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

United States District Court, District of Columbia

March 19, 2018

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

         Once more into the breach over the Dakota Access Pipeline goes this Court, though for the first time addressing claims of the Yankton Sioux Tribe and Robert Flying Hawk, the Chairman of the Tribe's Business and Claims Committee. While the Plaintiffs may have changed, the underlying claims are quite familiar. As with the Standing Rock and Cheyenne River Sioux Tribes before them, the Yankton Sioux challenge the construction and operation of the Dakota Access Pipeline under the National Historic Preservation Act, the National Environmental Protection Act, and the 1851 Treaty of Laramie. Specifically, Plaintiffs allege that Defendants - the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and an assortment of federal employees of both agencies - violated the NHPA by failing to adequately consult with the Tribe regarding historical and cultural sites, violated NEPA by unlawfully segmenting their analyses of the pipeline's environmental impacts, and violated the 1851 Treaty by granting approvals for DAPL without first obtaining the Tribe's consent.

         Both sides have now filed Cross-Motions for Summary Judgment on the Tribe's NEPA and Treaty-based claims. Defendants additionally urge the Court to dismiss as moot Plaintiffs' NHPA counts, asserting that they are no longer viable in light of DAPL's completed construction. Agreeing that it can provide no effective remedy on this last score, the Court will dismiss the NHPA claims. It will also grant summary judgment for Defendants with respect to Plaintiffs' Treaty-based count, which the Tribe essentially withdrew during briefing. Finally, the Court concludes that Plaintiffs have not shown that the Corps and FWS improperly “segmented” their analysis of the pipeline's environmental consequences, thus yielding summary judgment for Defendants on the NEPA claims as well.

         I. Background

         A. Factual and Statutory Background

         The lengthy factual history of the Dakota Access Pipeline, a 1, 200-mile domestic-oil pipeline running from North Dakota to Illinois, is set forth in this Court's prior Opinions and need not be repeated here. See, e.g., Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock I), 205 F.Supp.3d 4, 12-15 (D.D.C. 2016). The Court will, however, provide a brief background of this Tribe's participation in DAPL's development and an overview of the specific federal actions related to the pipeline.

         A federally recognized Tribe that is headquartered in Wagner, South Dakota, the Yankton Sioux have approximately 9, 000 enrolled members. See ECF No. 292 (Yankton MSJ) at 3. Their Reservation is located in South Dakota, hundreds of miles from the much-contested Lake Oahe crossing and at least 60 miles from any other part of DAPL's path. See ECF No. 321 at 5 (Map 2). The Tribe nonetheless opposes the construction and routing of the pipeline, alleging that it will harm a number of its environmental interests.

         Since the pipeline project was proposed, Plaintiffs insist that they have “continually sought to protect” their tribal lands from the “serious risk of harm” it poses. See Yankton MSJ at 4. This assertion is somewhat belied, however, by the record regarding the Tribe's cooperation (or lack thereof) with the federal agencies involved in the project. The Yankton did not attend multiple meetings held by the Corps and FWS to discuss DAPL (meetings that were attended by other interested tribes), see Exhs. I (January 25, 2016, Corps Meeting Log), J (December 8, 2015, Corps Meeting Log), V (List of Invitees to FWS Meetings), W (FWS Meeting Log), nor did they respond to numerous efforts by the Corps and FWS to engage in discussion regarding the pipeline. See Exhs. N (Letter from Col. Henderson, May 10, 2016), O (Letter from Col. Henderson, May 6, 2016), P (Email Chain Discussing Corps' Attempts to Contact Yankton, May 2, 2016), Q (Email Chain Discussing Consultation, April 15-22, 2016), T (Letter from FWS to Chairman Flying Hawk), U (Letter from FWS to Tribal Officer Little). Regardless of the Tribe's level of participation in the consultation process, however, the Yankton have since objected to the pipeline's construction and routing.

         In particular, Plaintiffs contest the process by which the Corps and FWS issued a series of permits and permissions necessary for the pipeline to cross federally regulated lands and waters. Although DAPL runs almost entirely across private property, 3% of the pipeline is on federally managed land and thus required governmental approval. See Standing Rock I, 205 F.Supp.3d at 13. The permits needed for these portions of the pipeline were issued by four separate entities - three districts of the Corps and one district of FWS. In evaluating these permissions, each agency division conducted an environmental assessment under the National Environmental Protection Act.

         NEPA requires that federal agencies evaluate the environmental effects of major government actions, but it “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 Environmental Impact Statement (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 Environmental Analysis (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(a), (b). If the EA concludes that there will be no significant environmental impact, the agency may forgo completing a full EIS and may instead issue the EA and a Finding of No Significance (FONSI).

         This was the route chosen by the federal agencies charged with evaluating the DAPL-related permissions. In July 2016, the Corps' Omaha District issued an EA and FONSI related to the crossings of Corps-managed lands and flowage easements at Lake Oahe and Lake Sakakawea in North Dakota. See Exh. A (Omaha District EA and FONSI). In August of that year, the Corps' St. Louis District issued its own EA and FONSI, which addressed four crossings in Illinois, three of which spanned less than 700 feet, and one of which crossed a federal flowage easement for approximately 2.5 miles. See Exh. B (St. Louis District EA and FONSI). The Corps' Rock Island District also issued a permission under Section 408 of the Rivers and Harbors Act for a crossing of the Mississippi River, after the district determined that the proposal qualified for a categorical exclusion under NEPA. See Exh. C (Rock Island District Memorandum). Finally, the FWS issued an EA in May 2016 and a FONSI in June of that year, and it granted Dakota Access permission to cross five wetland easements and one grassland easement in North Dakota. See Exhs. D (FWS EA), E (FWS FONSI). These easements, which were over 60 miles from the water crossings evaluated by the Corps, affected 71.8 acres of the pipeline route, or less than 1% of the total North Dakota and South Dakota project area. See FWS EA at 18. In total, therefore, the federal agencies issued three EAs and complementary FONSIs and one categorical exclusion, each of which in turn facilitated the various permissions and permits needed for DAPL to cross federally managed lands. It is these NEPA analyses, and the process by which they were conducted, to which Plaintiffs now object.

         B. Procedural History

         1. History of DAPL Litigation

         The Yankton Sioux Tribe initiated the instant suit on September 9, 2016, when it filed a Complaint against the United States Army Corps of Engineers, the United States Fish and Wildlife Service, and four individual Defendants - Dan Ashe, Director of FWS; John W. Henderson, Commander of the Corps' Omaha District; Anthony Mitchell, Commander of the Corps' St. Louis District; and Todd Semonite, the Corps' Commanding General and Chief of Engineers. See Case No. 16-1796, ECF No. 1 (Yankton Sioux Compl.). In February 2017, Defendant Dakota Access moved to intervene in support of federal Defendants, a motion that was not opposed by the Tribe and was subsequently granted by the Court. Id., ECF No. 17 (Dakota Access Motion to Intervene); Minute Order of March 13, 2017 (Granting Motion to Intervene as Unopposed). That March, upon an unopposed motion by the Corps, the Tribe's case was consolidated with challenges to DAPL filed by the Standing Rock, Cheyenne River, and Oglala Sioux Tribes. See Minute Order of March 17 (Consolidation Order).

         For the past fourteen months, others among the consolidated Plaintiffs have made multiple attempts to prevent oil from flowing through the pipeline. Indeed, this Court has now issued five Opinions in this case - all addressing various claims by the Standing Rock and Cheyenne River Sioux Tribes. These Tribes' first pass at preventing pipeline construction 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 I, 205 F.Supp.3d at 7-9. On September 9, 2016, the Court denied emergency relief, and construction proceeded. Id. at 37.

         On February 8, 2017, the Corps 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 another motion for preliminary injunction and an application for a temporary restraining order, this time alleging violations of the Religious Freedom Restoration Act. 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 an Opinion denying this preliminary injunction as well. See Standing Rock II, 239 F.Supp.3d at 80. As these emergency motions were ongoing, Standing Rock and Cheyenne River 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, EA and FONSI, contending that the agency had violated NEPA by failing to complete a full EIS.

         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 Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock III), 255 F.Supp.3d 101 (D.D.C. 2017). It rejected Plaintiffs' motion with respect to their claims under the Mineral Leasing Act and upheld the majority of the Corps' determinations under NEPA. Id. at 152, 147. It granted the Tribes' motion, however, with respect to three discrete flaws in the Corps' environmental analysis. Id. at 147. 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. Id. at 147-48. That determination followed in the Court's October 11, 2017, Opinion, in which it concluded that there was a “serious possibility” that the Corps would be able to substantiate its prior determinations and thus denied vacatur pending remand. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock IV), 2017 WL 4564714 (D.D.C. Oct. 11, 2017). Finally, this past December, the Court issued an Opinion imposing a series of interim measures during the remand process, each tailored to keeping the Court informed as to the conditions at Lake Oahe pending further analysis by the Corps. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock V), 2017 WL 6001726 (D.D.C. Dec. 4, 2017). The remand process remains ongoing and will extend past April 2, 2018. See ECF No. 338 (Corps' Notice).

         2. Yankton Motion for Summary Judgment

         Only now, as that remand is ongoing and further analysis is underway, have the Yankton Sioux and Robert Flying Hawk chosen to enter the fray. On November 13, 2017, they brought the instant Motion for Partial Summary Judgment on the basis of their claims arising under NEPA and the Tribe's 1851 Treaty of Laramie with the United States. See Yankton MSJ. Specifically, the Tribe asserts that Defendants violated NEPA by segmenting their evaluation of DAPL's environmental impacts among multiple federal agencies and Corps divisions. Id. at 5-16. Arguing that the various federal permissions for the pipeline are “connected” or “similar” actions under the meaning of NEPA's implementing regulations, Plaintiffs contend that Defendants were thus required to conduct a consolidated, programmatic assessment of the approvals. Id. at 5-6. Plaintiffs additionally move for summary judgment on their claim that, by failing to obtain the Tribe's free and informed consent prior to granting authorizations for DAPL's construction, the Corps and FWS violated the Tribe's 1851 Treaty of Fort Laramie and the federal government's trust responsibilities to the Tribe. Id. at 19-29.

         On January 10, 2018, federal Defendants filed their Opposition to Plaintiffs' claims and cross-moved for partial summary judgment. See ECF No. 320 (Corps Opp.) Dakota Access, as a Defendant-Intervenor and Cross-Claimant, also filed its own Opposition and brief in support of federal Defendants' Cross-Motion. See DA Opp. In their briefing, Defendants additionally moved to dismiss the Tribe's NHPA claims as moot in light of DAPL's completed construction and current operation. Plaintiffs filed their Reply and Opposition on January 26, 2018, in which they continue to request summary judgment on their NEPA counts, but “withdraw” their Motion with respect to their Treaty- and trust-based claims. See ECF No. 324 (Yankton Reply). They also oppose Defendants' Motion with respect to the dismissal of their NHPA claim, asserting that the related counts in their Complaint remain viable. With briefing complete, the Court must now determine whether summary judgment is appropriate for either party.

         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 could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983). This is a “narrow” standard of review, under which “a court is not to substitute its judgment for that of the agency.” Id. Rather, the Court “will defer to the [agency's] interpretation of what [a statute] requires so long as it is ‘rational and supported by the record.'” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. 2011) (quoting C & W Fish Co. v. Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991)). Although a reviewing court “may not supply a reasoned basis for the agency's action that the agency itself has not given, ” a decision that is not fully explained may, nevertheless, be upheld “if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (citations omitted).

         III. Analysis

         A. Preliminary Issues

         Before turning to the crux of this case - the Tribe's NEPA challenge to Defendants' environmental assessments - the Court first pauses to address four preliminary issues.

         1. LCvR 7(h)

         First, and simplest, is the question of whether Plaintiffs are correct that, because Defendants “failed to controvert any facts identified by [the Tribe] in the statement of material facts[, ] . . . this Court should assume Plaintiffs' facts are admitted” under Local Rule 7(h). See Yankton Reply at 3. They are not. Indeed, as Defendants accurately note, Rule 7(h) does not apply in cases such as this one in which judicial review is based solely on the administrative record. See All. for Nat. Health U.S. v. Sebelius, 775 F.Supp.2d 114, 118 (D.D.C. 2011) (noting that “in cases in which judicial review is based solely on the administrative record, the parties are not required to submit statements of disputed or undisputed material facts”) (internal quotations omitted). The Court, therefore, will not treat Plaintiff's facts as admitted and will instead evaluate the parties' claims on the basis of the underlying administrative record.

         2. Treaty and Trust Claims

         The Court next looks at the Tribe's Treaty-based claims. Plaintiffs' Motion relies in part on the first count of their Complaint, which alleged that Defendants violated the 1851 Treaty of Laramie, the federal trust responsibilities to the Tribe, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). See Compl., ¶¶ 81-90. More specifically, Plaintiffs assert that Defendants failed to “consider the impacts of [their] actions to the Tribe's 1851 Treaty Rights” and that the Corps breached its “fiduciary duty to consider how its actions may affect a tribe's treaty rights.” Yankton MSJ at 20, 29. In their Oppositions and Cross-Motions, Defendants contend that this matter was already disposed of in Standing Rock II. They argue, moreover, that regardless of this Court's prior Opinion, Plaintiffs are unable to identify any retained tribal rights in land or waters that would be affected by DAPL's construction. See Corps Opp. at 18-19 (stating that “Plaintiffs offer no “compelling reason why this Court should reconsider” its prior Opinion addressing treaty rights), 27-28 (noting that Yankton's current lands are ...


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