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Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers

United States District Court, District of Columbia

September 9, 2016

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

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge.

         “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 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 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 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. § 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 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).

         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 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 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 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 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, 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 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 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 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., ¶¶ 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.

         2. En ...


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