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Standing Rock Sioux Tribe v. United States Army Corps of Engineers

United States District Court, District of Columbia

March 7, 2017

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

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge.

         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 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 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 9:22-10:2.

         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 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 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; 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 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. 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 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 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 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 preliminary-injunctive 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 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 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., ¶¶ 31-33; ECF No. 143-1 (Transcript of NHPA Consultation Meeting, Feb. 18-19, 2016) at 3 (Steve Vance, Cheyenne River's Tribal Historic Preservation Officer: ...


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