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

United States District Court, District of Columbia

June 14, 2017

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.

         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 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.

         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

         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).

         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 short-term 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/NEPA-CEQMitigationandMonitoringGuidance14Jan2011.pdf. Mitigation includes “[a]voiding 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).

         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.

         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 environmental-justice 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 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 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 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.

         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, ” 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 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, N.W. 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 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 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 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 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 preliminary-injunction 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 Cross-Motion 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).

         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,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 ...


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