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

United States District Court, District of Columbia

December 4, 2017

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



         Two months ago, this Court determined that oil could continue to flow through the Dakota Access Pipeline while the U.S. Army Corps of Engineers conducted further environmental analyses. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock IV), 2017 WL 4564714 (D.D.C. Oct. 11, 2017). Although the prior Opinion declined to vacate the agency's easement approval, it left open the question of whether to impose any conditions during the remand period. Plaintiffs, the Standing Rock and Cheyenne River Sioux Tribes, have asked for a series of interim measures to monitor the ongoing operation of the pipeline. Defendants oppose such conditions, arguing that the Tribes have not demonstrated a need for injunctive relief and that the proposed measures are unnecessary during remand.

         As a threshold matter, the Court concludes that the interim conditions are not a request for injunctive relief; they are instead a means by which the Court can ensure that it receives up-to-date and necessary information about the operation of the pipeline and the facts on the ground. It next determines that the requested measures, each of which is tailored to keeping the Court abreast of the conditions at Lake Oahe pending further Corps analysis, are reasonable and appropriate.

         I. Background

         As explained in prior Opinions, the parties here are engaged in a protracted dispute over the placement of the Dakota Access Pipeline (DAPL) under Lake Oahe in North Dakota. See, e.g., Standing Rock IV, 2017 WL 4564714, at *1-3. The Lake is a federally regulated body of water that borders the Tribes' reservations, and it is considered sacred within their spiritual practices. Id.

         In their most recent challenge to the project, Plaintiffs alleged that the Corps had erred in its analysis of the environmental impact of the pipeline crossing, in violation of the National Environmental Policy Act. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 255 F.Supp.3d 101 (D.D.C. June 14, 2017). The Court agreed in part and remanded the case to the Corps for further analysis. Id. at 140. In a subsequent Opinion, issued on October 11, 2017, the Court examined whether the NEPA violations warranted vacatur of the agency's decisions - and thus a stoppage in the oil flow - during remand. See Standing Rock IV, 2017 WL 4564714. Finding a “significant likelihood” that the Corps could substantiate its prior conclusions, the Court answered that question in the negative. Id. at *8. In denying such relief, however, it left open the possibility of imposing other, interim conditions during remand. Id. at *12. It ordered further briefing on the issue from both sides, which is now complete.

         II. Analysis

         A. Authority to Issue Conditions

         The Court turns first to the matter of its authority to impose conditions during remand. As the Tribes correctly note, this question has already been decided by the prior Opinion, in which the Court found that it possessed jurisdiction to order interim remedies other than vacatur. Id. at *12 (rejecting Defendants' argument that Court lacks jurisdiction to enter interim relief). Although the Court therefore considers this matter largely settled, Defendants nonetheless continue to contend that the proposed conditions are beyond the scope of the Court's power. This is not so.

         The fundamental flaw in Defendants' argument is in how they characterize the relief Plaintiffs seek. Defendants assert that the Tribes are, in effect, asking for an injunction. According to the Corps, “Plaintiffs' request for ‘alternative measures' is . . . nothing more than a request for additional injunctive relief.” ECF 287 (Corps Brief) at 1-2. Asserting that the Tribes fail to meet the test for such a remedy, the Corps contends that Plaintiffs are not entitled to interim relief. Id.

         Yet the conditions sought do not constitute injunctive relief. They do not affect Defendants' ongoing environmental analysis, nor do they constrain the outcome of the remand process. Rather, they are largely a means of providing the Court with relevant information during this period. Each of the interim conditions is tailored to address the Court's ongoing concern with the risk of a spill at Lake Oahe - a hazard that the previous Opinion described as “at the center of this Court's prior” decision to remand the matter to the Corps. See Standing Rock IV, 2017 WL 4564714, at *10. Such information-gathering measures are within the Court's managerial discretion over this pending case. See also West Virginia v. EPA, Order, No. 15-1363 (D.C. Cir. 2017) (ordering EPA to file status reports at 30-day intervals while case held in abeyance).

         Because the interim conditions here do not affect the remand process, Defendants' reliance on Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), is misplaced. The Court there held that the district court had exceeded its authority when, after vacating the Animal and Plant Health Inspection Service's decision to completely deregulate a genetically engineered crop, it additionally entered an injunction preventing the agency from partially deregulating the crop during the remand period. Id. at 156, 158-59. Such an injunction, the Court concluded, interfered with the agency's authority “to decide whether and to what extent it would pursue a partial deregulation” and thus impermissibly “pre-empt[ed] the very procedure by which the agency could determine . . . that a limited deregulation would not pose any appreciable risk of environmental harm.” Id. at 159, 164. The holding in Monsanto thus resolved an issue unconnected with the facts of this case - whether a district court may impose constraints on an agency's authority and decisionmaking during remand. The interim measures proposed here do not have any such effect.

         Other cases addressing the scope of a court's supervision during remand are similarly inapposite. These decisions all concern the imposition of injunctive relief relating to the relevant agency's analysis or discretion on remand. See Bennett v. Donovan, 703 F.3d 582, 588-89 (D.C. Cir. 2013) (noting that court would not direct agency on remand “to take [a] precise series of steps” with respect to plaintiffs' mortgage, including “accept[ing] assignment of the mortgage, pay[ing] off the balance . . . and then declin[ing] to foreclose”); Palisades Gen. Hosp. Inc. v. Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005) (stating that district court lacked authority to “order specific relief” after vacating agency decision); Berge v. United States, 949 F.Supp.2d 36, 47 (D.D.C. 2013) (noting no district court jurisdiction to “order specific relief that deprives an agency of the ability to reconsider the matter in light of the Court's decision”).

         Yet here, as explained in more detail below, the conditions are not constraints on the Corps' analysis or a grant of “specific relief” to the Tribes. They do not concern the scope of the remand, nor do they affect the agency's authority over the pipeline. They are instead means by which the Court can gather information about the risks posed by the pipeline pending remand and can ensure that the status quo is preserved for both ...

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