United States District Court, District of Columbia
MEMORANDUM OPINON AND ORDER
E. BOASBERG, UNITED STATES DISTRICT JUDGE
long-running battle between American Indian Tribes and the
U.S. Army Corps of Engineers over the Dakota Access Pipeline,
the parties have engaged in an extensive motions practice,
requiring the Court to issue myriad substantive Opinions.
Now, as the litigants focus on the Corps' remand efforts,
one Tribe - the Oglala Sioux - asks to rewind the clock and
amend its Complaint to return to an issue long since decided.
As such amendment is both prejudicial to Defendants and
futile, inasmuch as the Court has already addressed it, the
Motion to Amend will be denied.
the parties have briefed a congeries of complex issues
throughout this litigation, the one relevant to this Motion
is the allegation by a number of Tribes that the Corps
violated the National Environmental Policy Act in early 2017
when it withdrew its notice of intent (NOI) to prepare an
environmental-impact statement (EIS) and issued an easement
to Dakota Access to build its pipeline under Lake Oahe on the
Missouri River. See Standing Rock Sioux Tribe v. U.S.
Army Corps of Engineers, 255 F.Supp.3d 101, 117-20
(D.D.C. 2017). This was one subject (of many) that the Court
addressed in its summary-judgment Opinion, issued in June
2017, in which it held that the Corps' reversal of field
on this point was not arbitrary and capricious. Id.
at 143. In that Opinion, the Court granted Defendants summary
judgment in part, finding that the Government had
substantially complied with NEPA, but remanding certain
matters unrelated to the NOI for the Corps to reconsider.
Id. at 112.
remand is now complete, and the Court has set a briefing
schedule relating to the administrative record on remand and
will then proceed to entertain another round of
summary-judgment briefing, this time about the remand issues.
It permitted all Plaintiffs an opportunity to seek to
supplement or amend their Complaints relating to remand. Many
have done so, which the Court has permitted, see
Minute Order of Jan. 3, 2019, as the supplementation relates
solely to the remand process. The Oglala Sioux alone have
also sought to augment a claim unrelated to remand. The Tribe
asks for permission to add only one sentence of additional
allegations. More specifically, it wishes to allege that the
Corps' decision to withdraw the NOI and issue the
easement was made without reviewing thousands of submissions
in response to the NOI. See ECF No. 376 (Motion to
Amend) at 3. The Corps and Defendant-Intervenor Dakota Access
resist, arguing that this ship has long since sailed.
plaintiff may amend her complaint once as a matter of course
within 21 days of serving it or within 21 days of being
served a responsive pleading. See Fed.R.Civ.P.
15(a)(1). Otherwise, she must seek consent from the defendant
or leave from the court. See Fed.R.Civ.P. 15(a)(2).
“The court should freely give leave when justice so
requires.” Id. In deciding whether to grant
leave to file an amended complaint, the court may consider
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis,
371 U.S. 178, 182 (1962). In this Circuit, “it is an
abuse of discretion to deny leave to amend unless there is
sufficient reason.” Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996). Furthermore, under Rule 15,
“the non-movant generally carries the burden in
persuading the court to deny leave to amend.”
Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C.
clear, however, that amendment should not be permitted if it
would be futile. In other words, if the proposed amendment
would render the complaint deficient, the court need not
grant leave. See In re Interbank Funding Corp. Sec.
Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (“[A]
district court may properly deny a motion to amend if the
amended pleading would not survive a motion to
dismiss.”); James Madison Ltd. v. Ludwig, 82
F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny a
motion to amend a complaint as futile . . . if the proposed
claim would not survive a motion to dismiss.”).
contesting Plaintiff's Motion to Amend, Defendants argue
that the proposed amendment here is both prejudicial and
futile. As to the former, Defendants correctly point out
first that this is no simple litigation. The docket's
heft bears this out. Three cases have been consolidated
involving multiple Tribes, numerous individuals, and many
amici. Parties have intervened on both Plaintiffs' and
Defendants' side. The Court has issued numerous lengthy
Opinions, including expedited ones on preliminary-injunction
motions. Through it all, the Court has endeavored to manage
the litigation in a way that permits all parties to be heard
and that devotes significant time and attention to the claims
and defenses raised. The current Motion seeks to derail and
substantially delay that train. See Thorp v. Dist. of
Columbia, 325 F.R.D. 510, 514 (D.D.C. 2018) (“Such
prejudice is particularly pronounced because Plaintiff's
Motion arrives at a critical juncture of [the] case . . .
[where] the issues in this case . . . [have] been narrowed by
the Court's prior Opinion . . . [and] the parties'
cross-motions for summary judgment are now ripe.”)
(internal quotation marks and citations omitted).
the principal Plaintiffs - the Standing Rock Sioux Tribe and
the Cheyenne River Sioux Tribe - filed their suits in July
and August 2016, the Oglala Sioux waited to file their
initial Complaint until February 2017. See No.
17-267, ECF No. 1. The Tribe has also now waited almost two
years to seek amendment, even though the litigation has been
proceeding through different stages. In so doing, it offers
no explanation whatsoever for such delay. This delay alone is
sufficient grounds to deny the Motion.
the Court granted summary judgment to the Corps on most
claims while remanding others, moreover, it fully expected
that only the remanded claims would remain to be decided.
While the Oglala Sioux argue that the Court permitted
amendment following remand, this was simply for Plaintiffs to
refine any claims relating to remand, not to return to the
starting blocks. To permit one Plaintiff among many to reset
the litigation would prejudice at least Dakota Access, which
has long had to balance its obligations regarding the
operation of the pipeline with the demands of this
litigation. To require it and the Government to relitigate
issues already decided at an earlier stage would impose
substantial expense and concomitant uncertainty.
addition, the Tribe has already raised the points it seeks to
include in an Amended Complaint, thus showing the futility of
amendment now. In previously setting forth NEPA claims, the
Tribe alleged in its initial Complaint that “[t]he
Corps' decision to withdraw the NOI for the EIS before
the end of the public comment period and without holding a
scoping session violated NEPA.” Id., ¶
88. In its summary-judgment briefing on the NEPA allegations,
furthermore, the parties directly contested the propriety of
the Corps' issuance of the NOI. The Oglala Sioux,
appearing as amicus for Standing Rock's motion for
summary judgment, specifically asserted that “[t]he
withdrawal of the NOI is arbitrary and capricious because it
does not take into account the comments of the [Oglala Sioux]
and its expert . . ., or other numerous comments received by
the Corps subsequent to the EA.” ECF No. 138 (Oglala
Sioux Amicus Brief) at 20. Cheyenne River, similarly,
contended that the Corps did not consider “more than
200, 000 comments filed in response to the EIS Notice.”
ECF No. 131 (Cheyenne River MSJ) at 5 n.3. This Court
nonetheless determined that the withdrawal of the NOI and the
issuance of the easement was not arbitrary and capricious.