United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
Authority to Issue Conditions
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
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.
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).
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.
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”).
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 ...