizing activities that will impact such properties). Presidents from Kennedy to Obama echoed Congress’s support for tribal self-determination, tribal sovereignty, and treaty rights, forming a consistent and predictable governmental relationship with federally recognized tribes over nearly half a century. Goldberg, American Indian Law, p. 35. Courts have also recognized an affirmative obligation on the part of federal agencies administering statutes that affect tribal interests, holding that the “[a]pplication of federal statutes to Indian tribes must be viewed in light of the federal policies which promote tribal self-government, self-sufficiency, and economic development.” Nat’l Labor Relations Bd. v. Pueblo of San Juan, 280 F.3d 1278, 1284 (10th Cir. 2000), reh'g en banc, 276 F.3d 1186 (10th Cir. 2002).
Despite the uniform application of this federal policy by the legislative, judicial, and Executive branches in recent decades, the Trump Administration has taken a dramatically different tack. In the past three years, the Administration has undertaken what many indigenous peoples view as an assault on tribal sovereignty, tribal treaty rights, and tribal self-determination, particularly when large corporate interests are involved. In his first year in office, President Trump attempted to reverse President Obama’s protection of the submerged lands of the continental shelf from mineral leasing, over the objections of indigenous Alaskans, to increase the pace of offshore oil and gas drilling in the Arctic and North Atlantic Oceans. League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013, 1024 (D. Alaska 2019) (invalidating Trump Executive Order attempting to modify Obama withdrawal under Outer Continental Shelf Lands Act). The President also issued a Proclamation reducing the Bears Ears National Monument, breaching the terms of the agreement President Obama had negotiated with the Hopi, Navajo, Ute and Zuni nations to establish and protect the Bears Ears region from development,
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including uranium mining and oil and gas leasing. Pres. Procl. Modifying the Bears Ears National Monument, 82 Fed. Reg. 58081 (Dec. 5, 2017) (reducing Bears Ears National Monument to allow mineral development); see also Amended Complaint, Hopi Tribe v. Trump, 2019 WL 7943150, ¶ 29 (D.D.C., filed Nov. 7, 2019) (challenging Trump reduction of Bears Ears National Monument). The effects of diminishing the first tribally proposed national monument were compounded by President Trump’s decisions to re-name part of the new national monument using only the Navajo Nation’s term for Bears Ears (Shash Jaa’), rather than the tribal Coalition’s agreed upon English name, Bears Ears National Monument, and his attempt to dilute the indigenous representation on the tribal advisory commission by changing the structure of the commission to include a local county commissioner. 82 Fed. Reg. 58081. The Administration took these actions despite the strenuous objections of the affected tribes, leading many to conclude that the Administration was directly attacking their sovereignty and selfdetermination. See Bears Ears Coalition, Press Release - Tribal Leaders Extremely Disappointed Over Action by President Trump to Revoke and Replace Bears Ears National Monument (Dec. 4, 2017), available at https://bearsearscoalition.org/tribal-leaders-extremely-disappointed-overaction-by-president-trump-to-revoke-and-replace-bears-ears-national-monument/
More recently, the Department of Interior has advanced several proposals that threaten tribal communities, including increased drilling for natural gas near Chaco Canyon National Historic Park, over the objection of neighboring tribal communities. Dine Citizens Against Ruining Our Env't v. Bernhardt, 923 F.3d 831, 842 (10th Cir. 2019), reh'g denied (June 24, 2019). In March 2020, the Department announced that it will remove the land-into-trust decision for the Mashpee Wampanoag tribe, effectively disestablishing its reservation, in the midst of the Covid-19 global health pandemic, which has devastated several tribal communities. This is
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despite Congress’s ongoing process of formally recognizing the Mashpee reservation; the House of Representatives passed the Mashpee Wampanoag Reservation Reaffirmation Act (H.R. 312) on May 15, 2019 and the bill is currently under consideration in the Senate. Collectively, these actions demonstrate unilateral and purposeful acts of an Executive branch set on diminishing tribal sovereignty and tribal self-determination, reversing the course of decades of federal Indian policy and undermining the efforts of co-equal branches of government, Congress and the judiciary. The overall equities in this case require the Court to vacate the easement to ensure that the Trump Administration does not further diminish the Plaintiffs’ sovereign rights or their treaty rights, without the in-depth analysis that NEPA requires.
CONCLUSION For the foregoing reasons, the undersigned members of Congress request that this Court vacate the Lake Oahe easement on remand.

Dated: May 20, 2020

Respectfully submitted,

/s/ William S. Eubanks II William S. Eubanks II Eubanks & Associates, LLC D.C. Bar No. 987036 2601 S. Lemay Ave., Ste. 7-240 Fort Collins, CO 80525 (970) 703-6060 bill@eubankslegal.com
Kenneth J. Rumelt, Vt. Bar No. 4801 (D.D.C. admission pending) Hillary M. Hoffmann, Vt. Bar No. 4451, Utah Bar No. 9899 (D.D.C. application pending) Jim Murphy, Vt. Bar No. 3367 Environmental Advocacy Clinic Vermont Law School

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Case 1:16-cv-01534-JEB Document 531 Filed 05/20/20 Page 30 of 34 164 Chelsea Street, PO Box 96 South Royalton, VT 05068 (802)-831-1031 krumelt@vermontlaw.edu hhoffmann@vermontlaw.edu jmurphy@vermontlaw.edu Counsel for amici
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Case 1:16-cv-01534-JEB Document 531 Filed 05/20/20 Page 31 of 34
APPENDIX:
LIST OF AMICI
U. S. House of Representatives
Raúl M. Grijalva Representative of Arizona
Nanette Diaz Barragán Representative of California
Earl Blumenauer Representative of Oregon
Bonnie Watson Coleman Representative of New Jersey
Gerald E. Connolly Representative of Virginia
Adriano Espaillat Representative of New York
Ruben Gallego Representative of Arizona
Jesús G. “Chuy” García Representative of Illinois
Jimmy Gomez Representative of California
Deb Haaland Representative of New Mexico
Alcee L. Hastings Representative of Florida
Jahana Hayes Representative of Florida
Jared Huffman Representative of California
Mike Levin Representative of California
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LIST OF AMICI – cont’d
Alan Lowenthal Representative of California
Betty McCollum Representative of Minnesota
A. Donald McEachin Representative of Virginia
James P. McGovern Representative of Massachusetts
Gwen Moore Representative of Wisconsin
Grace Napolitano Representative of California
Eleanor Holmes Norton District of Columbia Delegate
Alexandria Ocasio-Cortez Representative of New York
Chellie Pingree Representative of Maine
Jamie Raskin Representative of Maryland
Gregorio Sablan Northern Mariana Islands Delegate
José E. Serrano Representative of New York
Darren Soto Representative of Florida
Jackie Speier Representative of California
Nydia M. Velázquez Representative of New York
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LIST OF AMICI – cont’d U. S. Senate Jeffrey A. Merkley
Senator of Oregon Tom Carper
Senator of Delaware Cory A. Booker
Senator of New Jersey Kamala D. Harris
Senator of California Edward J. Markey
Senator of Massachusetts Elizabeth Warren
Senator of Massachusetts Sheldon Whitehouse
Senator of Rhode Island Ron Wyden
Senator of Oregon
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CERTIFICATE OF SERVICE
I certify that on May 20, 2020, I electronically filed the foregoing document with the
Clerk of the Court for the U.S. District Court for the District of Columbia using the CM/ECF
system, causing it to be served on all counsel of record.
/s/ William S. Eubanks II William S. Eubanks II Eubanks & Associates, LLC D.C. Bar No. 987036 2601 S. Lemay Ave., Ste. 7-240 Fort Collins, CO 80525 (970) 703-6060 bill@eubankslegal.com

 
 Case 1:16-cv-01534-JEB Document 514 Filed 05/01/20 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs,
v. U.S. ARMY CORPS OF ENGINEERS, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 1:16-cv-01534-JEB ) ) )

AMICUS BRIEF FOR THE STATES OF INDIANA, MONTANA, ALABAMA, ARKANSAS, IOWA, KANSAS, KENTUCKY, LOUISIANA, NEBRASKA, OHIO,
SOUTH DAKOTA, TEXAS, UTAH, AND WEST VIRGINIA IN SUPPORT OF THE U.S. ARMY CORPS OF ENGINEERS

TIM FOX Attorney General of Montana
ROB CAMERON Deputy Attorney General
Office of the Attorney General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401 Tel: (406) 444-2026 Email: Rob.Cameron@mt.gov

CURTIS T. HILL, Jr. Attorney General of Indiana
THOMAS M. FISHER Solicitor General
JULIA C. PAYNE Deputy Attorney General
Office of the Attorney General IGC South, Fifth Floor Indianapolis, Indiana 46204 Tel: (317) 232-6255 Fax: (317) 232-7979 Email: Tom.Fisher@atg.in.gov
Julia.Payne@atg.in.gov

Case 1:16-cv-01534-JEB Document 514 Filed 05/01/20 Page 2 of 28
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF AMICI AND SUMMARY OF THE ARGUMENT ..............................................1 ARGUMENT ...................................................................................................................................2 I. Shutting Down DAPL Would Both Disrupt the Flow of Oil from the Bakken Fields
and Tie Up Transportation for Other Commodities, Especially Grain ...................................3 A. DAPL alleviated otherwise intractable logistical problems that arose for the
nation’s farmers and food supply when Bakken oil displaced grain commodities on critical railway corridors ............................................................................................4 B. Shutting down the pipeline would return to pre-DAPL railroad congestion—this time amidst a global pandemic where food security is already compromised ................9 II. Shutting Down the Pipeline Will Threaten Safety and Create Environmental Hazards.......15 CONCLUSION ..............................................................................................................................21 ADDITIONAL COUNSEL ...........................................................................................................22 CERTIFICATE OF SERVICE ......................................................................................................23
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TABLE OF AUTHORITIES
CASES
A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C. Cir. 1995) ...................................................................................................3
Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) ...................................................................................................2
Am. Bankers Ass’n v. Nat’l Credit Union Admin., 934 F.3d 649 (D.C. Cir. 2019) ...................................................................................................2
Ass’n of Am. R.R. v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094 (9th Cir. 2010) .................................................................................................17
Chamber of Commerce v. S.E.C., 443 F.3d 890 (D.C. Cir. 2006) ...................................................................................................2
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) ...................................................................................................3
City of Seattle v. Burlington N. R.R. Co., 41 P.3d 1169 (Wash. 2002)......................................................................................................17
CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993).................................................................................................................17
Defenders of Wildlife v. Jackson, 791 F. Supp. 2d 96 (D.D.C. 2011) .............................................................................................3
Delaware v. Surface Transp. Bd., 859 F.3d 16 (D.C. Cir. 2017) ...................................................................................................17
Elam v. Kansas City Southern Ry. Co., 635 F.3d 796 (5th Cir. 2011) ...................................................................................................17
Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836 (E.D. Ky. 2004) ......................................................................................17
Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 988 P.2d 1236 (Mont. 1999) ....................................................................................................20
State v. Norfolk Southern Ry. Co., 107 N.E.3d 468 (Ind. 2018) .....................................................................................................17
STATUTES
49 U.S.C. § 10501(b) .....................................................................................................................16
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OTHER AUTHORITIES
Association of American Railroads, The Environmental Benefits of Moving Freight by Rail (2019), available at https://www.aar.org/wpcontent/uploads/2018/07/AAR-Environmental-Benefits-Movig-Freight-byRail.pdf.......................................................................................................................................4
Bob Costello, Truck Driver Shortage Analysis 2019, American Trucking Associations (July 2019)..........................................................................................................11
COVID-19 Update—Tourism Industry for Montana, Voices of Montana Tourism, http://www.voicesoftourism.com/............................................................................................18
Expanding Access to Rate Relief: Opening Comments of National Grain and Feed Association and Other Interested Agricultural Parties, STB Docket No. EP. 665 (Sub-No.2), November 14, 2016, https://www.ngfa.org/wp-content/uploads/NGFA-and-Other-InterestedAgricultural-Parties-Statement-to-STB-on-Rail-Rate-Proceeding-EP-6652Nov.-14-2016.pdf ...................................................................................................................10
Freight Commodity Statistics, Association of American Railroads (2013).....................................6
G20 Extraordinary Agriculture Ministers Meeting Ministerial Statement on COVID-19 Virtual Meeting, April 21, 2020, https://g20.org/en/media/ Documents/G20_Agriculture%20Ministers%20Meeting_Statement_EN.pdf ........................14
Grain Car Consolidation Facility Impact Analysis, 2010 Montana State Rail Plan, available at https://www.mdt.mt.gov/publications/docs/brochures/railways/railplan_sect5. pdf ..............................................................................................................................................5
Ivan Atanassov & C. Tyler Dick, Capacity of Single-Track Railway Lines with Short Sidings to Support Operation of Long Freight Trains, 2475 Transportation Research Record 95, available at https://railtec.illinois.edu/wp/wp-content/uploads/2019/01/Atanassov-et-al2015-TRB-15-6026-TRR-final.pdf........................................................................................5, 6
Jacob Bunge & Kirk Maltais, Pork Industry, USDA Discuss Euthanizing Hogs After Coronavirus Closes Plants, Wall Street Journal, Apr. 27, 2020 ....................................13
Karen Clay et al., The External Costs of Transporting Petroleum Products by Pipelines and Rail: Evidence from Shipments of Crude Oil from North Dakota, National Bureau of Economic Research (Sept. 2017) .........................................16, 20
Lac-Mégantic Runaway Train and Derailment Investigation Summary, Transportation Safety Board of Canada, https://www.tsb.gc.ca/eng/rapportsreports/rail/2013/r13d0054/r13d0054-r-es.html ......................................................................16
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OTHER AUTHORITIES [CONT’D] Lindsay Mitchell, Illinois River Will Close to Traffic in 2020, Illinois Corn, Nov.
12, 2018, https://ilcorn.org/news-and-media/currentnews/article/2018/11/illinois-river-will-close-to-traffic-in-2020 ............................................12 Matt Volz, 35,000 Gallons of Oil Spills After Montana Train Derailment, Independent Record (July 17, 2015), available at https://helenair.com/missoula/ news/state-and-regional/gallons-of-oil-spillsafter-montana-train-derailment/article_9a7778f6-e118-5dad-afe33ea4aaf9a2d3.html ...................................................................................................................18 Megan E. Hansen & Ethan Dursteler, Pipelines, Rail & Trucks, Strata....................................9, 15 Mont. Const. art. 2, § 3 ..................................................................................................................19 Mont. Const. art. 9, § 1 ..................................................................................................................19 Montana Constitutional Convention, Vol. V, March 7, 1972........................................................19 U.S. Dep’t of Agriculture, Grain Transportation Report (Apr. 23, 2020), available at https://www.ams.usda.gov/sites/default/files/media/GTR04232020.pdf ................................11 U.S. Dep’t of Agriculture, Grain Transportation Report (Oct. 2, 2014), available at https://www.ams.usda.gov/sites/default/files/media/GTR_10-02-14.pdf ...................6, 7, 11 United States Department of Transportation Federal Highway Administration, Freight Quick Facts Report 32 Table 35 (2016) ...............................................................15, 16 Xiaowen Lin et al., Food Flows Between Counties in the United States, Environmental Research Letters, July 26, 2019, available at https://iopscience.iop.org/article/10.1088/1748-9326/ab29ae/pdf.............................................5
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INTEREST OF AMICI AND SUMMARY OF THE ARGUMENT The States of Indiana, Montana, Alabama, Arkansas, Iowa, Kansas, Kentucky, Louisiana, Nebraska, Ohio, South Dakota, Texas, Utah, and West Virginia respectfully submit this brief as amici curiae in support of the Defendants. Amici States include both those States that the Dakota Access Pipeline passes through and those that it does not. But all Amici States, even those that the pipeline does not pass through, stand to suffer disastrous consequences if the easement allowing operation of the pipeline is vacated. First, many Amici States produce large amounts of grain currently shipped by rail—grain that will suffer displacement, owing to competition with higher-revenue oil for access rail transport, if the Dakota Access Pipeline is shut down. Such competition is likely to revisit the market conditions that obtained before the pipeline became operational in 2017, namely intractable railroad congestion, rotting grain, higher food prices and, ultimately, a potential for food shortages. The Dakota Access Pipeline transports 570,000 barrels of crude oil per day, and if this Court vacates the easement that allows it to operate, the market will demand that as much of that oil as possible be diverted to other modes of transport. Railroads present the only viable alternative, meaning that Bakken crude will compete for train space with the agricultural sector, which produces food not only for the nation, but the world. The universal market principle of arbitrage dictates that commodities flow from low value areas to high value areas so long as the cost of transportation is less than the price difference. That principle explains why North Dakota oil—which carries a much higher value than grain—will find a way to move either east or west by pipeline or rail to find a market, at the expense of stranding grain at its production origins. In that environment, transportation competition from the oil indus-
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try makes the cost of procuring grain greater than the resale value, i.e., greater than the price difference between origin and destination. And so substantial portions of the Nation’s grain harvest will sit and rot because it would be too expensive to transport. Amici States have a strong interest in preventing such a dire disruption of the food chain, especially amidst a global pandemic and other dramatic threats to worldwide food security.
Second, crude oil shipments by rail or truck pose greater safety hazards than shipments by pipeline. Data show that pipeline transport of crude have yielded fewer accidents, injuries and deaths than truck and rail shipments, such that pipeline transport is both cheaper and less likely to cause widespread destruction—such as the rail accident that incinerated much of the town of LacMégantic, Quebec, with Bakken crude. And because railroad regulations are set by federal law, state and local governments have very little recourse to protect their citizens against such accidents. Moreover, shipment by rail or by truck (in comparison with shipment by pipeline) has greater environmental effects due to the increased amount of greenhouse gases emitted by trains and automobiles.
For these reasons, Amici State urge this Court to leave the easement in place, allowing the Dakota Access Pipeline to operate while the Army Corps of Engineers prepares the EIS.
ARGUMENT When support for an agency rule is legally insufficient, “the decision to remand or vacate hinges upon court’s assessment of ‘the seriousness of the . . . deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.’” Chamber of Commerce v. S.E.C., 443 F.3d 890, 908 (D.C. Cir. 2006) (ellipsis in original; quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)). These factors are “balance[d]” against each other, and a “strong showing
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of one factor may obviate the need to find a similar showing of the other.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 934 F.3d 649, 674 (D.C. Cir. 2019).
Here, remand without vacatur of the easement is appropriate because there is a “high likelihood” vacatur “would cause significant disruption.” Defenders of Wildlife v. Jackson, 791 F. Supp. 2d 96, 118 (D.D.C. 2011). The widespread economic and safety disruptions that would arise from vacatur would far outweigh any actual harm caused by the short-term lack of an environmental impact statement, which, after all, is a procedural agency obligation designed to provide more public information, but which does not itself hold the prospect of changing the substantive outcome of the Corps’ ultimate decision about the easement. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991) (holding that the National Environmental Policy Act (NEPA) mandates certain procedures for agency action that may impact the environment, but not certain results). The Dakota Access Pipeline has already been constructed, the oil is flowing, and the American economy has come to rely on its benefits as an alternative to rail or truck transport. “Where the proverbial ‘egg has been scrambled and there is no apparent way to restore the status quo ante,’ the Court may remand without vacating.” Defenders of Wildlife, 791 F. Supp. 2d at 118. I. Shutting Down DAPL Would Both Disrupt the Flow of Oil from the Bakken Fields
and Tie Up Transportation for Other Commodities, Especially Grain Shutting down DAPL would prove enormously disruptive to the producers and consumers who have “relied on it in good faith” for years. A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995). As it happens, one need not speculate about how the world of commodities transportation would look without DAPL, for the agriculture economy sustained substantial congestion and attendant losses when the Bakken fields began pumping crude before DAPL opened. Shutting down the pipeline would at the very least revisit those unsustainable market conditions. Vacatur
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would divert hundreds of thousands of barrels of crude oil to rail transport. ECF No. 512-2, Dec-

laration of William J. Rennicke ¶ 5.a. And, because railways cannot adapt quickly to heightened

demand on capital-intensive infrastructure, crude oil would thereby displace grain commodities,

disrupt the economics of grain distribution and, ultimately, threaten the food supply chain. Partic-

ularly amidst a global pandemic and the recession it is inducing, the risk of creating conditions for

food insecurity in various pockets of the country—and of bankrupting farmers—makes vacatur

inappropriate.

A. DAPL alleviated otherwise intractable logistical problems that arose for the nation’s farmers and food supply when Bakken oil displaced grain commodities on critical railway corridors

1. One fundamental of the commodities transportation market is that grain producers

have very few transportation options. Agricultural products are grown in remote, highly distributed

fields, requiring farmers and dealers to aggregate grain from multiple sources for shipping to far-

away food-processing purchasers. ECF No. 512-4, Declaration of Elaine Kub ¶ 8. Grain is too

heavy to be transported economically as air cargo, and remote agricultural areas lack access to

inland waterways. ECF No. 512-2 (Rennicke) ¶ 53. That leaves truck and rail, but trucks require

far more labor: While every truck needs a driver, a small team can drive a train carrying large

amounts of grain in multiple cars. Trains also use less fuel than a large fleet of trucks. Association

of American Railroads, The Environmental Benefits of Moving Freight by Rail 1 (2019), available

at

https://www.aar.org/wp-content/uploads/2018/07/AAR-Environmental-Benefits-Movig-

Freight-by-Rail.pdf.

As a result, grain farmers have grown to rely substantially on rail for long-haul shipping;

rail is “the primary source of transportation for moving the region’s bulk products, such as grain,

crude oil, and ores,” and in turn “agricultural products in aggregate represent 42 percent of rail

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loadings, with cereal grains accounting for nearly 24 percent of rail tonnage originating in the region in 2018.” ECF No. 512-2 (Rennicke) ¶ 52.
Cereal grains grown in the Upper Midwest or Rocky Mountain regions, like hard red spring wheat and barley from Montana and North Dakota, must typically be shipped westward toward mills and export facilities in the Pacific Northwest. See Grain Car Consolidation Facility Impact Analysis, 2010 Montana State Rail Plan 5-3, available at https://www.mdt.mt.gov/publications/docs/brochures/railways/railplan_sect5.pdf. In fact, Montana and North Dakota rely on rail service to ship the vast majority of their grain out of State, Montana 84.6% and North Dakota 79.2%. ECF No. 512-4 (Kub) Table 1. Meanwhile, the markets for oilseeds and feed grains from the central Corn Belt States (primarily corn and soybeans) also rely on rail service to move grain south to export customers at the Gulf of Mexico, southwest toward cattle feeding facilities in the United States and Mexico, west toward dairies in California, or southeast toward poultry feeding facilities in Tennessee, Alabama, Georgia, and North Carolina. Xiaowen Lin et al., Food Flows Between Counties in the United States, Environmental Research Letters, July 26, 2019, available at https://iopscience.iop.org/article/10.1088/1748-9326/ab29ae/pdf.
Overall, “the states of Illinois, North Dakota, Minnesota, Wisconsin, and Montana rank 1, 5, 8, 11, and 15, respectively in the US for transported grain originations (all modes), accounting for 29 percent of all domestic originations in the United States.” ECF No. 512-2 (Rennicke) ¶ 52.
2. In the past decade, rapidly developing technology has made it feasible to extract oil from underground shale rock formations in the Bakken region of North Dakota. As the volume of oil from that region increased, limited pipeline capacity meant that producers had to rely on rail tankers for transportation. Owing to the standard length of available railroad sidings, trains have a practical limit of just over 100 cars, and the railroads, already stretched to capacity with grain
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shipments, struggled to handle both crude oil and grain. Ivan Atanassov & C. Tyler Dick, Capacity of Single-Track Railway Lines with Short Sidings to Support Operation of Long Freight Trains, 2475 Transportation Research Record 95, 95–96, available at https://railtec.illinois.edu/wp/wpcontent/uploads/2019/01/Atanassov-et-al-2015-TRB-15-6026-TRR-final.pdf.
As a consequence, railroads scrambled to obtain sufficient oil tanker rail cars. Oil, as it happens, provides railroads substantially greater revenue than grain. In 2013—before the pipeline became operational—railroads were receiving average revenue of over $56 per originated ton for shipping crude petroleum, but only $38.45 per originated ton for shipping field crops. Freight Commodity Statistics, Association of American Railroads (2013), A.1, A.3 (dividing revenue for field crops (011) and crude petroleum/natural gas (131) by originated tons for each); see also ECF No. 512-4 (Kub) ¶ 30 (reciting similar data for 2018). So, from 2013 through 2015, unprecedented volumes of crude oil tankers clogged the rail lines. ECF No. 512-4 (Kub) Figure 3. “In 2010, Class I railroads carried an average of 2 million barrels of crude oil per month; by 2014, this had increased to an average of 31.8 million barrels per month, representing growth of more than 1,500 percent in four years (Exhibit 6). This run-up over several years was the result of domestic crude oil production outpacing the development of pipeline capacity.” ECF No. 512-2 ¶ 19 (Rennicke) (footnotes omitted).
The result was less rail capacity for the coal and grain that the trains had previously pulled. Shippers of grain and other agricultural products saw significant increases in rates along oil-shipment corridors, as well as historically high prices in the secondary grain railcar market (sublease prices bid among grain shippers for committed space on railcars). ECF No. 512-4 (Kub) ¶ 14. Average bids just to get car space—above the tariff rate and fuel surcharges paid directly to railroads—reached a record high of $4,625 per car at the start of October 2014, equivalent to $1.03
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per bushel paid by a grain shipper. U.S. Dep’t of Agriculture, Grain Transportation Report (Oct. 2, 2014), available at https://www.ams.usda.gov/sites/default/files/media/GTR_10-02-14.pdf. These higher freight costs yielded lower revenues for farmers, not only in areas where grain shipments were dependent on rail transportation, but all across America where the secondary freight prices were inflated by competition between crude oil and grain. Id.
In addition, service levels for grain deteriorated as crude by rail shipments increased. ECF No. 512-4 (Kub) ¶ 16. In October of 2014, both grain and ethanol trains were moving as slow as 19.8 mph. Id. ¶ 24. Trains carrying grain or ethanol were also more likely to have longer dwell times at their origin (loading) location—up to 35 hours per week for trains carrying grain and 35.8 hours for ethanol trains—74% longer than average. Id. Chicago became a particular chokepoint, with rail capacity falling for both eastward and westward routes. ECF No. 512-2 (Rennicke) ¶ 82.
Westward rail routes proved particularly vulnerable to freight congestion, as the few rail passages across the Rocky Mountains meant that a bottleneck on any route left all the grain behind it stranded. Id. ¶ 47. In January 2014, “grain unit trains from Minnesota to the Pacific Northwest were taking up to 22 days, compared to a normal transit time of 12 days,” with grain carloads lagging behind normal levels in the tens (and hundreds) of thousands compared with prior years. Id. ¶ 63. Observers traced the problem back to Bakken crude. “The executive director of the Minnesota Grain and Feed Association blamed crude oil shipments for increasing congestion in regional rail yards (such as St. Paul and Chicago).” Id. ¶ 63.
Moreover, congestion in rail shipments also posed problems for other industries. Ethanol refineries experienced a spike in transportation rates that mirrored the increase in crude-by-rail shipments, prompting them to scale back production when they were unable to obtain rail cars for transport. Id. ¶ 79. In 2014, a grain ship was held up for nearly a month in the Port of Duluth
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waiting for rail shipments. Id. ¶ 72. And Mosaic, a Minneapolis-based fertilizer company, saw a 43% decline in earnings due to its inability to make spring fertilizer shipments. Id. ¶ 77. Congestion problems also caused disruption for auto manufacturers that were unable to ship new cars to dealers. Id. ¶ 81.
All of this congestion and delay in rail service led to higher food prices for consumers and lower profits for farmers. In 2014, North Dakota farmers experienced depressed corn basis prices, $1.25 less than the benchmark futures price, nearly double the usual $0.65 discount off the futures price. ECF No. 512-4 (Kub) at 15–16. Similarly, in the central Corn Belt, where local corn basis prices tend to be around $0.05 less than the benchmark futures price, local corn prices dropped by a factor of eight to $0.40 less than the benchmark futures price during the freight congestion of 2014.
To be sure, these depressed basis prices were the result of many factors (including competitive forces between rail shippers and domestic processors that don’t rely on rail service). Yet the data make clear that transportation costs are the primary influence on grain basis-price differentials. In 2015, USDA’s Office of the Chief Economist and the Agricultural Marketing Service, concluded that, even accounting for the many variables at play, Upper Midwest farmers may have received $570 million less for their crops in 2014 than they would have earned in a regular seasonal transport cost environment. ECF No. 512-4 (Kub) ¶ 13.
3. When DAPL opened in 2017, it provided much-needed transportation relief for the Bakken region. In 2014, the volume of crude oil shipped by rail hit a peak of 31.8 million barrels per month. ECF No. 512-2 (Rennicke) ¶ 19. In 2017, the volume of crude shipped by rail declined to a low of less than 10 million barrels per month, and by 2019 remained at a mere 70% of the volume shipped by rail in 2014. Id. ¶ 19 & Ex. 6. As a percentage of Bakken crude, “at the end of
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2014, rail accounted for about 60 percent of North Dakota crude oil production, dropping to 17 percent of production in 2019; at the same time, pipeline share grew from about 31 percent in 2014 to 72 percent in 2019.” Id. ¶ 20.
That relief benefitted grain farmers and shippers as well, for transporting crude oil by pipeline frees up rail capacity for agricultural products, plain and simple. The ultra-depressed North Dakota corn basis, seen at $1.20 less than the benchmark futures contract during the peak of the freight congestion in 2014, has once again settled in its normal seasonal basis of $0.65 less than the benchmark futures contract price. ECF No. 512-4 (Kub) ¶ 22. Nationwide, rail service to the grain industry has returned to normal train speeds and dwell times. Id. Table 2.
B. Shutting down the pipeline would return to pre-DAPL railroad congestion—this time amidst a global pandemic where food security is already compromised
Vacating the DAPL easement would force oil producers to find new ways of transporting output, with a likely return to pre-DAPL depression on corn basis prices, and worse. While three non-DAPL pipelines also transport oil from the Bakken, they have capacity for at most 12–18 percent of the oil that would be displaced as result of vacatur. See ECF No. 512-2 (Rennicke) ¶ 5.a. For the balance, rail—itself two or three times more expensive than pipeline—is the only economically viable alternative, as shipping crude by truck can be twice as expensive as rail. Megan E. Hansen & Ethan Dursteler, Pipelines, Rail & Trucks, Strata, at 3. At trucking transport rates, the price advantage Bakken crude generally enjoys over other sources of crude evaporates. See ECF No. 512-2 (Rennicke) ¶ 5.a. (stating that Bakken crude that cannot be transported by pipeline or rail “would have no immediate viable transportation outlet”).
If the pipeline is shut down, it will displace 208.1 million barrels of crude oil per year. Even if only one-third of the displaced crude were transported by rail, the result would still be crude volumes exceeding the average amount of crude on railways in 2014—and even approaching
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the maximum volume of that year. Id. ¶¶ 20, 22 & Ex. 7. And now, amplifying the congestion, regulatory changes since 2014 will push crude oil trains onto the hazardous materials network, a more limited set of tracks featuring “positive train control,” or PTC. It happens, however, that “PTC corridors are also rail main lines, which already have among the highest overall traffic densities . . . .” Id. ¶ 25. As a consequence, “[d]iverting DAPL’s volume to rail could create a higher level of congestion on the region’s rail lines than that which was experienced during the last peak in rail shipments of crude oil, in 2014.” Id. ¶ 27.
Yet railroads are already operating near full capacity, so even small, unexpected changes in the supply or demand for rail services may cause significant problems. Id. ¶ 5.c. If the DAPL oil is shipped by rail rather than by pipeline, the effects will be largely felt in certain corridors where the oil is shipped, and many of these corridors already carry high density shipments of other goods. Id. ¶ 59. Because crude oil must be shipped from the Bakken to Patoka or Chicago, Illinois, rail lines in the upper Midwest would experience the worst of the congestion. Id. ¶ 32. And since Patoka does not currently have rail access, facilities will need to be built to accommodate multiple loads of crude oil per day. Id.
Moreover, grain shippers are especially vulnerable to price spikes because they do not enter into long-term transportation contracts with railroads due to varying shipment volumes and changing routes. See Expanding Access to Rate Relief: Opening Comments of National Grain and Feed Association and Other Interested Agricultural Parties, STB Docket No. EP. 665 (Sub-No.2), November 14, 2016, at 4-6, https://www.ngfa.org/wp-content/uploads/NGFA-and-Other-InterestedAgricultural-Parties-Statement-to-STB-on-Rail-Rate-Proceeding-EP-665-2Nov.-14-2016.pdf. For this reason, agricultural producers require reliable and on-demand rail service to move prod-
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ucts quickly and meet favorable price windows. ECF No. 512-2 (Rennicke) ¶ 55. Added competition from crude oil producers will likely reduce the competitiveness of farmers reliant on rail lines that are already near or above capacity. Id.
Switching the bulk of America’s long-haul grain movement from rail to truck would likely be impossible. The trucking industry, already struggling to find sufficient drivers, Bob Costello, Truck Driver Shortage Analysis 2019, American Trucking Associations, at 2 (July 2019), is not equipped to move grain efficiently over the long-distance routes currently served by the rail system. Given the standard limit of 900 bushels per semi-truck load, the lost carrying capacity from a single 110-car grain shuttle train would require 544 truckloads to haul an equivalent volume. For those volumes, hauling a bushel of corn 1,730 miles from Minneapolis to Portland, Oregon routinely costs about $1.31 by rail. See U.S. Dep’t of Agriculture, Grain Transportation Report (Oct. 2, 2014), available at https://www.ams.usda.gov/sites/default/files/media/GTR_10-02-14.pdf. But at the standard rate of $1.00 per truckload mile, those 900 bushels would cost $3.84 each for the same 3,460 mile round-trip by semi. Truck transportation alone would thus very likely exceed the arbitrage value of the corn itself—roughly $3.00 per bushel, see U.S. Dep’t of Agriculture, Grain Transportation Report (Apr. 23, 2020), available at https://www.ams.usda.gov/sites/default/files/media/GTR04232020.pdf—with the result that, without rail service, billions of bushels of grain would be effectively stranded in the center of the continent, unable to reach coastal export facilities or the central domestic processing facilities and collection points which underpin America’s food supply chain.
In addition, an influx of crude-by-rail traffic would almost certainly inflict substantial harm on the economies of ag-dependent States, as exemplified by the following estimated losses:
 Indiana: $24 to $59 million in revenue
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 Minnesota: $98 to $243 million in revenue  Montana: $41 to $104 million in revenue  North Dakota: $127 to $317 million in revenue  South Dakota: $55 to $137 million in revenue ECF No. 512-4 (Kub) ¶ 39 & Table 3. In Indiana alone, those revenue losses would be the equivalent of 1,450 lost jobs. Id. What is more, recent analysis looking at present-day grain production volumes in twelve high-producing States, applying the same methodology as the 2015 USDA study that revealed staggering farm losses from the 2014 congestion, suggests that if rail congestion were to affect the grain markets over an entire marketing year, the revenue losses to America’s farmers could range from $526 million to $1.3 billion. Id. ¶ 38. These estimates do not include losses to other segments of the agriculture industry, including ethanol plants, soybean processors, and other grain customers who must also transport their finished goods by rail. The grain processing industry, struggling during a short-term slow-down in demand during the COVID-19 pandemic, already faces challenging market conditions. When domestic demand slows for grain products (ethanol, distillers grain, soybean meal, and soybean oil), a higher proportion of total production must be directed toward foreign sales. Before being exported in ocean-going vessels, grain products must first be transported to an export facility either by barge or rail. As it happens, the Illinois Waterway that normally ships agricultural goods from several surrounding States to the Mississippi will close for repairs from July through October 2020. Lindsay Mitchell, Illinois River Will Close to Traffic in 2020, Illinois Corn, Nov. 12, 2018, https://ilcorn.org/news-and-media/current-news/article/2018/11/illinois-river-will-close-to-traffic-in-2020. Without that significant route for southbound agriculture exports, rail will be the only
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viable option for many processors to reach profitable markets—but not if Bakken crude takes over the rail network.
In addition, in January of 2020, the United States entered into a two-year trade agreement that provided China would purchase $40 billion of American agricultural products. In order to fulfill this trade deal, the United States will need to ship even higher volumes of grain by rail, compared to record-high 2017 volumes, to the Gulf of Mexico or the Pacific Northwest for loading on ocean vessels and shipping to China. These shipments will make the agriculture industry more dependent on timely rail service than ever before, and less able to withstand railroad congestion than ever before. If these shipments are not made, Chinese purchasers will likely turn to South American producers instead, which would cause U.S. farmers to lose billions of dollars along with their reputation as a reliable supplier. ECF No. 512-2 (Rennicke) ¶¶ 67–68.
Meanwhile, the COVID-19 pandemic provides a stark demonstration of how food supply chain interruption harms both consumers and producers, with consumers already facing higher food prices due to end-point shortages, and agricultural producers forced to discard (for zero revenue) perishable commodities, even as processing facilities contend with labor shortages. Already, COVID-19 has forced meat processors such as Tyson to shutter facilities, leaving hog farmers with nowhere to send their hogs and, with new generations coming behind, nowhere to house them— with massive porcine euthanasia (a threat to the availability of animal protein for a hungry world) being the contemplated result. Jacob Bunge & Kirk Maltais, Pork Industry, USDA Discuss Euthanizing Hogs After Coronavirus Closes Plants, Wall Street Journal, Apr. 27, 2020, https://www.wsj.com/articles/pork-industry-usda-discuss-euthanizing-hogs-after-coronavirusclosesplants11588015611?shareToken=ste5d9e790670e42c5bada946ff0483acf&reflink=article_email_share. For some animals, however, another possibility may be that livestock will need
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to be fed for longer periods while farmers await processing capacity—further increasing volumes of grain to be shipped west, southwest, and southeast out of the Corn Belt in 2020.
Either way, the food supply chain already stands to be under duress in 2020. Agricultural ministers from the G20 group of major developed and developing nations recently observed that, while the global inventory of agricultural commodities is presently sufficient, governments should not create any “unnecessary . . . disruption to global food supply chains” and should avoid “food losses and waste caused by disruptions throughout food supply chains, which would exacerbate food insecurity and nutrition risks and economic loss.” G20 Extraordinary Agriculture Ministers Meeting Ministerial Statement on COVID-19 Virtual Meeting, April 21, 2020, https://g20.org/en/ media/Documents/G20_Agriculture%20Ministers%20Meeting_Statement_EN.pdf. Yet adding Bakken crude oil to the rail transport load would threaten to cause exactly the sort of disruption to the global food supply chain that the G20 ministers warned about.
On this point, it is worth observing that the recent precipitous decline in the price of oil futures is unlikely to have any significant bearing on the market dynamics of shipping oil from the Bakken region. Even when crude oil futures head into negative territory, Bakken crude will still move as long as it represents a cheaper alternative to other sources of oil—and as long as it is worth more at the refinery at Patoka, Illinois than it is straight from the ground in Williston, North Dakota. As long as Americans still need fuel to operate their cars, haul their goods, and conduct the business of life, and as long as traders can make the oil worth more by transporting it to a higher-value location, arbitrage will take place, and oil will move, at the cost of pushing grain off the nation’s railways.
With no substitute freight provider available to serve America’s farmers, the implications of shutting down DAPL for the world’s food supply become unthinkable. If grain cannot be
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shipped from its origins and is stranded across the Midwest, swaths of grain customers with timecritical needs—such as animal feedlots that demand grain each day—would quickly fail, with staggering implications for animal welfare and food security. The most food-secure nation on earth could well experience food shortages, to say nothing of the consequences for developing nations whose industries and food security also rely on American grain exports.
The mere delay in the Corps’ preparation of an EIS does not merit such drastic consequences. II. Shutting Down the Pipeline Will Threaten Safety and Create Environmental Hazards
The burdens of vacating the DAPL easement are not just a function of economic impact, as dramatic as those impacts will be. Rather, vacating the easement also threatens serious safety and environmental hazards owing to the volatility of crude oil and the potential for trains to collide and derail.
Transporting crude oil by pipeline is safer than transporting it by rail or truck owing to the volatility of the crude and the safety of pipelines compared to rail and truck shipments. A 2016 USDOT comparison of freight-related fatalities among various modes of transportation showed that rail transportation fatality rates were nearly 35 times higher than pipeline transportation on a per-billion ton-miles basis. United States Department of Transportation Federal Highway Administration, Freight Quick Facts Report 32 Table 35 (2016). Trucks are even less safe. Crude oil transportation by truck kills an average of 10.2 people per year, whereas rail transportation results in 2.4 fatalities per year and pipeline transportation results in 1.7 fatalities per year. Megan E. Hansen & Ethan Dursteler, Pipelines, Rail & Trucks, Strata, at 4–5. And in terms of injuries (rather than fatalities), rail transportation injury rates exceed 50 times the rate for pipeline shipments.
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United States Department of Transportation Federal Highway Administration, Freight Quick Facts Report 32 Table 35 (2016).
Pipelines also compare favorably to rail when considered in terms of incident and accident rates. A 2015 report by the Fraser Institute showed that, for the decade 2003–13, rail transport of crude oil was 4.5 more times more likely to result in an accident than pipeline transport of crude oil. Fraser Research Bulletin 1. And a 2017 study by the National Bureau of Economic Research concluded that, on a normalized cost-per-million-barrel-mile basis, crude-by-rail accidents and spills cost roughly 600% more than pipeline accidents and spills. Karen Clay et al., The External Costs of Transporting Petroleum Products by Pipelines and Rail: Evidence from Shipments of Crude Oil from North Dakota, National Bureau of Economic Research, at 20 (Sept. 2017).
The result is not simply higher economic costs, but sometimes tragic human suffering, such as happened in the 2013 rail disaster in Lac-Mégantic Quebec, when an unattended 74-car train carrying Bakken crude oil rolled down some low-grade track, ultimately derailing. Lac-Mégantic Runaway Train and Derailment Investigation Summary, Transportation Safety Board of Canada, https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054-r-es.html. The resulting conflagration killed over 40 people and forced 2000 more people from their homes. Id.
By prompting shipment of crude by rail, an order from this Court vacating the DAPL easement will threaten States and localities with similar disasters. Absent the DAPL easement, Bakken oil shipments will likely to cause 11.4 more accidents each year, with attendant additional injuries and fatalities, than would occur if the oil continues to be transported by pipeline. ECF No. 512-2 (Rennicke) ¶ 90 & Ex. 36. State and local governments have very few options to protect themselves from these costs owing to preemption by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b). In light of ICCTA, States and localities may not, for example, regulate the
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air pollution created by trains, Ass’n of Am. R.R. v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094 (9th Cir. 2010); prohibit railroad switching activities, City of Seattle v. Burlington N. R.R. Co., 41 P.3d 1169 (Wash. 2002); set speed limits for trains, CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993); prohibit idling, Delaware v. Surface Transp. Bd., 859 F.3d 16 (D.C. Cir. 2017); set negligence standards for trains, Elam v. Kansas City Southern Ry. Co., 635 F.3d 796 (5th Cir. 2011); or regulate the use of sidings, Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836 (E.D. Ky. 2004).
Indeed, States and localities may not even prohibit trains from blocking intersections. See State v. Norfolk S. Ry. Co., 107 N.E.3d 468 (Ind. 2018). When trains block intersections, they impose significant burdens on the economies and quality of life of rural (and sometimes urban) communities. “[S]uch blockages can impact public safety, because police and fire departments may be delayed or unable to reach emergency sites or hospitals in the many communities where rail crossings intersect main roads, which are often the only viable routes in smaller and/or older towns.” ECF No. 512-2 (Rennicke) ¶ 91. Towns in the Upper Midwest suffered increased instances of blocked intersections during the 2014 peak congestion—a circumstance likely to repeat if DAPL is shut down and more crude is transported by rail. Id.
Shipping crude by train is also likely to inflict substantial more environmental damage than shipping by pipeline, even as the Corps completes its EIS. Railroads would likely transport the displaced DAPL crude along main lines, which means introducing the hazardous cargo “near or through rivers, population centers, national parks, and many environmentally sensitive areas.” Id. ¶ 95. These rail lines crisscross various branches and tributaries of the Mississippi and Missouri Rivers, for example. Id.
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Environmental protection in western States is of particular importance for the people living, working, and recreating there. First, States such as Montana rely heavily on tourism revenues resulting from non-residents seeking to enjoy the pristine beauty of the environments of these States. Consequently, in Montana, for example, “non-resident tourism supports 59,380 local jobs, adds over $3.7 billion to the economy annually, and contributes to the preservation of historical, cultural and recreational treasures.” COVID-19 Update—Tourism Industry for Montana, Voices of Montana Tourism, http://www.voicesoftourism.com/. As western States have experienced in recent years with wildfires, environmental harms translate to lost tourism revenues. It is thus vital to the economies of western States that potential threats to the environment—such as oil spills caused by train derailments—be minimized to the greatest extent possible.
The potential environmental harms—and risks to human lives—from oil transported by rail are not hypothetical. For example, before DAPL became operational, in July 2015 a train hauling oil from North Dakota derailed in rural northeastern Montana, and four tank cars leaked an estimated 35,000 gallons of oil. Matt Volz, 35,000 Gallons of Oil Spills After Montana Train Derailment, Independent Record (July 17, 2015), available at https://helenair.com/missoula/ news/state-and-regional/gallons-of-oil-spills-after-montana-train-derailment/article_9a7778f6e118-5dad-afe3-3ea4aaf9a2d3.html. In addition to the 2013 Quebec derailment referenced above (in which 47 people were killed and much of the town of Lac-Megantic was incinerated), “trains hauling crude from the Bakken region of North Dakota and Montana have been involved in fiery derailments in six states.” Id.
If the easement is vacated and DAPL ceases to be operational, to the extent a significant additional portion of Bakken oil is shipped westward by rail, it would pass through environmentally sensitive areas. Trains heading west from the Bakken skirt the banks of the upper Missouri
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River from Snowden, Montana, to east of Glasgow, Montana, nearly to Ft. Peck Lake. On the west side of Montana, the line climbs through the Rockies over Marias Pass and skirts the southern boundary of Glacier National Park from East Glacier to Columbia Falls. At Columbia Falls it crosses the Flathead River heading west to Whitefish and then along the shore of Whitefish Lake. East of Libby, Montana, the railroad parallels the Kootenai River all the way to Bonner’s Ferry, Idaho. These areas, including Glacier National Park, pristine wilderness, and blue ribbon trout streams, are some of the most environmentally sensitive areas in the country. Oil spills from train derailments would not merely be disruptive; they would be devastating.
Indeed, the beauty of the mountains and the clear running mountain rivers and streams brought many people to make places like Montana their home. Thus, the importance of preservation and protection of the environment cannot be overstated. In 1972 Montana adopted a new Constitution reflecting this value, as the first enumerated, inalienable, fundamental constitutional right is “the right to a clean and healthful environment.” Mont. Const. art. 2, sec. 3. This is not a mere aspirational statement. On the contrary, Article 9, section 1 of the Constitution mandates:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
The right to a clean and healthy environment was deemed paramount by the delegates to Montana’s 1972 Constitutional Convention and was, therefore, included as a fundamental right by a vote of 79 to 7. Montana Constitutional Convention, Vol. V at 1640, March 7, 1972.
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Moreover, as the Montana Supreme Court has concluded, “the delegates’ intention was to provide language and protections which are both anticipatory and preventative”—and not “merely prohibit that degree of environmental degradation which can be conclusively linked to ill health or physical endangerment.” Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 988 P.2d 1236, 1249 (Mont. 1999). Indeed, the Montana Constitution “does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.” Id. Rather, the legislature has a textual obligation “to provide adequate remedies for degradation of the environmental life support system and to prevent unreasonable degradation of natural resources,” period. Id. In short, a shut-down of DAPL would create an entirely avoidable set of dangers and risks to the values those in the West hold most dear.
Shutting down DAPL will likely introduce negative environmental externalities in other ways as well. One study found that, for moving Bakken crude to the Gulf of Mexico in 2014, the sum of air pollution and greenhouse gas costs were nearly twice for rail as for pipeline. Karen Clay et al., The External Costs of Transporting Petroleum Products by Pipelines and Rail: Evidence from Shipments of Crude Oil from North Dakota, National Bureau of Economic Research, at 15 (Sept. 2017). That report estimated that a fully loaded 100-car train of Bakken crude headed to the Gulf Coast would impose air pollution and greenhouse gas costs of $150,000, compared to $78,000 if it moved by pipeline. Id. at 21. And as trains move through more densely populated areas, those costs increase as trains idle for substantial periods of time in hubs like Chicago, often threatening more environmental harm in under-resourced residential urban areas than affluent suburbs. Id. at 11. By contrast, not only do pipelines pose no threat to residential urban areas themselves, but they terminate at refineries which do not sit in residential areas. Id. at 9.
***
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This case is ostensibly about the Corps’ failure to study the environmental impact of an oil

pipeline. But if pipeline flow must cease while the environment is studied, it is not only oil pro-

ducers who will suffer—so will grain farmers, the world food supply, public safety, and the envi-

ronment itself (particularly in the West). One way or another, oil will continue to pour out of the

Bakken fields. The questions for this Court are at what cost and whether, pending study of an oil

pipeline’s environmental impact, grain will too.

CONCLUSION

For these reasons, Amici States urge this Court not to vacate the easement that allows con-

tinued operation of the Dakota Access Pipeline.

Respectfully submitted,

TIM FOX Montana Attorney General

CURTIS T. HILL, JR. Indiana Attorney General

By: /s/Rob Cameron Rob Cameron Deputy Attorney General

By: /s/ Thomas M. Fisher Thomas M. Fisher Solicitor General

Office of the Attorney General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401 Tel: (406) 444-2026 Email: Rob.Cameron@mt.gov

Julia C. Payne Deputy Attorney General
Office of the Indiana Attorney General 302 W. Washington St. Indiana Government Center South, 5th Floor Indianapolis, IN 46204-2770 Phone: (317) 232-6255 Fax: (317) 232-7979 Email: Tom.Fisher@atg.in.gov Julia.Payne@atg.in.gov

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ADDITIONAL COUNSEL

STEVE MARSHALL Attorney General State of Alabama
LESLIE RUTLEDGE Attorney General State of Arkansas
TOM MILLER Attorney General State of Iowa
DEREK SCHMIDT Attorney General State of Kansas
DANIEL CAMERON Attorney General Commonwealth of Kentucky
JEFF LANDRY Attorney General State of Louisiana

DOUG PETERSON Attorney General State of Nebraska
DAVE YOST Attorney General State of Ohio
JASON R. RAVNSBORG Attorney General State of South Dakota
KEN PAXTON Attorney General State of Texas
SEAN REYES Attorney General State of Utah
PATRICK MORRISEY Attorney General State of West Virginia

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CERTIFICATE OF SERVICE I hereby certify that on May 1, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which shall send notification of such filing to any CM/ECF participants.
/s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General Indiana Government Center South, Fifth Floor 302 West Washington Street Indianapolis, Indiana 46204-2770 Telephone: (317) 232-6255 Fax: (317) 232-7979 Email: Tom.Fisher@atg.in.gov
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 Case 1:16-cv-01534-JEB Document 533 Filed 05/21/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al.

Plaintiffs,

v.

Civil Action No. 16-1534 (JEB)

U.S. ARMY CORPS OF ENGINEERS, et al.

Defendants

AMICUS CURIAE BRIEF OF THE GREAT PLAINS TRIBAL CHAIRMEN’S ASSOCIATION, NATIONAL CONGRESS OF AMERICAN INDIANS FUND, INTER-TRIBAL ASSOCIATION OF ARIZONA, MIDWEST ALLIANCE OF SOVEREIGN TRIBES, UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY PROTECTION FUND, AFFILIATED TRIBES OF NORTHWEST INDIANS, ASSOCIATION ON AMERICAN INDIAN AFFAIRS, AND 28 INDIAN TRIBES
SUPPORTING A VACATUR REMEDY

Matthew Lee Campbell, D.C. Bar No. CO0060 NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax: (303) 443-7776 mcampbell@narf.org
Joel West Williams, D.C. Bar No. 1023016 NATIVE AMERICAN RIGHTS FUND 1514 P Street, NW (Rear) Suite D Washington, DC 20005 Tel: (202) 785-4166 Fax: (202) 822-0068 williams@narf.org
Attorneys for Amici Curiae

Case 1:16-cv-01534-JEB Document 533 Filed 05/21/20 Page 2 of 23 TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ............................................................................ iii TABLE OF AUTHORITIES ........................................................................................................ iv STATEMENT OF INTEREST .......................................................................................................1 INTRODUCTION ..........................................................................................................................3 ARGUMENT ..................................................................................................................................4
I. REMANDING WITHOUT VACATUR WOULD CONTINUE THE INEQUITABLE PATTERN OF SHIFTING THE BURDENS OF INFRASTRUCTURE DEVELOPMENT ONTO INDIAN TRIBES............................4
II. VACATUR ENFORCES NEPA IN A MANNER THAT PROTECTS TRIBAL TREATY RIGHTS AND HOLDS AGENCIES ACCOUNTABLE FOR THEIR TRIBAL TRUST OBLIGATIONS. .........................................................8
CONCLUSION ..............................................................................................................................13
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CORPORATE DISCLOSURE STATEMENT
Pursuant to LCvR 7(o) and Fed. R. App. P. 29(a)(4), Amici Curiae makes the following disclosure:
1) For non-governmental corporate parties please list all parent corporations: None.
2) For non-governmental corporate parties please list all publicly held companies that hold 10% or more of the party’s stock: None.
3) If there is a publicly held corporation which is not party to the proceeding before this Court but which has a financial interest in the outcome of the proceeding, please identify all such parties and specify the nature of the financial interest or interests: Counsel for Amici Curiae is aware of no such corporation.

DATED: May 20, 2020

/s/ Matthew Lee Campbell Matthew Lee Campbell, D.C. Bar No. CO0060 NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax: (303) 443-7776 mcampbell@narf.org
Attorney for Amici Curiae

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TABLE OF AUTHORITIES
CASES
Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) .............................................................................................3
Edwardsen v. U.S. Dep’t of Interior, 268 F.3d 781 (9th Cir. 2001) ...............................................................................................8
Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99 (1960).............................................................................................................12
Friends of the Capital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53 (D.D.C. 2016) .....................................................................................10
Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002) .............................................................................................9
Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8 (D.D.C. 2007) .........................................................................................3
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) .............................................................................................3
Humane Soc’y of U.S. v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) .............................................................................................3
Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996) .................................................................................................9
Int’l Union, UMW v. FMSHA, 920 F.2d 960 (D.C. Cir. 1990) .............................................................................................3
Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) .............................................................................................9
Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569 (9th Cir. 1998) ...............................................................................................8
Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) ...............................................................................................8
Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92 (D.D.C. 2019) .................................................................................3, 11
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Nez Perce Tribe v. U.S. Forest Serv., No. 3:13-CV-348-BLW, 2013 WL 5212317 (D. Idaho Sept. 12, 2013) ..................... 10-11
Okanogan Highlands All. v. Williams, 236 F.3d 468 (9th Cir. 2000) ...............................................................................................8
Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) ...............................................................................................8
Radio Television News Directs Ass’n v. FCC, 184 F.3d 872 (D.C. Cir. 1999) .............................................................................................7
Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983) ....................................................................................... 8-9
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101 (D.D.C. 2017) .....................................................................................8
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 282 F. Supp. 3d 91 (D.D.C. 2017) ......................................................................... 6-7, 7, 11
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-1534, 2020 WL 1441923 (D.D.C. Mar. 25, 2020) ....................................7, 8, 9, 10
Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior, 608 F.3d 592 (9th Cir. 2010) ...............................................................................................9
United States v. Michigan, 508 F. Supp. 480 (W.D. Mich. 1980), aff’d, 712 F.2d 242 (6th Cir. 1983).......................10
United States v. Washington, 864 F.3d 1017 (9th Cir. 2017) ..................................................................................... 11-12
STATUTES, REGULATIONS, & RULES 40 C.F.R. § 1500.1(c).......................................................................................................................9 42 U.S.C. § 4332(E).........................................................................................................................9 Fort Laramie Treaty of 1851, arts. 5, 11 Stat. 749...........................................................................7 Treaty of Fort Laramie with the Sioux, 15 Stat. 635, art. 2 (1868) .................................................7 Fed. R. App. P. 29(4) .......................................................................................................................1
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LCvR 7(o) ........................................................................................................................................1 OTHER AUTHORITIES American Psychological Association, APA Urges Trump Administration to Safeguard Standing
Rock Sioux in Response to Memorandum on Dakota Access Pipeline (Jan. 26, 2017), http://www.apa.org/news/press/releases/2017/01/trump-dakota-pipeline.aspx ..................6 Colette Routel & Jeffrey Holth, Toward Genuine Tribal Consultation in the 21st Century, 46 U. Mich. J.L. Reform 417 (2013) ...................................................................................8 Kristina Daugirdas, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemakings, 80 N.Y.U. L. Rev. 278 (2005) ........................................................11 Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the Missouri River Sioux, 1944-1980 (1982).............................................................................................................5, 6 Michael L. Lawson, The Oahe Dam and the Standing Rock Sioux (1976) .....................................5 Michael Lawson, The Historical Backdrop Leading up to DAPL Protests Today, Indianz.com (Nov. 9, 2016), https://www.indianz.com/News/2016/11/09/michaellawson-roots-of-nodapl-movement.asp ...............................................................................5 Peter Capossela, Impacts of the Army Corps of Engineers’ Pick-Sloan Program on the Indian Tribes of the Missouri River Basin, 30 J. Envtl. L. & Litig. 143 (2015) .............................6 U.S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans (2018) .....................................................................................................4
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INTEREST OF AMICI CURIAE1
The Great Plains Tribal Chairmen’s Association (“GPTCA”), National Congress of American Indians Fund (“NCAI Fund”), Inter-Tribal Association of Arizona (“ITAA”), Midwest Alliance of Sovereign Tribes (“MAST”), United South and Eastern Tribes Sovereignty Protection Fund (“USET SPF”), Affiliated Tribes of Northwest Indians (“ATNI”), Association on American Indian Affairs (“AAIA”), and 28 federally recognized Indian Tribes (collectively “Amici Curiae”) 2 submit this Amici Curiae brief in support of the Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Yankton Sioux Tribe, and Oglala Sioux Tribe (collectively “Tribes”).
GPTCA is comprised of the elected leadership of the sixteen federally recognized Indian tribes located in the states of North Dakota, South Dakota, and Nebraska. Its primary purpose is to defend the Tribes’ inherent rights, to promote the welfare of the People, and to protect the sovereignty of each Tribe.
The NCAI Fund is the public education arm of the National Congress of American Indians (“NCAI”), the oldest, largest, and most representative organization comprised of American Indian and Alaska Native tribal governments and their citizens. NCAI serves as a forum for consensusbased policy development among its member tribes from every region of the country. Its mission is to promote better education about the rights of Tribes and to improve the welfare of Indians.
ITAA is an intertribal organization comprised of 21 federally recognized Indian tribes with lands located primarily in Arizona, as well as in California, New Mexico and Nevada. Founded in
1 No party’s counsel authored this brief, in whole or in part, and no party or party’s counsel made a monetary contribution to fund the preparation or submission of this brief. No person other than Amici Curiae or their counsel made a monetary contribution to preparation or submission of this brief. See LCvR 7(o); Fed. R. App. P. 29(4). 2 Appendix A lists all Amici Curiae.
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1952, ITAA is a united voice for tribal governments on common issues and concerns. The representatives of ITAA are the highest elected tribal officials from each Indian tribe, including tribal chairpersons, presidents, and governors.
MAST represents the interests of the 35 sovereign tribal nations of Minnesota, Wisconsin, Michigan, Indiana, and Iowa. MAST's mission is to advance, protect, preserve, and enhance the mutual interests, treaty rights, sovereignty, and cultural way of life of the sovereign nations of the Midwest throughout the 21st century.
USET SPF is a nonprofit organization representing 27 federally recognized tribal nations in 13 states stretching from Texas to Maine. USET SPF works at the regional and national level to educate federal, state, and local governments about the unique historic and political status of its member tribal nations. USET SPF is dedicated to enhancing the development of federally recognized tribal nations, improving the capabilities of tribal governments, and assisting USET SPF member tribal nations in dealing effectively with public policy issues and in serving the broad needs of Indian people.
Based upon the principles of unity and cooperation, ATNI is a nonprofit organization representing tribal governments from Oregon, Idaho, Washington, Alaska, California and Montana. Its purpose is to provide a forum for sharing information on matters of interest to its member Tribes, develop consensus on matters of mutual importance, assist member Tribes in their governmental and programmatic development consistent with their goals for self-determination and self-sufficiency, and provide for effective public relations and education programs with the non-Indian communities.
AAIA is the oldest nonprofit American Indian and Alaska Native advocacy organization and is governed by an all-Native American board of directors. One of its priorities is to advocate
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for the protection of Native American lands as well as environmental and cultural resources. AAIA’s work in this area includes training and technical assistance to Indian tribes and the general public. It also actively participates in legally required environmental and cultural review processes by providing comments and legal assistance to Indian tribes.
The 28 named Tribal governments represent a diverse cross-section of Tribes throughout Indian country. Amici Curiae share an interest in maintaining the federal government’s fiduciary duty to protect the health and welfare of Indian Tribes, including the natural resources necessary to sustain them. Amici Curiae offer critical context regarding the grave consequences of disregarding Tribal treaty rights and the necessary role courts play in the accountability of the federal government to Indian Tribes.
INTRODUCTION “Pursuant to the case law in this Circuit, vacating a rule or action promulgated in violation of NEPA is the standard remedy.” Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007) (collecting cases); see also Humane Soc’y of U.S. v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) (noting vacatur is “[a] common remedy”). Only in “rare circumstances” is there a remand without vacatur. See Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). “The decision whether to vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.” Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (quoting Int’l Union, UMW v. FMSHA, 920 F.2d 960, 967 (D.C. Cir. 1990) (internal quotation marks omitted)). “Because vacatur is the default remedy . . . defendants bear the burden to prove that vacatur is unnecessary.” Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019).
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As this Court weighs the costs and benefits under Allied Signal, your Amici Curiae suggest that this equitable analysis should also be informed by where those costs and benefits are distributed. Put another way: Who benefits and who is burdened? Unfortunately, this case presents yet another instance where Tribes and Native communities are burdened, and non-Native corporations reap enormous benefits. It is surely inequitable to again expect the Tribal governments and communities represented in this case to bear the hazards posed by oil spills while the Corps ponders the magnitude of that risk and Dakota Access cashes its checks. Conversely, stopping the flow of oil in the pipeline during remand ensures the ordered process established by NEPA and provides an opportunity for the Corps to properly evaluate impacts on the Tribes’ treaty resources. This case does not present the “rare circumstances” counseling against vacatur.
ARGUMENT I. REMANDING WITHOUT VACATUR WOULD CONTINUE THE INEQUITABLE
PATTERN OF SHIFTING THE BURDENS OF INFRASTRUCTURE DEVELOPMENT ONTO INDIAN TRIBES.
The federal government has a long history of approving infrastructure projects, such as the one at issue in this case, without due consideration of Tribal rights and over the objections of Tribal governments. These projects have come at great cost to Indian Tribes – harming the health of Tribal citizens, damaging Tribal natural resources, sacred places, and disregarding treaty rights. At the same time, the benefits of these projects have not inured to Tribes and their citizens, whose drinking water, roads, and other infrastructure is either nonexistent or in shambles. See U.S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans 165-166 (2018). Every single Indian Tribe has a story of federally approved destruction – often several.
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The burden shouldered by the Tribes, both historically and with reference to the Dakota

Access Pipeline (“DAPL”), should be in the front of this Court’s mind in weighing whether vacatur

is the appropriate remedy. Especially relevant to this case is the Pick-Sloan Project, which

burdened the Tribes with tremendous costs, while non-Natives reaped the benefits. This project

dammed significant areas of the Missouri River and “caused more damage to Native American

lands and resources than any other single public works project in the United States.” Michael

Lawson, The Historical Backdrop Leading up to DAPL Protests Today, Indianz.com (Nov. 9,

2016),

https://www.indianz.com/News/2016/11/09/michael-lawson-roots-of-nodapl-

movement.asp. The project “inundated 160,000 acres of reservation lands, including 56,000 acres

on the Standing Rock reservation.” Id. A product of this project was Lake Oahe, the location of

the pipeline at issue in the instant case.

The Corps was a particularly bad actor in the sordid history of the Pick-Sloan Project.

Without authorization, it altered portions of the project to protect non-Indian communities and

flood Indian communities. Michael L. Lawson, Dammed Indians: The Pick-Sloan Plan and the

Missouri River Sioux, 1944-1980 59 (1982). If that weren’t bad enough, in the initial stages of

construction of the Oahe Dam, the Corps attempted to condemn portions of Standing Rock land

without the required condemnation authority. Michael L. Lawson, The Oahe Dam and the

Standing Rock Sioux 218 (1976). At the behest of Standing Rock, a court stepped in and ruled in

1958 that the Corps’ actions were “wholly repugnant to the entire history of Congressional and

judicial treatment of the Indians[.]” Id.

The shifting of the costs onto the Tribes was neither happenstance nor oversight. Indeed,

Congress acknowledged at the time of the Oahe Dam’s construction that it would benefit mostly

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the non-Indian communities below the lake, and that “no benefits will accrue to the Indians.” Dammed Indians, supra, at 65.
This destructive legacy lives on across the Dakotas today. As a result of the Corps’ operation of the Missouri River, the various lakes in North and South Dakota “experience huge fluctuations in their water levels.” Peter Capossela, Impacts of the Army Corps of Engineers’ PickSloan Program on the Indian Tribes of the Missouri River Basin, 30 J. Envtl. L. & Litig. 143, 188 (2015). “This has significant impacts on the water supply, aesthetics and natural environment [of the Great Plains] Tribal communities along the upper Missouri River . . . .” Id. The ability to use reserved water rights is also impacted by the Corps’ operation. Id. Consistently, the Corps favors “downstream navigation and water intakes, to the detriment of water uses on Indian reservations.” Id. at 197. Consequently, extremely low levels of water result in silt deposits that destroy public water systems on reservations and, in turn, cause the loss of water for weeks at a time. Id. The American Psychological Association has observed a link between the United States’ historical abuses, DAPL, and the mental well-being of Tribal citizens: “Research has linked historical trauma to health disparities, including increased likelihood of early death due to substance abuse, unintentional injuries, assault, homicide and suicide.” American Psychological Association, APA Urges Trump Administration to Safeguard Standing Rock Sioux in Response to Memorandum on Dakota Access Pipeline (Jan. 26, 2017), http://www.apa.org/news/press/releases/2017/01/trumpdakota-pipeline.aspx.
This case is yet another instance of the Corps running roughshod over the Tribes’ treaty rights while non-Natives receive the benefit. Having concluded more than two years ago that the Corps’ decision was “potentially lawful but insufficiently or inappropriately explained,” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 282 F. Supp. 3d 91, 103 (2017) (“Standing Rock
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IV”) (quoting Radio Television News Directs Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999)), this Court gave the Corps ample opportunity to provide an explanation fulfilling NEPA’s requirements. Standing Rock IV, 282 F. Supp. 3d at 98. The Court even suggested ways in which the Corps could cure its errors. Id. at100. At the same time, the Court set the expectation that “the Corps not [] treat remand as an exercise in filling out the proper paperwork post hoc.” Id. at 109. Yet, that is precisely what the Corps did and, even with a court-provided roadmap, the Corps still came up short – again. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, No. 16-1534, 2020 WL 1441923, at *16 (D.D.C. Mar. 25, 2020) (“Standing Rock V”).
The consequences to the Tribes are not merely theoretical or abstract. The Treaties of Fort Laramie created a permanent homeland for these Tribal citizens, and reserves to them fish and game resources necessary to sustain them. Fort Laramie Treaty of 1851, arts. 5, 11 Stat. 749; Treaty of Fort Laramie with the Sioux, 15 Stat. 635, art. 2 (1868); Standing Rock V, 2020 WL 1441923, at *2. The waters of Lake Oahe support not only the Tribes’ treaty-reserved fish and game resources, but are also vital for “drinking, agriculture, industry, and sacred religious and medicinal practices.” See Standing Rock V, 2020 WL 1441923 at *3. It is clear that the flow of oil through this pipeline was predicated on a flawed process, which did not consider impacts to the Tribes’ rights. Consequently, the Corps’ imperiled the Tribes’ treaty-guaranteed resources without understanding the magnitude of the risk. Moreover, at bottom, the Corps’ insistence on opening the pipeline created the purported reliance interests that Dakota Access and its amici now beg this Court to preserve. They would not be in that position if the Corps had simply followed the law rather than hastily opening the pipeline.
Remanding without vacatur would once again elevate non-Native pecuniary interests above the Tribes’ legal rights.
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II. VACATUR ENFORCES NEPA IN A MANNER THAT PROTECTS TRIBAL TREATY RIGHTS AND HOLDS AGENCIES ACCOUNTABLE FOR THEIR TRIBAL TRUST OBLIGATIONS.
Protection of the Tribes’ treaty-reserved rights and NEPA’s procedural requirements are inextricably tied. As their trustee, the federal government owes a fiduciary obligation to Indian tribes. See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 788 (9th Cir. 2006); Colette Routel & Jeffrey Holth, Toward Genuine Tribal Consultation in the 21st Century, 46 U. Mich. J.L. Reform 417 (2013). At a minimum, this fiduciary obligation requires the government to demonstrate “compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” Pit River Tribe, 469 F.3d at 788 (quoting Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 574 (9th Cir. 1998)). NEPA requires an agency to take a “hard look” at issues affecting a tribe’s reserved rights when considering the environmental consequences of a proposed action. See Okanogan Highlands All. v. Williams, 236 F.3d 468, 480 (9th Cir. 2000); Edwardsen v. U.S. Dep’t of Interior, 268 F.3d 781, 785 (9th Cir. 2001); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 809 (9th Cir. 1999) (EIS must examine probable environmental consequences, including consideration of a tribe’s reserved rights); see also Standing Rock V, 2020 WL 1441923, at *2 (citing Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101, 130-32 (D.D.C. 2017) (“Standing Rock III”)). Hence, violation of NEPA requirements constitutes a failure of the federal government to meet its minimum fiduciary obligations to Indian tribes. Pit River Tribe, 469 F.3d at 788.
Robust judicial enforcement of NEPA is, therefore, key to ensuring thorough examination of the effects of agency action on tribal treaty resources. Timing is of the utmost importance in order for NEPA to achieve its goals through procedural mechanisms. See Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (“If any ‘significant’ environmental impacts might result
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from the proposed agency action then an EIS must be prepared before the action is taken.” (emphasis in original)); Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002); Standing Rock V, 2020 WL 1441923, at *2. For example, a chief function of NEPA’s procedural requirements is to facilitate informed public comment on the proposed action and alternatives that might cause less harm. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996); Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005); 42 U.S.C. § 4332(E); 40 C.F.R. § 1500.1(c); see also Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior, 608 F.3d 592, 601–02 (9th Cir. 2010). However, a post hoc EIS, developed after agency action is taken, denies meaningful public input and may deprive the agency of critical data and information regarding less harmful alternatives. This type of “ready, fire, aim” approach risks creating a hazard that may not be fully understood – precisely the folly that NEPA’s ordered procedural requirements were enacted to avoid.
Such is the case at bar. The Tribes set forth numerous scientific critiques that highlight the hazards posed by oil flowing through the pipeline, but the Corps gave them short shrift and, as this Court concluded, did not adequately examine them under NEPA’s lens. Standing Rock V, 2020 WL 1441923, at *16. Expert reports showed the leak detection systems employed by DAPL fail 80% of the time. Id. at *9. Moreover, the pipeline’s design allows for about 25,200 gallons/day to be released, over a long period of time, without detection. Id. The Corps response that the leak would be detected in some unspecified period of time was, in this Court’s words, “less than reassuring.” Id. at *10. Despite these concerns being repeatedly raised, the Corps attorney said that “there was no particular reason that they didn’t look at a slow leak” scenario. Id.
The Corps, likewise, did not account for the historic performance of the operator. Id. at *10-11. Perhaps it was because the operator’s history “did not inspire confidence.” Id. at 10. From
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2006-2016, Sunoco experienced 276 incidents, resulting in over $53 million in property damage. Id. Rather than give this data a “hard look,” as NEPA requires, the Corps “focused its responses on defending the operator’s performance record” and offered “form language” responses to these critiques. Id. at *10-11.
Not only did the Corps gloss over failure rates and operator performance, serious concerns about spill response have gone unrebutted. Id. at *11. And perhaps worst of all, the Corps did not adequately analyze the maximum amount of oil that could possibly leak from the pipeline before a spill is detected and stopped. Id. at *14-15.
At best the Corps is flying blind, and at worst it swept crucially important scientific critiques under the rug. Either way, it fell short of the robust analysis mandated by NEPA, and its abdication leaves the Tribes’ treaty resources imperiled. Further, it is far from certain that the Corps will be able to resolve these scientific controversies on remand, especially in light of the fact that their past responses were so woefully inadequate, despite ample opportunity to (again) provide this Court with an improved analysis and explanations. See Id. at *16 (describing Corps past opportunities to supplement its analysis). Ultimately, “[v]acatur ensures that the project will proceed only with the benefit of a fully fleshed out consideration of the issues required by NEPA[,]” Friends of the Capital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 60 (D.D.C. 2016), which includes the Tribes’ treaty rights.
The nature of the Tribes’ rights in this case also counsels in favor of vacatur. Analogously, several courts have concluded that Tribal treaty rights warrant unique protection in the preliminary injunction context because harm to them is presumed to be irreparable. See United States v. Michigan, 508 F. Supp. 480, 492 (W.D. Mich. 1980), aff’d, 712 F.2d 242 (6th Cir. 1983); Nez Perce Tribe v. U.S. Forest Serv., No. 3:13-CV-348-BLW, 2013 WL 5212317, at *7 (D. Idaho
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Sept. 12, 2013) (“The plaintiffs are not seeking damages; they are seeking to preserve their Treaty rights along with cultural and intrinsic values that have no price tag.”). Such is the case here: oil spills from DAPL threaten destruction of the subject of their treaty rights (fish and game). When these most basic, treaty-guaranteed rights to food and a homeland are imperiled, it is prudent to remove the hazard while significant scientific controversies are resolved.
Moreover, under these circumstances, shutting off the flow of oil in the pipeline is a modest and reasonable remedy. Unlike Semonite, “Plaintiffs are not asking for the pipeline itself, or for any existing infrastructure, to be dismantled.” Compare Standing Rock IV, 282 F. Supp. 3d at 107 with Semonite, 422 F. Supp. 3d at 100. Instead, the Tribes seek removal of the hazard – the presence of which was facilitated by the Corps’ NEPA violation. Vacatur is a prudent safety measure, which holds the agency accountable for its statutory and tribal trust obligations. Without vacatur, the Corps has little incentive to act expeditiously, see Kristina Daugirdas, Evaluating Remand Without Vacatur: A New Judicial Remedy for Defective Agency Rulemakings, 80 N.Y.U. L. Rev. 278, 302-305 (2005) (analyzing cases where agencies did not prioritize remand when there was no vacatur), thus potentially exposing the Tribes to the hazard ad infinitum and compounding the consequences of the Corps’ error.
The rejoinder of the Corps and Dakota Access that “the risk of an oil spill is low” merely invites this Court to share in their myopia. It completely misses the central, unresolved question: the potential magnitude of an oil spill should it occur. Likewise, their alarmist assertions about the financial impact of shutting off the pipeline are predictable arguments in Indian treaty cases. Most courts see it for what it is: profiting at the expense of Indians. Many cases involving tribal treaty rights similarly require costly outlays to remedy interference with those legal rights. See, e.g., United States v. Washington, 864 F.3d 1017 (9th Cir. 2017) (denying en banc review where state
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projected $1.88 billion cost to remediate infrastructure installed in violation of tribal treaty rights). The solution is clear and simple: do not imperil Tribal treaty rights in the first instance. Give treaty rights due consideration and analysis in advance and develop mitigation measures where necessary. Engage in Tribal consultation early in the planning process, so that there is a clear understanding of tribal rights, interests, and concerns. Looked at in this light, “stop, look, and listen” statutes, such as NEPA, implemented with appropriate consultation procedures, protect the interests of all parties.
Vacatur incentivizes an ordered process that analyzes possible environmental harms – including to Indian treaty resources – and develops mitigation measures where necessary in advance, just as the statute requires. Conversely, remanding without vacatur transforms a process protective of tribal rights into an exercise in clerical tidying up. It would allow the Corps to disregard its obligations entirely and signal to federal agencies that they can ignore Tribal treaty rights and federal trust obligations in approving projects and later simply invoke the rejoinder of “disruptive consequences” to absolve themselves. This is a far cry from NEPA’s procedural design of considering impacts on tribal rights in advance of making a decision, and is certainly not how great nations keep their word. See Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting) (“Great nations, like great men, should keep their word.”).
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CONCLUSION For the foregoing reasons, Amici Curiae respectfully request that this Court issue the standard remedy and vacate the easement on remand to the Corps. Respectfully submitted this 20th day of May, 2020.
/s/ Matthew Lee Campbell Matthew Lee Campbell, D.C. Bar No. CO0060 NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax: (303) 443-7776 mcampbell@narf.org Joel West Williams, D.C. Bar No. 1023016 NATIVE AMERICAN RIGHTS FUND 1514 P Street, NW (Rear) Suite D Washington, DC 20005 Tel: (202) 785-4166 Fax: (202) 822-0068 williams@narf.org Attorneys for Amici Curiae
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CERTIFICATE OF COMPLIANCE Pursuant to Rules 29(a)(4)(G) and 32(g)(1) of the Federal Rules of Appellate Procedure and LCvR 7(o)(5), I hereby certify that the foregoing AMICUS CURIAE BRIEF OF THE GREAT PLAINS TRIBAL CHAIRMEN’S ASSOCIATION, NATIONAL CONGRESS OF AMERICAN INDIANS FUND, INTER-TRIBAL ASSOCIATION OF ARIZONA, MIDWEST ALLIANCE OF SOVEREIGN TRIBES, UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY PROTECTION FUND, AFFILIATED TRIBES OF NORTHWEST INDIANS, ASSOCIATION ON AMERICAN INDIAN AFFAIRS, AND 28 INDIAN TRIBES SUPPORTING A VACATUR REMEDY, filed on May 20, 2020, complies with LCvR 7(o)(4) because it does not exceed 25 pages.
/s/ Matthew Lee Campbell Matthew Lee Campbell, D.C. Bar No. CO0060 NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax: (303) 443-7776 mcampbell@narf.org
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CERTIFICATE OF SERVICE
I hereby certify that, on the 20th day of May, 2020, a copy of the foregoing AMICUS CURIAE BRIEF OF THE GREAT PLAINS TRIBAL CHAIRMEN’S ASSOCIATION, NATIONAL CONGRESS OF AMERICAN INDIANS FUND, INTER-TRIBAL ASSOCIATION OF ARIZONA, MIDWEST ALLIANCE OF SOVEREIGN TRIBES, UNITED SOUTH AND EASTERN TRIBES SOVEREIGNTY PROTECTION FUND, AFFILIATED TRIBES OF NORTHWEST INDIANS, ASSOCIATION ON AMERICAN INDIAN AFFAIRS, AND 28 INDIAN TRIBES SUPPORTING A VACATUR REMEDY was filed through the Court’s CM/ECF management system and electronically served on counsel of record.
/s/ Matthew Lee Campbell Matthew Lee Campbell, D.C. Bar No. CO0060 NATIVE AMERICAN RIGHTS FUND 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax: (303) 443-7776 mcampbell@narf.org
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Case 1:16-cv-01534-JEB Document 533 Filed 05/21/20 Page 22 of 23 APPENDIX A

Case 1:16-cv-01534-JEB Document 533 Filed 05/21/20 Page 23 of 23
LIST OF AMICI CURIAE
Federally Recognized Indian Tribes
Bay Mills Indian Community Confederated Salish and Kootenai Tribes of the Flathead Reservation Confederated Tribes of Siletz Indians of Oregon Confederated Tribes of the Umatilla Indian Reservation Hoonah Indian Association Kaw Nation Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas Little River Band of Ottawa Indians Little Traverse Bay Bands of Odawa Indians Lower Brule Sioux Tribe Lytton Rancheria of California Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan (a/k/a the Gun Lake Tribe) Nez Perce Tribe Nottwaseppi Huron Band of the Potawatomi Pascua Yaqui Tribe Pokagon Band of Potawatomi Indians, Michigan and Indiana Ponca Tribe of Nebraska Pueblo of Tesuque, New Mexico Red Lake Band of Chippewa Indians Rosebud Sioux Tribe Sault Ste. Marie Tribe of Chippewa Indians Shoshone-Bannock Tribes of the Fort Hall Reservation Stillaguamish Tribe of Indians Stockbridge-Munsee Community Shoalwater Bay Indian Tribe Wichita and Affiliated Tribes Winnebago Tribe of Nebraska Yurok Tribe
Tribal Organizations
Affiliated Tribes of Northwest Indians Association on American Indian Affairs Great Plains Tribal Chairmen’s Association Inter-Tribal Association of Arizona Midwest Alliance of Sovereign Tribes National Congress of American Indians Fund United South and Eastern Tribes Sovereignty Protection Fund

 
 Case 1:17-cv-00267-JEB Document 1 Filed 02/11/17 Page 1 of 34

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

OGLALA SIOUX TRIBE P.O. Box 2070 Highway 18, Main St. Pine Ridge, SD 57770
PLAINTIFF,
v.
U.S. ARMY CORPS OF ENGINEERS 441 G Street NW Washington, DC 20314-1000
DEFENDANT.

) ) ) ) ) ) ) ) Civil Action No. 17-____________ ) COMPLAINT ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. Plaintiff Oglala Sioux Tribe (Tribe), a federally recognized tribe, for its causes of action against the Defendant named above, alleges as follows:
INTRODUCTION AND SUMMARY 2. This is a complaint for declaratory and injunctive relief to stop the construction and operation of the Dakota Access Pipeline (DAPL) until the Defendant United States Army Corps of Engineers (Corps) completes an environmental impact statement (EIS) that fully analyzes the impacts of the DAPL to the Tribe’s Treaty rights and rights in the Mni Wiconi Project as required by the National Environmental Policy Act (NEPA) and the Mineral Leasing Act (MLA). 3. DAPL is a crude oil pipeline that will carry up to 570,000 barrels per day. DAPL would cross the Missouri River at Lake Oahe, north (upriver) of the Tribe’s water intake that is

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part of the Mni Wiconi Project. The Mni Wiconi Project provides safe drinking water to the Tribe’s Pine Ridge Reservation as well as to the Rosebud Sioux Tribe, the Lower Brule Sioux Tribe, and the non-Indian West River/Lyman Jones Water District in South Dakota. The Mni Wiconi Project has a service area of about 12,500 square miles and provides a reliable source of potable water to a population of approximately 52,000 people, many of whom live on some of the poorest Indian reservations in the United States. The Oglala Sioux Rural Water Supply System, a component of the Project, is held in trust for the Tribe by the United States.
4. On July 25, 2016, the Corps issued some of the federal authorizations needed for the DAPL to cross Lake Oahe. Accompanying these authorizations, the Corps released a Final Environmental Assessment (EA) and finding of no significant impact (FONSI) that wrongly concluded that the Lake Oahe crossing did not have sufficient environmental impact to warrant preparation of an EIS. The EA/FONSI was deficient in many respects, including that it entirely failed to consider impacts to the Tribe’s Treaty- and statute-protected rights in the Missouri River and in the Mni Wiconi Project and failed to provide a reasoned analysis of spill risks or damage in the event of a spill.
5. The Tribe and other tribes along the Missouri River filed objections to the EA/FONSI and urged the Corps to conduct a full analysis of their statutory and Treaty rights in the Missouri River, which had not been done to date. In December 2016, the Assistant Secretary for the Army for Civil Works announced that the Army would conduct an EIS before granting DAPL’s owner the easement to cross Lake Oahe, and on January 18, 2017, the Army issued a Notice of Intent (NOI) to prepare the EIS. Days after taking office, however, on January 24, 2017, President Donald Trump ordered the Secretary of the Army to instruct the Assistant Secretary of the Army for Civil Works and the Corps to consider rescinding the NOI and to
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consider prior reviews, including the EA/FONSI, as fulfilling federal law. The Department of the Army forwarded to the Office of the Federal Register a notice rescinding the NOI on February 7, 2017—almost two weeks prior to the deadline for public comment on the NOI—and the Corps granted DAPL the easement on February 8, 2017.
6. The Tribe seeks a declaration that the EA/FONSI are inadequate and that the Corps must complete an EIS that analyzes impacts to the Tribe’s Treaty rights and its rights in the Mni Wiconi Project as required by NEPA and the Mineral Leasing Act (MLA). The Tribe also seeks a declaration that the Corps has breached its trust responsibility to the Tribe by failing to assess impacts to the Tribe’s Treaty water rights and the Mni Wiconi Project. The Tribe requests that the Court vacate the easement the Corps issued on February 8, 2017, and enjoin the Corps from issuing any further easements or other authorizations for the DAPL until an EIS is conducted that assesses impacts to the Tribe’s rights.
JURISDICTION AND VENUE 7. This Court has jurisdiction under 28 U.S.C. § 1331 because this case arises under the Constitution, laws, and treaties of the United States, including but not limited to the Treaty of Fort Laramie, 11 Stat. 749 (Sep. 17, 1851); the 1868 Sioux Nation Treaty, 15 Stat. 635 (Apr. 29, 1868); the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4370f; the Mineral Leasing Act, 30 U.S.C. §§ 181 et seq.; the Mni Wiconi Project Act of 1988, 102 Stat. 2566 (Oct. 24, 1988), as amended1 (Mni Wiconi Project Act); and the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq., which authorizes the Court to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. §
1 Pub. L. 103-434 (October 21, 1994); Pub. L. 105-277 (October 21, 1998); Pub. L. 106-53 (August 17, 1999); Pub. L. 107-367 (December 2, 2002); and Pub. Law 110-161 (December 26, 2007).
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706(2)(A)–(B). Jurisdiction also arises under 28 U.S.C. § 1362, which provides that “district courts shall have original jurisdiction of all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States”; § 2201, which provides for declaratory relief; and § 2202, which provides for “[f]urther necessary or proper relief based on a declaratory judgment.”
8. Venue in the District of Columbia is appropriate under 28 U.S.C. § 1391(e) because this is an action in which the Defendant is an agency of the United States and a substantial part of the events or omissions giving rise to the claim occurred within this judicial district.
PARTIES 9. Plaintiff Oglala Sioux Tribe is an Indian Nation that is part of the Oceti Sakowin (the Seven Council Fires), which is also known as the Great Sioux Nation. The Tribe is federally recognized and maintains a government-to-government relationship with the United States of America. 10. The Tribe is a party to the 1851 Fort Laramie Treaty, 11 Stat. 749, and the 1868 Sioux Nation Treaty, 15 Stat. 635. The DAPL would run through lands that are the Tribe’s aboriginal territory as well as its ancestral Treaty lands. The Tribe, along with its sister Sioux Tribes, has rights to the water in the Missouri River based on the 1851 and 1868 Treaties. 11. The current boundaries of the Tribe’s territory, known as the Pine Ridge Indian Reservation, were created by the Act of March 2, 1889, 25 Stat. 888. The Tribe’s Reservation is downstream from Lake Oahe, where the DAPL threatens to cross the Missouri River. The Tribe operates the Oglala Sioux Rural Water Supply System, a part of the Mni Wiconi Project, which
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draws water from the Missouri River and provides drinking water to the Pine Ridge Indian Reservation as well as to the Rosebud Sioux Reservation, Lower Brule Sioux Reservation, and the non-Indian West River/Lyman Jones Water District.
12. Defendant U.S. Army Corps of Engineers is an agency in the Executive Branch of the Federal government and a division of the Department of the Army. It is charged with regulating any dredging and filling of the waters of the United States under § 404 of the Clean Water Act and § 10 of the Rivers and Harbors Act. It also has the authority to issue rights-ofway or easements for pipeline purposes for the transportation of oil through federal land over which it has jurisdiction under the Mineral Leasing Act. 30 U.S.C. § 185.
RELEVANT LAW I. THE 1851 FORT LARAMIE TREATY AND 1868 SIOUX NATION TREATY
13. The Oceti Sakowin (The Seven Council Fires or Great Sioux Nation) is composed of seven divisions of Lakota, Dakota, and Nakota speaking peoples. The Oglala (Scatters His Own) are one of the Lakota bands.
14. In 1851, the United States signed the Treaty of Fort Laramie with several divisions of the Oceti Sakowin, including the Oglala. Treaty of Fort Laramie, 11. Stat. 749 (Sep. 17, 1851). The 1851 Treaty of Fort Laramie was a peacetime Treaty. The United States sought the Treaty to facilitate westward migration, ensuring passage from the Missouri basin to the West Coast. In consideration for agreeing to allow the United States to build roads and outposts within Indian lands, the United States agreed to “bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the people of the said United States.” Id. at arts. 2–3. The Treaty recognized 60 million acres as the territory of the Great Sioux Nation, “commencing the mouth of the White Earth River, on the Missouri River; thence in a
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southwesterly direction to the forks of the Platte River; thence up the north fork of the Platte River to a point known as the Red Bute, or where the road leaves the river; thence along the range of mountains known as the Black Hills, to the head-waters of Heart River; thence down Heart River to its mouth; and thence down the Missouri River to the place of beginning.” Id. at art. 5. The Tribe and its members retained the right to access clean water in the several bodies of water within this territory reserved for their use, including the Missouri River and its tributaries.
15. After the United States violated the 1851 Treaty by allowing incursions by nonIndians settlers on Great Sioux Nation land, war broke out between the United States and the Great Sioux Nation. The United States sought to end this war by signing the 1868 Sioux Nation Treaty with several bands of the Great Sioux Nation, including the Oglala. Within the previously recognized 60 million acre Treaty territory, the 1868 Treaty further demarcated a 26 million acre reservation “for the absolute and undisturbed use and occupation” of the signatory tribes. Sioux Nation Treaty, 15 Stat. 6435, art. 2 (Apr. 29, 1868). That reservation was called the Great Sioux Reservation and included all of present day South Dakota west of the low water mark of the east bank of the Missouri River and adjacent lands in North Dakota. Id. The 1868 Treaty affirmed a permanent homeland for the Great Sioux Nation, reserving to the Nation, without limitation, rights to water, natural resources, self-government, and all other rights necessary to make the Great Sioux Reservation a livable homeland, which the United States pledged to protect. II. THE ACT OF MARCH 2, 1889
16. After failing to uphold the terms of the 1868 Sioux Nation Treaty, the United States divided the lands of the Oceti Sakowin into separate reservations, creating the Pine Ridge Reservation for the Oglala Sioux Tribe. The Act of March 2, 1889 provided that the specified
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“tract of land, being a part of the Great Reservation of the Sioux Nation, in the Territory of Dakota, is hereby set apart for a permanent reservation for the Indians receiving rations and annuities at the Pine Ridge Agency, in the Territory of Dakota.” 25 Stat. 888 § 1 (Mar. 2, 1889).
17. The creation of the Pine Ridge Reservation reserved, without limitation, rights to water, natural resources, self-government, and all other rights necessary to make the reservation a livable homeland. This reservation of territory included a reservation of water rights in the Missouri River. As the Supreme Court articulated in Winters v. United States, the creation of an Indian reservation impliedly reserves water rights to the tribe or tribes occupying the territory; those water rights are reserved to carry out the purposes for which the lands were set aside; and those rights are paramount to water rights later perfected under state law. 207 U.S. 564, 576–77 (1908). The Tribe enjoys reserved water rights to the waters in the Missouri River and its tributaries, including sufficient water to fulfill the purpose of the reservation to provide for a permanent livable homeland. The Tribe’s reserved waters rights “are vested property rights for which the United States has a trust responsibility, with the United States holding legal title to such water in trust for the benefit of the Indians.” Notice, Department of the Interior, Working Group in Indian Water Settlements, Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 Fed. Reg. 9223, 9223 (Mar. 12, 1990). III. THE MNI WICONI PROJECT ACT
18. In 1988 the United States created the Mni Wiconi Project to provide safe drinking water to the Pine Ridge Reservation and other Indian reservations, as well as to some rural counties in South Dakota. Mni Wiconi Project Act. In the Mni Wiconi Project Act, Congress issued the following findings:
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(1) there are insufficient water supplies available to residents of the Pine Ridge Indian Reservation in South Dakota, and the water supplies that are available do not meet minimum health and safety standards, thereby posing a threat to public health and safety;
(2) Shannon County, South Dakota, one of the counties where the Pine Ridge Indian Reservation, Rosebud Indian Reservation, and Lower Brule Indian Reservation is located, is the poorest county in the United States, and the lack of water supplies on the Pine Ridge Indian Reservation restricts efforts to promote economic development on the reservation;
(3) the lack of water supplies on the Rosebud Reservation and Lower Brule Reservation restrict efforts to promote economic development on those reservations;
(4) serious problems in water quantity and water quality exist in the rural counties of Haakon, Jackson, Jones, Lyman, Mellette, Pennington, and Stanley Counties, South Dakota;
(5) the United States has a trust responsibility to ensure that adequate and safe water supplies are available to meet the economic, environmental, water supply, and public health needs of the Pine Ridge Indian Reservation, Rosebud Indian Reservation, and Lower Brule Indian Reservation; and
(6) the best available, reliable, and safe rural and municipal water supply to serve the needs of the Pine Ridge Indian Reservation, Rosebud Indian Reservation, and Lower Brule Indian Reservation and the residents of Haakon, Jackson, Jones, Lyman, Mellette, Pennington, and Stanley Counties is the Missouri River.
Id. § 2(a)
19. Among the purposes of the Act are to “ensure a safe and adequate municipal,
rural, and industrial water supply for the residents of the Pine Ridge Indian Reservation, Rosebud
Indian Reservation and Lower Brule Indian Reservation in South Dakota,” and to “provide
certain benefits to fish, wildlife, and the natural environment of South Dakota, including the Pine
Ridge Indian Reservation, Rosebud Indian Reservation, and Lower Brule Indian Reservation.”
Id. §§ 2(b)(1), (4).
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20. The Act directed the Secretary of the Interior to “plan, design, construct, operate, maintain, and replace a municipal, rural, and industrial water system, to be known as the Oglala Sioux Rural Water Supply System.” Id. § 3(a). The system was authorized to include, among other things, pumping and treatment facilities located along the Missouri River, pipelines extending from the Missouri River to the Pine Ridge Indian Reservation, distribution and treatment facilities to serve the needs of the Pine Ridge Indian Reservation, and such facilities as the Secretary of the Interior deems necessary or appropriate to meet the water supply, economic, public health, and environmental needs of the reservation. Id. § 3(a). The construction and operation of this water supply system is carried out by the Tribe pursuant to self-determination cooperative agreements with the Secretary of the Interior as authorized by the Act. Id. § 3(h). This water supply system was placed in trust, with the Secretary of the Interior maintaining management and control over the trust corpus. The Act provides that the “[t]itle to the Oglala Sioux Rural Water Supply System shall be held in trust for the Oglala Sioux Tribe by the United States and shall not be transferred or encumbered without a subsequent Act of Congress.” Id. § 3(e). IV. THE FEDERAL TRUST RESPONSIBILTY
21. The general federal trust responsibility originates from the United States Constitution, Treaties, and the unique government-to-government relationship between tribes and the United States. The Supreme Court has acknowledged “the undisputed existence of a general trust relationship between the United States and the Indian people” that informs its interpretation of more specific statutes. United States v. Mitchell, 463 U.S. 206, 225 (1983).
22. Additionally, where legislation and regulations give “the Federal Government full responsibility to manage Indian resources … for the benefit of the Indians[, t]hey thereby
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establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” Id. at 224. “Moreover, a fiduciary relationship necessarily arises when the Government assumes such elaborate control over … property belonging to Indians.” Id. at 225.
23. Under the federal trust responsibility, the United States has a duty to conserve Indian lands, waters, and natural resources and to appropriately manage tribal natural resources. It is also the policy of the United States “that all Indian communities … be provided with safe and adequate water supply systems…” 25 U.S.C. § 1632(a)(5).
24. The federal trust responsibility stretches across all components of the United States government. The Corps has a trust responsibility to manage and protect trust property on behalf of the Tribe based generally in the Treaties and statutes governing the Tribe and its Reservation and the general trust doctrine. The Corps has recognized the federal trust responsibility to tribes in the operation of the Mainstem Reservoir System, of which Lake Oahe is a part, and in its Tribal Consultation Policy. U.S. Army Corps of Engineers, Tribal Consultation Policy (Nov. 1, 2012) (stating in Section 5(b): “The Trust responsibility will be honored and fulfilled.”). The Department of Defense, of which the Army and Corps are a part, has also recognized the federal trust responsibility. Department of Defense, “DoD Interactions with Federally-Recognized Tribes,” Instruction No. 4710.02 (Sept. 14, 2006) (stating in Section 4.1 that it is the Department’s policy “to [m]eet its responsibilities to tribes as derived from the Federal trust doctrine, treaties, and agreements between the United States and tribal governments….”).
V. THE CLEAN WATER ACT 25. The Clean Water Act (CWA) regulates discharges of pollutants into waters of the
United States and the quality of surface waters. 33 U.S.C. § 1251 et seq. The CWA was passed
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to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Id. § 1251(a). The CWA prohibits discharges of pollutants, including dredged soil or other fill, into waters of the United States without a permit. Id. §§ 1311(a), 1344(a)–(f).
26. Section 404(e) of the CWA allows the Secretary to issue general permits relating to the discharge of dredged or fill material. Id. § 1344(e); see also 33 C.F.R. Part 330. General permits may be issued on a nationwide basis for activities that are similar in nature and “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” Id. § 1344(e)(1). Prior to issuing a permit under Section 404, the Corps is required to conduct a public interest review. 33 C.F.R. § 320.4(a). VI. RIVERS AND HARBORS ACT
27. Section 10 of the Rivers and Harbors Act of 1899 (RHA) makes it unlawful “to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of” any navigable water without a permit from the Corps. 33 U.S.C. § 403. Tunneling under navigable waters requires a Section 10 permit from the Corps even when there will be no discharge into navigable waters. 33 C.F.R. § 322.2(a). A public interest review is required for issuing a Section 10 permit. Id. § 320.4(a). Section 14 of the RHA, codified at 33 U.S.C. § 408, and known as “Section 408,” makes it unlawful to “build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States” without a permit from the Corps. Prior to issuing a Section 408 permit, the Corps must determine whether the use or occupation will be injurious to the public interest or impair the usefulness of the project. 33 C.F.R. § 320.4(a), (g).
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VII. THE NATIONAL ENVIRONMENTAL POLICY ACT 28. NEPA, 42 U.S.C. §§ 4321–4370f, is our “basic national charter for protection of
the environment,” 40 C.F.R. § 1500.1(a), intended to assist the Federal Government “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; … [and] attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.” 42 U.S.C. §§ 4331(b)(1), (b)(3).
29. NEPA requires that environmental protection be considered in the interpretation and implementation of every federal agency mandate. 42 U.S.C. § 4332. It ensures that “environmental review procedures…run concurrently rather than consecutively” with other federal laws and agency practice. 40 C.F.R. § 1500.2(c).
30. NEPA imposes a mandatory procedural obligation on federal agencies to take a “hard look” at the potential environmental impacts of major federal actions before deciding to proceed with a proposed plan of action. 42 U.S.C. § 4332(C). It is intended to foster “excellent action” by ensuring that high quality and accurate “environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b)–(c). NEPA “guarantees that the relevant information [concerning significant environmental impacts] will be made available to the larger [public] audience that may also play a role in both the decision-making process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
31. NEPA mandates that federal agencies prepare an EIS if an agency action may have a significant impact on the environment. 40 C.F.R. § 1501.4. For the purposes of NEPA, an agency must consider “both context and intensity” in determining whether a proposed action
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may have significant impact on the environment. 40 C.F.R. § 1508.27. Context means that “the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality.” Id. Intensity refers to “the severity of impact,” which is determined based on, inter alia, the “degree to which the proposed action affects public health or safety,” “[u]nique characteristics of the geographic area,” and the “degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b)(2), (3), (5).
32. NEPA defines the scope of “actions, alternatives, and impacts” that a federal agency must consider in an EIS. 40 C.F.R. § 1508.25. The EIS must consider direct, indirect, and cumulative effects of the agency’s proposed action and alternatives. 40 C.F.R. § 1508.25(c). NEPA defines the “effects” of an agency action as including those impacts that are “ecological…aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.” 40 C.F.R. § 1508.8(b).
33. If an agency has doubts as to whether an action’s effects are significant, the agency may prepare an environmental assessment to better inform its decision-making process. 40 C.F.R. §§ 1501.4, 1508.9. If an agency determines that no EIS is required after a careful analysis of the available scientific and environmental information, it must explain that conclusion in a “finding of no significant impact” (“FONSI”). 40 C.F.R. §§ 1501, 1508.13.
34. The Council on Environmental Quality has advised that in some circumstances, including in some cases where environmental effects on tribal resources are at stake, agencies “should heighten agency attention to alternatives (including alternative sites), mitigation strategies, monitoring needs, and preferences expressed by the affected community or
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population.” Council on Environmental Quality, “Environmental Justice Under the National Environmental Policy Act,” at 10 (Dec. 10, 1997).
35. An EA is insufficient where an agency’s analysis is not more than a “conclusory presentation [that] does not offer any more than the kind of ‘general statements about possible effects and some risk’” which have been “held to be insufficient to constitute a ‘hard look.’” Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 995 (9th Cir. 2004) (internal citation omitted). An adequate EA must address the “unique characteristics” of a proposed agency action, including any “issue of uncertainty” as to the project’s potential impact on the human environment and surrounding ecosystem, Native Fish Soc’y v. Nat’l Marine Fisheries Serv., 992 F. Supp. 2d 1095, 1109 (D. Or. 2014), and potential cumulative impacts to avoid “impermissibly subject[ing] the decision-making process contemplated by NEPA to ‘the tyranny of small decisions’” that may otherwise result from a restricted EA analysis. Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1078 (9th Cir. 2002) (quoting the Council on Environmental Quality, “Considering Cumulative Effects Under the National Environmental Policy Act,” at 1 (Jan. 1997)). VIII. THE MINERAL LEASING ACT
36. Section 28 of the Mineral Leasing Act (MLA), 30 U.S.C. § 185, known as Section 185, provides federal agencies with the authority to grant rights-of-way over federal lands for pipeline purposes, including for oil and natural gas pipelines. Section 185 imposes specific environmental review and public hearing requirements, without altering the applicability of NEPA. 30 U.S.C. § 185(h)(1)–(2).
37. Under Section 185, if a right of way or permit has significant impact on the environment, an agency must require the applicant to submit a plan of construction, operation,
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and rehabilitation. Id. § 185(h)(2). Further, Section 185 requires the Secretary of the Interior or “agency head” to:
issue regulations or impose stipulations which shall include, but shall not be limited to: (A) requirements for restoration, revegetation, and curtailment of erosion of the surface of the land; (B) requirements to insure that activities in connection with the right-of-way or permit will not violate applicable air and water quality standards nor related facility siting standards established by or pursuant to law; (C) requirements designed to control or prevent (i) damage to the environment (including damage to fish and wildlife habitat), (ii) damage to public or private property, and (iii) hazards to public health and safety; and (D) requirements to protect the interests of individuals living in the general area of the right-of-way or permit who rely on the fish, wildlife, and biotic resources of the area for subsistence purposes. Id. The regulations are required to apply to every right-of-way or permit granted pursuant to Section 185. Id. 38. Section 185 defines “agency head” as “the head of any Federal department or independent Federal office or agency … which has jurisdiction over Federal lands. Id. § 185(b)(3). Section 185(k) requires that the Secretary or agency head by regulation “establish procedures, including public hearings where appropriate, to give Federal, State, and local government agencies and the public adequate notice and an opportunity to comment upon right-of-way applications.” Id. § 185(k). IX. ADMINISTRATIVE PROCEDURE ACT 39. The Administrative Procedure Act authorizes courts reviewing agency actions to hold unlawful and set aside final agency actions that are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law” or that are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)–(B).
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40. The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” Id. at § 702.
FACTUAL ALLEGATIONS I. INTERESTS OF THE OGLALA SIOUX TRIBE
41. The waters of the Missouri River are sacred to the Tribe. These waters give life to all of the creatures and plants on the Tribe’s lands. The Tribe has Treaty- and statuteprotected property rights to the waters of the Missouri River.
42. The Tribe operates the Oglala Sioux Rural Water Supply System of the Mni Wiconi Project under a self-determination cooperative agreement entered into with the Secretary of the Interior pursuant to Sections 3(b) and 3(h) of the Mni Wiconi Project Act. The Mni Wiconi Project provides clean drinking water to the Tribe’s Pine Ridge Reservation as well as to the Rosebud Sioux Tribe, the Lower Brule Sioux Tribe, and non-Indian West River/Lyman Jones Water District in South Dakota. The Mni Wiconi Project has a service area of about 12,500 square miles and provides a reliable source of potable water to a population of approximately 52,000 people, many of whom live on some of the poorest Indian reservations in the United States. The Bureau of Reclamation in the Department of the Interior is the funding agency for the Project. The Federal Government has invested at least $450 million in the Project to date and will continue to annually fund operations and maintenance costs.
43. The Project draws water from the Missouri River, downstream from the easement granted for DAPL. The Tribe is deeply concerned about the risk of a DAPL spill and the threat that the 570,000 barrels per day pipeline poses to its sacred Treaty- and statute-protected waters. A crude oil spill from the DAPL into Lake Oahe would damage the ecology of the river basin,
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impair the Tribe’s rights, and contaminate the drinking water of the Tribe’s citizens. The Mni Wiconi Project does not have the capacity to treat water contaminated by petroleum products, and would have to shut down in the event of a spill, removing access to clean drinking water to the 52,000 individuals it serves.
II. PERMITTING OF THE LAKE OAHE CROSSING 44. In February 2012, the Corps issued Nationwide Permit (NWP) 12, governing
“utility line activities.” 77 Fed. Reg. 10184, 10271 (Feb. 21, 2012). NWP 12 authorizes the “construction, maintenance, repair and removal of utility lines and associated facilities” in waters of the United States, and utility lines are defined to include “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose.” Id.
45. Dakota Access has used NWP 12 to seek authorization of the DAPL. The DAPL would pass through the Tribe’s aboriginal, ancestral lands and would cross the Missouri River under Lake Oahe, which is a dammed section of the Missouri River upstream from the Tribe’s Reservation. The DAPL will involve dredge and/or fill of navigable waters of the United States.
46. In November 2015, the Corps issued a Draft Environmental Assessment (Draft EA) for the DAPL. The Draft EA did not assess impacts to the Tribe’s Treaty-protected water rights or to the Mni Wiconi Project.
47. The Corps received comments on the Draft EA from the general public and from state and federal agencies. The Environmental Protection Agency (EPA) sent two comment letters to the Corps. The first, dated January 8, 2016, stated as its main concern that the Draft EA lacked sufficient analysis of direct and indirect impacts of DAPL on the Lake Oahe crossing on water resources. The EPA specifically stated that the impacts from potential spills to water quality must be analyzed and that emergency measures to detect, limit and respond to spills must
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be addressed. Further, the EPA stated that the water resources impacts section of the EA should be expanded to discuss affected water resources and potential impacts from construction and operation of the DAPL for the segment of the pipeline covered by the North Dakota EA.
48. EPA’s second comment letter on the Draft EA, dated March 11, 2016, recommended that the Corps prepare a revised Draft EA and provide a second public comment period based on the potential impacts to drinking water supplies along the Missouri River. The EPA specifically mentioned concern for tribes downstream of the Lake Oahe crossing with public water supply intakes on the Missouri River, including the Oglala Sioux Tribe and the Mni Wiconi Project. The EPA stated that based on the potential impacts, “[t]he revised Draft EA should disclose potential impacts to downstream water supplies from leaks and spills and include the water systems in emergency preparedness training.” The EPA also recommended that the Corp’s NEPA analysis provide more information regarding detection and shutoff of the DAPL in the event of a spill or leak, consider alternative emergency detection systems, provide further information on its evaluation of alternate routes with reduced potential impact to water resources and drinking water supplies, and complete a more thorough environmental justice analysis. The EPA also noted that consultation with affected tribal communities was limited to historic and cultural property concerns, and no tribes were listed as having been consulted as part of federal, state, tribal, and local agency consultation and coordination.
49. The Standing Rock Sioux Tribe, whose reservation is downriver just one-half mile from the DAPL crossing, submitted comments on the Draft EA. The Standing Rock Sioux Tribe stated that the Draft EA failed to adequately address potential impacts to Lake Oahe, and it urged the Corps to prepare an EIS, and to engage in consultation with it and other tribes, as required by law.
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50. On March 29, 2016, the Department of the Interior (DOI) sent a letter to the Corps requesting that it prepare an EIS, stating that “the potential impact on trust resources in this particular situation necessitates full analysis and disclosure of potential impacts through the preparation of the EIS.” DOI also concurred with the March 11, 2016 comments of the EPA. Further, DOI also objected that the Corps had not adequately justified its conclusion that there would be no significant impacts on the surrounding environment and community.
51. The Corps did not prepare an EIS. On July 25, 2016, the Corps issued CWA and RHA authorizations and verifications that NWP 12 terms were met for the DAPL to cross Lake Oahe. Accompanying this authorization, the Corps released a Final EA and FONSI. The FONSI concluded that the Lake Oahe crossing would not significantly impact the human environment and that preparation of an EIS was not warranted.
52. The Corps failed to consult with the Tribe on potential impacts of the project on the risk of spill and potential impacts to its Treaty protected water rights or the Mni Wiconi Project prior to issuance of the Final EA and FONSI. The Final EA did not assess potential impacts to the Tribe’s Treaty-protected water rights or statute-protected rights in the Mni Wiconi Project, nor did it include the Mni Wiconi Project or the Oglala Sioux Rural Water Supply System in its emergency preparedness planning. The EA failed to address whether any of the proposed mitigation measures would mitigate such impacts. Additionally, the EA’s analysis was deficient in considering many aspects of the DAPL that are of concern to the Tribe.
53. The EA contains a facially inconsistent and inadequate consideration of the proposed alternatives routes to cross the Missouri River. The Corps initially considered crossing the Missouri River north of Bismarck, but abandoned that alternative after determining it would pose a risk to wellheads and water intakes that service the population of Bismarck, North
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Dakota. The EA justified abandoning that approach in part because the Bismarck route “crossed other populated PHMSA high consequence areas (HCAs), that are not present on the preferred (Lake Oahe) route.” In Table 2-1, where the EA compares the impact of a spill from the Bismarck alternative to the Lake Oahe alternative, the EA states there are no drinking water HCAs at the Lake Oahe crossing that would be impacted. Yet elsewhere in the EA, the Corps notes that a worst case consequence scenario as a result of a spill at the Lake Oahe crossing would be ranked high “because several drinking water intake High Consequence Areas (HCAs) and multiple ecologically sensitive HCAs could be impacted.” The EA fails to adequately state or consider what those consequences might be, or whether they would constitute significant impacts to the environment.
54. The EA fails to adequately compare the Bismarck alternative crossing with the Lake Oahe crossing by failing to adequately assess the risk a spill would have on the Tribe’s Treaty- and statute-protected rights to drinking water in the Lake.
55. The EA dramatically underestimates the total volume of oil that would likely be released in the event of a spill. The EA is deficient in that it concludes that the most likely spill volume is 4 bbl or less. But the data relied upon for that assumption includes spills from pipelines of all sizes, not spills from large diameter pipelines. The EA indicates that the pipeline is designed to convey 570,000 bbl of crude oil per day, which converts to a throughput of approximately 400 bbl per minute, or 6.6 bbl per second. The EA fails to explain why a spill of 4 bbl is “the most probable volume” for a spill from a pipeline with that capacity.
56. The EA fails to explain why it limited its worst case discharge estimates to an hour long spill. The EA fails to assess the risks of a spill longer in duration than a one-hour
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event and fails to assess how long a spill could continue in the event the spill detection technology DAPL plans to use fails to work, due an electrical shortage or otherwise.
57. The EA fails to explain why its estimated one-hour spill event would result in only 10,000 bbl of oil spilled. With a throughput of 400 bbl per minute, a five minute spill would result in a release of 2,000 bbl, an hour long spill would result in a release of 24,000 bbl, and a 24-hour spill would result in a release of 570,000 bbl. The EA includes a discussion of a worst case discharge scenario in the facility response plan in Appendix L of the EA, but the relevant portions of that plan are blacked out, and upon information and belief, those sections do not adequately address risk of a discharge at the Lake Oahe crossing site or impacts to downstream water users like the Tribe and the Mni Wiconi Project.
58. The EA fails to explain why it considered benzene to be “commonly considered to pose the greatest toxicity threat from crude oil spills” when a number of studies indicate that crude oil itself, as well as its other constituent compounds like ethylbenzene, p-xylene and PAHs are generally more toxic than benzene.
59. The EA erroneously concludes there would be no significant impact by comparing benzene concentrations that would result from a spill to an acute toxicity standard for aquatic organisms and the EPA’s drinking water standards, rather than against a more appropriate No Observed Adverse Effect Level and the legally applicable standard benzene contamination established by the states of North and South Dakota.
60. The EA compares the risk of benzene contamination at the Lake Oahe crossing against an Acute Toxicity Threshold for aquatic organisms of 7.4 ppm, which it claims is the “lowest acute toxicity threshold for aquatic organisms.” The EA fails to state which organism this threshold is based on. The EA should have, but failed to use, the standard approach for an
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ecological risk assessment using a concentration known as the No Observed Adverse Effect Level (NOAEL), or in the absence of such a level, the Lowest Observed Adverse Effect Level (“LOAEL”). The NOAEL for benzene established by the Savanah River National Laboratory is 46 ug/l (which translates to 0.046 ppm). The National Oceanic and Atmospheric Administration chronic concentration level for benzene is the same. At a throughput of 400 bbl per minute, a spill of less than three minutes would result in 1,000 bbl spilled. The EA’s estimated concentration levels for benzene for a spill of 1,000 bbl (0.17 ppm) would far exceed the NOAEL level of 0.046 ppm for benzene.
61. Similarly, the EA uses the incorrect drinking water standard for benzene. It uses an EPA maximum contaminant level (MCL) standard for drinking water of 0.005 mg/L, rather than the applicable water quality standard for Lake Oahe contained in Section 33-16-02.1 of the North Dakota Administrative Code of 2.2 ug/L (which translates to 0.0022 mg/L). The EA’s benzene spill contamination estimates for spills of 100 bbl, 1000 bbl and 10,000 bbl are all far in excess of the applicable legal standard for benzene of 0.0022 mg/L. The EA’s conclusion that a spill would not pose any significant impact is legally deficient because the EA failed to measure estimated contamination levels against the applicable legal standard, or even consider the applicable legal standard.
62. The EA failed to recognize that a spill would render the water of Lake Oahe and the Missouri River unfit for human consumption and require remediation that would take months or years to complete. Although the Corps did consider the risks to drinking water due to an inadvertent spill, it relied on “site specific GRPs” (Geographic Response Plans) that were submitted to the Corps as “Privileged and Confidential” and, therefore, were not part of the public comment process. Upon information and belief, these site specific GRPs do not
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adequately mitigate against the risks of a spill, and do not include the Tribe or the Mni Wiconi Project in any spill response planning.
63. The EA states that in the event of a spill, Dakota Access would consider providing alternate sources of drinking water and/or shutting down intakes and using bottled water. The EA fails to consider the feasibility, practicality, and the cost of providing bottled water to the 52,000 individuals who rely on the Mni Wiconi Project for drinking water. The EA also fails to consider the cost a spill would have on water treatment facilities that currently do not have the capacity to treat for benzene or hydrocarbon contamination or the costs associated with providing drinking water to the individuals who would be without drinking water in the event of a spill.
64. The EA fails to adequately assess how mitigation measures would reduce risk of spills. The EA states that in the event of a spill, Dakota Access “would work aggressively to isolate the source through the use of remote-controlled shut-off valves, initiate cleanup activities, and contact appropriate federal and state authorities to coordinate leak containment and cleanup activities.” These actions are insufficient to mitigate impacts associated with oil spills of the magnitudes that are well within the range of likely outcomes if a spill occurs. Moreover, the EA simply lists mitigation measures without assessing whether and how those mitigation measures are effective and whether they would reduce the risk to a sufficient degree to avoid a significant impact.
65. The EA fails to adequately consider risks to the pipeline from scouring of the lakebed and from landslide activity.
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66. The EA fails to provide two documents the Corps relied upon, the “Lake Oahe Spill Model Discussion Report” and the “Lake Oahe HDD Risk Analysis Report,” and as a result critical information regarding spill modeling was not made available for the public to review.
67. Additionally, the Corps never performed an EA for the easement itself. The EA and FONSI deal exclusively with granting the Section 408 permissions. The EA does not encompass the easement the Corps needs to grant for Dakota Access to drill under Lake Oahe pursuant to Section 185 of the Mineral Leasing Act. According to the Corps, no further NEPA compliance actions are required prior to the District granting the Section 408 permission for the Proposed Action. Yet the issuance of an easement under Section 185 is itself a “major federal action,” triggering NEPA review. Sierra Club v. U. S. Army Corps of Eng’rs, 990 F. Supp. 2d 9, 31 (D.D.C. 2013).
III. SUBSEQUENT ADMINISTRATIVE ACTION 68. On September 9, 2016, the Army, along with the Departments of Justice and
Interior, issued a statement that there were “important issues raised by the Standing Rock Sioux Tribe and other tribal nations and their members” regarding DAPL, and that the Corps “will not authorize constructing the [DAPL] on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under [NEPA] or other federal laws.”
69. The Tribe raised its concerns with the EA and FONSI in a September 25, 2016 letter to the President, Attorney General, Secretary of the Interior, and Secretary of the Army. The Tribe urged the denial of the easement, citing many of the deficiencies in the EA.
70. The Tribe also raised its concerns with the EA and FONSI in a December 3, 2016, letter to Jo-Ellen Darcy, the Assistant Secretary of the Army for Civil Works. This letter detailed
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the Tribe’s Treaty-and statute-protected rights and concerns with the EA/FONSI and was accompanied by an independent expert evaluation of the EA that outlined several deficiencies of the EA.
71. After hearing the Tribe’s concerns, and those of other tribes as well, the Corps on December 4, 2016, stated that it would not grant the easement for the DAPL to cross Lake Oahe on the then-current record and that it would prepare an EIS prior to granting the easement at the Lake Oahe crossing. The memorandum announcing the decision stated: “I have concluded that a decision on whether to authorize the [DAPL] to cross Lake Oahe at the proposed location merits additional analysis, more rigorous exploration and evaluation of reasonable alternatives, and greater public and tribal participation and comments as contemplated in the CEQ’s [NEPA] implementing regulations, 40 C.F.R. §1502.14 and §1503.1.” It also stated that the “robust consideration of reasonable alternatives that I am directing together with an analysis of potential spill risk and impacts, and Treaty rights, is best accomplished… by preparing an Environmental Impact Statement.”
72. On January 18, 2017, the Army published a Notice of Intent (NOI) to prepare an EIS in connection with DAPL’s request for the easement under Lake Oahe. 82 Fed. Reg. 5543 (Jan. 18, 2017). The NOI provided that the comment period on the notice would end on February 20, 2017, and that public scoping meetings would be announced at least fifteen days in advance. The NOI stated that the EIS would consider, at a minimum: (1) alternative locations for the crossing, (2) potential risks and impacts of an oil spill to Lake Oahe and the Standing Rock Sioux Tribe’s water intakes, (3) the Standing Rock Sioux Tribe’s Treaty rights in Lake Oahe.
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73. On January 20, 2017, President Donald J. Trump took office. On January 24,
2017, President Trump issued a memorandum entitled “Presidential Memorandum Regarding
Construction of the Dakota Access Pipeline.” The Presidential Memorandum 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:
(i) 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 rightsof-way to cross Federal areas under section 28 of the Mineral Leasing Act, as amended, 30 U.S.C. 185; permits or approvals under section 404 of the Clean Water Act, 33 U.S.C. 1344; permits or approvals under section 14 of the Rivers and Harbors Act, 33 U.S.C. 408; and such other Federal approvals as may be necessary;
(ii) consider, to the extent permitted by law and as warranted, whether to rescind or modify the memorandum by the Assistant Secretary of the Army for Civil Works dated December 4, 2016 (Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota), and whether to withdraw the Notice of Intent to Prepare an Environmental Impact Statement in Connection with Dakota Access, LLC’s Request for an Easement to Cross Lake Oahe, North Dakota, dated January 18, 2017, and published at 82 Fed. Reg. 5543;
(iii) consider, to the extent permitted by law and as warranted, prior reviews and determinations, including the Environmental Assessment issued in July of 2016 for the DAPL, as satisfying all applicable requirements of the National Environmental Policy Act, as amended, 42 U.S.C. 4321 et seq., and any other provision of law that requires executive agency consultation or review (including the consultation or review required under section 7(a) of the Endangered Species Act of 1973, 16 U.S.C. 1536(a));
(iv) review and grant, to the extent permitted by law and as warranted, requests for waivers of notice periods arising from or related to USACE real estate policies and regulations; and
(v) issue, to the extent permitted by law and as warranted, any approved easements or rights-of-way immediately after notice is provided to the Congress pursuant to section 28(w) of the Mineral Leasing Act, as amended, 30 U.S.C. 185(w).
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74. The Acting Secretary of the Army, Robert Speer, on January 31, 2017, via memorandum instructed the Corps to “take all actions necessary and appropriate to full and unequivocally comply with the specific directives listed in subparagraphs (a)(i) thru (a)(v) of [Section 2(a) of the Presidential Memorandum].” Mr. Speer acknowledged in his Memorandum the “sensitive issues and legal challenges that lie ahead regarding the approval of the remaining easement” pursuant to the Mineral Leasing Act.
75. The Tribe submitted comments in response to the NOI. By letter dated January 30, 2017, the Tribe stated that the EIS should analyze DAPL’s potential impacts on its Treaty-based and statutory rights in the Missouri River. It also resubmitted its comments on the deficiencies in the EA. The Tribe also submitted comments on February 7, 2017, to resubmit its September 25, 2016, letter for the record.
76. By memorandum dated February 7, 2017, the Senior Official Performing the Duties of the Assistant Secretary of the Army determined that “there is no cause for completing any additional environmental analysis. Therefore, I have determined that the ASA(CW)’s memorandum [of December 4, 2016, announcing the decision to prepare an EIS] must be rescinded.” The Department of the Army forwarded to the Office of the Federal Register a notice rescinding the NOI on February 7, 2017 —almost two weeks prior to the deadline for public comment on the NOI— and the Corps granted DAPL the easement on February 8, 2017.
77. No scoping session on the EIS was held. Because the comment period was ended prematurely, the Tribe and the general public have been deprived of the opportunity to comment further on the proposed EIS.
CAUSES OF ACTION I. FIRST CAUSE OF ACTION: VIOLATION OF NEPA AND THE APA
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78. Plaintiff reincorporates the allegations in all preceding paragraphs. 79. The EA failed to adequately address the potential impacts of the issuance of the easement and the construction and operation of the pipeline under Lake Oahe by, inter alia: a. not assessing the potential impacts to the Tribe’s Treaty-protected water rights or
rights in the Mni Wiconi Project, and not assessing whether any of the proposed mitigation measures would mitigate such impacts; b. failing to adequately explain why the risks posed to several wellhead source water protection areas in the North Bismarck route alternative caused the Corps to abandon that proposed route but not to abandon the Lake Oahe crossing route that would pose risk to the reserved water rights of federally recognized tribes using overly conservative estimates of spills and not explaining why its estimates are as conservative as they are; c. using the wrong standards to measure potential benzene contamination that would result from a spill; d. failing to consider that a spill could result in water that is unsafe to drink, if the correct standard and correct estimates of potential spills are used; e. failing to consider that a spill would render the water of Lake Oahe and the Missouri River unfit for human consumption and require remediation that would take months or years to complete; f. failing to include site specific GRPs (Geographic Response Plans) for public comment; g. failing to consider the efficacy of spill detection and prevention measures;
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h. failing to consider or assess how listed mitigation measures would reduce the impact of a spill; and
i. failing to consider the cost a spill would have on water treatment facilities that currently do not have the capacity to treat for benzene or hydrocarbon contamination or the costs associated with providing drinking water to the individuals who would be without drinking water in the event of a spill.
80. The EA is internally inconsistent and does not demonstrate that the Corps has taken the requisite hard look at the impacts of the Lake Oahe crossing.
81. The EA was deficient, and the FONSI issued in reliance on it was arbitrary and capricious.
82. The construction and operation of the pipeline under Lake Oahe will have significant impact on the human environment, including but not limited to the Tribe’s Mni Wiconi Project, due to the risk of spills and benzene contamination to drinking water. NEPA therefore requires that the impacts of the construction and operation of the pipeline under Lake Oahe be addressed in an EIS.
83. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of NEPA and the APA.
II. SECOND CAUSE OF ACTION: VIOLATION OF NEPA, THE APA, AND REGULATION
84. Plaintiff reincorporates the allegations in all preceding paragraphs. 85. The Assistant Secretary’s December 4, 2016, decision to prepare an EIS before deciding whether to grant the easement for the DAPL to cross Lake Oahe was reversed just days into the Administration of President Trump as a direct result of the Presidential Memorandum issued by President Trump on January 24, 2017. The Presidential Memorandum directed the
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Corps “to review and approve in an expedited manner” the easement and any other necessary federal approvals. Although this directive, and the accompanying directive to “consider … whether to rescind or modify” the decision to prepare the EIS, was couched using language “to the extent permitted by law,” the Presidential Memorandum essentially directed the Corps to approve the easement, and cabined its discretion. Had the officials empowered with making a decision on the easement or the EIS decided not to issue the easement or to proceed with the EIS they would, on information and belief, have been fired (as was Acting Attorney General Sally Q. Yates on January 29, 2017, when she stated that she said that the Department of Justice would not defend the Trump Administration’s Executive Order entitled “Protecting the Nation Foreign Terrorist Entry into the United States” in court). The Presidential Memorandum inappropriately interfered with the Corps’ process, ultimately resulting in a reversal of the decision to prepare an EIS that was to specifically analyze alternative routes for the DAPL and the DAPL’s impacts on Treaty rights.
86. Corps regulations implementing NEPA provide: “If it is determined that an EIS is not required after a notice of intent has been published, the district engineer shall terminate the EIS preparation and withdraw the notice of intent.” 33 C.F.R. Part 325, Appendix B, § 8(g).
87. The Corps erred in concluding that an EIS was not required because the grant of the easement and the construction and operation of the pipeline will cause significant impacts to the environment and to the Tribe’s Treaty and statutory rights.
88. The Corps’ decision to withdraw the NOI for the EIS before the end of the public comment period and without holding a scoping session violated NEPA.
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89. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of 33 C.F.R. Part 325, Appendix B, § 8(g), NEPA and the APA.
III. THIRD CAUSE OF ACTION: VIOLATION OF MINERAL LEASING ACT AND THE APA
90. Plaintiff reincorporates the allegations in all preceding paragraphs. 91. The Corps has also failed to fulfill the independent environmental review requirements under Section 185 of the Mineral Leasing Act by failing to assess risks to the Tribe’s Treaty-protected water rights and rights in the Mni Wiconi Project. 92. Assuming the Corps relied on the EA as meeting the requirements of Section 185, such reliance was arbitrary and capricious and in violation of law. The EA was not intended to meet the requirements of the MLA and, in fact, it did not meet the requirements of the MLA. 93. The stipulations required by the MLA that, inter alia, “insure that activities in connection with the right-of-way or permit will not violate applicable air and water quality standards,” “prevent [] damage to the environment,” and “hazards to public health and safety,” 30 U.S.C. § 185 (h)(2), are not met by the easement granted to DAPL on February 8, 2017, to cross Lake Oahe, because it relies on the EA, which is itself defective and arbitrary and capricious. 94. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of the MLA and the APA. IV. FOURTH CAUSE OF ACTION: BREACH OF TREATY RIGHTS AND THE
APA 95. Plaintiff reincorporates the allegations in all preceding paragraphs.
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96. The United States holds the title to the Tribe’s Treaty rights to Missouri River water in trust. Because the federal trust responsibility runs across all parts of the Federal Government, the Corps is also responsible for upholding the United States’ trust obligations.
97. The Corps has breached its trust obligations to the Tribe by failing to ensure compliance with federal law in authorizations for the DAPL, which threaten the Tribe’s Treatybased reserved water rights.
98. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of trust responsibility and the APA.
V. FIFTH CAUSE OF ACTION: BREACH OF TRUST, MNI WICONI PROJECT ACT, AND THE APA
99. Plaintiff reincorporates the allegations in all preceding paragraphs. 100. The United States holds the title to the Oglala Sioux Rural Water Supply System of the Mni Wiconi Project in trust for the Tribe. Because the federal trust responsibility runs across all parts of the Federal Government, the Corps is also responsible for upholding the United States’ trust obligations. 101. The Corps has breached its trust obligations to the Tribe by failing to ensure compliance with federal law in authorizations for the DAPL, which threaten the Tribe’s rights in the Mni Wiconi Project. 102. For these reasons, the Corps has acted in a manner that is arbitrary, capricious, and not in accordance with law, in violation of trust responsibility, the Mni Wiconi Act, and the APA.
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PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests this Court grant the following relief: 1. Declare that the EA/FONSI are inadequate because the Corps failed to conduct a full EIS that analyzed impacts to the Tribe’s Treaty-protected water rights and rights in the Mni Wiconi Project and failed to make a reasoned analysis of the risks and potential impacts of a spill; 2. Declare that the Corps has breached its trust responsibility to the Tribe by issuing an EA/FONSI without assessing impacts to the Tribe’s Treaty rights and rights in the Mni Wiconi Project; 3. Declare that the Corps has violated the Mineral Leasing Act by failing to fulfill its independent environmental review requirements; 4. Vacate the EA/FONSI; 5. Enjoin the Corps and direct it to vacate the easement issued on February 8, 2017, and any rights-of-way for DAPL on lands within the Corps’ jurisdiction; 6. Enjoin the Corps from allowing Dakota Access to drill under Lake Oahe until such time as a full EIS is completed that assesses impacts to the Tribe’s rights; 7. Retain jurisdiction over this matter to ensure that the Corps complies with the law; 8. Award Plaintiff its reasonable fees, costs, expenses, and disbursements, including attorney’s fees, associated with this litigation; and
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9. Grant such further and additional relief as the Court may deem just and proper.

Respectfully submitted,

February 11, 2017

s/ Michael L. Roy Michael L. Roy (DC Bar No. 411841) mroy@hobbsstraus.com Jennifer P. Hughes (DC Bar No. 458321) jhughes@hobbsstraus.com Elliott A. Milhollin (DC Bar No. 474322) emilhollin@hobbsstraus.com Hobbs, Straus, Dean & Walker, LLP 2120 L Street NW, Suite 700 Washington, DC 20037 202-822-8282 (Tel.) 202-2968834 (Fax) Attorneys for the Oglala Sioux Tribe
Mario Gonzalez Gonzalez Law Office 522 7th St 202 Rapid City, SD 57701 (605) 716-6355 Of Counsel for the Oglala Sioux Tribe

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 Case 1:16-cv-01534-JEB Document 546 Filed 07/06/20 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs, and
CHEYENNE RIVER SIOUX TRIBE, et al., Plaintiff-Intervenors, v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor.

Civil Action No. 16-1534 (JEB)

MEMORANDUM OPINION Lake Oahe is a large reservoir lying behind a dam on the Missouri River and stretching between North and South Dakota. Fearing severe environmental consequences, American Indian Tribes on nearby reservations have sought for several years to invalidate federal permits allowing the Dakota Access Pipeline to carry oil under the lake. Today they finally achieve that goal — at least for the time being. Following multiple twists and turns in this long-running litigation, this Court recently found that Defendant U.S. Army Corps of Engineers had violated the National Environmental Policy Act when it granted an easement to Defendant-Intervenor Dakota Access, LLC to construct and operate a segment of that crude-oil pipeline running beneath the lake. This was

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because the Corps had failed to produce an Environmental Impact Statement despite conditions that triggered such a requirement. The Court consequently remanded the case to the agency to prepare such an EIS, but it asked for separate briefing on the appropriate interim remedy. In other words, the Court asked the parties whether the easement should be vacated and the pipeline emptied during the remand process. Although mindful of the disruption such a shutdown will cause, the Court now concludes that the answer is yes. Clear precedent favoring vacatur during such a remand coupled with the seriousness of the Corps’ deficiencies outweighs the negative effects of halting the oil flow for the thirteen months that the Corps believes the creation of an EIS will take. I. Background
The Court recounts here only the background information necessary to set the stage for the remedy analysis. For the full history of this case, the interested reader can refer to the Court’s ten prior Opinions in this matter. See, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps. of Eng’rs (Standing Rock III), 255 F. Supp. 3d 101, 114–16 (D.D.C. 2017); see also ECF Nos. 39, 158, 206, 239, 284, 304, 392, 418, 496. The Court begins with the relevant statute and then describes the procedural history of the litigation.
A. Statutory Scheme The National Environmental Policy Act requires agencies to “consider every significant aspect of the environmental impact of a proposed action,” Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (quoting Vt. Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519, 553 (1978)), so as to “inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Id. (citing Weinberger v. Catholic Action of Haw., 454 U.S. 139, 143 (1981)). In order to achieve these goals, NEPA imposes on agencies certain procedural
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requirements, Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C. Cir. 1991), but it “does not mandate particular consequences.” Id. at 194.
First, an agency must draft an Environmental Assessment, see 40 C.F.R. § 1501.4(b), that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement [EIS] or a finding of no significant impact [FONSI].” Id. § 1508.9(a). “If any ‘significant’ environmental impacts might result from the proposed agency action[,] then an EIS must be prepared before agency action is taken.” Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)); see also 42 U.S.C. § 4332(2)(C) (requiring statement of environmental impact of any proposed action “significantly affecting the quality of the human environment”). If, on the other hand, the agency determines that no EIS is required, it must prepare either a FONSI or a Mitigated FONSI, depending on whether the lack of significant impact results from an agency’s commitment to mitigation measures. See 40 C.F.R. §§ 1501.4(e), 1508.13; Council on Environmental Quality, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact 2, 7 (2011), https://ceq.doe.gov/ docs/ceq-regulations-and-guidance/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
In order to determine whether its actions may result in “significant” environmental impacts — and therefore whether it must prepare an EIS — an agency must examine both the “context” and the “intensity” of the action. See 40 C.F.R. § 1508.27. [I]n evaluating intensity,” the agency must consider ten factors, id. § 1508.27(b), only one of which is relevant here. “Implicating any one of the[se] factors may be sufficient to require development of an EIS.” Nat’l Parks Conservation Ass’n v. Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019) (citing Grand Canyon Trust, 290 F.3d at 347). The decision here turned on the fourth of these factors — “[t]he
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degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4).
Effects are “controversial” where “substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (emphasis omitted) (quoting Found. for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1182 (9th Cir. 1982)). While “what constitutes the type of ‘controversy’ that requires a full EIS is not entirely clear,” Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 33 (D.D.C. 2016) (quoting Nat’l Wildlife Fed’n v. Norton, 332 F. Supp. 2d 170, 184 (D.D.C. 2004)), “something more is required besides the fact that some people may be highly agitated and be willing to go to court over the matter.” Id. (quoting Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975)).
B. Procedural History This case involves efforts by several American Indian Tribes to enjoin Defendant United States Army Corps of Engineers from permitting Defendant-Intervenor Dakota Access, LLC to constructe and operate a segment of its oil pipeline under Lake Oahe, which lies on the Missouri River. In 2016, Plaintiff Standing Rock Sioux Tribe filed its Complaint in this Court, followed shortly by Plaintiff-Intervenor Cheyenne River Sioux Tribe and later by Plaintiffs Oglala and Yankton Sioux Tribes, the latter two in cases that have now been consolidated into the present one. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock VI), No. 161534, 2020 WL 1441923, at *3 (D.D.C. Mar. 25, 2020). Early on, both Standing Rock and Cheyenne River were unsuccessful in seeking preliminary injunctions under the National Historic Preservation Act and the Religious Freedom Restoration Act. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock II), 239 F. Supp. 3d 77, 100 (D.D.C. 2017);
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Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock I), 205 F. Supp. 3d 4, 37 (D.D.C. 2016). In between these two Opinions, the Corps “announced that DAPL construction would be suspended pending the Corps’ reconsideration of its statutory obligations” under NEPA. Standing Rock VI, 2020 WL 1441923, at *3. A few months later, however, following the change of administration in January 2017 and a presidential memorandum urging acceleration of the project, the Corps again reconsidered and decided to move forward. Id. It granted the sought permit, construction was completed, and oil commenced flowing through the Dakota Access Pipeline. Standing Rock III, 255 F. Supp. 3d at 120.
Undeterred, later in 2017, Standing Rock and Cheyenne River switched focus and “sought summary judgment under [the National Environmental Policy Act], arguing that the Corps was required to prepare an [Environmental Impact Statement], and Defendants similarly cross-moved.” Standing Rock VI, 2020 WL 1441923, at *4. The Court found that the Corps’ decision “not to issue an EIS largely complied with NEPA,” but three “substantial exceptions” to that compliance necessitated a remand. Standing Rock III, 255 F. Supp. 3d at 147. Specifically, the Court “found wanting the Corps’ analysis of: (1) whether the project's effects were likely to be highly controversial; (2) the impact of an oil spill on the Tribe’s fishing and hunting rights under the Treaty of 1851; and (3) ‘whether,’ under a required environmental-justice analysis, ‘Standing Rock would be disproportionately harmed by a spill.’” Standing Rock VI, 2020 WL 1441923, at *5 (citations omitted) (quoting Standing Rock III, 255 F. Supp. 3d at 140). This raised the significant question of whether the permit should be vacated — and the oil flow arrested — during the remand. In a subsequent Opinion, the Court declined to so order, finding that there was a “‘serious possibility’ that the Corps w[ould] be able to substantiate its prior
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conclusions.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock IV), 282 F. Supp. 3d 91, 109 (D.D.C. 2017).
During the remand, which stretched on for well over a year, the D.C. Circuit “issued a significant opinion clarifying a court’s role in reviewing an agency’s finding that a project was not ‘highly controversial.’” Standing Rock VI, 2020 WL 1441923, at *7. In Semonite, that court held that it was not sufficient for an agency to simply “acknowledge and try to address concerns raised during the NEPA process.” 916 F.3d at 1085 (emphasis added). “The question is not whether the Corps attempted to resolve the controversy, but whether it succeeded.” Id. at 1085–86. Because the Corps in that case had failed to resolve the scientific controversy raised by expert and agency comments, the Semonite court found that it had been wrong to choose not to prepare an EIS and remanded for such action. Id. at 1087–88.
After the remand in this case was completed, the parties again cross-moved for summary judgment. Realizing that Semonite guided both “the nature and scope of [this Court’s] review,” Standing Rock VI, 2020 WL 1441923, at *8; see id. at *6–8 (detailing reasons for following Semonite), the Court conducted a detailed analysis of some of the many expert critiques of the environmental effects of the proposed project. Id. at *8–16 (discussing leak-detection system, operator safety record, winter conditions, and worst-case discharge). Ultimately, “even this nonextensive selection suffice[d] to show the necessity of an EIS.” Id. at *9. The Court found that “the Corps ha[d] not ‘succeeded’ in ‘resolv[ing] the controversy’ created by ‘consistent and strenuous opposition, often in the form of concrete objections to the Corps’ analytical process and findings,’ by ‘organizations with subject-matter expertise.’” Id. at *16 (second alteration in original) (quoting Semonite, 916 F.3d at 1086). As in Semonite, “[t]his demonstrate[d] the ‘something more’ needed to show that the ‘effects on the quality of the human environment are
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likely to be highly controversial.’” Id. (first alteration in original) (quoting Semonite, 916 F.3d at 1086). “The Corps ha[d] thus violated NEPA by determining that an EIS was unnecessary even though one of the EIS-triggering factors was met.” Id.
While there were two remaining NEPA topics — other than the “highly controversial” factor — that had formed the basis for the Court’s first remand, it found no need to reach them, since the remedy for any finding in the Tribes’ favor would be the same — viz., an EIS — and such EIS would require consideration of them in any case. Id. After disposing of a handful of other, non-NEPA issues, id. at *16–19, the Court again “remand[ed] to the agency for it to complete such EIS.” Id. at *16 (citing Semonite, 916 F.3d at 1082; then citing Grand Canyon Trust, 290 F.3d at 340). It asked for separate briefing, however, on “the status of the easement — and, ultimately, the oil — in the meantime.” Id. at *19. Unsurprisingly, the Tribes have argued for vacatur of the permits, Defendants have opposed, and each side is joined by an army of amici. See ECF Nos. 504, 514–19, 521, 532–33, 537. With the benefit of this bountiful briefing, the Court is now prepared to rule as to vacatur. II. Legal Standard
“The ordinary practice is to vacate unlawful agency action.” United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (citing 5 U.S.C. § 706(2)); accord FCC v. NextWave Personal Comms. Inc., 537 U.S. 293, 300 (2003) (“In all cases agency action must be set aside if the action . . . failed to meet statutory, procedural, or constitutional requirements.”) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413–14 (1971)). Vacatur is also the “standard remedy” in this Circuit for an “action promulgated in violation of NEPA.” Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001)); see Reed v. Salazar, 744
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F. Supp. 2d 98, 118–20 (D.D.C. 2010) (finding NEPA violation and ordering vacatur); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78–80 (D.D.C. 2010) (finding NEPA violation and ordering remand with partial vacatur); Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183, 204–05, 210 (D.D.C. 2008) (finding NEPA violation and ordering vacatur); see also Pub. Emps. for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 189 F. Supp. 3d 1, 2 (D.D.C. 2016) (surveying “cases in this district” and noting “the primacy of vacatur to remedy NEPA violations”).
Although vacatur may be the “presumptively appropriate remedy,” Sierra Club, 719 F. Supp. 2d at 78, it is not the only option. Instead, as equity requires, the reviewing court has discretion to leave the agency action in place. See, e.g., Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (declining to vacate vehicle-safety rule found arbitrary and capricious under APA); Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 966–67 (D.C. Cir. 1990) (same for mine-safety rule). Indeed, that is precisely what this Court did last time around. See Standing Rock IV, 282 F. Supp. 3d at 109.
In Allied-Signal v. United States Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993), the court laid out the operative test for whether to vacate a deficient agency action during remand. First, a court must consider “the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly).” Id. at 150 (quoting Int’l Union, 920 F.2d at 967). Second, it analyzes “the disruptive consequences of an interim change that may itself be changed.” Id. at 150–51 (quoting Int’l Union, 920 F.2d at 967). “Because vacatur is the default remedy, . . . defendants bear the burden to prove that vacatur is unnecessary.” Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019).
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III. Analysis The Court analyzes each prong of the Allied-Signal test separately, keeping in mind that
“[t]here is no rule requiring either the proponent or opponent of vacatur to prevail on both factors.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 270 (D.D.C. 2015). It ultimately concludes that shutting down the pipeline is warranted.
A. Seriousness of Deficiencies Unlike the Court’s last Opinion on remedy in this case, the first Allied-Signal prong is quite straightforward here. The Court’s task in considering this first factor is to determine whether there is “a significant possibility that the [agency] may find an adequate explanation for its actions” on remand. Williston Basin Interstate Pipeline Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008) (citing Allied-Signal, 988 F.2d at 150–51); accord Nat’l Parks Conservation Ass’n v. Jewell, 62 F. Supp. 3d 7, 20 (D.D.C. 2014) (“[R]emand without vacatur is appropriate where ‘there is at least a serious possibility that the [agency] will be able to substantiate its decision on remand.’”) (second alteration in original) (quoting Allied-Signal, 988 F.2d at 151). In its prior remedy Opinion, this Court went through the three topics to be covered on remand in significant detail, see Standing Rock IV, 282 F. Supp. 3d at 97–103, finding in each case that the Corps was likely to be able to “substantiate its prior decision to issue an EA.” Id. at 100 (fishing and hunting rights); see also id. at 99 (highly controversial); id. at 102 (environmental justice). Now, however, that decision has been weighed, it has been measured, and it has been found wanting. The Court’s March 2020 Opinion examined the first of the three remand topics — namely, whether the effects were highly controversial — and found definitively that, notwithstanding the Court’s earlier optimism, the Corps had not been able to substantiate its decision to publish only an EA and not an EIS:
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As shown at great length in the preceding analysis, the Corps has not “succeeded” in “resolv[ing] the controversy” created by “consistent and strenuous opposition, often in the form of concrete objections to the Corps’ analytical process and findings,” by “organizations with subject-matter expertise.” As in Semonite, “[t]his demonstrates the ‘something more’ needed to show that the ‘effects on the quality of the human environment are likely to be highly controversial.’” The Corps has thus violated NEPA by determining that an EIS was unnecessary even though one of the EIS-triggering factors was met. Standing Rock VI, 2020 WL 1441923, at *16 (alterations in original) (citations omitted) (quoting Semonite, 916 F.3d at 1086). There is no longer any question of the Corps being able to justify its choice. In such a circumstance, Circuit precedent overwhelmingly dictates that vacatur is appropriate. That court routinely vacates agency action when remanding for preparation of an EIS, and often without discussion. See, e.g., Sierra Club v. FERC, 867 F.3d 1357, 1379 (D.C. Cir. 2017) (vacating agency approval of interstate natural-gas pipelines); Am. Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914, 932 (D.C. Cir. 2017) (vacating Forest Service decision to eliminate 23,000 acres of wild horse territory); see also Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 43 (D.C. Cir. 2015) (“If the NEPA analysis were legally inadequate, ‘we could order that the [pipeline] be closed or impose restrictions on its use,’ at least on federally authorized segments, ‘until [the agencies] complied with NEPA.’”) (alterations in original) (quoting Airport Neighbors All., Inc. v. United States, 90 F.3d 426, 429 (10th Cir. 1996)). When vacatur is discussed, the seriousness of a failure to produce an EIS under NEPA is emphasized. See, e.g., Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm’n, 896 F.3d 520, 536 (D.C. Cir. 2018) (“The seriousness of the NEPA deficiency is particularly clear here because the point of NEPA is to require an adequate EIS before a project goes forward . . . .”).
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In fact, to the Court’s and the parties’ knowledge, only twice has a court (once the Circuit, once the district court here) not vacated agency action that violated NEPA because of a missing or defective EIS. Defendants attempt to hang their hat on these cases, but to no avail. In both, the second prong of the Allied-Signal test, but not the first, weighed in favor of remand without vacatur, leading those courts to find that the scales tipped toward the agency. See id.; Semonite, 422 F. Supp. 3d at 99–100 (“[T]he seriousness of the defect is significant. If the first Allied-Signal factor were the only consideration, the standard remedy [of vacatur] would likely apply.”); id. at 103 (“For all of these reasons, the second Allied-Signal factor forces the Court to conclude that vacating the permit would be inappropriate.”). That second factor will be analyzed presently, see infra Section III.B, and the Court will revisit these two cases at that time. As to this first prong, however, both decisions strongly support the Court’s conclusion here.
Defendants and Defendant-Intervenor next argue that, instead of focusing on the Corps’ decision not to prepare an EIS, the Court should be analyzing whether “the Corps will likely substantiate its substantive easement decision.” ECF No. 507 (Corps Remedy Brief) at 7 (emphasis added); see ECF No. 509-1 (DA Remedy Brief) at 14 (“The Corps’ key premises for granting the easement . . . remain intact, and they strongly suggest that the Corps will be able to reach the same top-line conclusion on remand.”). They maintain that focusing on the EIS decision “would render the first part of th[e Allied-Signal] test surplusage,” since it suggests that any agency action that is invalid for failure to produce an EIS will always flunk this first prong of the vacatur test. See ECF No. 536 (Corps Remedy Reply) at 5; see ECF No. 541 (DA Remedy Reply) at 9 (arguing that focusing on the EIS “alter[s] that prong such that it could never apply in NEPA cases like this”). Instead, they would have the Court evaluate their ability in an EIS to remedy the specific areas of concern stated in its prior Opinion. They thus spill
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considerable ink rehashing the merits of the Court’s prior Opinions. See, e.g., DA Remedy Br. at 19–31 (arguing in great detail why Corps will be able to “easily address the four discrete issues that this Court found ‘highly controversial,’” id. at 19); Corps Remedy Br. at 10–14 (arguing that pipeline’s Mineral Leasing Act easement is valid for the reasons argued in first round of summary judgment).
To the extent that Defendants complain that the “seriousness” of an agency’s failure to produce an EIS under NEPA is a foregone conclusion, they are taking issue with the caselaw in this Circuit, as just explained. See also Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004) (describing EIS as being “[a]t the heart of NEPA”). But the magnitude of those shortcomings is even clearer here, where the Court had the benefit of a second round of summary-judgment briefing to determine that the defects in the EA were, in fact, too serious to be ignored. See generally Standing Rock VI, 2020 WL 1441923. The Court determined in March of this year that these infirmities were so significant as to merit the preparation of an Environmental Impact Statement, id. at *16, and, as just explained, an EIS failure under NEPA is considered a very serious deficiency in this Circuit. The Court’s focus on the EIS, rather than on the entire easement decision, is in fact supported by one of the aforementioned two cases on which Defendants rely. See Semonite, 422 F. Supp. 3d at 99 (“Looking at the first Allied-Signal factor, the Court does not assess the deficiency of the ultimate decision itself — the choice to issue the permit — but rather the deficiency of the determination that an EIS was not warranted.”) (emphasis added).
Defendants’ argument, moreover, betrays what appears to be a misunderstanding of their obligations going forward. The time for justifying the Environmental Assessment has passed — the Court has ordered an Environmental Impact Statement, and another limited remand analysis
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will not fit the bill. Contra DA Remedy Br. at 14 (arguing that task on remand is to address only “four areas of criticism pertaining to one remand topic”). Indeed, the Court explicitly did not reach the other two remand topics because “the remedy for them would be the same,” and “‘[i]n preparing its EIS, the Corps [would] have to revisit’ those issues in any case.” Standing Rock VI, 2020 WL 1441923, at *16 (alterations in original) (quoting Semonite, 916 F.3d at 1088). Contra Corps Remedy Br. at 10 (“[T]he Court found no fault with the Corps’ consideration of environmental justice or of the impacts to the Tribes’ treaty hunting and fishing rights . . . .”).
An EIS, it is important to remember, is a separate regulatory beast, with its own requirements. See, e.g, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 857 (D.C. Cir. 2006) (describing EIS as “detailed” and “comprehensive”). The fact that the Corps has submitted a detailed EA does not minimize its obligations when preparing that EIS. See Anderson v. Evans, 371 F.3d 475, 494 (9th Cir. 2004) (“No matter how thorough, an EA can never substitute for preparation of an EIS, if the proposed action could significantly affect the environment.”). Compare 40 C.F.R. § 1501.4 (laying out considerations for “whether to prepare an environmental impact statement”), with 40 C.F.R. §§ 1502.1–1502.24 (laying out requirements for environmental impact statement). Contra DA Remedy Br. at 10 (arguing that Corps can “continue to rely largely, if not exclusively, on its prior analysis”). The Corps must perform a full and complete EIS for the entire project, potentially subject to the full scope of judicial review normally applied to environmental impact statements. See, e.g., 40 C.F.R. § 1502.14 (comparison of environmental impacts of alternatives to proposed agency project “is the heart of the environmental impact statement”); Sierra Club, 867 F.3d at 1371–72 (discussing agency’s duty in preparing EIS to consider indirect environmental effects of pipeline operations).
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In sum, the first Allied-Signal factor weighs entirely in favor of vacatur. The Court has had ample opportunity to consider the serious deficiencies in the Corps’ decision not to prepare an EIS, see Standing Rock VI, 2020 WL 1441923, at *8–16, and it finds no “possibility that the [agency] may find an adequate explanation for its actions.” Williston Basin Interstate Pipeline, 519 F.3d at 504; see Allied-Signal, 988 F.2d at 151.
B. Disruptive Consequences The second Allied-Signal factor is less straightforward here than the first. At issue are “the disruptive consequences of vacating,” 988 F.2d at 151, particularly those that threaten to “‘set back’ the Act’s objective[s].” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 934 F.3d 649, 674 (D.C. Cir. 2019); accord Envtl. Def. Fund, Inc. v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990) (remanding without vacatur when no party requested to vacate and doing so would defeat “the enhanced protection of the environmental values covered by the [Clean Air Act]”). Courts may choose “not [to] vacate regulations when doing so would risk significant harm to the public health or the environment.” Wisconsin v. EPA, 938 F.3d 303, 336 (D.C. Cir. 2019) (citing Allied-Signal, 988 F.2d at 150–51).
1. Economic Disruption Dakota Access’s central and strongest argument as to the second Allied-Signal prong is that shutting down the pipeline would cause it, and the industries that rely on it, significant economic harm, including substantial job losses. See, e.g., DA Remedy Br. at 32 (stating that shutdown would “pose an existential threat to DAPL” due to “massive” revenue loss). It submits declarations stating that DAPL could lose as much as $643 million in the second half of 2020 and $1.4 billion in 2021 if shut down pursuant to the Court’s order. See ECF No. 509-9 (Declaration of Glenn Emery), ¶ 10. “All of these financial losses would be absorbed by the
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owners of Dakota Access,” particularly Energy Transfer Partners, the current parent company of DAPL after a merger with Sunoco. See DA Remedy Br. at 33; Standing Rock VI, 2020 WL 1441923, at *10.
In addition, both Dakota Access and many amici argue, shutting the pipeline down would have serious repercussions for the entire North Dakota oil industry. “There is no viable pipeline alternative for transporting the 570,000 barrels of Bakken crude that DAPL is capable of carrying each day,” Dakota Access states, and railroads do not have the capacity “to fill the breach.” DA Remedy Br. at 35–36; see ECF No. 504 (Amicus Brief of State of North Dakota) at 11 (“An increase in crude by rail volumes sufficient to offset current pipeline deliveries by DAPL would take an unknown amount of time to assemble the required tank cars, engines, and crews, and to ensure market destinations would be prepared for a surge in rail volume.”). Several states also argue that their grain farmers would be harmed by having to pay a premium for railroad cars once oil, which is more valuable by volume, enters that market and drives up prices. See ECF No. 514 (Amicus Brief of IN, MT, AL, AR, IA, KS, KY, LA, NE, OH, SD, TX, UT, and WV) at 9–10. “[M]any North Dakota oil producers,” meanwhile, with no way to get their oil to market, “would have no choice but to respond by ‘shutting in’ some of their wells and ceasing production entirely,” with consequent effects on the workers at those wells. See DA Remedy Brief at 35 (citing ECF No. 509-11 (Declaration of Jeff D. Makholm), ¶ 17; then citing Emery Decl., ¶¶ 14, 18). Specifically, Dakota Access estimates, “producers would have to shutin between 3,460 and 5,400 wells, stranding up to 34.5% of North Dakota crude production.” Id. at 36; see also, e.g., North Dakota Br. at 8 (estimating that “[e]ach of those wells represents 1.6 full time jobs”) (citing ECF No. 504-2 (Declaration of Lynn Helms), ¶ 10). This would also have a reverberating effect on the state of North Dakota, whose economy derives a large part of
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its revenue from oil and gas taxes, largely from the Williston Basin, which includes the Bakken fields that supply DAPL. See North Dakota Br. at 2–3; DA Remedy Br. at 4; see also North Dakota Br. at 2 (explaining that “despite the small overall size of North Dakota’s economy, [it] is a large producer of oil and natural gas”).
The Tribes and other amici respond that these projected consequences are “wildly exaggerated” because, following “a precipitous collapse in oil prices, demand, and production” caused in part by the COVID-19 pandemic, “production in North Dakota has [already] plummeted.” ECF No. 527 (Tribes Remedy Brief) at 21–22; see also ECF No. 531 (Amicus Brief of Members of Congress) at 9 (“Since [the Court’s last remedy Opinion in this case in] 2017, the price and demand for oil has plummeted due to factors well beyond the operation of this pipeline.”); ECF No. 519 (Amicus Brief of North Dakota Petroleum Council) at 8 (“In recent weeks, of course, the coronavirus pandemic has turned the nation’s economy and the oil industry upside down.”). They point out that North Dakota estimates that “as many as 5,000 wells may now be shut-in” because of “the current economic situation,” North Dakota Br. at 3 n.4, noting that this is more than the number of wells Dakota Access claimed would be affected by a DAPL shutdown. See Tribes Remedy Br. at 22–23; see also id. at 23 (citing news articles reporting that North Dakota well shut-ins have now increased to 7,000). Other briefs allude to the pandemic, admitting some effect on the oil market but maintaining more optimism than realism. See, e.g., N.D. Petroleum Council Br. at 8 (“In recent weeks, of course, the coronavirus pandemic has turned the nation’s economy and the oil industry upside down. Nevertheless, NDPC continues to hope and expect that our country’s economy and the industry will recover in coming months.”); North Dakota Br. at 12 (“[T]he potential impacts of the COVID-19 pandemic are impossible to quantify due to rapidly changing oil prices, employment numbers, and capital investment
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plans . . . .”). The Tribes further claim that this drop in production may mean that there will be “little or no increase in rail transportation.” Tribes Remedy Br. at 25 (citing ECF No. 527-2 (Declaration of Marie Fagan), ¶ 5). And to the extent that a DAPL shutdown causes crude-oil demand to drop even further or its transportation to switch to railroads, the Tribes argue that with “some participants in the North Dakota oil market [facing] increased costs,” “other participants,” such as railroads and other oil-producing states, would “benefit from the shift.” Tribes Remedy Br. at 26 (citing ECF No. 272-2 (Third Declaration of Richard Krupewicz), ¶ 30; then citing Fagan Decl., ¶ 7). Defendant-Intervenors, for their part, dismiss the Tribes’ take on the pandemic, calling their analysis of the continuing effects of a pandemic-depressed oil market “bearish” and “erroneous[].” DAPL Remedy Rep. at 17–18.
The Court need not pick apart the various positions in these disputes, for it is clear that at least some immediate harm to the North Dakota oil industry should be expected from a DAPL shutdown, even if its effects are tempered by a decreased demand for oil. See DA Remedy Rep. at 18 (averring that “demand for [the pipeline]’s services has remained strong”). Indeed, the Court does not take lightly the serious effects that a DAPL shutdown could have for many states, companies, and workers. Losing jobs and revenue, particularly in a highly uncertain economic environment, is no small burden. Ultimately, however, these effects do not tip the scales decisively in favor of remanding without vacatur. This is so for several reasons.
First, “the Corps anticipates the [EIS] process” for DAPL “will take approximately thirteen months,” Corps Remedy Br. at 5, whereas in general “the mean time from initiation to completion of an EIS is 3.6 years” across all federal agencies, and the Corps’ own average time is even longer. See Tribes Remedy Br. at 16 n.4 (citing Council on Envtl. Quality, Environmental Impact Statement Timelines (2010–2017), at 1, 8, https://www.whitehouse.gov/
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wp-content/uploads/2017/11/CEQ-EIS-Timelines-Report.pdf). This expedited process, if it proceeds on track, would cabin the economic disruption of a shutdown. See Standing Rock IV, 282 F. Supp. 3d at 108 (“[T]he Corps' assertions regarding the timing of the remand process are also relevant to analyzing the disruption in this case.”). Without vacatur, conversely, the Corps and Dakota Access would have little incentive to finish the EIS in a timely matter.
Second, while economic disruption is a proper consideration for the second Allied-Signal prong, it may not necessarily be “determinative.” Standing Rock IV, 282 F. Supp. 3d at 104; see also Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1273 (D.C. Cir. 1994) (considering “disrupti[on] to the [affected] industries” in vacatur analysis). Courts more often cite “harm to the public health or the environment,” Wisconsin, 938 F.3d at 336 (citing Allied-Signal, 988 F.2d at 150–51), and those that “‘set back’ the Act’s objective[s].” Am. Bankers Ass’n, 934 F.3d at 674. The Court will discuss environmental disruption shortly. See infra Section III.B.2,.
Third, accepting Dakota Access’s arguments wholesale would subvert the structure of NEPA, the “objective[s]” of which are an important touchstone when considering disruption. Am. Bankers Ass’n, 934 F.3d at 674. NEPA’s “requirement that a detailed environmental impact statement be made for a ‘proposed’ action makes clear that agencies must take the required hard look before taking that action.” Oglala Sioux Tribe, 896 F.3d at 532; see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (“The statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement serves NEPA’s ‘action-forcing’ purpose . . . .”) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983); then citing Weinberger v. Catholic Action of Haw., 454 U.S. 139, 143 (1981)). When it comes to NEPA, it is better to ask for permission than
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forgiveness: if you can build first and consider environmental consequences later, NEPA’s action-forcing purpose loses its bite.
Dakota Access attempts the same workaround of this principle as was offered last time, and the Court again finds it unavailing. In 2017, Defendants “argue[d] that vacatur here would ‘have greater disruptive consequences than in the typical NEPA case’ because the pipeline has already been completed.” Standing Rock IV, 282 F. Supp. 3d at 107 (citing ECF No. 258 at 12); see DA Remedy Br. at 33–34 (“[H]owever one might have quantified what the ‘economic disruption’ risk was back then, the potential economic risk now is quantifiable and catastrophic. And after almost three years of operations and several court rulings, it has been reasonable for Dakota Access, the state of North Dakota, and all the other interested third parties to assume that the ‘risk’ of a shutdown would decrease significantly over time.”) The Court’s response to these arguments is the same now as then:
[D]enying vacatur on the basis of alleged economic harm risks creating undesirable incentives for future agency actions. If projections of financial distress are sufficient to prevent vacatur, the Court fears that agencies and third parties may choose to devote as many resources as early as possible to a challenged project — and then claim disruption in light of such investments. Such a strategy is contrary to the purpose of NEPA, which seeks to ensure that the government “looks before it leaps.” Standing Rock IV, 282 F. Supp. 3d at 106 (quoting ECF No. 269-1). Fourth and finally, such “economic myopia,” id. at 105, causes Dakota Access to “address the ‘potentially disruptive effects of vacatur as if they occur in a vacuum,’ thus giving short shrift to the ‘potentially disruptive effects that could flow from remand without vacatur.’” Id. at 105 (quoting Friends of Capital Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 60 (D.D.C. 2016)). As before, “there is no doubt that allowing oil to flow through the pipeline during remand risks the potentially disruptive effect about which the Tribes are most
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concerned — a spill under Lake Oahe.” Id. Indeed, even while “[t]he likelihood of any such rupture may be low,” id., the impact of such a spill has been one of the Court’s central concerns throughout the case. See Standing Rock III, 255 F. Supp. 3d at 139 (“As to the effects from a spill (as distinct from the risk of a spill occurring), the EA’s discussion is minimal . . . .”); Standing Rock IV, 282 F. Supp. 3d at 105 (“[T]he possible effects of an oil spill on the Tribes’ treaty rights and communities were at the center of this Court’s prior Opinion.”). Indeed, while the most recent Opinion in this case did not have cause to reach the topic of the impact of a spill on tribal hunting and fishing rights, it did spend much time discussing the possibility that, in the unlikely event of a spill, systems may not be in place to prevent that spill from becoming disastrous. See, e.g., Standing Rock VI, 2020 WL 1441923, at *10 (discussing unaddressed possibility that DAPL’s leak-detection system was incapable of detecting leaks of less than 1% of its flow rate, meaning that “6,000 barrels per day” could leak without triggering an alarm); id. at *11 (noting that 30% of spills on pipelines operated by DAPL’s operator occurred outside of operator property); id. at *11–12 (recounting expert concerns that wintertime spill would be difficult to contain and had not been sufficiently prepared for in EA). Even assuming the risk of a spill remains small, “pausing the operation of the pipeline would mitigate even this small risk.” Standing Rock IV, 282 F. Supp. 3d at 105.
One final word here so that the Court may make good on its earlier promise to address the two cases offered by Defendant-Intervenor as examples of courts’ declining to vacate when faced with an EIS failure. Recall that both cases based their decision not on the first AlliedSignal factor, which they found supported vacatur, but on the second. See Oglala Sioux Tribe, 896 F.3d at 538; Semonite, 422 F. Supp. 3d at 99–100, 103. In Oglala Sioux Tribe, the D.C. Circuit held that this second factor disfavored vacatur simply because a “South Dakota
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permitting requirement independently bar[red] it from moving forward with construction on the site until the [agency] complete[d] its compliance with NEPA.” 896 F.3d at 538. In Semonite, however, there was significant disruption anticipated from vacatur: the district court was concerned by “the risk that hundreds of thousands of people will be left with an unreliable power source if the permit is vacated.” 422 F. Supp. 3d at 103. It would be “unjust,” that court reasoned, “to force all of those people to bear the brunt of the harm when they are not responsible for its cause.” Id. at 102. Such is not the case here: the disruption Dakota Access focuses on is to its own interests and those of the industry, both of whom relied on the continued operation of the pipeline in the face of ongoing litigation as well as changes in the administration’s stance on the environmental propriety of the pipeline. The parties do not raise any possibility that hundreds of thousands of ordinary citizens will be deprived of a reliable source of oil if DAPL is shut down, and, in fact, as already discussed, oil wells are currently being closed given a low demand having nothing to do with the pipeline.
The other reason that the district court in Semonite considered the disruption too weighty to ignore was that the removal of the agency project in question — which “would [have] involve[d] dismantling seventeen steel lattice towers and removing 37.8 miles of conductor, 8.4 miles of fiber optic shield wire, 32 solar panels and solar lighting systems, and all associated hardware” would have posed a “risk of massive waste” should the Corps ultimately “reissue the permit after conducting an EIS.” 422 F. Supp. 3d at 103. The Corps admittedly does raise a similar removal issue here, pointing out that the dismantling of the pipeline under Lake Oahe would lead to “waste of time, energy, and resources, as well as environmental impacts such as ground disturbance and increased emissions from heavy construction machinery.” Corps Remedy Br. at 17. But the Court is not ordering that such step be taken, and any decision to
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remove is entirely within the Corps’ control. As the agency explains, once the Court vacates the easement, the pipeline is considered an “encroachment” on federal lands and can be dealt with in one of four ways at the Corps’ discretion. See id. at 6. Removal is indeed one of those options, but so is “outgrant or consent (for easements).” Id. (quoting one of the Corps’ engineering regulations). Removal is therefore not the remedy being considered by the Court today, and it may not be the remedy chosen by the Corps in the future. Accord Standing Rock IV, 282 F. Supp. 3d at 107 (“Plaintiffs are not asking for the pipeline itself, or for any existing infrastructure, to be dismantled.”).
2. Environmental Disruption Dakota Access here attempts to resurrect an unsuccessful argument from the last round of remedy briefing. It argues that if DAPL is inoperative, the crude oil must be transported by rail, and rail transport has worse environmental consequences than any potential pipeline spill. In 2017, however, the Court “reject[ed] th[e] argument” that “alternative modes of transport required by vacatur, if any, will necessarily increase the risk of an oil spill.” Id. at 107. Not much has changed this time around. DAPL once again frames the shift to rail transportation in speculative terms. Compare id. (“Defendants[] assert[] that vacatur ‘could result in at least some portion’ of the oil being moved via train . . . .”), with Corps Remedy Br. at 21 (“The Corps cannot state definitively that a particular percentage of the oil currently being transported by pipeline would be switched to rail in the event the Pipeline’s easement is withdrawn.”). Even assuming that some more oil will be transported by rail than would have been without a shutdown, the only new evidence the Corps and DAPL point to is a recent study by the Pipeline and Hazardous Materials Safety Administration comparing modes of oil transport, which ultimately concluded that “[e]ach mode has its own unique safety risks, and
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more factors or different methodologies need to be considered to comprehensively answer the question of which mode is the safest.” ECF No. 507-2 (PHMSA Report) at 9; see id. (“Significant knowledge gaps exist for the exposure, vulnerability, and consequences of crude oil transportation.”). The report did find that, subject to these warnings, pipelines appear to have lower spill occurrences and amounts than rail transport. Id. While this is certainly an improvement on the dearth of information provided in the last round of remedy briefing, the report’s self-stated limitations do not get Defendants and Defendant-Intervenor much farther than before.
The Court cannot forget, moreover, its responsibility to consider the potential environmental disruption of not vacating the easement, which it has discussed at length in prior Opinions and recapped above. See supra Section III.B.1. On balance, the inconclusive evidence of environmental harm from an unknown number of barrels being transferred to rail transportation does not move the needle toward remand without vacatur.
* * * Putting this all together, the Court finds that vacatur is the only appropriate remedy here. The first Allied-Signal prong weighs strongly in its favor, even if the second is a much closer call. The Court does not reach its decision with blithe disregard for the lives it will affect. It readily acknowledges that, even with the currently low demand for oil, shutting down the pipeline will cause significant disruption to DAPL, the North Dakota oil industry, and potentially other states. Yet, given the seriousness of the Corps’ NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease. Not wishing to micromanage the shutdown, it will not prescribe the method by which DAPL must achieve this. The Court will nonetheless require the oil to stop flowing and
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the pipeline to be emptied within 30 days from the date of this Opinion and accompanying Order. This time period was proposed by the Tribes and should provide sufficient time for the pipeline to be shut down in a safe and efficient manner, which is undoubtedly in everyone’s interest. IV. Conclusion
For the foregoing reasons, the Court will vacate the Corps’ decision to grant Dakota Access an easement under the Mineral Leasing Act and order that the Dakota Access Pipeline be shut down within 30 days. A separate Order consistent with this Opinion shall issue this day.

Date: July 6, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

24

 
 Case 1:16-cv-01534-JEB Document 553 Filed 07/09/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs, and
CHEYENNE RIVER SIOUX TRIBE, et al., Plaintiff-Intervenors, v.
U.S. ARMY CORPS OF ENGINEERS, Defendant, and
DAKOTA ACCESS, LLC, Defendant-Intervenor.

Civil Action No. 16-1534 (JEB)

ORDER On July 6, 2020, this Court issued a Memorandum Opinion and separate Order addressing the question of remedy pending Defendant U.S. Army Corps of Engineers’ conducting of an Environmental Impact Study on remand. See ECF Nos. 545–46. Of particular relevance, the Court ordered that Defendant-Intervenor Dakota Access, LLC shut down and empty the Dakota Access Pipeline within 30 days. Two days later, Dakota Access asked the Court to stay its ruling pending an appeal, which it had filed the day of the Court’s ruling. See ECF Nos. 552 (Motion) & 548 (Notice of Appeal). Dakota Access also asked for an immediate status conference on July 9, see Motion at 2, to which request this Court promptly acceded.

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At that conference, which took place this afternoon, Dakota Access emphasized its understandable desire to be heard in the Court of Appeals as soon as possible, and it asked this Court to rule expeditiously on its Motion to Stay. The Court explained that it did not see a basis for a stay; indeed, the four factors courts analyze in considering stays, see, e.g., Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 12 (D.D.C. 2014) (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)), were essentially subsumed in the Court’s latest Opinion granting vacatur pending remand.
The Court nonetheless expressed its willingness to consider a modification to the logistics and timing of the pipeline shutdown and emptying. Dakota Access had contended in its Motion that this would take 86-101 days, see Motion at 11 (citing Third Declaration of Todd Stamm), and the Court asked the Tribes if they would negotiate with Dakota Access with an eye toward reaching an agreement on, e.g., a somewhat longer timetable. The Tribes indicated their willingness to do so and, if no agreement was reached, to file a brief by Monday, July 13, regarding the stay. The Court then encouraged the parties to negotiate and explained that it would rule on those logistics (absent agreement) early next week.
Dakota Access, mindful of the running clock, told the Court that it preferred an immediate ruling denying the Motion to Stay if the Court was only waiting to try to resolve the logistical and timing issues, rather than the merits. The Court is thus obliging Dakota Access by issuing this expedited Order, although it remains willing to assist in mediating (or ultimately deciding) any dispute regarding such logistical and timing issues if jurisdictionally permitted to do so.
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The Court, accordingly, ORDERS that Dakota Access’s Motion to Stay is DENIED.

SO ORDERED.

Date: July 9, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

3

 
 USCA Case #20-5197 Document #1851652

Filed: 07/14/2020

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

Page 1 of 1

No. 20-5197

September Term, 2019

1:16-cv-01534-JEB

Filed On: July 14, 2020

Standing Rock Sioux Tribe, et al.,

Appellees

v.

United States Army Corps of Engineers,

Appellee

Dakota Access LLC,

Appellant

BEFORE: Rogers, Griffith, and Pillard, Circuit Judges
O R D E R
Upon consideration of the emergency motions for stay and for administrative stay, it is
ORDERED that the district court’s order entered July 6, 2020, directing that the Dakota Access Pipeline be shut down and emptied of oil by August 5, 2020, be administratively stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for stay and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2019). It is
FURTHER ORDERED that plaintiff-appellees file a joint response to the emergency motions for stay and for administrative stay, not to exceed 7,200 words, by 4:00 p.m. on Monday, July 20, 2020. Any replies are due by 4:00 p.m. on Thursday, July 23, 2020.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Daniel J. Reidy Deputy Clerk

 
 USCA Case #20-5197 Document #1855206

Filed: 08/05/2020 Page 1 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 20-5197

September Term, 2019

1:16-cv-01534-JEB

Filed On: August 5, 2020

Standing Rock Sioux Tribe, et al.,

Appellees

v.

United States Army Corps of Engineers,

Appellee

Dakota Access LLC,

Appellant

-----------------------------Consolidated with 20-5201
BEFORE: Henderson, Tatel, and Griffith, Circuit Judges
O R D E R
Upon consideration of the emergency motions for stay pending appeal, the opposition thereto, and the replies; the motions for leave to participate as amicus, the oppositions thereto, and the filings by amici and movant-amici in support of a stay; and the administrative stay entered on July 14, 2020, it is
ORDERED that the administrative stay entered on July 14, 2020 be dissolved. It is
FURTHER ORDERED that, to the extent the district court issued an injunction by ordering Dakota Access LLC to shut down the Dakota Access Pipeline and empty it of oil by August 5, 2020, the injunction be stayed. The district court did not make the findings necessary for injunctive relief. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 158 (2010) (explaining that, before issuing an injunction in a National Environmental Policy Act case, “a court must determine that an injunction should issue under the traditional four-factor test”). It is

USCA Case #20-5197 Document #1855206

Filed: 08/05/2020 Page 2 of 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 20-5197

September Term, 2019

FURTHER ORDERED that appellants’ motion for stay of the district court’s order vacating the Mineral Leasing Act easement authorizing the Dakota Access Pipeline to cross the Missouri River at Lake Oahe be denied. At this juncture, appellants have failed to make a strong showing of likely success on their claims that the district court erred in directing the Corps to prepare an environmental impact statement, see Nat’l Parks Conservation Ass'n v. Semonite, 916 F.3d 1075, 1087 (D.C. Cir.), amended on rehearing, 925 F.3d 500 (D.C. Cir. 2019), or that the district court abused its discretion in refusing to remand without vacatur pending the statement's completion, see Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993). It is

FURTHER ORDERED that this panel retain jurisdiction over any further motions for stay pending appeal. We expect appellants to clarify their positions before the district court as to whether the Corps intends to allow the continued operation of the pipeline notwithstanding vacatur of the easement and for the district court to consider additional relief if necessary. It is

FURTHER ORDERED that the motions for leave to participate as amicus be denied without prejudice. The court will entertain motions to participate as amicus that are accompanied by merits briefs. It is

FURTHER ORDERED, on the court’s own motion, that these consolidated cases be expedited. See D.C. Circuit Handbook of Practice and Internal Procedures 34 (2019). The Clerk is directed to calendar this case for argument on the first appropriate date following the completion of briefing. The parties will be informed later of the date of oral argument and the composition of the merits panel. It is

FURTHER ORDERED that, because it appears that these consolidated cases present potential problems of duplicative briefing, the following briefing format and schedule will apply in these consolidated cases:

Appellants’ Briefs (up to two briefs, not to exceed 19,500 words in the aggregate, to be divided as appellants see fit)

August 26, 2020

Appendix

August 26, 2020

Page 2

USCA Case #20-5197 Document #1855206

Filed: 08/05/2020 Page 3 of 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 20-5197

September Term, 2019

Briefs of Amici Curiae Supporting Appellants, if any

September 2, 2020

Appellees’ Joint Brief (not to exceed 19,500 words)

September 16, 2020

Briefs of Amici Curiae Supporting Appellees, if any

September 23, 2020

Appellants’ Reply Briefs (up to two briefs, not to exceed 9,750 words in the aggregate, to be divided as appellants see fit)

September 30, 2020

All issues and arguments must be raised by appellants in the opening brief. The court ordinarily will not consider issues and arguments raised for the first time in the reply brief. The parties are reminded that the court looks with extreme disfavor on repetitious submissions.

To enhance the clarity of their briefs, the parties are urged to limit the use of abbreviations, including acronyms. While acronyms may be used for entities and statutes with widely recognized initials, briefs should not contain acronyms that are not widely known. See D.C. Circuit Handbook of Practice and Internal Procedures 43 (2019); Notice Regarding Use of Acronyms (D.C. Cir. Jan. 26, 2010).

Parties are strongly encouraged to hand deliver the paper copies of their briefs to the Clerk's office on the date due. Filing by mail may delay the processing of the brief. Additionally, counsel are reminded that if filing by mail, they must use a class of mail that is at least as expeditious as first-class mail. See Fed. R. App. P. 25(a). All briefs and appendices must contain the date that the case is scheduled for oral argument at the top of the cover. See D.C. Cir. Rule 28(a)(8).

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Scott H. Atchue Deputy Clerk

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