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Tribe v. U.S. Army Corps of Engineers

United States District Court, District of Columbia

October 11, 2017

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


          JAMES E. BOASBERG, United States District Judge

         The dispute over the Dakota Access Pipeline has now taken nearly as many twists and turns as the 1, 200-mile pipeline itself. On June 14, 2017, in its third Opinion on the case, this Court held that the U.S. Army Corps of Engineers had failed to fully follow the National Environmental Protection Act when it determined that the pipeline would not have a significant environmental impact. Although the Court found that the agency had “substantially complied” with the statute, the Opinion identified three discrete deficiencies in the Corps' analysis and remanded the matter to the agency for further evaluation. In doing so, the Court asked the parties to submit further briefing on the question such an action raised: what is the proper remedy during this remand period? Specifically, the Court must determine whether or not to vacate the Corps' environmental assessment, as well as the easement granted to Dakota Access in reliance on that determination. Without such an easement, the oil cannot flow through the pipeline.

         The propriety of vacatur during remand is determined by a two-prong test that requires the Court to consider (1) the seriousness of the deficiencies in the agency action and (2) the disruptive consequences of vacating that prior approval. As to the first, the Court ultimately concludes that the three errors identified in the prior Opinion are not fundamental or incurable flaws in the Corps' original analysis; rather, the agency has a significant possibility of justifying its prior determinations on remand. Although the Court finds that the equities of disruption do not tip sharply in Defendants' favor on the second factor, prevailing on the first is enough here for them to avoid vacatur.

         I. Procedural History

         The lengthy factual history of this case is set forth in this Court's prior Opinion, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 2017 WL 2573994 (D.D.C. June 14, 2017), and need not be repeated here. Suffice it to say that Plaintiffs, the Standing Rock and Cheyenne River Sioux Tribes (and other intervenors and consolidated Plaintiffs), strongly oppose the current route of the Dakota Access Pipeline (DAPL), a nearly 1, 200-mile domestic pipeline running from North Dakota to Illinois. In particular, the Tribes protest DAPL's crossing at Lake Oahe, a federally regulated body of water that borders their reservations. Created by the Corps in 1958 via a dam constructed on the Missouri River, the Lake is a primary source of water for the Tribes, and it is considered sacred to their spiritual practices. Id. at *3.

         A. History of Litigation

         For the past fourteen months, the Tribes have attempted to prevent oil from flowing under Lake Oahe. The instant case began on July 25, 2016, when Standing Rock filed its Complaint against the Corps for declaratory and injunctive relief pursuant to the National Historic Preservation Act, National Environmental Policy Act, Clean Water Act, and the River and Harbors Act. See ECF No. 1 (SRST Complaint), ¶¶ 128-212. The following month, Dakota Access LLC successfully moved to intervene in support of the Corps, see ECF No. 7, and the Cheyenne River Sioux Tribe intervened as a Plaintiff, subsequently filing its own Complaint. See ECF No. 11-12 (CRST Complaint). The Tribes' first pass at preventing the pipeline was a motion for a preliminary injunction based solely on the NHPA, asserting that the ongoing clearing and grading of the land along DAPL's route disrupted sacred Tribal sites. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock I), 205 F.Supp.3d 4, 8-9 (D.D.C. 2016). On September 9, 2016, the Court denied emergency relief, and construction proceeded. Id. at 37.

         On February 8, 2017, the Corps finally granted Dakota Access an easement pursuant to the Mineral Leasing Act, authorizing it to cross federal lands at Lake Oahe and complete the pipeline. See ECF No. 172-11 (Easement). The next day, Cheyenne River filed a motion for preliminary injunction and an application for a temporary restraining order, this time alleging violations of RFRA. See ECF Nos. 98, 99; Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock II), 239 F.Supp.3d 77, 81 (D.D.C. 2017), appeal dismissed, No. 17-5043, 2017 WL 4071136 (D.C. Cir. May 15, 2017). Believing these religious-freedom claims unlikely to succeed, the Court issued a second Opinion denying the preliminary injunction. See Standing Rock II, 239 F.Supp.3d at 80.

         B. Motions for Summary Judgment

         As these emergency motions were ongoing, the parties filed cross-motions for summary judgment. See ECF Nos. 117 (SRST MSJ); 131 (CRST MSJ); 172 (Corps MSJ); 185 (DA MSJ). Now focusing on their environmental claims, the Tribes challenged the Corps' decision to issue the easement on the basis of its July 25, 2016, Environmental Assessment (EA) and Mitigated Finding of No Significant Impact (FONSI), asserting that the agency had violated NEPA by failing to complete an Environmental Impact Statement (EIS). NEPA requires that federal agencies evaluate the environmental effects of major government actions, but it does not “mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Instead, the statute “imposes only procedural requirements.” Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004). If a project will “significantly” affect the “quality of the human environment, ” NEPA requires that the agency complete a detailed EIS. See 42 U.S.C. § 4332(C). To determine whether or not there will be such significant effects, however, the agency first prepares a shorter EA. This “concise public document” discusses the need for the proposal, the alternatives, the environmental impacts of the proposed action, and the agencies and persons consulted. See 40 C.F.R. § 1508.9(b). If the EA concludes that there will be no significant environmental impact, the agency may forgo completing a full EIS.

         This was the route chosen by the Corps in this case. See ECF Nos. 172-1, 172-2 (EA and FONSI). The agency's EA and FONSI explained that, given the proposed mitigation measures and Defendants' assessment of DAPL's “anticipated environmental, economic, cultural . . . social[, and] cumulative effects, ” the pipeline's crossing at Lake Oahe would not “significantly affect the quality of the human environment.” FONSI at 6. The Tribes argued in their briefing that “[t]he Corps' conclusion that the Oahe crossing was not significant enough to warrant an EIS” was “arbitrary, capricious, and contrary to law.” SRST MSJ at 17.

         C. Prior Opinion and Remand

         On June 14, 2017, two weeks after DAPL became fully operational, the Court granted in part and denied in part the parties' motions and remanded certain issues to the Corps. See Standing Rock III, 2017 WL 2573994, at *40. It rejected Plaintiffs' motion with respect to their claims under the Clean Water Act and the Mineral Leasing Act, and it also upheld the majority of the Corps' determinations under NEPA - including the agency's “top-line conclusion” that the risk of an oil spill was sufficiently low so as to not require an EIS. Id. at *12, 16. It granted the Tribes' motion, however, with respect to three discrete flaws in the Corps' environmental analysis. The Court held that the Corps had insufficiently addressed: (1) the degree to which the project's effects are likely to be highly controversial; (2) the consequences of a spill for the Tribes' fishing and hunting rights; and (3) the environmental-justice impacts of the project. Id. at *1. Although the Court remanded these issues to the Corps for further analysis, it did not decide whether the easement should be vacated pending such remand. Instead, it ordered the parties to submit briefing on “whether remand with or without vacatur is appropriate in light of the deficiencies herein identified and any disruptive consequences that would result given the current stage of the pipeline's operation.” Id. at *29.

         This briefing is now complete, and the Court must determine whether or not oil may continue to flow under Lake Oahe. Although the parties dispute what, precisely, vacatur would entail, see ECF Nos. 277 (DA Reply) at 1 n.1; 276 (Corps Reply) at 9; 280 (Tribes Sur-reply) at 1, the prior Opinion clearly stated that vacatur would require that DAPL “cease operations” during remand. Standing Rock III at *28. The Court therefore assumes at this stage that such a remedy would vacate the Corps' prior EA and FONSI, as well as the easement it granted to Dakota Access in reliance on these determinations. Without this authorization, DAPL cannot lawfully continue to operate the pipeline on federal land.

         II. Legal Standard

         Under the caselaw of this Circuit, “vacating a rule or action promulgated in violation of NEPA is the standard remedy.” Humane Soc. of U.S. v. Johanns, 520 F.Supp.2d 8, 37 (D.D.C. 2007) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001)); see Reed v. Salazar, 744 F.Supp.2d 98, 118-20 (D.D.C. 2010) (finding NEPA violation and ordering vacatur); Sierra Club v. Van Antwerp, 719 F.Supp.2d 77, 78-80 (D.D.C. 2010) (finding NEPA violation and ordering remand with partial vacatur); Greater Yellowstone Coal. v. Kempthorne, 577 F.Supp.2d 183, 204-05, 210 (D.D.C. 2008) (finding NEPA violation and ordering vacatur). Yet, although vacatur is the “presumptively appropriate remedy, ” it is not the only option. See Sierra Club, 719 F.Supp.2d at 78. Instead, as equity requires, the reviewing court has discretion leave the agency action in place. See, e.g., Advocates for Hwy. & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005) (remanding without vacatur); Int'l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 966-67 (D.C. Cir. 1990) (same).

         The test for whether or not a court should vacate a deficient agency action during remand comes from this Circuit's decision in Allied-Signal v. U.S. Nuclear Regulatory Commission, 988 F.2d 146, 150-51 (D.C. Cir. 1993). As Allied-Signal explained, “[T]he decision whether to vacate depends on the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.” Id. at 150-151 (internal citation omitted). Put otherwise, this Court must determine whether there is “at least a serious possibility that the [agency] will be able to substantiate its decision on remand, ” and whether vacatur will lead to impermissibly disruptive consequences in the interim. See Nat'l Parks Conservation Ass'n v. Jewell, 62 F.Supp.3d 7, 20 (D.D.C. 2014); Williston Basin Interstate Pipeline Co. v. FERC, 519 F.3d 497, 504 (D.C. Cir. 2008) (declining to vacate when “significant possibility that the [agency] may find an adequate explanation for its actions”). The question for the Court today is thus whether this is the “type of case that merits departure from the presumptive remedy of vacatur.” Pub. Employees for Envtl. Responsibility v. United States Fish & Wildlife Serv., 189 F.Supp.3d 1, 2-3 (D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 6915561 (D.C. Cir. Oct. 31, 2016). It therefore examines the two prongs of Allied-Signal separately below, bearing in mind that “[t]here is no rule requiring either the proponent or opponent of vacatur to prevail on both factors.” Shands Jacksonville Med. Ctr. v. Burwell, 139 F.Supp.3d 240, 270 (D.D.C. 2015).

         III. Analysis

         A. Seriousness of Deficiencies

         The first prong of the Allied-Signal test requires the Court to determine the “seriousness” of the deficiencies in the underlying agency action. Here, Defendants argue that the three inadequacies identified by the Court - namely, the Corps' failure to adequately address the degree to which the project's effects are likely to be highly controversial, the impacts of a spill on fish or game, and the environmental-justice impacts of a spill - are not significant deficiencies in the agency's prior analysis. See ECF No. 258 (Corps Brief). Noting that the Court previously rejected the majority of Plaintiffs' challenges, Defendants contend that there are “only a few remaining tasks for the Corps to complete on remand” in order to substantiate the prior EA. See ECF No. 260 (DA Brief) at 19. Plaintiffs, unsurprisingly, cast the Court's Opinion in quite a different light. The Tribes assert that the Court granted their motion for summary judgment on “three grounds that go to the heart of ...

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