United States District Court, District of Columbia
E. BOASBERG United States District Judge.
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 that would be prevented by any
injunction the Court could issue. The Motion will thus be
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.
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.
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.
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 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
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.
National Historic Preservation Act
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
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)).
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.
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. § 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. §
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).
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 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.
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. §
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).
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).
Clean Water Act
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 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.
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).
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 compel a more rigorous
individual permitting process for that particular work.
Id. § 330.6(a)(2), (d).
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.
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
activities that may affect” these objects until
coordination with state, tribal, and federal authorities is
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.
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 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).
Rivers and Harbors Act
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
* * *
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.
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, 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.
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.
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 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
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.
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
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 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.
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.
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 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
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.,
¶¶ 25-28. 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.