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

United States District Court, District of Columbia

May 8, 2019

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

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge

         For three years, this Court has presided over a dispute regarding the legality of the construction and operation of the Dakota Access Pipeline. In 2017, it remanded several National Environmental Policy Act issues to the Army Corps of Engineers for reconsideration. The Corps has now issued its decision on remand, which is the subject of challenges from Plaintiffs, assorted American Indian Tribes. The substance of those challenges is not yet at issue; instead, the Court now addresses a threshold matter. Plaintiffs have moved for the inclusion of several documents and sets of documents in the administrative record that they believe were considered by the agency but improperly excluded. Finding merit in some of these requests but not in others, the Court will grant in part and deny in part the Motion to Complete the Administrative Record.

         I. Background

         The legal and factual background of this case has been laid out extensively in the Court's prior Opinions. Only a small subset is relevant to the present dispute.

         On June 14, 2017, the Court ruled on cross-motions for partial summary judgment relating to “the Corps' alleged failure to comply with the National Environmental Policy Act” when it “grant[ed] permits to Dakota Access to construct and operate [the pipeline] under Lake Oahe.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock III), 255 F.Supp.3d 101, 112 (D.D.C. 2017). N E PA requires that an agency “prepare an Environmental Impact Statement [(EIS)] for any proposed major federal action ‘significantly affecting the quality of the human environment.'” Id. at 113 (quoting 42 U.S.C. § 4332(2)(C)). To determine whether it must prepare an EIS, an agency “first drafts an Environmental Assessment [(EA)].” Id. “If, after preparing an EA, the agency determines that an EIS is not necessary, it must prepare a Finding of No. Significant Impact (FONSI) setting forth the reasons why the action will not have any significant impact on the environment.” Id. If there will be no significant impact on the environment because of the agency's commitment to ensure mitigation measures are performed, it prepares a Mitigated FONSI. Id. In this case, the Corps determined, after preparing an EA, that a Mitigated FONSI was all that was required. Id. at 116.

         The Court found that “the Corps' decision . . . largely complied with NEPA, ” but with “substantial exceptions.” Id. at 147. Consequently, it remanded to the Corps to consider: “(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.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs (Standing Rock IV), 282 F.Supp.3d 91, 96 (D.D.C. 2017) (citing Standing Rock III, 255 F.Supp.3d at 111-12).

         The Corps completed the remand process on August 31, 2018. See ECF No. 407, Exh. A-1 (Remand Administrative Record) at 1. It “conclude[d] that a formal reconsideration of the . . . [EA] and [FONSI] or the preparation of supplemental [NEPA] documentation [was] not required.” Id. That is, upon further analysis, it stood by its prior conclusions. Plaintiffs have now moved to complete the Administrative Record on which the Corps relied in reaching its decision after remand. See ECF No. 401 (Plaintiffs' Motion). In doing so, they seek to have the Corps add documents that they contend it actually considered in its decision. Id. at 4. Plaintiffs request, consequently, that the Court “direct the Corps to complete the record” with the documents they enumerate. Id. at 5. The purpose of their effort is to ensure that the Court has certain material before it when assessing the merits of the Corps' decision on remand.

         II. Legal Standard

         In any regulatory challenge, the Court's “review is to be based on the full administrative record that was before the Secretary at the time [s]he made h[er] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); see also 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party.”). As part of the record, the Court may consider “any document that might have influenced the agency's decision” and not merely those documents the agency expressly relied on in reaching its final determination. See Nat'l Courier Ass'n v. Bd. of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975); see also Amfac Resorts, LLC v. U.S. Dep't of the Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001). The goal, ultimately, is for the Court to have before it a “record that delineates the path by which [the agency] reached its decision.” Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 338 (D.C. Cir. 1989).

         And so the agency is responsible for producing such administrative record. See Univ. of Colo. Health at Mem. Hosp. v. Burwell, 151 F.Supp.3d 1, 12 (D.D.C. 2015). When the agency does so, the record “is entitled to a strong presumption of regularity.” Sara Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008); see also Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C. 2010). A plaintiff may show that the record is “[i]nsufficien[t]” - i.e., incomplete - only if she is able to “specif[y] . . . documents that ha[ve] been omitted.” NRDC v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). In other words, “a plaintiff must put forth concrete evidence” and “identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record.” Marcum, 751 F.Supp.2d at 78 (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 6 (D.D.C. 2006)). Then, if the Court finds that the record produced “clearly do[es] not constitute the ‘whole record' compiled by the agency, ” it will order the agency to complete the record. See Overton Park, 401 U.S. at 419 (quoting 5 U.S.C. § 706).

         III. Analysis

         The instant dispute revolves around three categories of documents Plaintiffs believe should have been included in the record. They originally sought five but have apparently accepted the Corps' representation that the other two either were not considered or already appear in the record - namely, those relating to a third-party audit and final versions of documents they believed were provided only in draft. See ECF No. 405 (Plaintiffs' Reply) at 11-12. At issue here, consequently, are: (1) sources discussed in the Remand Analysis; (2) documents Plaintiffs maintain should have been included in the prior Administrative Record underlying the Corps' original NEPA decision; and (3) documents related to the terms of Dakota Access's easement to operate the pipeline at Lake Oahe. The Court will address each in turn.

         A. Sources Discussed in Remand Analysis

         Plaintiffs first contend that the “Remand Analysis cites to and relies on a number of technical supporting documents that are not in the record.” Pl. Mot. at 8. Several of these the Corps has agreed should properly have been included and has thus committed to add them. See ECF No. 402 (Defendant's Opposition) at 4, 17. Remaining at issue, therefore, are a report on pipeline spills and the Pipeline and Hazardous Materials Safety Administration (PHMSA) data underlying it; technical citations from the EA cited in the Remand Analysis; and the list of references and sources cited within “two key supporting technical documents that support the Remand Decision” - the “Downstream Receptor Report” (DRR) and the “Spill Model Report” (SMR). See Pl. Mot. at 8, 9. In addition to specifically enumerating those documents, Plaintiffs also request generally that the “Corps . . . complete ...


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