Standing Rock Sioux Tribe v. United States Army Corps of Engineers

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STANDING ROCK SIOUX TRIBE, et al.,
Plaintiffs,
v. Civil Action No. 16-1534 (JEB)
U.S. ARMY CORPS OF ENGINEERS, et
al.,
Defendants.
MEMORANDUM OPINION
Designed to transport oil from the Bakken oil fields in North Dakota to a storage hub in
southern Illinois, the Dakota Access Pipeline (DAPL) has also borne substantial controversy in
its wake. Most significant has been the opposition from Indian tribes whose reservations lie in
close proximity to the pipeline’s crossing of the Missouri River at Lake Oahe. To block Dakota
Access LLC’s construction of that last segment and its operation of DAPL, the Standing Rock
Sioux Tribe filed this suit in July 2016, and the Cheyenne River Sioux Tribe intervened shortly
thereafter.
The Tribes have since mounted two substantial legal challenges to DAPL, neither of
which yielded success. The first contended that the grading and clearing of land for the pipeline
threatened sites of cultural and historical significance, and that the U.S. Army Corps of
Engineers had flouted its duty to engage in tribal consultations pursuant to the National Historic
Preservation Act. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock
I), 205 F. Supp. 3d 4, 7 (D.D.C. 2016). The second maintained that the presence of oil in the
pipeline under Lake Oahe would desecrate sacred waters and make it impossible for the Tribes to
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freely exercise their religious beliefs, thus violating the Religious Freedom Restoration Act. See
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock II), No. 16-1534, 2017
WL 908538, at *1 (D.D.C. Mar. 7, 2017).
Now that the Court has rejected these two lines of attack, Standing Rock and Cheyenne
River here take their third shot, this time zeroing in DAPL’s environmental impact. They seek
summary judgment on several counts related to the Corps’ alleged failure to comply with the
National Environmental Policy Act. In particular, the Tribes believe that the Corps did not
sufficiently consider the pipeline’s environmental effects before granting permits to Dakota
Access to construct and operate DAPL under Lake Oahe, a federally regulated waterway. This
volley meets with some degree of success. Although the Corps substantially complied with
NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil
spill on fishing rights, hunting rights, or environmental justice, or the degree to which the
pipeline’s effects are likely to be highly controversial.
To remedy those violations, the Corps will have to reconsider those sections of its
environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline
operations during that remand presents a separate question of the appropriate remedy, which will
be the subject of further briefing.
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Table of Contents
I.   Background ............................................................................................................... 4
A.  NEPA 4
B.  Factual History 6
C.  Litigation 11
1.  Filing of Suit .................................................................................................... 11
2.  Further Consideration ...................................................................................... 12
3.  A New Administration..................................................................................... 16
II.   Legal Standard ........................................................................................................ 19
III.   Analysis of Standing Rock’s Claims ...................................................................... 21
A.  Decision Not to Prepare EIS 21
1.  Hard Look / Convincing Case ......................................................................... 22
a.  Extent of Record ............................................................................................. 23
b.  Spill-Risk Analysis......................................................................................... 27
c.  Impacts Analysis Re: Treaty Rights ............................................................... 36
2.  Alternatives ...................................................................................................... 43
3.  Environmental Justice...................................................................................... 47
B.  Decision to Grant the Easement 54
1.  Policy Change .................................................................................................. 55
2.  Trust Responsibilities ...................................................................................... 59
C.  NWP 12 63
D.  Remedy 66
IV.  Analysis of Cheyenne River’s Claims .................................................................... 67
A.  Section 408 Decision 68
1.  Impairment....................................................................................................... 69
2.  Injurious to Public Interest .............................................................................. 71
3.  Other Arguments ............................................................................................. 72
B.  Easement Decision 75
1.  Section 185(b)(1) ............................................................................................. 76
2.  Section 185(h)(2) ............................................................................................. 78
3.  Section 185(x).................................................................................................. 79
C.  Trust Responsibilities 80
D.  Consultation 81
V.  Conclusion .............................................................................................................. 91
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I. Background
To familiarize the reader with the background information relevant to its analysis, the
Court first briefly sets out the National Environmental Policy Act’s statutory framework and then
separately discusses the factual history and litigation to date.
A. NEPA
The National Environmental Policy Act, the statute under which the majority of the
Tribes’ claims are brought, has two aims: it “places upon an agency the obligation to consider
every significant aspect of the environmental impact of a proposed action,” and “it ensures that
the agency will inform the public that it has indeed considered environmental concerns in its
decisionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462
U.S. 87, 97 (1983) (citation omitted). NEPA’s requirements are “procedural,” requiring
“agencies to imbue their decisionmaking, through the use of certain procedures, with our
country’s commitment to environmental salubrity.” Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 193-94 (D.C. Cir. 1991). Importantly, “NEPA does not mandate particular
consequences,” id. at 194, and courts are discouraged from substituting their own policy
judgments for that of the agency. See N. Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir.
1980); see also Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989). “NEPA merely
prohibits uninformed — rather than unwise — agency action.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351 (1989). Agency actions with adverse environmental effects
can thus be NEPA compliant where “the agency has considered those effects and determined that
competing policy values outweigh those costs.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co.,
556 F.3d 177, 191 (4th Cir. 2009) (citations omitted).
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Under NEPA, an agency must prepare an Environmental Impact Statement for any
proposed major federal action “significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C). An EIS must detail the environmental impact of the proposed action, any
unavoidable adverse effects, alternatives to the proposed action, the relationship between short-
term uses of the environment and long-term productivity, and any irreversible commitments of
resources. Id.
To determine whether an agency must prepare an EIS, it first drafts an Environmental
Assessment. See 40 C.F.R. § 1501.4(b). An EA is a “concise public document” that “[b]riefly
provide[s] sufficient evidence and analysis for determining whether to prepare an environmental
impact statement or a finding of no significant impact.” Id. § 1508.9(a). The EA must discuss
the need for the proposal, the alternatives, the environmental impacts of the proposed action and
alternatives, and the agencies and persons consulted. Id. § 1508.9(b). 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. §§ 1501.4(e), 1508.13; cf. Grand Canyon Trust v. FAA, 290 F.3d 339, 340
(D.C. Cir. 2002) (“If any ‘significant’ environmental impacts might result from the proposed
agency action then an EIS must be prepared before agency action is taken.”) (quoting Sierra Club
v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)). If the action will not have such impact
because of the agency’s commitment to ensure the performance of mitigation measures, the
agency prepares a Mitigated FONSI. See Council on Environmental Quality, Appropriate Use of
Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact 2, 7 (2011), https://energy.gov/sites/prod/files/NEPA-
CEQ_Mitigation_and_Monitoring_Guidance_14Jan2011.pdf. Mitigation includes “[a]voiding
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an impact by not taking a certain action”; “[m]inimizing an impact by limiting the degree or
magnitude of the action”; “[r]ectifying an impact by repairing, rehabilitating, or restoring the
affected environment”; “[r]educing or eliminating an impact over time, through preservation and
maintenance operations”; and “[c]ompensating for an impact by replacing or providing substitute
resources or environments.” Id. at 4-5. As will be explained below, the Corps here prepared an
EA and a Mitigated FONSI. The central question this Opinion answers is whether that was
sufficient.
B. Factual History
As those who have followed this litigation and the concomitant public debate well know,
DAPL is a nearly 1,200-mile pipeline designed to move more than half a million gallons of crude
oil from North Dakota to Illinois every day. Standing Rock I, 205 F. Supp. 3d at 7. Although no
government approval is necessary for oil pipelines traversing private lands, it is required for
those segments that cross federally regulated waters. Id. DAPL crosses such waterways at
hundreds of discrete places along its route, including, most prominently, at Lake Oahe. Id.
Created by the Corps in 1958 via a dam constructed on the Missouri River, Lake Oahe is
a reservoir that spans North and South Dakota and borders the Standing Rock and Cheyenne
River Sioux Reservations to the east. Id. at 13; ECF No. 172-1 (Environmental Assessment) at
35, 75; ECF No. 97-1 (CRST Second Amended Complaint), ¶ 29. DAPL crosses the Lake 0.55
miles north of the Standing Rock Reservation and 73 miles north of the Cheyenne River
Reservation. See Standing Rock II, 2017 WL 908538, at *1; EA at 75. For orientation purposes,
the southern border of the former Reservation also acts as the northern border of the latter. See
ECF No. 117-5 (Map of Current Sioux Reservations).
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Lake Oahe holds special significance for the Standing Rock and Cheyenne River Sioux
Tribes. Its creation necessitated the taking of approximately 56,000 acres of some of “the best
land” from Standing Rock’s Reservation, as well as 104,420 acres of Cheyenne River’s trust
lands. See Act of Sept. 2, 1958, Pub. L. No. 85-915, 72 Stat. 1762; S. Rep. No. 102-267, at 188
(1992); Standing Rock II, 2017 WL 908538, at *16 (citing South Dakota v. Bourland, 508 U.S.
679, 683 (1993)). Today, Standing Rock members rely on Lake Oahe’s waters to service
“homes, a hospital, clinics, schools, businesses and government buildings throughout the
Reservation” and to support agriculture and industrial activities. See ECF No. 117 (SRST MSJ)
at 4. The Lake is also the primary source of water for the Cheyenne River Reservation. See
CRST Second Amend. Compl., ¶ 2. Both Tribes consider the waters to be “sacred” and “central
to [their] practice of religion.” SRST MSJ at 4; see Standing Rock II, 2017 WL 908538, at *6, 8.
Dakota Access notified the Corps of its intent to construct a portion of DAPL under Lake
Oahe in June 2014, see ECF No. 183-1 (Email from Monica Howard, Dir. Envtl. Sci., Dakota
Access, to Jason Renschler, Project Manager, Corps, June 23, 2014), and first sought the Corps’
approval to do so in October 2014. See ECF No. 159-1, Exh. A (Letter from Monica Howard to
Brent Cossette, Nat. Resource Specialist, Corps, Oct. 21, 2014). Specifically, the Company
needed three authorizations from the Corps: (1) verification that its activities satisfied the terms
and conditions of Nationwide Permit 12; (2) permission under the Rivers and Harbors Act, 33
U.S.C. § 408; and (3) a real-estate easement under the Mineral Leasing Act, 30 U.S.C. § 185.
See ECF No. 172-6 (Memorandum from John Henderson, Omaha District Commander &
Engineer, Corps, Dec. 3, 2016), ¶ 4. The Court has previously discussed some of the details of
these permitting schemes, see Standing Rock I, 205 F. Supp. 3d at 10-12, and will not repeat
them here.
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In December 2015, the Corps published and sought public comment on a Draft
Environmental Assessment that evaluated the environmental effects of DAPL’s proposed
crossing of Lake Oahe and concluded that “construction of the proposed Project [was] not
expected to have any significant direct, indirect, or cumulative impacts on the environment.”
ECF No. 6-19 (Draft EA) at 1; see EA at 1. Standing Rock promptly submitted comments
touching on a range of concerns, including that the Draft EA failed to adequately address
potential harm from the pipeline’s construction and operations to the Lake’s water and the
Tribe’s rights thereto; did not acknowledge the pipeline’s proximity to the Reservation;
insufficiently analyzed the risks of an oil spill; and did not properly address environmental-
justice considerations. See ECF No. 159-1, Exh. C (SRST Comments on Draft EA, Jan. 8, 2016)
at 9-17; id., Exh. D (SRST Suppl. Comments on Draft EA, Mar. 24, 2016) at 2-3. The Tribe,
accordingly, asked that the Corps prepare an Environmental Impact Statement to assess the
pipeline’s effects, a request it had also made prior to the Draft EA’s release. See ECF No. 209-6
(Notes for Feb. 18-19, 2016, Tribal Meeting) at 51; ECF No. 209-9 at 33-34 (Letter from Waste
Win Young, Tribal Historic Preservation Officer, Standing Rock Sioux Tribe, to Martha Chieply,
Omaha District Regulatory Branch, Corps, Feb. 25, 2015). Cheyenne River expressed similar
views. See ECF No. 185-1, Exh. II (Letter from Steve Vance, Tribal Historic Preservation
Officer, Cheyenne River Sioux Tribe, to Richard Harnois, Sr. Field Archaeologist, Corps, May 2,
2016); ECF No. 183-19 (Letter from Steve Vance to John Henderson, May 19, 2016); ECF No.
183-20 (Letter from Harold Frazier, Chairman, Cheyenne River Sioux Tribe, June 3, 2016).
Other federal agencies also weighed in on the Draft EA. Like the Tribes, the Department
of the Interior requested that the Corps prepare an EIS, a step it believed necessary given
DAPL’s “potential impact on trust resources” — i.e., 800,000 acres of land held in trust for the
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Tribe by Interior, as well as waters on which the Tribe and its members depend for drinking and
other purposes — should a leak or spill occur. See ECF No. 209-7 at 21 (Letter from Lawrence
Roberts, Acting Assistant Secretary for Indian Affairs, Dep’t of Interior, to Brent Cossette, Mar.
29, 2016). Interior criticized the Corps for, inter alia, “not adequately justify[ing] or otherwise
support[ing] its conclusion that there would be no significant impacts upon the surrounding
environment and community” and not assigning a level of intensity to those potential adverse
impacts that were acknowledged. Id.
The Environmental Protection Agency similarly expressed concern that the Draft EA
“lack[ed] sufficient analysis of direct and indirect impacts to water resources,” did not
adequately address “the measures that will be required to assure that impacts from construction
and operation of the pipeline are not significant,” and did “not identify the related effects from
the entire project segment.” ECF No. 209-16 at 184 (Letter from Philip Strobel, Director of
NEPA Compliance & Review Program, EPA, to Brent Cossette, Jan. 8, 2016). Although the
EPA did not believe that the Draft EA “would support a FONSI,” it did not call for the Corps to
prepare an EIS; instead, it suggested that “information and mitigation could be added to the EA
in order to support a mitigated FONSI.” Id. at 187.
After “becom[ing] aware of the proximity” of DAPL to Standing Rock’s Reservation, the
EPA supplemented its comments. See ECF No. 209-8 at 123 (Letter from Philip Strobel to Brent
Cossette, Mar. 11, 2016). It recommended that the Corps revise the Draft EA and provide a
second public-comment period “to assess potential impacts to drinking water and the Standing
Rock Sioux Tribe,” as well as “additional concerns regarding environmental justice and
emergency response actions to spills/leaks.” Id. Notably, the EPA took some issue with the
Draft EA’s spill analysis, stating that although it indicated only a minimal spill risk associated
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with the project, based on its “experience in spill response,” a break or leak could significantly
affect water resources. Id. at 124. Given DAPL’s proposed capacity of 13,100 to 16,600 gallons
per minute of crude oil and the proximity of drinking-water intakes to the Oahe crossing, the
agency explained, “There would be very little time to determine if a spill or leak affecting
surface waters is occurring, to notify water treatment plants and to have treatment plant staff on
site to shut down the water intakes.” Id. at 125. Finally, the EPA urged the Corps to expand its
analysis for purposes of assessing environmental-justice considerations from “the area of
construction disturbance” to “the impacts of the proposed project,” and to look at route
alternatives. Id. at 126; see also ECF No. 209-9 at 209 (Email “Quick Summary of Conference
Call with EPA,” Feb. 25, 2016) (“EPA concerned over the lack of Environmental justice —
Tribal interests have not been addressed sufficiently.”).
On July 25, 2016, about eight months after releasing the Draft EA, the Corps published
its Final EA and a Mitigated Finding of No Significant Impact. See EA; ECF No. 172-2
(FONSI). The Final EA — like the Draft EA — was prepared by Dakota Access with
involvement from the Corps, as is permitted, when certain conditions are met, by Council on
Environmental Quality regulations. See EA at 1; Draft EA at 1; 40 C.F.R. § 1506.5(a)-(b). The
Mitigated FONSI explained that the Corps had “coordinated closely with Dakota Access to
avoid, mitigate and minimize potential impacts of the Proposed Action” — largely via horizontal
directional drilling (HDD) technology — and that the Company was required to comply with a
set of mitigation measures set out in the EA. See FONSI at 3. Given those measures and its
evaluation of DAPL’s “anticipated environmental, economic, cultural, . . . social[, and] . . .
cumulative effects,” the Corps concluded that the crossing at Lake Oahe would not “significantly
affect the quality of the human environment,” and preparation of an EIS was therefore not
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required. Id. at 6. The Corps, accordingly, verified that the pipeline activities satisfied the terms
and conditions of NWP 12 and granted permission under Section 408 of the Rivers and Harbors
Act for DAPL’s placement at Lake Oahe. See ECF No. 209-9 at 149-53 (NWP 12 Permit); ECF
No. 209-10 at 54 (Section 408 Permit). The parties disagree as to whether the Corps also at that
time granted an easement pursuant to the Mineral Leasing Act, 30 U.S.C. § 185. See ECF Nos.
57, 66, 73. For purposes of this Opinion — and consistent with its understanding throughout the
litigation — the Court will assume that it did not. Without such easement, Dakota Access could
not construct the pipeline under the Lake.
C. Litigation
1. Filing of Suit
While factual backgrounds to lawsuits are often considerably more involved than the
litigation itself, that is not the case here. In part, that is because this action (as well as the 2016
election) generated significant further maneuvers. To begin, two days after the release of the EA
on July 25, 2016, Standing Rock filed this suit against the Corps for declaratory and injunctive
relief pursuant to the National Historic Preservation Act, National Environmental Policy Act,
Clean Water Act, and the Rivers and Harbors Act. See ECF No. 1 (Complaint), ¶¶ 128-212.
Dakota Access successfully moved to intervene in support of the Corps on August 5, see ECF
No. 7, and the Cheyenne River Sioux Tribe intervened as a Plaintiff on August 10. See ECF No.
11. Cheyenne River then filed its own Complaint, see ECF No. 11-12, which it later amended on
September 8. See ECF No. 37. Like Standing Rock’s Complaint, Cheyenne River’s pleadings
stated claims under the NHPA, NEPA, CWA, and RHA, as well as for breach of trust
responsibility and violations of the Flood Control Act and the Administrative Procedure Act. Id.
at 38-56.
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The Tribes initially sought a preliminary injunction based solely on the NHPA,
contending principally that the clearing and grading of land along the pipeline route desecrated
sites sacred to them. On September 9, 2016, immediately after this Court issued its Opinion
denying that motion, see Standing Rock I, 205 F. Supp. 3d at 7, the Departments of Justice, the
Interior, and the Army issued a joint statement explaining that, because “important issues raised
by the Standing Rock Sioux Tribe and other tribal nations and their members regarding the
Dakota Access pipeline” remained, “construction of the pipeline on Army Corps land bordering
or under Lake Oahe [would] not go forward” until the Army could determine whether
reconsideration of any of its previous decisions regarding the Lake Oahe crossing under NEPA
or other federal laws was necessary. See ECF No. 42-1 at 1. More specifically, the Corps at that
time refused to grant the necessary MLA easement.
2. Further Consideration
In response to the opportunity for additional consideration, Standing Rock sent several
letters to Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, expressing its
concerns regarding DAPL, the EA’s spill-risk analysis, and the impact of a potential spill on
hunting, fishing, and other Treaty rights. See ECF Nos. 117-11 (Sept. 22, 2016), 117-12 (Oct.
28, 2016), 117-13 (Oct. 3, 2016), 117-14 (Oct. 21, 2016). It also submitted an expert review of
the EA, which concluded that it was “seriously deficient and [could not] support the finding of
no significant impact, even with the proposed mitigations.” ECF No. 117-15 (Accufacts, Inc.
Review of EA, Oct. 28, 2016).
As part of the Corps’ internal-review process, its Chief Counsel prepared a memorandum
concluding that the agency had “adequately considered and disclosed the environmental, cultural
and other potential impacts of its actions and that its decisions were not arbitrary or capricious,”
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and that “supplementation of the EA to address any new information [was] not legally required.”
ECF No. 117-24 (Memorandum from David Cooper, Chief Counsel, Corps, Oct. 20, 2016)
(Cooper Memo) at 36. He also issued a memorandum that listed 36 possible conditions to be
included in an easement that would “provide further protection from any perceived risks posed
by the pipeline crossing at Lake Oahe.” ECF No. 209-3 at 55 (Memorandum from David
Cooper, Oct. 31, 2016).
On November 14, 2016, Assistant Secretary Darcy wrote to Standing Rock and Dakota
Access to inform them that the Army had completed the review called for on September 9,
“accounting for information it . . . received from the Tribes and the pipeline company since
September,” and had “concluded that its previous decisions comported with legal requirements.”
ECF No. 56-1 (Letter from Jo-Ellen Darcy, Nov. 14, 2016). Nonetheless, in light of the United
States’ history with the Great Sioux Nation, the importance of Lake Oahe to Standing Rock, the
government-to-government relationship with Standing Rock, and the mandates of the Mineral
Leasing Act regarding public safety and the interests of those who rely on fish, wildlife, and
biotic resources in the general area of a requested right-of-way, see 33 U.S.C. §§ 185(g),
(h)(2)(D), (k), “the Army determined that additional discussion with the Standing Rock Sioux
Tribe and analysis [were] warranted.” Darcy Nov. 2016 Letter at 2. The Army thus invited
Standing Rock to engage in discussions concerning “[p]otential conditions in an easement for the
pipeline crossing” that would reduce spill risk “or otherwise enhance the protection of Lake
Oahe, the Tribe’s water supplies, and its treaty rights”; the impact of those conditions on spill
risk; “whether to grant an easement for the pipeline to cross Lake Oahe at the location currently
proposed” given those conditions; and anything else “the Tribe believes is relevant to the
proposed pipeline crossing or easement.” Id. Darcy also wrote to Frazier to inform him of the
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Corps’ decision and to express the Corps’ interest in “confer[ring] with [him] to better
understand” his concerns. See ECF No. 131-4, Attach. A (Letter from Jo-Ellen Darcy to Harold
Frazier, Nov. 14, 2016); see also ECF No. 131-4 (Declaration of Harold Frazier, Feb. 22, 2017),
¶ 15. Two days later, Darcy and other Corps officials met with representatives of the Great
Plains Tribal Chairpersons’ Association, including Frazier, to confirm that the November 14
letters “constituted an invitation to the [T]ribes to provide any new information . . . relevant to
the Corps’ consideration of the easement.” Id., ¶ 16.
During this next review phase, Standing Rock offered further comments urging the Corps
to deny the easement because of the pipeline’s potential harm to its water, hunting, fishing, and
gathering rights. See ECF No. 117-17 (Dec. 2, 2016). The Oglala Sioux Tribe, which had
brought a related case against the Corps that has been consolidated with Standing Rock’s action,
see Minute Order of Mar. 16, 2017, submitted an expert report critiquing the EA’s spill-volume
analysis. See ECF No. 117-18 (EarthFax Review of EA, Dec. 2, 2016). The Corps’ Omaha
District Commander met with representatives of Standing Rock and Dakota Access to review the
Tribe’s concerns and discuss conditions that could be imposed on an easement to reduce the risk
of spill or rupture. See ECF No. 209-5 at 1-2 (Email from Scott Spellmon, Commanding
General, NW Division, Corps, to Jo-Ellen Darcy, Dec. 2, 2016). The day after the meeting, the
District Commander issued a memorandum recommending that the Corps grant an easement to
Dakota Access to cross Lake Oahe. See Henderson Memo.
The Corps also used this review phase to solicit the opinion of the Department of the
Interior “on the extent to which tribal treaty rights . . . weigh in favor of or against authorizations
needed for the Lake Oahe crossing.” ECF No. 117-6 (Memorandum from Hilary C. Tompkins,
Solicitor, Dep’t of Interior, Dec. 4, 2016) at 1. Interior’s Solicitor accordingly supplied a
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memorandum concluding that the Corps had “ample legal justification to decline to issue the
proposed Lake Oahe easement on the current record,” and that it “would be equally justified in
suspending or revoking the existing Section 408 permit as it relates to the Lake Oahe crossing.”
Id. at 4. Alternatively, the Solicitor recommended that the Corps not make a decision to issue the
easement prior to engaging in government-to-government consultation with the Tribe; preparing
an EIS to “adequately evaluate[] the existence of and potential impacts to tribal rights and
interests,” “consider a broader range of alternative pipeline routes,” and undertake “a
catastrophic spill analysis prepared by an independent expert”; and more comprehensively
assessing “DAPL’s impact on tribal rights, lands, and resources, including the socio-economic
impacts, . . . in light of the fact that the reservation is a permanent homeland for the Tribes, as
well as other federal obligations towards the Tribes.” Id.
On December 4, the same day the Interior Solicitor issued her Opinion, Assistant
Secretary Darcy issued a memorandum to the Corps’ Commander. She explained that, to date,
the Army had “not made a final decision on whether to grant the easement pursuant to [the
Mineral Leasing Act].” ECF No. 172-7 (Memorandum from Jo-Ellen Darcy, Dec. 4, 2016), ¶ 6.
Despite the Omaha District Commander’s recommendation that the Corps do so, Darcy stated
that she had “concluded that a decision on whether to authorize the Dakota Access Pipeline to
cross Lake Oahe at the proposed location merits additional analysis, more rigorous exploration
and evaluation of reasonable siting alternatives, and greater public and tribal participation and
comments.” Id., ¶ 12. “Accordingly,” she continued, the Army would “not grant an easement to
cross Lake Oahe at the proposed location based on the current record.” Id. She directed a
“robust consideration of reasonable alternatives . . . , together with analysis of potential spill risk
and impacts, and treaty rights,” which she thought would be “best accomplished . . . by preparing
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an Environmental Impact Statement.” Id. Darcy emphasized, though, that her “policy decision”
did “not alter the Army’s position that the Corps’ prior reviews and actions have comported with
legal requirements.” Id., ¶ 15.
On January 18, 2017, Darcy followed up by publishing in the Federal Register a notice of
intent to prepare an EIS. See 82 Fed. Reg. 5,543 (Jan. 18, 2017). Cheyenne River sent a letter to
her that same day requesting that the Corps include it as a Cooperating Agency in the preparation
and drafting of the EIS given the potential for the pipeline to affect the Tribe and its Reservation.
See ECF No. 131-4, Attach. B (Letter from Harold Frazier to Jo-Ellen Darcy, Jan. 18, 2017).
3. A New Administration
As we all know, elections have consequences, and the government’s position on the
easement shifted significantly once President Trump assumed office on January 20, 2017. A
Presidential Memorandum issued on January 24 directed the Secretary of the Army to instruct
the Assistant Secretary of the Army for Civil Works and the Corps “to take all actions necessary
and appropriate to . . . review and approve in an expedited manner, to the extent permitted by law
and as warranted, and with such conditions as are necessary or appropriate, requests for
approvals to construct and operate the DAPL, including easements or rights-of-way” and to
“consider, to the extent permitted by law and as warranted, whether to rescind or modify” the
December 4 memorandum and the Notice of Intent to Prepare an EIS. See ECF No. 172-8, § 2.
The Army completed a technical and legal review on February 3 and determined that the
Final EA and FONSI “satisf[ied] the NEPA requirements for evaluating the easement required
for the DAPL to cross Corps-managed federal lands at Lake Oahe” and “support[ed] a decision
to grant an easement.” ECF No. 172-9 (Memorandum from Todd Semonite, Lieutenant General,
Corps, Feb. 3, 2017) at 10. Based on a review of the entire record, including the input received
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since September 2016, the Corps also concluded that the Final EA did not require further
supplementation, as there were no “substantial changes in the proposed action” or “new
significant circumstances or information relevant to environmental concerns.” Id. at 11 (citing
40 C.F.R. §§ 1502.9(c)(1)(i)-(ii)). The Corps thus published in the Federal Register a notice of
termination of its intent to prepare an EIS, see ECF No. 95-3, provided notice to Congress of its
intent to issue the easement, see ECF No. 172-10 (Congressional Notifications, Feb. 7, 2017),
and did so on February 8. See ECF No. 172-11 (Easement). The final easement contains 36
conditions intended to mitigate the risk of rupture at Lake Oahe and otherwise address the
Tribe’s concerns. Id. at 37-43. To facilitate the Corps’ granting of the easement, the Acting
Secretary of the Interior withdrew the Interior Solicitor’s December 4 Opinion. See ECF No.
127-15 (Memorandum from K. Jack Haugrud, Acting Secretary, Dep’t of Interior, Feb. 6, 2017).
Having finally been given the green light, Dakota Access, by late March, completed construction
of this last segment beneath Lake Oahe and began placing oil in the pipeline. See ECF No. 191
(DA Status Report, Mar. 27, 2017). DAPL became fully operational on June 1, 2017. See
Energy Transfer, Energy Transfer Announces the Bakken Pipeline Is in Service Transporting
Domestic Crude Oil from the Bakken/Three Forks Production Areas, June 1, 2017,
http://ir.energytransfer.com/phoenix.zhtml?c=106094&p=irol-newsArticle.
The day after the Corps granted Dakota Access the easement, Cheyenne River moved for
leave to file a Second Amended Complaint, see ECF No. 97, and also filed a motion for
preliminary injunction and application for a temporary restraining order, both based solely on the
Religious Freedom Restoration Act. See ECF Nos. 98, 99; Standing Rock II, 2017 WL 908538,
at *3. Standing Rock joined the TRO application, but not the preliminary-injunction motion.
See ECF No. 107. In both filings, Cheyenne River argued that its members “believe that the
17
mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters
and render them unsuitable for use in their religious sacraments,” and that DAPL “correlates
with a terrible Black Snake prophesied to come into the Lakota homeland and cause
destruction.” Standing Rock II, 2017 WL 908538, at *3 (quoting ECF No. 98 at 2-3). After
orally denying the TRO, see Minute Order of Feb. 13, 2017; ECF No. 119 (TRO Oral Arg. Tr.,
Feb. 13, 2017) at 29:20-30:19, the Court issued an Opinion similarly denying the preliminary-
injunction motion, as it concluded that the extraordinary relief requested was not appropriate in
light of the equitable doctrine of laches and Cheyenne River’s unlikelihood of success on the
merits. Standing Rock II, 2017 WL 908538, at *1.
In the midst of these proceedings, Standing Rock — after moving for leave to amend its
Complaint to address new developments since it first filed this case in July 2016, see ECF No.
106 — filed the instant Motion for Partial Summary Judgment on claims concerning the Corps’
decision not to prepare an EIS for the Lake Oahe crossing; its granting of the easement; and its
permitting of the Lake Oahe crossing under NWP 12. The Corps responded with its own Cross-
Motion for Partial Summary Judgment on these causes of action, see ECF No. 172 (Corps SRST
MSJ), and Dakota Access filed briefs opposing Standing Rock’s Motion and joining the Corps’
Cross-Motion. See ECF Nos. 159 (DA SRST Opp.), 184 (Notice of Joinder), 202-1 (DA SRST
Reply). Cheyenne River joined Standing Rock’s Motion, see ECF No. 131 (CRST MSJ) at 8,
and filed its own Motion for Partial Summary Judgment on claims concerning the Corps’
decisions to grant Dakota Access a permit under Section 408 of the RHA and an easement under
the MLA. The Corps and Dakota Access then cross-moved for partial summary judgment on
those claims as well. See ECF No. 183 (Corps CRST MSJ); ECF No. 185 (DA CRST MSJ).
18
These Motions are now ripe. Although the Tribes do not raise exactly the same causes of
action, because their Motions are closely related and sometimes overlap, the Court addresses
both in this Opinion, turning first to Standing Rock’s claims and then to Cheyenne River’s. For
purposes of their resolution, the Court has also today issued a Minute Order granting the Tribes’
motions for leave to amend, such that the claims relating to post-July 2016 events are properly
before it. After setting out the governing legal standard, the Court first addresses the relevant
claims raised by Standing Rock, see Section III, infra, and then turns to those asserted by
Cheyenne River. See Section IV, infra.
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,
19
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 Fishing Co. v.
Fox, 931 F.2d 1556, 1562 (D.C. Cir. 1991)). In other words, an agency is required to “examine
the relevant data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Courts, accordingly, “do
not defer to the agency’s conclusory or unsupported suppositions,” United Techs. Corp. v. Dep’t
of Def., 601 F.3d 557, 562 (D.C. Cir. 2010) (quoting McDonnell Douglas Corp. v. Dep’t of the
Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004)), and “agency ‘litigating positions’ are not
entitled to deference when they are merely [agency] counsel’s ‘post hoc rationalizations’ for
agency action, advanced for the first time in the reviewing court.” Martin v. Occupational Safety
& Health Review Comm’n, 499 U.S. 144, 156 (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
20
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) (citation omitted).
III. Analysis of Standing Rock’s Claims
As earlier noted, Standing Rock seeks summary judgment on three claims: (1) The
Corps’ July 25, 2016, and February 8, 2017, conclusions that the Oahe crossing did not warrant
an EIS violated NEPA because the agency did not make a convincing case that no significant
impacts would result and failed to take a hard look at the project’s effects on Treaty rights and
environmental-justice considerations; (2) The Corps’ February 8, 2017, decision to grant the
easement was arbitrary, capricious, and contrary to law because the Corps reversed a prior policy
without reasoned justification and because the decision constituted a breach of trust
responsibilities; and (3) The Corps wrongfully concluded on July 25, 2016, that the pipeline
activities satisfied the terms and conditions of NWP 12. The Court addresses each in turn.
A. Decision Not to Prepare EIS
In reviewing an agency’s decision not to issue an EIS, the Court’s role is a “‘limited’ one,
designed primarily to ensure ‘that no arguably significant consequences have been ignored.’”
TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006)
(quoting Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir.
1988)). An agency’s decision to issue a FONSI and thus not to prepare an EIS will be
overturned only “if the decision was arbitrary, capricious, or an abuse of discretion.” Sierra Club
v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983).
When examining the adequacy of the FONSI and the EA upon which it was based, courts
must determine whether the agency:
21
(1) has accurately identified the relevant environmental concern, (2)
has taken a hard look at the problem in preparing its [FONSI or
Environmental Assessment], (3) is able to make a convincing case
for its finding of no significant impact, and (4) has shown that even
if there is an impact of true significance, an EIS is unnecessary
because changes or safeguards in the project sufficiently reduce the
impact to a minimum.
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011) (quoting TOMAC, 433 F.3d
at 861) (internal quotation marks omitted). In so doing, courts in this circuit apply “a rule of
reason to an agency’s NEPA analysis” and decline to “‘flyspeck’ the agency’s findings in search
of ‘any deficiency no matter how minor.’” Myersville Citizens for a Rural Cmty., Inc. v. FERC,
783 F.3d 1301, 1322–23 (D.C. Cir. 2015) (quoting Nevada v. Dep’t of Energy, 457 F.3d 78, 93
(D.C. Cir. 2006)).
Standing Rock contends that the EA for DAPL “runs afoul of these standards.” SRST
MSJ at 19. In particular, the Tribe argues that the Corps did not take a hard look at or make a
convincing case that the Lake Oahe crossing will have no significant environmental impact, and
that it did not sufficiently consider route alternatives or environmental-justice implications. Id.
at 19-31. For these reasons, it asserts that “[t]he Corps’ conclusion that the Oahe crossing was
not significant enough to warrant an EIS is arbitrary, capricious, and contrary to law.” SRST
MSJ at 17; see Nevada, 457 F.3d at 87 (“[Courts] apply the APA’s arbitrary and capricious
standard to a NEPA challenge.”). The Court begins its analysis with environmental impact and
then turns to alternatives and environmental justice.
1. Hard Look / Convincing Case
Pursuant to NEPA’s “hard look” requirement, the agency must ensure that “the adverse
environmental effects of the proposed action are adequately identified and evaluated.”
Robertson, 490 U.S. at 350. In evaluating the significance of a proposed action’s impact, an
22
agency is to consider, inter alia, the effect on “public health or safety”; “[u]nique characteristics
of the geographic area such as proximity to historic or cultural resources”; the extent to which
the environmental effects “are likely to be highly controversial” or “are highly uncertain or
involve unique or unknown risks”; “[w]hether the action is related to other actions with
individually insignificant but cumulatively significant impacts”; and the degree to which the
action “may cause loss or destruction of significant . . . cultural[] or historical resources.” 40
C.F.R. § 1508.27.
The Tribe identifies several ways in which the Corps allegedly failed to take a hard look
at the environmental consequences of permitting DAPL’s construction and operation and to
make a convincing case of no significant impact. It principally argues that the agency did not
properly assess the risk of a spill under Lake Oahe or sufficiently consider the environmental
impacts on Treaty rights of the construction of the pipeline or of a spill. Before proceeding to
address each of the Tribe’s points, however, the Court must dispense with a threshold issue.
a. Extent of Record
To substantiate many of its critiques of the EA’s analysis, the Tribe relies on expert
reports and other records dated after July 25, 2016, when the Final EA and Mitigated FONSI
were published. Dakota Access argues that the Court should not consider these reports or any
evidence from the Tribe that post-dates July 25.
“It is a widely accepted principle of administrative law that the courts base their review
of an agency’s actions on the materials that were before the agency at the time its decision was
made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (listing cases). Here, in
challenging the Corps’ decision not to prepare an EIS, the Tribe in effect challenges
authorizations made at two different times: the RHA Section 408 authorization and NWP 12
23
verification on July 25, 2016, and the easement approval on February 8, 2017. See ECF No.
196-1 (SRST Reply) at 3. The Section 408 and NWP 12 decisions were based on the conclusion
set out in the EA and FONSI that the permissions would not have a significant impact on the
environment, and the easement decision was also based on “additional review, analysis of terms
and conditions for the easement, and on the Corps’ decision that supplementation of the
EA/FONSI was not required.” Corps SRST MSJ at 10. The Corps thus decided at two junctures
that an EIS was not required, and it prepared an administrative record encompassing the
materials that were before it at each decision date. Although Dakota Access is technically
correct that the expert reports and other evidence submitted after July 25, 2016, are outside the
record for the RHA Section 408 and NWP 12 decisions, that offers them little aid. This is
because the Court can review the materials before the Corps as of February 8, 2017, for purposes
of evaluating the decision to grant the easement absent an EIS. The Court, consequently, will
consider all materials dated up to February 8.
To complicate matters further, however, the Tribe wishes the Court to also review “some
uncontroversial background materials (e.g., maps) and declarations from its expert” that post-
date February 8. See SRST Reply at 3. It argues that such extra-record evidence comes within
the “accepted exceptions to the principle that the court cannot consider information that falls
outside the agency record” — namely, where “the agency failed to examine all relevant factors
or to adequately explain its grounds for decision, or . . . acted in bad faith or engaged in improper
behavior in reaching its decision.” IMS, 129 F.3d at 624; SRST Reply at 3.
On this point, the Tribe first contends that the Corps engaged in improper behavior by
withholding confidential spill-model discussions and geographic-response plans to which its
post-easement expert declarations respond. See SRST Reply at 3-4. But the showing required
24
“to justify supplementing the record” is a “‘strong’” one, IMS, 129 F.3d at 624 (quoting Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)), and the Court does not find that
the Tribe has made it here. The Corps has explained that it withheld from the Tribe and the
public a small number of documents supporting the EA “[b]ecause of security concerns and
sensitivities.” Dec. 4 Memo, ¶ 5. Indeed, the Court recently concluded that there was good
cause to protect from public disclosure certain information in some spill-model reports that, if
released, could endanger life or physical safety. Standing Rock Sioux Tribe v. U.S. Army Corps
of Eng’rs (Standing Rock III), No. 16-1534, 2017 WL 1316918, at *5-6 (D.D.C. Apr. 7, 2017).
Absent a showing to the contrary, the Court thus cannot permit supplementation of the record on
the ground of some withholding impropriety.
The Tribe next argues that its extra-record evidence describes how the Corps failed to
examine all relevant factors and provide adequate grounds for its decision. But “[t]his is not a
case where the agency failed ‘to explain administrative action [so] as to frustrate effective
judicial review.’” IMS, 129 F.3d at 624 (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973)).
The EA addressed each factor for which the Tribe marshals extra-record evidence, even if not
with the depth or ultimate conclusion the Tribe would prefer. Compare SRST MSJ at 21
(criticizing Corps’ failure to address “slow leaks in the HDD bore,” which, based on Tribe-
commissioned expert review, would be “‘complicated if not impossible to clean up and likely
would have significant impacts on soils’ and underlying aquifers”) (quoting ECF No. 117-23
(Envy Report, Jan. 5, 2017) at 14); SRST Reply at 11 (“Landslides are a major source of pipeline
failures and a critical factor in route selection.”) (citing ECF No. 195-4 (Corrective Action
Order, Belle Fourche Pipeline Company, Dec. 20, 2016); Accufacts, Inc. Review at 3; ECF No.
120 (Sealed Declaration of Richard Kuprewicz, Feb. 12, 2017), ¶ 21); id. at 12 (describing EA’s
25
failure to acknowledge “undisputed evidence” regarding failure rates of spill-detection systems)
(citing ECF No. 209-5 at 110 (Letter from Sierra Club Indigenous Environmental Network, Oct.
10, 2016); Accufacts, Inc. Review at 5); id. at 12-13 (“[T]he EA fails to acknowledge that with a
pipeline 90 feet underground, there is no way to discover a slow leak until the oil sheen appears
on the surface of the water, at which point a massive release will have occurred that would be
nearly impossible to clean up.”) (citing Envy Report at 13-14; Oct. 28, 2016, SRST Letter at 5);
id. at 13 (stating the EA’s “startlingly optimistic times for responding to a spill after it has been
detected . . . have been the subject of withering criticism”) (citing Accufacts, Inc. Review at 5-6;
EarthFax Report at 9; Sealed Kuprewicz Decl., ¶¶ 15-17; Envy Report at 27); id. at 13-14 (“One
expert review found numerous flaws in the Corps’ analysis of water quality impacts of a spill,
including a failure to identify key pollutants; overstatement of flows that dilute likely pollutant
impacts; use of an inappropriate standard to determine toxicity; and reliance on the wrong
drinking water standard.”) (citing EarthFax Report at 5-7); id. at 14 (arguing EA’s treatment of
impact of winter conditions on spill risk was inadequate) (citing EarthFax Report at 7-8; Oct. 28,
2016, SRST Letter at 5; ECF No. 196-2 (Declaration of Elliott Ward, Mar. 25, 2017), ¶ 12) with
EA at 19, 36 (borehole leaks); 26-28 (landslides); 42, 46, 90-91 (description of leak-detection
system as “capable of detecting leaks down to 1 percent or better of the pipeline flow rate within
a time span of approximately 1 hour or less and capable of providing rupture detection within 1
to 3 minutes”); 36-49 (discussing impacts of spill to water quality); 39, 43, 123 (discussing
impact of “[s]ub-freezing temperatures during the winter months” and means of responding to
spill in winter, including identifying “all-weather access and collection point” downstream of
Oahe crossing and undertaking “full scale winter/ice” emergency response drills/exercises).
26
Disagreement with an agency’s analysis is not enough to warrant the consideration of
extra-record evidence, which, after all, is “the exception, not the rule.” Oceana, Inc. v. Pritzker,
126 F. Supp. 3d 110, 113 (D.D.C. 2015) (quoting Theodore Roosevelt Conservation Partnership
v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)). As it proceeds through Standing Rock’s
arguments regarding the deficiencies in the EA’s analysis, therefore, the Court will not engage
with those contentions that turn on evidence that post-dates February 8, 2017. This procedural
brush now cleared away, the Court tackles the substance of the Tribe’s no-convincing-case
position, beginning with spill risks and continuing to Treaty rights.
b. Spill-Risk Analysis
Although grouped under the “spill-risk” heading, Standing Rock’s challenges here
encompass the risk of spills, the degree of scientific controversy, and the cumulative risk of the
project, each of which is analyzed separately.
i. Risk of Spill
Standing Rock first maintains that the EA understates and does not properly assess the
risk of an oil spill under Lake Oahe. See SRST MSJ at 21 (“[T]he Corps falls back on a rote
mantra that the risk of oil spills is low.”); id. at 22 (citing Solicitor Op. at 28-29 & n.171 (noting
PHMSA data shows average of over 283 significant incidents involving gas, oil, or other
pipelines per year since 1996)). It argues that, although the EA repeats that the spill risk is “very
low,” “unlikely,” or “negligible,” see, e.g., EA at 48, 63, 87, it does not explain what “low”
means. See SRST Reply at 9. And “to conduct a credible assessment of spill risks,” the Corps
should have addressed concerns relating to landslide risks, inadequate spill-detection systems,
underground leaks, response times, spill volumes, water-quality analysis, and winter conditions,
27
id. at 11-14, and looked at portions of the pipeline entering and exiting the boreholes. Id. at 15-
16.
The EA, in fact, devotes several pages to discussing DAPL’s “reliability and safety.” EA
at 88-94. The relevant section first explains that, “[t]o prevent pipeline failures resulting in
inadvertent releases,” DAPL will be constructed and maintained in accordance with “industry
and governmental requirements and standards,” including those from PHMSA, the American
Society of Mechanical Engineers, the National Association for Corrosion Engineers, and the
American Petroleum Industry. Id. at 88. After its installation, the pipeline will undergo
“hydrostatic pressure testing at the crossings, checking coating integrity, and X-ray inspection of
the welds.” Id. The pipeline right-of-ways will also “be patrolled and inspected by air . . . at
least every three weeks and not less than 26 times per year[] to check for abnormal conditions or
dangerous activities, such as unauthorized excavation along the pipeline route.” Id. In addition,
Dakota Access plans to use “a supervisory control and data acquisition . . . system to provide
constant remote oversight of the pipeline facilities,” including the detection of “rapid drops in
pressure,” and pipeline-monitoring software to identify any leaks by tracking “pipeline pressure,
flow, and temperature data” pulled every six seconds. Id. at 89-90. The EA reports that such a
system “is capable of detecting leaks down to 1 percent or better of the pipeline flow rate within
a time span of approximately 1 hour or less and capable of providing rupture detection within 1
to 3 minutes.” Id. at 90. If a leak is detected, remotely operated valves are to be triggered and
closed within three minutes. Id.
Other courts, including this Circuit, have favorably viewed similar agency reliance on
applicable regulatory standards when assessing impacts as part of a NEPA-required analysis.
See, e.g., EarthReports, Inc. v. FERC, 828 F.3d 949, 957 (D.C. Cir. 2016) (holding agency
28
fulfilled its NEPA obligations to evaluate ballast-water impacts by, inter alia, noting
requirements of applicable regulatory agencies); Sierra Club v. Clinton, 746 F. Supp. 2d 1025,
1047 (D. Minn. 2010) (holding agency properly considered impacts of pipeline abandonment by
referencing PHMSA regulations).
The EA then proceeds to review the basis for its conclusion that the risk of an oil spill is
“low.” EA at 92. Specifically, that conclusion comes from a risk analysis conducted by Dakota
Access that was derived from criteria set out in “the W. Kent Muhlbauer Relative Index
Methodology (2004), in accordance with 49 CFR 195.452 ‘Hazardous Liquid Pipelines in High
Consequence Area’, API RP 1160 ‘Managing System Integrity for Hazardous Liquid Pipelines’,
and ASME B31.8S ‘Managing System Integrity of Gas Pipelines.’” Id. That analysis
“addressed nine industry-recognized pipeline integrity threat categories”: (1) third-party damage;
(2) external corrosion; (3) internal corrosion; (4) pipe-manufacturing defects; (5) construction-
related defects; (6) incorrect operations; (7) equipment failure; (8) stress-corrosion cracking; and
(9) natural forces. Id. at 92-94.
The underlying analysis is not itself in the record, see SRST Reply at 8, but the EA
summarizes its conclusions as to each of the nine factors. Although no explanation is provided,
three of the nine factors — external corrosion, internal corrosion, and construction-related
defects — are assessed only as to the crossing at Lake Sakakawea; the other six are applied to
both Sakakawea and Oahe. See EA at 92-94. The EA’s explanation of its choice of
methodology and subsequent treatment of the different factors is nonetheless enough to give
substance to the Corps’ conclusion that the risk of a spill is low. See Sierra Club v. Watkins, 808
F. Supp. 852, 868 (D.D.C. 1991) (explaining courts should “defer to an agency’s decision to use
a particular risk assessment methodology that is consistent with general principles of science”)
29
(citing Sierra Club v. Dep’t of Transp., 753 F.2d 120, 128-29 (D.C. Cir. 1985)). For example,
the EA explains that, at the Oahe crossing, spill risk due to third-party damage is low because the
pipeline is positioned 92 feet below the lakebed; spill risk from manufacturing defects is also
slim because the pipeline will be “hydrostatically strength-tested”; and spill risk from “incorrect
operations (e.g., overpressure event caused by human error)” is low because the pipeline is
designed to withstand twice the maximum-allowable operating pressure. See EA at 92-94. The
EA thus does not simply use “[a]n unbounded term” that “provides no objective standard for
determining what kind of differential makes one impact more or less significant than another.”
Mainella, 459 F. Supp. 2d at 101. Admittedly, the EA does not quantify the risk of a spill with
exact numerical precision. But in setting out the specific factors that undergirded its risk analysis
and explaining their application to DAPL, the EA reasonably gives the necessary content to its
top-line conclusion that the risk of a spill is low.
As noted above in the discussion of extra-record evidence, moreover, the EA did not omit
discussion of borehole leaks (EA at 19, 36); landslides (EA at 26-28); leak-detection systems
(EA at 42, 46, 90-91); water quality (EA at 36-49); or winter temperatures (EA at 39, 43, 123).
To the extent the Tribes’ experts disagree with the Corps’ technical assessments or overall
conclusion, such disagreements are “a classic example of a factual dispute the resolution of
which implicates substantial agency expertise.” Wisc. Valley Improvement Co. v. FERC, 236
F.3d 738, 746 (D.C. Cir. 2001) (quoting Marsh, 490 U.S. at 376). In such situations, courts
“must defer to ‘the informed discretion of the responsible federal agencies.’” Id. at 747 (quoting
Marsh, 490 U.S. at 377); see also Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1327
(D.C. Cir. 2004) (“When an agency ‘is evaluating scientific data within its technical expertise,’
30
an ‘extreme degree of deference to the agency’ is warranted.”) (quoting B&J Oil & Gas v.
FERC, 353 F.3d 71, 76 (D.C. Cir. 2004)).
ii. Highly Controversial
Although the Court cannot agree with Standing Rock that the Corps did not adequately
consider or explain its conclusion that the risk of an oil spill is low, a related position gains more
traction. As explained above, CEQ regulations provide that one factor that “should be
considered” in evaluating the significance of a proposed action’s impact is “[t]he degree to which
the effects on the quality of the human environment are likely to be highly controversial.” 40
C.F.R. § 1508.27(b)(4). Standing Rock argues that evidence in the record indicated that the
pipeline’s effects were highly controversial, and that the Corps therefore should have concluded
that the project would have significant impacts on the environment. See SRST MSJ at 20-21.
Such controversy is not measured by newsworthiness; instead, according to the Court of
Appeals, “The term ‘controversial’ refers to cases where a substantial dispute exists as to the
size, nature, or effect of the major federal action rather than to the existence of opposition to a
use.” Town of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (quoting
Found. for N. Am. Wild Sheep v. Dep’t of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982)). Despite
that explanation, however, as other courts in this district have observed, “Just what constitutes
the type of ‘controversy’ that requires a full EIS is not entirely clear.” Nat’l Parks Conservation
Ass’n v. United States, 177 F. Supp. 3d 1, 33 (D.D.C. 2016) (quoting Nat’l Wildlife Fed’n v.
Norton, 332 F. Supp. 2d 170, 184 (D.D.C. 2004)). At a minimum, “something more is required
besides the fact that some people may be highly agitated and be willing to go to court over the
matter.” Id. (quoting Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975)).
31
“Many courts have found ‘something more’ to be scientific or other evidence that reveals
flaws in the methods or data relied upon by the agency in reaching its conclusions.” Id. (citing
Nat’l Parks & Conservation Assoc. v. Babbitt, 241 F.3d 722, 736-37 (9th Cir. 2001) (holding
agency action was highly controversial because “comments urg[ing] that the EA’s analysis was
incomplete, and the mitigation uncertain, . . . cast substantial doubt on the adequacy of the Parks
Service’s methodology and data,” and thus the dispute went “beyond a disagreement of qualified
experts over the ‘reasoned conclusions’ as to what the data reveal[ed]”); Nat’l Wildlife Fed’n,
332 F. Supp. 2d at 185 (“Such a controversy exists where the Corps is presented with scientific
evidence specifically evaluating the environmental effects of the proposed project or calling into
question the adequacy of the EA.”); Fund for Animals v. Norton, 281 F. Supp. 2d 209, 235
(D.D.C. 2003) (“While plaintiffs have identified serious gaps in defendants’ assessment of the
local effects of the proposed action, they do not appear to have identified any scientific
controversy per se as to the extent of the effects.”); Sierra Club v. Van Antwerp, 719 F. Supp. 2d
58, 67-68 (D.D.C. 2010) (“While declarations were submitted to the Corps from numerous
experts who claimed that [the development project] will have significant adverse impacts on
Cypress Creek and its wetlands, these declarations alone fail to rise to the level of ‘controversy’
under NEPA.”), aff’d in part, rev’d in part on other grounds, 661 F.3d 1147 (D.C. Cir. 2011), as
amended (Jan. 30, 2012)); but cf. Humane Soc. of U.S. v. Dep’t of Commerce, 432 F. Supp. 2d
4, 19–20 (D.D.C. 2006) (finding agencies’ decision not to prepare EIS highly controversial based
on comments from plaintiff and other agencies indicating disagreement with agencies’
conclusions).
Here, as evidence of controversy, Standing Rock refers only generally to “the multiple
critiques of the Corps’ unexamined conclusions, expert evidence indicating greater risks, and
32
critical comment from other federal agencies.” SRST MSJ at 20-21. The Tribe does not help the
Court to evaluate its argument by, for example, following these general references with specific
statements made by the Tribe, agencies, or experts critiquing the Corps’ methodology or data. In
any event, based on its review of the record, the Court first concludes that none of the evidence
before the Corps as of July 25, 2016 — including Standing Rock’s comments, see ECF No. 159-
1, Exh. C (SRST Comments on Draft EA, Jan. 8, 2016); id., Exh. D (SRST Suppl. Comments on
Draft EA, Mar. 24, 2016); ECF No. 209-6 at 51 (Notes for Feb. 18-19, 2016, Tribal Meeting);
ECF No. 209-9 at 33 (Letter from Waste Win Young to Martha Chieply, Feb. 25, 2015), and
submissions from the EPA and the Department of the Interior, see ECF No. 209-7 at 21 (Letter
from Lawrence Roberts to Brent Cossette, Mar. 29, 2016), ECF No. 209-16 at 184 (Letter from
Philip Strobel to Brent Cossette, Jan. 8, 2016), ECF No. 209-8 at 123 (Letter from Philip Strobel
to Brent Cossette, Mar. 11, 2016), ECF No. 209-9 at 209 (Email “Quick Summary of Conference
Call with EPA,” Feb. 25, 2016) — suggested substantial methodological or data flaws in the
Corps’ analysis.
The expert reports submitted to the Corps after the Final EA was published but before the
Corps again decided in February 2017 that an EIS was not required, see Semonite Memo at 14,
however, do present such scientific critiques. See, e.g., EarthFax Report at 1-3 (critiquing EA
for considering spill volumes from pipelines generally, rather than from pipelines with 16-inch or
larger diameters, like DAPL); id. at 4 (suggesting EA used incorrect river-flow rates to assess
spill impacts); id. at 5-7 (explaining EA used inappropriate benzene-concentration limits); id. at
9 (arguing EA should have included quantitative analysis of risk of failure of system
components); id. at 9 (contending EA wrongly relied upon premise that emergency block valves
would close immediately upon leak detection); Accufacts, Inc. Review at 7 (stating corrosion
33
threats should be assessed based on field readings of in-line inspection runs, not assumed rates);
id. at 9-10 (arguing that complete risk analysis required, inter alia, consideration of pipeline
elevation profile, maximum operating pressure, location of mainline valves, location and type of
“critical leak detection monitoring devices by milepost”).
It may well be the case that the Corps reasonably concluded that these expert reports
were flawed or unreliable and thus did not actually create any substantial evidence of
controversial effects. Dakota Access, for example, offers a scathing assessment of the reports’
“material flaws.” DA SRST Opp. at 21 n.4. But the Corps never said as much. Its February 3,
2017, memo determining that the Final EA and FONSI satisfied NEPA’s requirements and
supported the decision to grant the easement is devoid of any discussion of the methodological
and data flaws identified in the reports. Indeed, it acknowledges receiving only Standing Rock’s
Accufacts, Inc. Review and wholly ignores the others. See Semonite Memo at 12. As the
agency did not demonstrate that it considered, as the CEQ regulations require, the degree to
which the project’s effects are likely to be highly controversial, despite being presented with
evidence of scientific flaws, the Court cannot conclude that the Corps made a convincing case of
no significant impact or took the requisite hard look. The remedy for such violation is discussed
in Section III.D, infra.
iii. Cumulative Risk
Finally, the Tribe contends that the EA “fails to consider the cumulative risk imposed by
the pipeline.” SRST MSJ at 22 (citing 40 C.F.R. § 1508.27(b)(7) (“Significance exists if it is
reasonable to anticipate a cumulatively significant impact on the environment.”)). “Cumulative
impact is the impact on the environment which results from the incremental impact of the action
when added to other past, present, and reasonably foreseeable future actions regardless of what
34
agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7.
Such impacts “can result from individually minor but collectively significant actions taking place
over a period of time.” Id. Other pipelines cross under the Missouri River, but, the Tribe states,
the EA does not analyze how the addition of DAPL compounds the overall risk of a pipeline spill
in the Missouri River, nor does it consider “the cumulative risk to Tribal resources from the rest
of the pipeline outside Lake Oahe.” SRST MSJ at 23; see also id. at 23 n.12 (criticizing Corps
for “unlawfully segmenting its NEPA review of one pipeline into [three] separate components”).
This argument, like the Tribe’s first in this subsection, does not succeed.
The EA devotes eleven pages to a discussion of cumulative impacts on eleven types of
resources, including geology and soils, water and aquatic life, agriculture, land use, cultural and
historic resources, and environmental justice. See EA at 98-107. It acknowledges at the outset
that in the vicinity of the Oahe crossing are “oil and gas development and associated
infrastructure, utility installation, and agriculture,” and that the pipeline at the Oahe crossing is
co-located with “a natural gas pipeline and a 345 kV power line.” EA at 98. Although the EA
does not expressly state whether the presence of other pipelines increases the risk that DAPL (or
those pipelines) will rupture, it acknowledges the potential for unanticipated releases and refers
back to the analysis of minimization and remediation activities to conclude that the potential
cumulative impacts on water and aquatic resources from spills “would be minor.” Id. at 101. It
also considers the benefits of co-location, such as minimized land-use disturbance from
construction. Id. at 105. The EA therefore does not simply conclude absent any actual analysis
that cumulative impacts would be minimal; on the contrary, there is enough to “allow the Court
to review the agency’s finding.” Friends of the Earth, Inc. v. U.S. Army Corps of Eng’rs, 109 F.
Supp. 2d 30, 42 (D.D.C. 2000).
35
The Corps, moreover, was not required to consider the impacts from the whole pipeline.
See Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 34 (D.C. Cir. 2015) (holding that
where federal easement and CWA permitting encompassed only five percent of pipeline’s
length, “the federal government was not required to conduct NEPA analysis of the entirety of the
. . . pipeline, including portions not subject to federal control or permitting”); Sierra Club v.
Bostick, 787 F.3d 1043, 1051-54 (10th Cir. 2015) (holding Corps was not required to prepare
NEPA analysis of entire pipeline when verifying NWPs for 485-mile oil pipeline crossing over
2,000 waterways); Winnebago Tribe of Neb. v. Ray, 621 F.2d 269, 272-73 (8th Cir. 1980) (same
for electric utility line). That it did not address the cumulative risk from the entire pipeline thus
does not run afoul of NEPA.
c. Impacts Analysis Re: Treaty Rights
In addition to challenging the EA’s analysis of the risk of a spill, Standing Rock raises
concerns about its discussion of the effects of the project, including a potential spill, should one
occur, on the Tribe’s Treaty rights. According to Standing Rock, “NEPA requires the Army
Corps to disclose and assess the suite of risks from the Lake Oahe crossing to the full range of
the Tribe’s Treaty rights, in the context of the Corps’ heightened trust responsibilities.” SRST
MSJ at 24. Here, the relevant Treaty rights are those implicating water, hunting, and fishing. Id.
at 25; Corps SRST MSJ at 20; see also Winters v. United States, 207 U.S. 564, 576-78 (1980)
(holding that when federal government creates an Indian reservation, it impliedly reserves
otherwise unappropriated water to extent necessary to accomplish purposes of reservation); Fort
Laramie Treaty of 1851, art. 55, 11 Stat. 749, 1851 WL 7655 (reserving for the Sioux tribes “the
privilege of hunting, fishing, or passing over” lands described in Treaty); United States v. Dion,
476 U.S. 734, 738 (1986) (“As a general rule, Indians enjoy exclusive treaty rights to hunt and
36
fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have
been modified by Congress.”). The Court first explains the manner of the Corps’ analysis of
these rights and then turns separately to the effect of construction and the impact of a spill on
such rights.
i. Manner of Analysis
Before turning to whether the Corps adequately considered these impacts, the Court
discusses how it was required to do so. The Tribe contends that the Corps had to address these
Treaty rights qua Treaty Rights, see SRST MSJ at 25-26; SRST Reply at 23-24, whereas the
Corps asserts that it needed only to consider the effects on the resources implicated by the Treaty
rights — i.e., water, fish, and game. See Corps SRST MSJ at 20-21 & n.9. To explain more
fully, Standing Rock believes that the Corps’ position “misunderstands the Tribe’s Treaty
rights,” which “embody the fundamental rights of a people tied to a place since time
immemorial” and thus demand a more “existential” analysis. See SRST Reply at 23-24. For
example, the Tribe explains that, although “[e]cological impacts to fish and game habitat and
populations present one dimension” of the impacts of an oil spill on aquatic resources, “[t]he
impact to Tribal members of losing the right to fish and hunt, which provides both much-needed
subsistence food to people facing extensive poverty as well as a connection to cultural practices
that Tribal members have engaged in since time immemorial, is a separate issue.” Id.
Standing Rock may be right that the construction and operation of DAPL under Lake
Oahe could affect its members in the broad and existential ways it details, but it offers no case
law, statutory provisions, regulations, or other authority to support its position that NEPA
requires such a sweeping analysis. The Corps, conversely, points to several cases in which
courts have approved an approach consistent with its view of its NEPA obligations — i.e., an
37
agency may assess impacts on treaty rights by analyzing the effects on a specific resource
identified in the treaty. See Ground Zero Ctr. for Nonviolent Action v. Dep’t of the Navy, 918 F.
Supp. 2d 1132, 1152 (W.D. Wash. 2013), on reconsideration in part No. 12-1455, 2013 WL
357509 (W.D. Wash. Jan. 29, 2013) (assessing impact on tribe’s treaty fishing rights by
considering surveys of fish patterns and Navy’s mitigation efforts); Nw. Sea Farms, Inc. v. U.S.
Army Corps of Eng’rs, 931 F. Supp. 1515, 1521-22 (W.D. Wash. 1996) (explaining Corps correctly
concluded that project would impair treaty fishing rights by considering impact on tribe’s access to
fish); No Oilport! v. Carter, 520 F. Supp. 334, 356–57 (W.D. Wash. 1981) (concluding EIS’s
discussion of effect of pipeline rupture on “the fish resource,” including via maps, adequately
evaluated project’s impact on tribe’s treaty fishing rights). Absent any controlling or persuasive
authority to the contrary, the Court sees no basis on which to conclude that NEPA demands the type
of existential-scope analysis the Tribe advocates. Rather, it is sufficient that the agency adequately
analyze impacts on the resource covered by a given treaty.
The next question, then, is whether the agency’s weighing of those relevant Treaty rights here
— viz., water, fishing, and hunting — was adequate. The Court approaches that question by looking
at the Corps’ assessment of the impacts on the different Treaty rights from (1) the construction of the
pipeline, and (2) an unanticipated oil spill. In so doing, the Court keeps in mind the definition of
“hard look” recently articulated by the D.C. Circuit: “[A]n agency has taken a ‘hard look’ at the
environmental impacts of a proposed action if the statement contains sufficient discussion of the
relevant issues and opposing viewpoints, and the agency’s decision is fully informed and well-
considered.” Myersville Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301, 1324-25
(D.C. Cir. 2015).
38
ii. Construction
The EA discussed in several places the potential impact of DAPL’s construction on water
resources, fish, and wildlife at Lake Oahe. See EA at 36 (acknowledging that, during HDD-
construction phase, drilling fluid could inadvertently be released “directly or indirectly into the
waterbody” and discussing mitigation measures); id. at 37 (explaining water required for HDD
construction and hydrostatic testing at Oahe crossing would not be obtained from Lake Oahe);
id. at 38 (“No waterbody would be permanently drained or filled as part of the DAPL Project,
and effects on waterbodies are expected to be short-term and minor.”); id. at 45 (addressing
impacts of construction activities on groundwater); id. at 50 (explaining no wetlands exist within
Oahe Project Area or Connected Action Area); id. at 58 (discussing “[t]emporary impacts on
wildlife” that “could occur during construction,” including displacement of “larger and more
mobile animals”); id. (“No impacts to treaty fishing and hunting rights are anticipated due to
construction within the Project Area or Connected Actions.”); id. at 69 (discussing possible
adverse impacts on “fish eggs, juvenile fish survival, benthic community diversity and health,
and spawning habitat,” as well as “fish fry[] and invertebrates inhabiting the river,” from
“subsurface disturbing activities,” inadvertent release of drilling mud, and water withdrawal
from Missouri River); id. at 75 (“The recreational enjoyment of wildlife (such as hunting or bird
watching) may be temporarily affected by construction activities, depending on season and
location.”). Because the EA “clearly addressed” these impacts and concluded that they would
either be insignificant or could be mitigated, the Court finds that, in this respect, it was adequate.
See Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 112 (D.C. Cir. 2014)
(finding EA adequately examined compressor-station project’s impact on property values where
it recognized some adverse impacts might accrue but could be mitigated).
39
iii. Spill Impacts
As to the second issue — namely, the spill effects —the Tribe contends that the EA “never
examined the impacts of spills on the Tribe and its Treaty rights.” SRST Reply at 1. The Court
agrees in part.
First, it bears noting that even though a spill is not certain to occur at Lake Oahe, the
Corps still had to consider the impacts of such an event on the environment. “[A]n agency
conducting an EA generally must examine both the probability of a given harm occurring and the
consequences of that harm if it does occur.” New York v. Nuclear Regulatory Comm’n, 681
F.3d 471, 482 (D.C. Cir. 2012). “Only if the harm in question is so ‘remote and speculative’ as
to reduce the effective probability of its occurrence to zero may the agency dispense with the
consequences portion of the analysis.” Id. (quoting Limerick Ecology Action, Inc. v. Nuclear
Regulatory Comm’n, 869 F.2d 719, 739 (3d Cir. 1989)). Yet, “the finding that the probability of
a given harm is nonzero does not, by itself, mandate an EIS: after the agency examines the
consequences of the harm in proportion to the likelihood of its occurrence, the overall expected
harm could still be insignificant and thus could support a FONSI.” Id.; see also Gov’t of the
Province of Manitoba v. Salazar, 691 F. Supp. 2d 37, 50 (D.D.C. 2010) (“It may be that the risk
of a breach is low given the pipeline’s construction, but that is not an excuse for Reclamation to
refuse entirely to analyze the consequences. When the degree of potential harm could be great,
i.e., catastrophic, the degree of analysis and mitigation should also be great.”); Sierra Club v.
Watkins, 808 F. Supp. 852, 868 (D.D.C. 1991) (holding that, given disputed evidence concerning
the possibility of severe accidents, an agency may not simply “refus[e] to include certain low
probability risks” — it must at least “admit that such accidents are possible,” determine the
probability of occurrence, and “discuss[] their potential effects”). Here, the Corps did not wholly
40
ignore the consequences of a possible oil spill, despite its conclusion that the risk of such an
event was low. On the contrary, it adequately discussed the impacts of such “a low risk/high
consequence event,” EA at 92, on water — but not on hunting or aquatic — resources.
As to water resources, the EA offered several comments. It acknowledged that, during
operations, “[d]rinking water intakes located downstream from the Missouri River and Lake
Oahe crossings could be at risk if there was a release that reached these bodies of water in the
vicinity of the intake structures,” and that “the Standing Rock Sioux . . . have intake structures
within the river downstream of the Lake Oahe Project area.” Id. at 38; see also id. at 42 (“In the
unlikely event of a release during pipeline operations, drinking and irrigation water intakes
located downstream from the Missouri River and Lake Oahe crossings could be at risk if
hydrocarbons were to reach these bodies of water in the vicinity of the intake structures.”); id. at
87 (“Concerns have been expressed regarding an inadvertent release reaching intake structures
on Lake Oahe. . . . In the unlikely event of a release, sufficient time exists to close the nearest
intake valve to avoid human impact.”). Later, the EA further explained: “Accidental releases
from the pipeline system during operations could potentially affect groundwater. . . . [C]rude oil
released into soil can migrate toward water where certain constituents can dissolve into
groundwater or surface water in limited amounts.” Id. at 45.
It then presented a model estimating the concentrations of benzene, a potentially toxic
compound found in crude oil, that could be released during a very small, small, moderate, or
large spill at the Oahe crossing, and discussed how those results might vary during winter
months when temperatures are likely to be colder. Id. at 46-47. Even assuming that “[t]he entire
volume of a crude oil spill was released due to a catastrophic failure of the pipeline and reached
the waterbody; [c]omplete, instanteous mixing occurred; [and] [t]he entire benzene content of the
41
crude oil was solubilized into the water column,” the model concluded that under no spill
scenario would the acute toxicity threshold for aquatic organisms be exceeded, and that under the
“most probable spill volume,” benzene concentrations would not “exceed the drinking water
criteria.” Id. In addition, at the conclusion of its discussion of the nine spill-risk factors
previously discussed, the EA, under the header “Consequences,” stated: “In the event that a
pipeline failure occurs and product is released into the Missouri River at either crossing, the
worst case consequence scenario is ranked high because several drinking water intake High
Consequence Areas (HCAs) and multiple ecologically sensitive HCAs could be impacted.” Id.
at 94.
The EA is not similarly attentive, however, to the impacts of a spill on fish or game, the
resources implicated by the Tribe’s fishing and hunting rights. As to aquatic resources, the EA
offered only a cursory nod to the potential effects of an oil spill, stating simply that “[t]he
primary issue related to impacts on the aquatic environment from operation of the Proposed
Action would be related to a release from the pipeline.” Id. at 69. It never explained, though,
what those effects would be. Instead, it simply reasoned that adherence to Dakota Access’s
response plan “would minimize potential impacts on aquatic wildlife.” Id. at 69-70; see also id.
at 101. Likewise, regarding hunting, the EA only discussed the effects of construction on
“recreationally and economically important species and nongame wildlife”; it said nothing about
the effects of a spill. Id. at 57-58.
Standing Rock, though, had alerted the Corps to its fishing- and hunting-related concerns
after the agency published the Draft EA. See, e.g., ECF No. 159-1, Exh. C (SRST Comments on
Draft EA, Jan. 8, 2016) at 13 (“[A] pipeline leak would threaten to damage . . . the fish and
wildlife on which many Tribal members depend for subsistence.”); ECF No. 159-1, Exh. D
42
(SRST Suppl. Comments on Draft EA, Mar. 24, 2016) at 15 (“The waters of Lake Oahe also
provide habitat for fish, wildlife, and plants important to the diet . . . of the Tribe.”). The
Director of Standing Rock’s Department of Game, Fish, and Wildlife Conservation, moreover,
explained that many of the Tribe’s members rely on fishing as “an important supplemental
source of food and nutrition” and that the Tribe issued 199 family fishing permits in 2015. See
ECF No. 117-16 (Declaration of Jeff Kelly, Nov. 28, 2016), ¶ 5. An oil spill, he said, could
“cause extensive fish kills.” Id., ¶ 12. He also spelled out the ways in which an oil spill could
seriously affect game along the Oahe shoreline, including by poisoning animals that ingest,
inhale, or are otherwise externally exposed to oil and preventing those birds and mammals whose
feathers or fur are coated with oil from maintaining their body temperatures. Id., ¶ 13. Although
the Corps did not have Kelly’s declaration before it when it issued the EA in July 2016, his
remarks were before the agency when it concluded that the easement could be issued based on
the EA absent any supplementation.
Without any acknowledgment of or attention to the impact of an oil spill on the Tribe’s
fishing and hunting rights, despite Plaintiff’s efforts to flag the issue, the EA — in this limited
respect — was inadequate. The appropriate remedy for such omission is discussed in Section
III.D, infra.
2. Alternatives
To comply with NEPA, an Environmental Assessment must include a “‘brief
discussion[]’ of reasonable alternatives to the proposed action.” Myersville, 783 F.3d at 1323
(quoting 40 C.F.R. § 1508.9(b)). This consideration “need not be as rigorous as the
consideration of alternatives in an EIS.” Id.; compare 40 C.F.R. § 1508.9(b) (requiring “brief
discussion[]”) with id. § 1502.14(a) (requiring agency to “[r]igorously explore and objectively
43
evaluate all reasonable alternatives” when EIS required). “An alternative is ‘reasonable’ if it is
objectively feasible as well as ‘reasonable in light of [the agency’s] objectives.’” Myersville,
783 F.3d at 1323 (quoting Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 72
(D.C. Cir. 2011)). An agency’s “specification of the range of reasonable alternatives is entitled
to deference.” Id.
Standing Rock believes that the Environmental Assessment lacks an adequate
consideration of such alternatives. Specifically, the Tribe posits that the EA did not
appropriately examine an alternative route that would have had the pipeline cross the Missouri
River further north. See SRST MSJ at 26, 30-31. The Court disagrees: on this front, the EA
adequately discharged the Corps’ NEPA obligations.
Before settling on the current DAPL route, Dakota Access considered routing the
pipeline to cross Lake Oahe approximately 10 miles north of Bismarck, North Dakota — i.e.,
approximately 50 miles north of its current location, which sits just 0.5 miles north of the
Standing Rock Reservation. See EA at 8, 161 (Figure 13). The Company soon determined,
however, that that route was not “a viable alternative.” Id. The EA explains why. A table
therein compares the Bismarck and Oahe crossings in terms of overall route mileage; co-location
with other pipelines and powerlines; the number of existing pipelines, floodplains, water
features, and powerlines crossed; miles of agriculture, developed/low intensity, developed/open
space, and grass/pasture land crossed; whether Corps-owned land would be crossed; the number
of waterbodies crossed; the number of high-consequence areas affected; and the number of
transportation crossings. Id. at 9-10. A separate table compares the two crossings in terms of
total pipeline and total HDD length, as well as in terms of cost for road/railroad bores,
44
installation for non-HDD areas, HDD, geotechnical investigation, above-ground facilities, right-
of-way acquisition, and engineering and consulting. Id. at 11.
That data reveals that the Bismarck alternative would have required an additional 11
miles of pipeline, “consisting of roughly 165 additional acres of impact,” 11 more floodplain
crossings, 1 more powerline crossing, and 27 more transportation crossings. Id. at 8-10. In
addition, it would have “crossed through or in close proximity to several wellhead source water
protection areas” and “crossed other populated PHMSA high consequence areas” — i.e., “locales
where a release from a pipeline could have the most significant adverse consequences” — “not
present on the [selected] route.” Id. at 8. The North Dakota Public Service Commission,
moreover, requires a 500-foot residential buffer, which would have “severely constrained” the
Bismarck route. Id. By contrast, on the Reservation, the residence closest to the pipeline at
Oahe is located more than 1.5 miles away. Id. at 86. And finally, the Bismarck alternative
would have cost nearly $33 million more and been co-located with other pipelines or utility
corridors for only 3% of the route as compared to the selected route’s 41%. Id. at 9, 11.
Standing Rock largely focuses its critique on the EA’s reliance on a memo prepared by
DAPL consultants, which it argues offers “a one-sided analysis that considered downstream
impacts for the Bismarck alternative, but not for the Oahe crossing.” SRST MSJ at 30. But that
memo, which the EA does not expressly cite, provides another reasonable basis on which the
Corps could have rejected the Bismarck crossing in favor of Oahe. It explains that the two
closest municipal-water intakes to the Bismarck crossing would have been at Mandan, 7.3 miles
downstream and serving 19,381 people, and Bismarck, 11.6 miles downstream and serving
65,123 people. See ECF No. 209-16 at 18 (Memorandum from Tom Siguaw, Dakota Access, &
Steve Rove, HDR Engineering, Apr. 12, 2016). The first downstream intake from the Oahe
45
crossing, comparatively, is 4.2 miles downstream but is non-tribal and for agricultural use. Id.
The second is 7.6 miles downstream and is used by Standing Rock also for agricultural purposes.
Id. The third — and the first to be used for drinking water — is 11.1 miles downstream and
belongs to the South Central Regional Water District, which serves 3,491 people in Emmons
County, North Dakota. Id. The fourth — and the first Standing Rock intake for public
consumption — is 26.2 miles downstream at Fort Yates and serves 229 people in Fort Yates and
up to 4,317 in Sioux County. Id. The Bismarck crossing thus would have been much closer —
nearly four miles — to a drinking-water intake than the Oahe crossing. The drinking-water
intakes near Bismarck also serve many more people than the two closest to the Oahe crossing.
This difference will be even more pronounced once construction is complete on a new water-
intake structure being built to serve all communities on the Standing Rock Reservation, as that
system will be located approximately 50 miles further downstream from the Oahe crossing than
the existing structure serving the Tribe at Fort Yates. See Cooper Memo at 19.
This is not to say that the EA’s analysis of the Bismarck alternative is without flaws. As
the Cooper Memo points out, when counting the number of wetland and water features crossed,
the EA uses raw numbers of crossings, rather than “the total [number] of impacts measured as
acreage or linear feet,” which would have given “a more accurate comparison of the route.”
Cooper Memo at 9. And although the Bismarck route would have crossed PHMSA high-
consequence areas that the Lake Oahe route does not, the Lake Oahe route also crosses high-
consequence areas. Id.; EA at 94. Despite these issues, by identifying and comparing several
features of the two routes as described, the EA easily clears NEPA’s hurdle requiring “brief
discussion” of reasonable alternatives.
46
3. Environmental Justice
Standing Rock next contends that the Corps’ environmental-justice analysis was arbitrary
and capricious. A 1994 Executive Order requires that, “[t]o the greatest extent practicable and
permitted by law,” federal agencies “shall make achieving environmental justice part of [their]
mission by identifying and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of [their] programs, policies, and activities on minority
populations and low-income populations.” Exec. Order 12,898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629
(Feb. 11, 1994), § 1-101. The Order expressly states that it does not create a private right to
judicial review, id. § 6-609, but the D.C. Circuit has permitted challenges to environmental-
justice analyses under NEPA and the APA. See Communities Against Runway Expansion, Inc.
v. F.A.A., 355 F.3d 678, 689 (D.C. Cir. 2004) (“The [agency] exercised its discretion to include
the environmental justice analysis in its NEPA evaluation, and that analysis therefore is properly
subject to arbitrary and capricious review under the APA.”).
As the EA acknowledges, see EA at 84, the Council on Environmental Quality developed
guidance to assist federal agencies in ensuring that environmental-justice concerns “are
effectively identified and addressed.” ECF No. 117-19 (CEQ, Environmental Justice Guidance
Under the National Environmental Policy Act, Dec. 10, 1997) at 1. That guidance instructs that
agencies “should consider the composition of the affected area, to determine whether minority
populations, low-income populations, or Indian tribes are present in the area affected by the
proposed action, and if so whether there may be disproportionately high and adverse human
health or environmental effects on minority populations, low-income populations, or Indian
tribes”; “should recognize the interrelated cultural, social, occupational, historical, or economic
47
factors that may amplify the natural and physical environmental effects of the proposed agency
action”; and “should recognize that the impacts within . . . Indian tribes may be different from
impacts on the general population due to a community’s distinct cultural practices.” Id. at 9.
“Where environments of Indian tribes may be affected,” CEQ advises, “agencies must consider
pertinent treaty, statutory, or executive order rights and consult with tribal governments in a
manner consistent with the government-to-government relationship.” Id. at 14. Finally, the
“unit of geographic analysis” for the environmental-justice assessment should “be chosen so as
not to artificially dilute or inflate the affected minority population.” Id. at 26.
Here, the Corps defined the unit of geographic analysis for its environmental-justice
assessment as a 0.5-mile radius around the crossing, yielding a focus on the two census tracts in
which the HDD boreholes would be drilled — i.e., the places on either side of Lake Oahe at
which the pipeline would enter the ground to pass under the water. See EA at 84. Those two
census tracts were in Morton County and Emmons County; they did not include Sioux County,
where the Reservation is located. Id. at 80, 83.
To identify the impact of the project on the populations in the chosen census tracts, the
Corps compared the average demographic data from the two census tracts to that of “counties in
the general vicinity” of the Oahe crossing — Emmons, Morton, and Sioux Counties — and to
that of North Dakota generally. Id. at 84. Specifically, the Corps compared the areas by
percentage of racial minorities and percentage of persons living below the poverty level. Id. at
83. That data analysis revealed that the minority population in the two census tracts was 2% —
i.e., 29% lower than the minority population in the general-vicinity counties and 9% lower than
the minority population in North Dakota as a whole. Id. at 83, 85. It also showed that the
percentage of persons living below the poverty level in the two census tracts was 9%. Id. at 83.
48
The EA states that this figure was 3% lower than the impoverished population in the general-
vicinity counties and 50% higher than in North Dakota as a whole. Id. Based on these
comparisons, the EA concluded that “there is no concern regarding environmental justice to
minority populations at the Proposed Action Area at . . . Lake Oahe.” Id. at 85. In actuality,
some of the EA’s calculations are incorrect. See Cooper Memo at 24 (identifying one of two
errors). Using the correct figures, the percentage of persons living below the poverty line in the
two census tracts was 11% lower than in the general-vicinity counties and 3% lower than in
North Dakota as a whole. Id. at 83; Cooper Memo at 24. (As will be seen, the calculation errors
play no significant role in the outcome on this issue.)
The Tribe challenges the Corps’ decision to use a 0.5-mile buffer and the resulting
analysis as arbitrary and capricious gerrymandering. See SRST MSJ at 28. The Standing Rock
Reservation is 0.55 miles — or 80 yards beyond the 0.5-mile limit — downstream of the HDD
site, and the Tribe contends that there was no principled basis on which to narrowly exclude it
from the bounds of the Corps’ analysis. Id. at 29. It also notes that the two census tracts selected
as the “affected area” are “mostly upstream of the crossing site” with a 98% white population.
Id. By comparing these tracts to a baseline of three counties that included Sioux County,
Standing Rock argues, the EA “compar[ed] an area that will be almost entirely unaffected by a
spill from the pipeline, and where few Tribal members live, against a baseline that included a
significant portion of the Reservation.” Id. “Unsurprisingly,” the Tribe observes, the “‘affected
area’ did not have a higher population of minority and low-income people than the claimed
baseline, allowing the Corps to dismiss environmental justice concerns.” Id.
The Corps and Dakota Access defend the reliance on a 0.5-mile buffer by repeating the
justification given in the EA: “Transportation projects, such as under the Federal Transit
49
Administration, and natural gas pipeline projects under the Federal Energy Regulatory
Commission . . . typically use a 0.5 mile buffer area to examine Environmental Justice effects.”
EA at 84; see also id. at 87 (“As stated above, linear projects typically use a 0.5 mile buffer area
to examine Environmental Justice effects.”); DA SRST Opp. at 29; Corps SRST MSJ at 27.
Although “[t]he ‘identification of the geographic area’ within which a project’s impacts
on the environmental resources may occur ‘is a task assigned to the special competency of the
appropriate agencies,’” Powder River Basin Res. Council v. BLM, 37 F. Supp. 3d 59, 75 (D.D.C.
2014) (quoting Tri-Valley CAREs v. Dep’t of Energy, 671 F.3d 113, 1127 (9th Cir. 2012))
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976)), the Court is hard pressed to conclude
that the Corps’ selection of a 0.5-mile buffer was reasonable. DAPL is neither a transportation
project nor a natural-gas pipeline; it is a crude-oil pipeline. The EA does not identify any project
involving a crude-oil pipeline for which a 0.5-mile buffer was employed. The Corps, likewise,
points only to other types of infrastructure projects. See Corps SRST MSJ at 27 (citing Coal. for
Healthy Ports v. Coast Guard, No. 13-5347, 2015 WL 7460018, at *25 (S.D.N.Y. Nov. 24, 2015)
(project to raise height of bridge); Bitters v. Fed. Highway Admin., No. 14-1646, 2016 WL
159216, at *14 (E.D. Cal. Jan. 13, 2016) (project to reintroduce vehicle traffic lanes to particular
streets)).
The Corps nonetheless rejoins that there is no meaningful distinction between those
projects and DAPL. Id. (“Analysis of a half-mile buffer, which is appropriate for bridges or
other construction projects with street-level noise, traffic or other impacts, is certainly
appropriate for the Lake Oahe crossing, where the construction is deep under the bed of Lake
Oahe and is staged on private lands.”); Corps SRST Reply at 13 n.3 (“[A] bridge that carries rail
cars or truck traffic transporting oil or hazardous substances which could just as easily suffer low
50
probability accidents resulting in releases to the waterways underneath the bridges.”). The
problem with the Corps’ argument, however, is that the cases it cites did not consider an oil spill
when evaluating impacts; if they had, perhaps a different geographic scope may have been
selected. Standing Rock, conversely, points to two oil-pipeline projects for which a much larger
affected area was used to assess environmental-justice impacts. See SRST MSJ at 30 n.16
(citing ECF No. 117-22 (Final Supplemental Environmental Impact Statement, Keystone XL
Project) at 3.10-3) (assessing environmental-justice impacts 14 miles downstream of crossings));
SRST Reply at 25 n.23 (citing ECF No. 195-6 (Draft Supplemental Environmental Impact
Statement for Line 67 Expansion, Jan. 2017) at 3.0-2 (looking at spill impacts up to 40 river-
miles downstream)).
Standing Rock is not the only entity to criticize the 0.5-mile-buffer choice. In its
comments on the Draft EA, the EPA advised the Corps that “the area of analysis to assess
potential impacts to EJ communities should correspond to the impacts of the proposed project
instead of only the area of construction disturbance.” ECF No. 209-8 at 126 (Letter from Philip
Strobel to Brent Cossette, Mar. 11, 2016). “For oil pipeline projects, potential impacts to EJ
communities would include the effects of leaks and spills to downstream water supplies (both
drinking water quality, agricultural uses, and costs) and aquatic resources such as fish and
riparian vegetation used by EJ populations.” Id. Even the Corps’ Chief Counsel expressed
concern about the agency’s geographic selection when reviewing the EA’s legal sufficiency:
The Corps’ determination of the affected environment . . . can be
questioned here. . . . Sioux County is just outside the 0.5-mile
pipeline buffer. While the equally sized buffer on both sides of the
pipeline seems reasonable along land areas, it is arguably less so at
water areas because of the potential for water currents to carry a spill
downstream. Sioux County is located just south and downstream of
the pipeline. Thus, the SRST population present immediately
outside of the proposed area or affected environment and
51
downstream reasonably could have been within the area identified
as the affected environment in the EA. If that area was included, the
EA would then determine whether there might a disproportionately
high and adverse human health or environmental effect on the
SRST.
Cooper Memo at 25-26.
The Corps argues that the Court need not confine its analysis to the use of a 0.5-mile
buffer, however, because the EA also devoted a separate section to environmental-justice
impacts on the Standing Rock Sioux Reservation. See EA at 85-87. That additional section, as it
turns out, does not yield the Corps a full reprieve. The Standing Rock-focused environmental-
justice section begins with the “recogni[tion] that the Standing Rock Sioux Tribe is downstream
of the Lake Oahe Crossing” and “has a high population of minorities and low-income residents.”
Id. at 85. It first discusses impacts from the project’s construction and anticipated operation, and
it explains that: the crossing will be installed via HDD on private lands adjacent to Corps-owned
land, HDD drilling has no anticipated environmental effects, the pipeline’s route “maintain[s] a
minimum distance of 0.5 mile[s] from Tribal land,” and the closest residence on the Reservation
to the Oahe crossing is more than 1.5 miles away. Id. at 85-86. “As a result of this routing
criteria, the nature of the action (construction associated with laying an underground oil
pipeline), the short term duration of effects, construction and operation on private lands, the
concurrent reclamation activities, state of the art construction techniques, [and] use of high
quality materials and standards that meet or exceed federal standards,” the EA concludes, “there
will be no direct or indirect effects to the Standing Rock Sioux Tribe. This includes a lack of
impact to its lands, cultural artifacts, water quality or quantity, treaty hunting and fishing rights,
environmental quality, or socio-economic status.” Id. at 86. Given the absence of impacts, it
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continues, “there is no resulting adverse or disproportionate impacts of the Proposed Action with
respect to Environmental Justice considerations.” Id.
The problem here, as the Tribe points out, is that this analysis covers only construction
impacts, not spill impacts. See SRST Reply at 26. As to the effects from a spill (as distinct from
the risk of a spill occurring), the EA’s discussion is minimal:
Concerns have been expressed regarding an inadvertent release
reaching intake structures on Lake Oahe. Given the engineering
design, proposed installation methodology, quality of material
selected, operations measures and response plans[,] the risk of an
inadvertent release in, or reaching, Lake Oahe is extremely low.
While the locations of water intakes is not public information for
disclosure in this document, there are private and/or non-tribal
intakes closer to the Lake Oahe crossing than any intakes owned by
the tribe; further demonstrating the lack of disproportionate impacts
of an inadvertent release to the Tribe and the reservation. We
understand that due to the rural nature of this area, tribal drinking
water supplies are obtained from a combination of wells and surface
area. The siting and construction of oil pipelines upstream of
drinking water intakes is not uncommon throughout the United
States and is not considered an Environmental Justice issue. In the
unlikely event of a release, sufficient time exists to close the nearest
intake valve to avoid human impact.
EA at 87. This limited analysis, the Court believes, is not enough to discharge the Corps’
environmental-justice responsibilities under NEPA.
“The purpose of an environmental justice analysis is to determine whether a project will
have a disproportionately adverse effect on minority and low income populations.” Allen v.
Nat’l Institutes of Health, 974 F. Supp. 2d 18, 47 (D. Mass. 2013) (quoting Mid States Coal. for
Progress v. Surface Transp. Bd., 345 F.3d 520, 541 (8th Cir. 2003)). The EA takes some steps
toward satisfying this purpose. It acknowledges that Standing Rock, a community with a high
percentage of minorities and low-income individuals, is based downstream of the Oahe crossing
and could be affected by an oil spill, and it observes — without providing any specifics — that a
53
non-tribal community’s drinking-water intake is closer to the Oahe crossing than is Standing
Rock’s. But these statements are not enough to reasonably support the conclusion that the Tribe
will not be disproportionately affected by an oil spill in terms of adverse human health or
environmental effects. See CEQ Guidance at 9.
The EA is silent, for instance, on the distinct cultural practices of the Tribe and the social
and economic factors that might amplify its experience of the environmental effects of an oil
spill. Id. at 9, 14. Standing Rock provides one such example in its briefing: many of its
members fish, hunt, and gather for subsistence. See SRST MSJ at 41. Losing the ability to do so
could seriously and disproportionately harm those individuals relative to those in nearby non-
tribal communities.
The Corps need not necessarily have addressed that particular issue, but it needed to offer
more than a bare-bones conclusion that Standing Rock would not be disproportionately harmed
by a spill. Given the cursory nature of this aspect of the EA’s analysis, the Court agrees with the
Tribe that the Corps did not properly consider the environmental-justice implications of the
project and thus failed to take a hard look at its environmental consequences. Once again, the
remedy for such omission is considered in Section III.D, infra.
B. Decision to Grant the Easement
The Tribe’s second set of arguments centers around the Corps’ February 8, 2017,
decision to grant an easement to Dakota Access to construct and operate DAPL under Lake
Oahe. As a reminder, the Corps had previously said, in a memo issued on December 4, 2016,
that it would not grant such an easement based on the current record and would undertake
additional analysis before making a final decision. Standing Rock first contends that the Corps’
February 2017 easement decision was an arbitrary and capricious reversal of its previous
54
position. It also asserts that the decision was in conflict with the Corps’ trust-responsibility
obligations. The Court addresses each in turn.
1. Policy Change
When an agency action changes or reverses a prior policy, it must “display awareness
that it is changing position”; it may not, e.g., “depart from a prior policy sub silentio.” FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). It also “must show that there are good
reasons for the new policy.” Id. Generally, however, those reasons need not be better than the
reasons for the old policy. To satisfy the APA’s procedural-correctness requirements, it is
sufficient “that the new policy is permissible under the statute, that there are good reasons for it,
and that the agency believes it to be better, which the conscious change of course adequately
indicates.” Id. Sometimes, though, more is required. If the “new policy rests upon factual
findings that contradict those which underlay its prior policy,” the agency must “provide a more
detailed justification than what would suffice for a new policy created on a blank slate,” for “[i]t
would be arbitrary and capricious to ignore such matters.” Id.; see also id. at 537 (Kennedy, J.,
concurring) (“[A]n agency's decision to change course may be arbitrary and capricious if the
agency ignores or countermands its earlier factual findings without reasoned explanation for
doing so. An agency cannot simply disregard contrary or inconvenient factual determinations
that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank
slate.”). The agency need not, though, “refute the factual underpinnings of its prior policy with
new factual data.” United States Sugar Corp. v. Envtl. Prot. Agency, 830 F.3d 579, 626 (D.C.
Cir. 2016), on reh’g en banc in part No. 11-1108, 2016 WL 7427434 (D.C. Cir. Dec. 23, 2016),
and on reh’g en banc, 2016 WL 7427453 (D.C. Cir. Dec. 23, 2016). It is enough that it offer a
55
“reasoned explanation . . . for disregarding facts and circumstances that underlay . . . the prior
policy.” Fox, 556 U.S. at 516.
Standing Rock argues that the Corps’ decision to grant the easement on February 8, 2017,
was a reversal of the decision announced in the December 4, 2016, memorandum. Because the
Corps “failed to address, let alone provide a reasoned explanation for, abandoning the
determinations undergirding its December 4 decision to require an EIS,” the Tribe contends, its
action was arbitrary and capricious. See SRST MSJ at 36.
In response, the Corps and Dakota Access first argue that Fox simply does not apply: the
decision to grant the easement was not a change in policy because the Corps had never denied
the easement in the first place. See Corps SRST MSJ at 34; DA SRST Opp. at 32. That
position, however, mischaracterizes the Tribe’s argument. Standing Rock does not assert that the
Corps previously denied the easement; indeed, it could not plausibly do so. Assistant Secretary
Darcy clearly stated in her December 4 memo: “To date, the Army has not made a final decision
on whether to grant the easement.” Dec. 4 Memo, ¶ 6. Instead, Standing Rock’s argument is
that the Corps announced on December 4 that it would “not grant an easement to cross Lake
Oahe at the proposed location based on the current record” — as “additional analysis, more
rigorous exploration and evaluation of reasonable siting alternatives, and greater public and tribal
participation and comments” were merited, id., ¶ 12 (emphases added) — but nonetheless
granted the easement on February 8 without having undertaken such additional analysis. The
reversal, then, is the decision to grant the easement on the current record — i.e., as it stood on
December 4 — when the Corps had previously said it would not do so. This, the Tribe believes,
was arbitrary and capricious. Standing Rock does not, it clarifies in its Reply, assail the
withdrawal of the notice of intent to prepare an EIS. See SRST Reply at 30 n.24.
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The Corps’ reversal plainly constituted a change in “official policy.” See, e.g., Alaska
Oil & Gas Ass’n v. Pritzker, 840 F.3d 671, 682 (9th Cir. 2016) (applying Fox to policy change in
agency’s approach to assessing foreseeable threats to endangered species triggered by internal
agency memorandum); Sierra Club v. Bureau of Land Management, 786 F.3d 1219, 1226 (9th
Cir. 2015) (explaining Fox did not apply to an agency’s “evolving analysis” that “was not a
change in a published regulation or official policy”); Loving v. I.R.S., 742 F.3d 1013, 1021 (D.C.
Cir. 2014) (suggesting Fox applies where initial policy was articulated via testimony to Congress
and guidance document — i.e., not final agency actions — and policy change was accomplished
via rulemaking). As the decision to grant the easement on the record as of December 4 did not
rest on new factual findings not relied upon by Darcy or ignore or countermand prior factual
findings absent reasoned explanation, the Corps need only have shown good reasons for its new
policy. Taking Fox’s framework into account, the Court concludes that the Corps here satisfied
its dictates.
First, the Corps displayed “awareness that it [was] changing position.” Fox, 556 U.S. at
515. The February 3, 2017, memo from the Corps’ Lieutenant General that recommended
granting the easement acknowledged that Darcy had previously “directed the Corps to engage in
additional review and analysis concerning” alternative locations, the potential risk of an oil spill
and potential impacts to the Tribe, and the Tribe’s treaty rights, but explained that, “[a]fter
reviewing the record in its entirety and giving further consideration to the input received over the
past four months, including additional review and analyses of the subjects identified by [Darcy],
other federal executive offices, and the SRST, the Corps finds that the Final EA concerning the
crossing of the DAPL at Lake Oahe is sufficient and does not need further supplementation.”
Semonite Memo at 9, 11.
57
Second, the Corps provided a reasoned explanation for its new policy. Darcy’s memo
affirmed that “the Corps’ prior reviews and actions” — including the EA and FONSI —
“comported with legal requirements.” Dec. 4 Memo, ¶ 15. Her “policy decision” that “a more
robust analysis of alternatives [could] be done and should be done” was “based on the totality of
the circumstances” — namely, “the specific mandates of the Mineral Leasing Act (30 U.S.C.
§ 185), the involvement of historic tribal homelands, the close proximity to reservation lands that
extend into the potentially affected waters, and the potential impacts on treaty hunting and
fishing rights.” Id. In reversing course, the Corps started from the same premise as Darcy —
viz., that the EA and FONSI satisfied NEPA’s requirements. See Semonite Memo at 10. It then
explained that the EA “fully informed . . . the decision on whether to grant an easement under the
Mineral Leasing Act.” Id. Supplementation of an EA or EIS, it noted, is required by CEQ
NEPA regulations only when there are “substantial changes in the proposed action that are
relevant to environmental concerns” or when “significant new circumstances or information
relevant to environmental concerns” emerge after an EA or EIS is final. Id. at 11 (quoting 40
C.F.R. §§ 1502.9(c)(1)(i), (ii)).
Here, the proposed action described in the EA did not change between July 2016 and
February 2017. Id. The Corps also concluded that no new significant circumstances or
information relevant to environmental concerns, including the federal government’s trust
relationship to the Tribe, the Corps’ analysis of alternatives, risks from oil spills, and the impact
of a spill on the Tribe’s Treaty rights and water intakes, had emerged since the EA was finalized.
It did so by comparing the various letters received from the Tribe after the EA was issued,
including its expert report, with comments the Tribe previously submitted on the Draft EA, as
well as by looking at the Corps’ analysis in the Final EA, the subsequent review memos, and the
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36 special conditions imposed on the easement. Id. at 11-13. In response to the Interior
Solicitor’s memo “address[ing] a series of issues rooted in the perceived risk that the DAPL
would leak into Lake Oahe,” the Corps explained that, as set out in the EA and Cooper Memo,
the risk of a spill was low and was further mitigated by the easement conditions. Id. at 13.
By explaining why it was not compelled by the Tribe’s letters, the Interior Solicitor’s
Opinion, or the Corps’ post-EA reviews to supplement the EA — which Darcy did not dispute
was legally sound — the Corps did enough to satisfy the APA’s requirements regarding policy
reversals.
2. Trust Responsibilities
In addition to challenging the decision to grant the easement as an arbitrary-and-
capricious reversal of prior agency policy, Standing Rock contends that this and other
authorizations to cross Lake Oahe violate the Corps’ trust responsibility to protect the Tribe’s
Treaty rights. This trust responsibility, the Tribe argues, is “even higher than the one imposed by
NEPA.” SRST MSJ at 39. In other words, “compliance with general environmental statutes” is
not sufficient “to discharge [the Corps’] trust duty”; a greater fiduciary duty is required. See
SRST Reply at 34.
As best the Court can tell from the briefing, the Tribe argues that the Corps’ failure to act
in accordance with its trust-responsibility obligations renders the granting of the easement
arbitrary and capricious under the APA. See SRST MSJ at 35-43 (situating discussion of Treaty
rights under heading stating “The Granting of the Easement and Other Corps Authorizations is
Arbitrary, Capricious, and Contrary to Law”); SRST Reply at 30-34 (similar). Whether that is so
or Plaintiff intends to also state a separate breach-of-trust action, see ECF No. 106-1 (SRST First
Amended Complaint), ¶¶ 266-285 (stating separate claims for relief for breach of trust
59
responsibility and violation of APA), Standing Rock’s position comes up short for the same
reason.
According to the Tribe, to fulfill its trustee duties, the Corps needed to “have before it a
full and comprehensive understanding of how the project impacts treaty rights and tribes.”
SRST MSJ at 40. It did not so have here, the Tribe asserts, because it “assumed oil spills will
never happen and on that basis refused to consider the impacts of an oil spill on the Tribe’s
Treaty rights and resources.” Id. Standing Rock further argues that the Corps did not fulfill its
fiduciary obligation to share information about the project, as it withheld from the Tribe the spill
assessment, spill-response plans, and environmental-justice and route analyses. Id. at 41-42.
The problem for Standing Rock, however, is that “[t]he trust obligations of the United
States to the Indian tribes are established and governed by statute rather than the common law.”
United States v. Jicarilla Apache Nation, 564 U.S. 162, 165 (2011). To bring a breach-of-trust
claim, the Tribe “must identify a substantive source of law that establishes specific fiduciary or
other duties, and allege that the Government has failed faithfully to perform those duties.”
United States v. Navajo Nation, 537 U.S. 488, 506 (2003). Standing Rock asserts that “[t]he
federal government has a duty, arising from the Treaties and the federal trust responsibility, and
reinforced in the MLA and other statutes, to protect treaty rights and resources,” but it does not
point in its Motion to a specific statute, treaty, executive order, or other provision that gives rise
to specific fiduciary duties. See SRST MSJ at 39. In its Reply, the Tribe cites Section
185(h)(2)(D) of the Mineral Leasing Act, which provides that the Corps, “prior to granting a
right-of-way or permit . . . for a new project which may have a significant impact on the
environment,” shall impose “requirements to protect the interests of individuals living in the
general area of the right-of-way or permit who rely on the fish, wildlife, and biotic resources of
60
the area for subsistence purposes.” 30 U.S.C. § 185(h)(2)(D); see SRST Reply at 36. Yet that
provision does not contain any trust or fiduciary language, and, in any case, the Corps imposed
such conditions on the easement. See Easement at 37-43. “Without an unambiguous provision
by Congress that clearly outlines a federal trust responsibility, courts must appreciate that
whatever fiduciary obligation otherwise exists, it is a limited one only.” N. Slope Borough v.
Andrus, 642 F.2d 589, 612 (D.C. Cir. 1980). “Thus, although the United States does owe a
general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on
the government with respect to Indians, this responsibility is discharged by the agency’s
compliance with general regulations and statutes not specifically aimed at protecting Indian
tribes.” Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998).
Standing Rock argues that the line of cases requiring a showing that the government owes
a specific statutory fiduciary duty is limited to damages actions brought under the Indian Tucker
Act, 28 U.S.C. § 1505, which waives sovereign immunity for certain claims brought by a tribe
against the United States. That statute, it contends, does not apply here because “the APA
establishes both the cause of action and waiver of sovereign immunity.” SRST Reply at 36.
Recent Circuit precedent, however, undermines such a position.
In El Paso Natural Gas Company v. United States, 750 F.3d 863 (D.C. Cir. 2014), the
D.C. Circuit considered, inter alia, claims by the Navajo Nation concerning environmental
hazards at uranium, waste, and dump sites. As to the Tribe’s breach-of-trust cause of action, the
court held that it had failed to state a claim for relief because it “ha[d] not identified a substantive
source of law establishing specific fiduciary duties, a failure which [was] fatal to its trust claim
regardless of whether [the court] read the claim as brought under the APA or under a cause of
action implied by the nature of the fiduciary relationship itself.” Id. at 892. The Navajo Nation
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had argued that its breach-of-trust claim could “be maintained either (1) under the APA or (2)
under a cause of action inferred from the fiduciary responsibilities undertaken by the
Government.” Id. The D.C. Circuit concluded that, “[o]n either conception of the claim,” its
inquiry would be “largely the same because, under controlling precedent, a cause of action will
be inferred from a fiduciary relationship only where a plaintiff can identify specific trust duties
in a statute, regulation, or treaty. And [that] analysis overlaps with the APA’s requirement that a
plaintiff allege ‘that an agency failed to take a discrete agency action that it is required to take.’”
Id. (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)).
To explain that conclusion, the court addressed the Supreme Court’s case law concerning
Indian trust claims and the law of the circuit. It stated, as this Court has above, “The existence of
a general trust relationship between the Government and Indian tribes is long established. But
this general trust relationship alone does not afford an Indian tribe with a cause of action against
the Government . . . . Something more is needed.” Id. (citations omitted). It then explained,
“[W]e apply these same principles” derived from “Indian trust claims arising in the context of
the Indian Tucker Act” to “trust claims brought under the APA.” Id. at 892-93; see also id. at
895 (“These principles control here, even though the claim is for equitable relief (not money
damages) and even though sovereign immunity is waived under § 702 of the APA (and not the
Indian Tucker Act).” Indeed, it noted, the D.C. Circuit has “consistently relied on principles
announced in Indian Tucker Act cases in trust cases not arising under the Act.” Id. at 895
(citing, e.g., Andrus, 642 F.2d at 611 (“[T]rust responsibility can only arise from a statute, treaty,
or executive order.”); Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (reiterating that
fiduciary relationship depends on substantive laws and stating that “the government’s obligations
are rooted in and outlined by the relevant statutes and treaties”).
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This Court is bound by El Paso. It thus cannot accept the Tribe’s position that “[t]he
Tucker Act line of cases has no bearing on the existence of a claim here,” SRST Reply at 36, or
that of amici curiae that the APA affords broader trust enforcement than the statute. See ECF
No. 137 (Amicus Brief of Assoc. of American Indian Affairs, et al.) at 8. Because Standing
Rock has not identified a specific provision creating fiduciary or trust duties that the Corps
violated, its breach-of-trust argument — whether considered a separate count or part of its larger
APA cause of action — cannot survive.
C. NWP 12
Standing Rock’s final claim is that the Corps’ decision to issue a verification that the
project complied with the terms of Nationwide Permit 12 was arbitrary and capricious. As the
Court explained in a previous Opinion, the Rivers and Harbors Act forbids certain construction
activities within the “navigable water of the United States” absent permission from the Corps.
See Standing Rock I, 205 F. Supp. 3d at 12 (quoting 33 U.S.C. § 403). Because DAPL is, in
part, a “structure . . . under . . . a navigable water of the United States,” 33 C.F.R. § 322.3(a),
Dakota Access required a permit under Section 10 of the RHA. The Corps often authorizes such
activities through a general, nationwide permit. Standing Rock I, 205 F. Supp. 3d at 10.
Nationwide Permit 12, the general permit at issue here, authorizes “[a]ctivities required for the
construction, maintenance, repair, and removal of utility lines and associated facilities in waters
of the United States, provided the activity does not result in the loss of greater than 1/2-acre of
waters of the United States for each single and complete project.” Reissuance of Nationwide
Permits, 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012). On July 25, 2016, the Corps verified that
the Oahe crossing would satisfy the terms and conditions of NWP 12.
63
To qualify for NWP authorization, a permittee must comply with certain General
Conditions. General Condition 17, for example, provides that “[n]o activity or its operation may
impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing
and hunting rights.” 77 Fed. Reg. at 10,283. General Condition 7 states, moreover, that “[n]o
activity may occur in the proximity of a public water supply intake, except where the activity is
for the repair or improvement of public water supply intake structures or adjacent bank
stabilization.” Id. The Tribe argues that because the Oahe crossing does not comply with these
conditions, it does not qualify for NWP 12. See SRST MSJ at 43-44.
The Court, however, is already remanding on certain of these issues — e.g., Treaty rights
and environmental-justice considerations — and the Tribe offers no other basis for concluding
that the project does not comply with GCs 7 and 17.
The Corps, furthermore, asserts that it was not obligated to evaluate whether these
General Conditions were satisfied prior to verifying that the project was authorized under NWP
12. See Corps SRST MSJ at 45 (citing Snoqualmie Valley Preservation Alliance v. U.S. Army
Corps of Eng’rs, 683 F.3d 1155, 1164 (9th Cir. 2012) (“The nationwide permit system is
designed to streamline the permitting process. We decline to impose a new requirement of a full
and thorough analysis of each general condition based on documentation the Corps may or may
not have.”)). Instead, it explains, “[A] permittee must adhere to the General Conditions to
maintain eligibility for a Nationwide Permit.” Id. (citing 77 Fed. Reg. at 10,282). Standing
Rock insists that it is not asking the Court to require the Corps to undertake an in-depth analysis
of each General Condition prior to issuing an NWP 12 verification, but rather is simply
demanding that the Corps give GCs some attention when faced with “abundant information.”
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SRST Reply at 43; see also id. (“While it need not necessarily conduct a ‘full and thorough’
analysis of each and every GC, it must deal with the information in front of it.”).
The Tribe, however, offers no case law to support its position. Other district courts in
this circuit, moreover, have articulated the Corps’ obligations as it presents them here. See
Sierra Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9, 27 (D.D.C. 2013) (“When a
prospective permittee files a pre-clearance notice [under the general permit process], the only
thing left to be done is for the Corps’s district engineers to verify that the planned project does,
in fact, fit within the category of activities that the Corps has already authorized.”). Given the
streamlining and efficiency goals behind the nationwide-permit program, this view makes sense:
[F]orcing the Corps to perform an extensive environmental review
in the verification context under NWP 12 would (i) duplicate work
already performed at the nationwide permit stage in pre-clearing this
category of activities; (ii) contravene the purpose of the nationwide
permit process; (iii) increase exponentially the documentation a
permittee must submit to the Corps, including numerous items not
specifically delineated as required documentation in the General
Conditions; and (iv) multiply the delay and expense associated with
verifications so as to render them functionally indistinguishable
from individual permit decisions, thus collapsing two conceptually
distinct regulatory processes into one.
Mobile Baykeeper, Inc. v. U.S. Army Corps of Eng’rs, No. 14-32, 2014 WL 5307850, at *15
(S.D. Ala. Oct. 16, 2014); see also id. at *16 (“[T]he Corps was not required to study compliance
with General Condition 7 before issuing NWP 12 verifications.”).
The Court thus agrees that the Corps need not have investigated compliance with General
Conditions 7 and 17 before issuing NWP verifications on the DAPL crossing at Lake Oahe, and
that its permitting decision was not arbitrary and capricious. This conclusion, however, does not
forever insulate the NWP 12 permitting decision from challenge. Dakota Access has a duty to
comply with these conditions if it wishes to maintain its eligibility for a Nationwide Permit.
65
***
To summarize its conclusions on Standing Rock’s claims, therefore, the Court finds that
the Corps’ decision on July 25, 2016, and February 3, 2017, not to issue an EIS largely complied
with NEPA. Yet there are substantial exceptions: the agency failed to adequately consider the
impacts of an oil spill on Standing Rock’s fishing and hunting rights and on environmental
justice, and in February 2017, it did not sufficiently weigh the degree to which the project’s
effects are likely to be highly controversial in light of critiques of its scientific methods and data.
D. Remedy
So where does that leave us? The Court turns now to the question of remedy. The cure
for the Corps’ NEPA violation is governed by the APA, which provides that the reviewing court
shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). In this Circuit, vacatur is the “standard remedy” for a NEPA violation. Pub.
Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 189 F. Supp. 3d 1, 2 (D.D.C.
2016) (quoting Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007)); see also
Realty Income Tr. v. Eckerd, 564 F.2d 447, 456 (D.C. Cir. 1977) (“[W]hen an action is being
undertaken in violation of NEPA, there is a presumption that injunctive relief should be granted
against continuation of the action until the agency brings itself into compliance.”). In other
words, the Court would vacate DAPL’s permits and easement, thus forcing it to cease operations
until the Corps fully complied with the aforementioned NEPA requirements.
Such a move, of course, would carry serious consequences that a court should not lightly
impose. In fact, courts have discretion to depart from that presumptive remedy and decide not to
vacate an EA, FONSI, and corresponding authorizations pending NEPA compliance. Allied-
66
Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993). “The
decision whether to vacate depends on ‘the seriousness of the order’s deficiencies (and thus the
extent of doubt whether the agency chose correctly) and the disruptive consequences of an
interim change that may itself be changed.’” Id. (quoting Int’l Union, United Mine Workers of
Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1990)). “[A] serious
possibility that the [agency] will be able to substantiate its decision on remand” cautions in favor
of remanding rather than vacating. Id. at 151.
Here, Standing Rock argues that “[v]acatur is the appropriate remedy,” SRST MSJ at 45,
whereas Dakota Access counters that the Allied-Signal factors require remand without vacatur.
See DA SRST Opp. at 44-45. These discussions, however, are quite brief, and the Corps never
even addresses the issue. This is not surprising — absent knowledge of whether or to what
extent the Court would remand, the parties were unable to fully address the Allied-Signal factors
in their summary-judgment briefs. That mystery now solved, the Court will order the litigants to
submit briefing on whether remand with or without vacatur is appropriate in light of the
deficiencies herein identified and any disruptive consequences that would result given the current
stage of the pipeline’s operation. As is set out in a contemporaneous Order, the Court will
discuss the schedule of that briefing and the remand at an upcoming status conference to be held
next week.
IV. Analysis of Cheyenne River’s Claims
The Standing Rock Sioux are not the only Tribe at the table. The Court thus now turns to
Cheyenne River’s Motion for Partial Summary Judgment and the Corps’ and Dakota Access’s
Cross-Motions. Cheyenne River seeks summary judgment on four claims: (1) The Corps’
issuance of the Section 408 permit was arbitrary, capricious, and unlawful; (2) The Corps’
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issuance of the MLA easement was arbitrary, capricious, and unlawful; (3) The Corps’ issuance
of both constituted a breach of trust responsibility; and (4) The Corps issued both in violation of
its pre-decisional consultation duty.
Before addressing each of these separately, a few preliminaries: First, certain aspects of
these claims have been addressed in the Standing Rock analysis above — namely, the
sufficiency of the EA’s spill-risk analysis and the nature of the Corps’ trust responsibilities —
and the Court will refer back to those conclusions rather than repeat them here. Second, in light
of the principles regarding extra-record evidence in administrative-law cases discussed in
Section III.A.1.a, supra, the Court will consider only documents created on or before July 25,
2016, when evaluating the Corps’ Section 408 decision and only documents created on or before
February 8, 2017, when assessing the Corps’ easement decision.
A. Section 408 Decision
Section 408 of the Rivers and Harbors Act makes it unlawful for a person to “take
possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure,
. . . or in any manner whatever impair the usefulness of any . . . work built by the United States, .
. . in whole or in part, for the preservation and improvement of any of its navigable waters or to
prevent floods.” 33 U.S.C. § 408(a). The Corps “may,” however, permit the alteration,
permanent occupation, or use of such public works when, in its judgment, such activity (1) “will
not impair the usefulness of such work” and (2) “will not be injurious to the public interest.” Id.
The Corps so concluded here. See ECF No. 183-9 (Section 408 Decision Package) at 6.
Cheyenne River contends that those conclusions were arbitrary, capricious, and contrary to law.
In evaluating that argument, the Court considers the two Section 408 factors separately.
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1. Impairment
As to the first prong, the Corps’ objective “is to ensure that the proposed alteration will
not limit the ability of the project to function as authorized and will not compromise or change
any authorized project conditions, purposes or outputs.” ECF No. 73-15 (Policy and Procedural
Guidance for Processing Requests to Alter US Army Corps of Eng’rs Civil Works Projects
Pursuant to 33 USC 408, Engineering Circular 1165-2-216 ¶ 7.c.(4)(b)i. (2015)). To do so, “[a]ll
appropriate technical analyses including geotechnical, structural, hydraulic and hydrologic, real
estate, and operations and maintenance requirements, must be conducted and the technical
adequacy of the design must be reviewed.” Id. If the Corps concludes “at any time . . . that the
usefulness of the authorized project will be negatively impacted,” its inquiry ends. Id.
To challenge the Corps’ decision that DAPL would not impair the ability of the Lake
Oahe project to function as authorized and would not compromise or change any of its
conditions, purposes, or outputs, the Tribe first points to 33 U.S.C. § 701-1(b), a provision of the
Flood Control Act of 1944. Cheyenne River reads § 701-1(b) to establish that consumptive uses
of Lake Oahe’s waters “may not be subrogated . . . to non-consumptive uses,” and that no
activity with the potential to have an adverse effect on the water’s use — e.g., an oil pipeline
with some potential to leak — may be lawfully authorized. See CRST MSJ at 11-12.
Section 701-1(b), however, does not apply here. That provision provides:
The use for navigation, in connection with the operation and
maintenance of such works herein authorized for construction, of
waters arising in States lying wholly or partly west of the ninety-
eighth meridian shall be only such use as does not conflict with any
beneficial consumptive use, present or future, in States lying wholly
or partly west of the ninety-eighth meridian, of such waters for
domestic municipal, stock water, irrigation, mining, or industrial
purposes.
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33 U.S.C. § 701-1(b) (emphasis added). As is clear from the statutory language, the provision
applies to navigational uses of water, which DAPL is not. See also 33 U.S.C. § 701-1 (stating
federal policy is to “limit the authorization and construction of navigation works to those in
which a substantial benefit to navigation will be realized therefrom and which can be operated
consistently with appropriate and economic use of the waters of such rivers by other users”)
(emphasis added).
The Tribe next maintains that the Corps did not adequately consider the risk of an oil spill
or the environmental impacts of the pipeline; as a result, it could not reasonably have concluded
that DAPL would not impair the purposes of the Lake Oahe project. Cheyenne River asserts, for
example, that the Corps failed to assess the risk of landslides after mitigation efforts, the effects
of a landslide or earthquake, or the impacts of a spill on vegetation, recreation, water quality, or
the Tribe’s water intake. See CRST MSJ at 16-18. It also points to the Missouri River
Mainstem Reservoir System Master Water Control Manual, which explains that Congress
“authorized the System to be operated for the purposes of flood control, navigation, irrigation,
power, water supply, water quality control, recreation, and fish and wildlife.” Missouri River
Mainstem Reservoir System Master Water Control Manual, U.S. Army Corps of Engineers
(March 2006), § 1-02, http://www.nwd-mr.usace.army.mil/rcc/reports/mmanual/
MasterManual.pdf. Cheyenne River interprets the Manual to “make[] clear that the Corps lacks
authority to approve an oil pipeline crossing of the Missouri River that could impair the
beneficial consumptive uses of the river both present and future.” CRST MSJ at 12; see also id.
at 14 (“The Master Manual does not provide any authorization to the Corps to permit the use of
the Mainstem System for oil pipeline rights-of-way when they place any of the authorized
purposes at risk.”).
70
As the Court explained in Section III.A.1.b, supra, however, considering the record as of
July 25, 2016, when the Corps issued the Section 408 permit, it had taken a hard look at the risk
of an oil spill and provided sufficient explanation to support its conclusion that such a risk was
low. The Corps’ July 2016 determination that the Lake Oahe project’s purposes would not be
impaired by DAPL’s construction and operation was therefore not arbitrary or capricious.
Nothing in the Manual mandates a different result.
2. Injurious to Public Interest
As to the second prong, the Corps must compare “[t]he benefits that reasonably may be
expected to accrue from” a proposed alteration or use of the federal project “against its
reasonably foreseeable detriments.” Engineering Circular 1165-2-216 ¶ 7.c.(4)(b)ii. “If the
potential detriments are found to outweigh the potential benefits, then it may be determined that
the proposed alteration is injurious to the public interest.” Id. In making that evaluation, the
Corps may consider factors such as “conservation, economic development, historic properties,
cultural resources, environmental impacts, water supply, water quality, flood hazards,
floodplains, residual risk, induced damages, navigation, shore erosion or accretion, and
recreation.” Id.
Cheyenne River raises two challenges to the Corps’ determination that permitting DAPL
to cross under Lake Oahe would not be injurious to the public interest. First, the Tribe contends
that it was improper for the Corps to consider “benefits to Dakota Access, the oil industry, and
the economy generally” in assessing the public interest. See CRST MSJ at 20-21 (citing EA at
105-06 (stating that DAPL’s construction “would contribute more than $1 billion in direct
spending” on materials and “$195 million in easement payments to landowners” with property
crossed by the pipeline, and “would provide a benefit to local merchants and vendors” and
71
“temporary employment opportunities to the local workforce”)). This argument fares poorly.
The Corps’ Policy and Procedural Guidance on Section 408 expressly permits consideration of
“economic development” in determining a proposed project’s benefits. See Engineering Circular
1165-2-216 ¶ 7.c.(4)(b)ii.
Second, the Tribe argues that the Corps did not explain how it “weighed the risks against
the claimed benefit,” CRST Reply at 17, failed to consider the consequences from an oil spill,
see CRST MSJ at 18-19, did not adequately consider landslide risk or the impacts of a spill on
vegetation or recreation, id. at 16-17, and never considered effects on Cheyenne River or its
water intake. See CRST Reply at 18-19. This argument gains more traction because, as the
Court previously explained, see Sections III.A.1.c, III.A.2.b., supra, the Corps’ assessment of the
impacts of a spill, although largely adequate, fell short as to fishing rights, hunting rights, and
environmental justice. Because the Corps must submit its assessment of those impacts upon
remand, see Section III.D, supra, the Court will await receipt of such information to decide
whether the agency’s conclusion that DAPL will not be injurious to the public interest was
arbitrary and capricious.
3. Other Arguments
Finally, in addition to its arguments regarding the impairment and public-injury prongs,
Cheyenne River asserts that the Corps’ spill-risk and spill-impact conclusions were cursory, that
the permit should not have been granted absent an EIS, and that the Corps did not satisfy its
obligation to independently review the EA. See CRST MSJ at 2, 10, 18-21. The Court has
already addressed the first two of these points. See Sections III.A.1, III.A.2, III.B.1, supra. As
to the third, it is not persuaded.
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CEQ regulations permit an applicant — here, Dakota Access — to prepare the EA as
long as the agency independently evaluates the information submitted, “make[s] its own
evaluation of the environmental issues[,] and take[s] responsibility for the scope and content of
the environmental assessment,” including its accuracy. See 40 C.F.R. § 1506.5(a)-(b). Here, the
EA states that it was “prepared in accordance with” those regulations, and that the Corps
“independently evaluated and verified the information and analysis undertaken in this EA and
takes full responsibility for the scope and content contained herein.” EA at 1. The record
supports this assertion.
First, the Corps provided ample input to Dakota Access on the proper EA drafting
procedure and on its substance. See ECF No. 183-3 (Email from Brent Cossette to Corps &
Dakota Access Personnel, Mar. 5, 2015) (announcing start of “routine bi-weekly meetings to
discuss the status of the Dakota Access Pipeline project”) at 2; ECF No. 183-4 (Email from
Brent Cossette to Monica Howard, Apr. 24, 2015) at 2 (advising Dakota Access that public and
tribes had 30 days to submit comments, company had to address Corps’ comments, Corps could
not grant Section 408 permit absent certain geotech investigation, and Corps could not issue
decision regarding historical properties absent concurrence of North Dakota State Historic
Preservation Office); ECF No. 183-5 (Email from Brent Cossette, Sept. 18, 2015) (soliciting
comments from twenty-two Corps employees on Draft EA and associated plans); ECF No. 183-
12 (Email from Brent Cossette to Larry Janis, Corps, Recreation & Natural Resources Branch,
May 6, 2016) (summarizing meeting with Dakota Access where Corps pushed company to use
different spill-model data and disagreed with its assessment that potential impact to water intakes
did not need to be in EA); ECF No. 183-11 (Email from Brent Cossette to Tom Sigauw &
William Harlon, Dakota Access, May 11, 2016) (discussing need for sufficient information “to
73
ensure no negative impacts on irrigation and water supply”); ECF No. 212-2 (ProjNet:
Environmental Review of DAPL) (record of 178 comments from Corps); ECF No. 209-16 at
147-56 (EA Comment Matrix) (spreadsheet of Corps’ comments on Draft EA and Dakota
Access’s responses); Section 408 Decision Package at 23 (confirming Dakota Access
satisfactorily addressed geotechnical comments from Corps reviewers); ECF No. 183-10
(Geotechnical Investigation Package) at 13-16.
To illustrate the meaningful back-and-forth engagement between the Corps and Dakota
Access about the EA’s content, the Court highlights one comment on the draft EA from the
Corps and the exchange it sparked. In June 2015, a Corps official noted, “I did not see reference
of a risk analysis for pipeline spills in the EA. Recommend inclusion of such analysis into the
EA due to the size and scope of this transportation pipeline.” ECF No. 183-6 at 24 (Comment
6139320). After Dakota Access supplied the spill model for Lake Oahe, the Corps asked the
company to “include booming strategies and collection points for worst case scenario
discharges” and “where [it] would gain access via water for response.” Id. It also asked Dakota
Access to show how spill volume and response times were calculated and to explain its plans for
“cultural up front inspections/clearances at the control points.” Id. at 25. Several more
comments, document submissions by Dakota Access, and telephone calls between the company
and the Corps followed. Id. at 25-26. The Corps only considered the initial comment in May
2016, nearly a year later, after Dakota Access agreed to insert the requested risk analysis into the
EA and to adopt certain mitigation measures. Id. at 27.
Ultimately, seventeen different Corps officers are listed as having been involved in the
EA’s review, see EA at 126, and a range of Corps personnel reviewed the Section 408
application and certified that DAPL would not be injurious to Lake Oahe or the public interest.
74
See Section 408 Decision Package at 2, 5. On this record, the Court concludes that the Corps
met its responsibility to make its own evaluation of the environmental issues and take
responsibility for the scope and content of the EA. See City of Roseville v. Norton, 219 F. Supp.
2d 130, 165-66 (D.D.C. 2002) (holding agency satisfied 40 C.F.R. § 1506.5(a)-(b) where record
showed contractor worked with agency employees on EA and included “extensive copies of e-
mail communications between the agency staff discussing their comments on, and edits of, the
EA”).
B. Easement Decision
Cheyenne River’s next claim is that the Corps’ issuance of the easement was arbitrary,
capricious, and inconsistent with the requirements of the Mineral Leasing Act, 30 U.S.C. § 185.
This stance makes minimal headway.
The Mineral Leasing Act was enacted by Congress in 1920 “to promote wise
development of [the nation’s] natural resources and to obtain for the public a reasonable financial
return on assets that ‘belong’ to the public.” Devon Energy Corp. v. Kempthorne, 551 F.3d
1030, 1033 (D. C. Cir. 2008) (quoting California Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir.
1961)). It permits “appropriate agency head[s]” to grant “[r]ights-of-way through any Federal
lands . . . for pipeline purposes for the transportation of oil . . . to any applicant possessing” the
requisite statutory qualifications. See 30 U.S.C. § 185(a).
The Tribe challenges the Corps’ decision to grant Dakota Access a right-of-way to cross
Lake Oahe on the basis of three provisions in the MLA: (1) The Corps did not adequately
analyze whether the easement would be “inconsistent with the purposes of the reservation,” as
required by 30 U.S.C. § 185(b)(1), and instead simply cross-referenced its Section 408 approval;
(2) The Corps failed to impose stipulations protecting the “interests of individuals living in the
75
general area . . . who rely on the fish, wildlife, and biotic resources of the area for subsistence
purposes,” as required by 30 U.S.C. § 185(h)(2); and (3) The Corps did not impose sufficient
liability on Dakota Access, as required by 30 U.S.C. § 185(x). See CRST MSJ at 37-44; CRST
Reply at 20-22. Each is discussed separately.
1. Section 185(b)(1)
Section 185(b)(1) of the MLA provides that “[a] right-of-way through a Federal
reservation” — i.e., federally owned or managed land, rather than a federal Indian reservation —
“shall not be granted if the Secretary or agency head determines that it would be inconsistent
with the purposes of the reservation.” 30 U.S.C. § 185(b)(1); see also Corps CRST MSJ at 22
n.11. Here, the reservation is the Lake Oahe project, and its “Congressionally-authorized
purposes . . . include flood control, navigation, hydropower, recreation, water supply, and water
quality.” Henderson Memo at 3.
The Tribe contends that the Corps ran afoul of Section 185(b)(1) because it did not
“articulate any rationale” for its conclusion that DAPL was consistent with the purposes of the
Lake Oahe project and improperly relied on the documents and analysis from its Section 408
determination in undertaking its easement decision. See CRST MSJ at 40; Henderson Memo at
3 (explaining Corps’ easement decision was “supported by the Final EA . . . and various
memoranda supporting the District Commander’s Section 408 approval”). But Cheyenne River
cites no authority for the proposition that the Corps could not rely on its Section 408 decision in
making its easement decision, and the Court can think of no reason why that would be so. While
the approval procedures set out in the RHA and the MLA are not identical, compare 33 U.S.C.
§ 408 with 30 U.S.C. § 185 — a point acknowledged by the Corps in its briefing on Dakota
Access’s now-dismissed cross-claim, see ECF No. 73 at 15-16, 21-22 — the inquiry concerning
76
project impairment, injury to the public interest, and inconsistency with project purpose are
certainly related and largely overlapping.
Cheyenne River also contends that any pipeline for which a right-of-way is sought that
has the potential to have a high negative impact necessarily “is not ‘consistent’ with the
authorized purposes” and cannot satisfy Section 185(b)(1). See CRST MSJ at 40. In other
words, the MLA requires the Corps to reject every right-of-way application that poses any level
of risk of serious harm because such risk renders the right-of-way inconsistent with the purposes
of the federal project. The Court cannot accept this view, which is in direct tension with the text
and purpose of the statute. The MLA expressly contemplates that agencies may grant rights-of-
way through federal lands for pipelines used to transport “oil, natural gas, synthetic liquid or
gaseous fuels, or any refined product produced therefrom.” 30 U.S.C. § 185(a). Such pipelines
necessarily involve some level of risk; no reasonable engineer, scientist, or agency official could
assert that a pipeline project — or any construction or transportation project, for that matter —
involves absolutely zero risk. It would be nonsensical for Congress to have created a mechanism
for granting rights-of-way for oil pipelines if that mechanism could never be used.
Last, in arguing that DAPL specifically is inconsistent with the purposes of the Lake
Oahe project, the Tribe relies on its already-discussed position that the Corps failed to consider
impacts on most of the Lake’s authorized purposes and underestimated the risks posed by the
pipeline. Because the Corps did not adequately consider certain effects of a spill should one
occur and because it did not, as of February 8, 2017, when it granted the easement, demonstrate
that it had considered the degree to which DAPL’s effects are likely to be highly controversial,
see Sections III.A.1.c, III.A.2.b, supra, the Court will reserve its ultimate conclusion on this
issue until the Corps submits its additional analysis after remand.
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2. Section 185(h)(2)
The Tribe next turns to Section 185(h)(2), which instructs that the agency in charge of
granting the right-of-way
shall issue regulations or impose stipulations which shall include,
but shall not be limited to: (A) requirements for restoration,
revegetation, and curtailment of erosion of the surface of the land;
(B) requirements to insure that activities in connection with the
right-of-way or permit will not violate applicable air and water
quality standards nor related facility siting standards established by
or pursuant to law; (C) requirements designed to control or prevent
(i) damage to the environment (including damage to fish and
wildlife habitat), (ii) damage to public or private property, and (iii)
hazards to public health and safety; and (D) requirements to protect
the interests of individuals living in the general area of the right-of-
way or permit who rely on the fish, wildlife, and biotic resources of
the area for subsistence purposes.
30 U.S.C. § 185(h)(2). According to Cheyenne River, the Corps “ignore[d] the requirement to
protect the ‘interests of individuals living in the general area . . . who rely on the fish, wildlife,
and biotic resources of the area for subsistence purposes’” because the EA does not address
impacts of an oil spill on vegetation, recreational fishing, or land-based wildlife. See CRST MSJ
at 42 (quoting 30 U.S.C. § 185(h)(2)(D)); CRST Reply at 21.
The Corps, however, imposed several stipulations on the easement granted to Dakota
Access. See Easement, Exh. D (listing 36 special conditions). Those conditions relate to the
construction, operation, and maintenance of the pipeline in order to minimize the risk of a spill
and the effects from any spill that might occur. Id. For example, the Corps has required Dakota
Access to perform certain girth-weld and pressure-level tests; use specific pipe and field-joint
coatings; install mainline valves to be remotely controllable and equipped with automatic-
shutdown capabilities; install adequate pressure sensors; implement particular mitigation
measures to avoid impacts on soils; protect against overpressure in the pipeline; install a cathodic
78
protection system within six months; perform interference and corrosion surveys within six
months of DAPL’s entry into operation; patrol the pipeline at least twenty-six times per year;
undertake specific training exercises; establish a storage facility for spill-response equipment;
keep records of spill-response plans; and adopt all mitigation measures set out in the EA. Id.
By aiming to reduce the likelihood of an oil spill and to mitigate the impacts of a spill
should one occur, these requirements clearly constitute “requirements designed to control or
prevent . . . damage to the environment (including damage to fish and wildlife habitat)” and “to
protect the interests of individuals living in the general area . . . who rely on the fish, wildlife,
and biotic resources of the area for subsistence purposes.” 30 U.S.C. § 185(h)(2)(C)(i), (D). The
Corps thus satisfied its responsibilities under 30 U.S.C. § 185(h)(2).
3. Section 185(x)
Finally, the Tribe takes issue with the liability provisions set out in the easement. The
easement provides that Dakota Access “shall be strictly liable to the United States for damage or
injury which may arise from or be incident to” its activities under the easement, and it limits
strict-liability damages to $10 million per incident. See Easement, ¶ 12(a), (b). Liability for
damages in excess of $10 million is to be determined according to “ordinary rules of
negligence.” Id., ¶ 12(b). The easement also contemplates liability to third parties — e.g.,
Standing Rock and Cheyenne River. It states: “The Grantee does hereby accept liability, if any,
imposed by Federal and state statutes to third parties for injuries incurred in connection with the
use and occupancy of the pipeline right-of-way.” Id., ¶ 12(c). Cheyenne River contends that
these liability provisions are “an abdication of [the Corps’] fiduciary responsibility to protect the
resources it pervasively regulates and controls,” CRST MSJ at 44, and inconsistent with the
requirements of 30 U.S.C. § 185(x). See CRST Reply at 22.
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Setting aside the fiduciary-duty question, which the Court deals with in Section IV.C,
infra, the Tribe is mistaken in believing that the Corps has run afoul of 30 U.S.C. § 185(x). That
provision permits the Corps to “impose stipulations specifying the extent to which holders of
rights-of-way and permits under [the MLA] shall be liable to the United States for damage or
injury incurred by the United States in connection with the right-of-way or permit.” 30 U.S.C.
§ 185(x)(1). It further permits the Corps to “impose a standard of strict liability” and requires
that if it does so, it must “include a maximum limitation on damages commensurate with the
foreseeable risks or hazards presented.” Id. § 185(x)(2), (4).
The Corps has complied with these requirements. Although the Tribe asserts that
“Dakota Access’[s] statistics on the cost of cleanup of oil spills in the Environmental Justice
Considerations Memo to the Corps demonstrates that $10 million will not begin to cover the cost
of a cleanup,” CRST Reply at 22 (citing ECF No. 203-1, Exh. BBB (Incident Rate Documents)
at 3), that memo demonstrates just the opposite. It includes a table of PHMSA pipeline incidents
between 1996 and 2015 in terms of number, fatalities, injuries, total cost in current-year dollars,
barrels spilled, and net barrels lost. Between 1996 and 2015, there were 1,191 incidents with a
total cost of $2,640,408,583, making the average cost per incident $2,216,968 — i.e., far less
than $10 million. The $10 million strict-liability-per-incident figure, then, is certainly
commensurate with the foreseeable risks or hazards presented by an oil pipeline running under
Lake Oahe.
C. Trust Responsibilities
Cheyenne River’s next claim is virtually identical to one pursued by Standing Rock: the
Corps’ issuance of the Section 408 permit and the easement violated its trust responsibility to
protect the Tribe’s treaty rights. Cheyenne River contends that several sources give rise to such
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a fiduciary obligation: the 1851 and 1868 Fort Laramie Treaties; the Oahe Taking Act, Pub. L.
83-776, 68 Stat. 1191-1193 (1954); Winters v. United States, 207 U.S. 564 (1908); the Master
Water Control Manual, § 7-01.1 (explaining one of four objectives behind development of
Missouri River Mainstem Reservoir System Water Control Plan was “to fulfill the Corps’
responsibilities to Federally recognized Tribes”); the Corps’ “pervasive[] and exclusive control
over the Missouri River . . . and the entire project area”; 25 U.S.C. § 1632(a)(5) (“The Congress
hereby finds and declares that . . . it is in the interest of the United States, and it is the policy of
the United States, that all Indian communities and Indian homes, new and existing, be provided
with safe and adequate water supply systems and sanitary sewage waste disposal systems as soon
as possible.”); and 30 U.S.C. § 185(x)(1) (permitting federal agencies to impose stipulations
specifying permit holder’s liability to United States for damage or injury incurred in connection
with permit). See CRST MSJ at 5, 31-33, 35. None of these sources, however, establishes
specific fiduciary or other duties. Cheyenne River’s breach-of-trust cause of action thus meets
the same fate as Standing Rock’s. See Section III.B.2., supra.
D. Consultation
Last, Cheyenne River argues that the Corps violated various duties when it granted the
Section 408 permit and easement absent the requisite pre-decisional tribal consultation. See
CRST MSJ at 22-30. Whereas Standing Rock — joined by Cheyenne River — brought a
failure-to-consult claim in its preliminary-injunction motion under Section 106 of the National
Historic Preservation Act, which requires a federal agency to consult with Indian tribes that
attach cultural or religious significance to property affected by the agency’s “undertakings,”
Standing Rock I, 205 F. Supp. 3d at 7-8, Cheyenne River here takes a different tack. Instead of
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relying on the NHPA, it invokes Department of Defense Instruction 4710.02 and NEPA’s
implementing regulations.
The Defense Instruction sets out “procedures for DoD interactions with federally-
recognized tribes” and requires all organizational entities in the Department — e.g., the Corps —
to “involve tribal governments early in the planning process for proposed actions that may have
the potential to affect protected tribal rights, land, or resources.” Department of Defense
Instruction 4710.02 (2006), §§ 1, 6.6, http://www.dtic.mil/whs/directives/corres/pdf/
471002p.pdf. “Early involvement,” the Instruction explains, “means that a tribal government is
given an opportunity to comment on a proposed action in time for the tribal government to
provide meaningful comments that may affect the decision.” Id. § 6.6. If an action “ha[s] the
potential to significantly affect protected tribal resources, tribal rights, or Indian lands,” the
agency is to “[c]onsult with federally-recognized tribal governments on a government-to-
government basis.” Id. § 5.3.4 (emphasis added); see also id. §§ 6.1-6.5. Similarly, NEPA’s
implementing regulations require agencies to “consult[] early with appropriate State and local
agencies and Indian tribes and with interested private persons and organizations” when actions
are planned by private applicants. See 40 C.F.R. § 1501.2(d)(2). Based on the record of
communication between the Corps and Cheyenne River in the lead-up to the EA’s publication in
July 2016, the Court concludes that the Corps did endeavor to consult early with the Tribe and
gave it the opportunity to offer meaningful comments on the proposed crossing at Lake Oahe. It
thus need not address the Corps’ alternative contention that the DoD Instruction and NEPA’s
implementing regulations do not impose binding consultation duties. See Corps CRST MSJ at
39.
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The Corps first contacted Cheyenne River about DAPL in October 2014, when it sent a
letter with information about proposed soil borings and maps illustrating portions of the pipeline
and nearby cultural sites. See ECF No. 185-1, Exh. MM (Form Letter from Corps, Oct. 24,
2014); ECF No. 185-1, Exh. NN (Letter from Steve Vance to Richard Harnois, Aug. 17, 2015)
(acknowledging receipt of Corps’ October 2014 letter); EA at 80. The letter invited “comments
or concerns regarding this project” within 30 days, see Form Letter, but Cheyenne River did not
respond until March 23, 2015, when the Corps’ Regulatory Project Manager in the South Dakota
Regulatory Office spoke with Steve Vance, Cheyenne River’s Tribal Historic Preservation
Officer, by phone. See Standing Rock II, 2017 WL 908538, at *5; ECF No. 218-2 at 154 (Email
from Jeff Breckenridge, Regulatory Project Manager, South Dakota Regulatory Office, to Corps
Personnel, Mar. 23, 2015). Vance stressed the Tribe’s request for formal consultation,
involvement in the NHPA Section 106 process, and ability “to review any EA’s/NEPA
documentation for the project.” Id. Several months then passed, however, without any
comments submitted from Cheyenne River.
Richard Harnois, the Corps’ Senior Field Archaeologist, spoke with Vance on August 17,
2015, to “express[ his] concerns that [the Corps] had gotten no comments back yet.” ECF No.
183-15 (Richard Harnois Notes, Aug. 17, 2015). Vance explained that he had been “promoting a
coordinated response from the tribes through SRST,” but Harnois encouraged the Tribes to
respond individually, as “the way [the Corps] see[s] it, each response is like a vote — the more
the better.” Id. Vance committed to submitting a letter and requested an onsite meeting with “all
of the interested tribal parties to inspect the crossing alignment and initiate a discussion of the
pipeline as a whole.” Id. His letter, sent that same day, acknowledged the “opportunity to
comment [on] the proposed Dakota Access Pipeline . . . project,” asked whether Standing Rock’s
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previously submitted questions and comments had been addressed, and expressed concerns
about, inter alia, impacts of DAPL on birds, fish, and wildlife, as well as pipeline corrosion,
faulty welding, and oil spills. ECF No. 183-14 (Letter from Steve Vance to Richard Harnois,
Aug. 17, 2015). Julie Price, Manager of the Corps’ Cultural Resource Program, later followed
up with Vance to thank him for his letter and inform him that a copy of the Draft EA would be
“distributed for Tribal . . . comments in mid-December, 2015.” ECF No. 183-17 (Letter from
Julie Price, Manager, Cultural Resource Program, Corps, to Steve Vance, Nov. 19, 2015).
Around the same time Harnois was reaching out to Vance, Col. John Henderson, the
Corps’ Omaha District Commander, sent a letter to Harold Frazier, Cheyenne River’s Chairman.
See ECF No. 218-2 at 14-16 (Letter from John Henderson to Harold Frazier, Sept. 3, 2015).
Henderson described the DAPL project and explained that the purpose of his letter was “to
initiate Section 106 consultation and review, determine [Frazier’s] interest in consulting, . . . and
to gather information that will assist the Corps in identifying historic properties.” Id. at 14. He
also noted that DAPL was “currently working to obtain the necessary easements for crossing
federal lands, as well as” authorization under Section 408 of the RHA, and advised Frazier that
“consultation on the project has also been initiated as part of the Corps Section 408 review
process for the areas located on Corps Project Lands.” Id. at 16. Henderson requested
“engagement and/or comments by September 30, 2015,” and supplied the contact information for
three different Corps officials. Id.
Martha Chieply, the Corps’ Regulatory Chief for the Omaha District, sent a follow-up
letter to Frazier at the end of November 2015 to notify him of an NHPA Section 106 consultation
meeting that was to be held on December 8-9, 2015, in Sioux Falls, South Dakota. See ECF No.
183-18 (Letter from Martha Chieply to Harold Frazier, Nov. 20, 2015). She also emphasized the
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Corps’ interest in hearing from the Tribe about “any culturally significant concerns that may
affect” areas within the Corps’ jurisdiction along the pipeline’s route. Id.
When the Corps released the Draft EA on December 8, 2015, it sent a notification to the
Tribe and requested comments by January 8, 2016. See ECF No. 185-1, Exh. VV (Declaration
of Jonathan Shelman, Environmental Resource Specialist, Corps, Aug. 18, 2016), ¶ 8; EA at 1.
Shortly thereafter, Vance attended the December consultation meeting, at which five
Corps officials and Dakota Access personnel were present. See ECF No. 183-25 (Dakota Access
Tribal Consultation Meeting Roster, Dec. 8, 2015); ECF No. 218-1 at 108 (DAPL Tribal
Consultation Meeting Agenda); ECF No. 218-1 at 111 (Dakota Access Tribal Consultation
Meeting, Dec. 8, 2015). According to the Corps’ “[s]ummary of meeting results,” Dakota
Access agreed to provide the Tribes with inadvertent-discovery plan drafts and “information
related to spill response plans” by December 18, and the Tribes agreed to review the data within
30 days. See ECF No. 218-1 at 112 (Email from Joel Ames, Tribal Liaison, Corps, to Corps
Personnel, Dec. 10, 2015).
Vance then attended two more meetings — one on January 25, 2016, and one on
February 18-19, 2016, held at Ponca Tribal Headquarters. See ECF No. 185-1, Exh. DD
(Declaration of Martha Chieply, Aug. 18, 2016), ¶¶ 21-22. Cheyenne River maintains that “[t]he
January and February 2016 meetings were . . . Section 106 meetings only,” CRST Reply at 41,
but the agenda for the February meeting lists a “Section 408 and Draft EA Update” to be given
by “Brent Cossette, Omaha 408 Coordinator.” ECF No. 218-2 at 1 (DAPL Tribal Consultation
Agenda, Feb. 18-19, 2016). A transcript from that meeting confirms that the Corps’ role under
Section 408 and concerns relating to that permit were discussed. See ECF No. 143-1 (Transcript
of DAPL Meeting, Feb. 18-19, 2016) at 1, 4. Vance also used that meeting to communicate to
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the Corps the Tribe’s preference that the agency undertake an EIS rather than an EA, see ECF
No. 183-26 (Tribal Consultation Meeting Notes, Feb. 18-19, 2016), and its concerns about
DAPL’s impact on water quality, fish, and birds. See Transcript of DAPL Meeting at 3-4.
After that meeting, Chieply and two other Corps personnel “agreed to meet again” with
Standing Rock and Cheyenne Rock together, as Vance and Standing Rock’s Tribal
Archaeologist “wanted to discuss specific cultural resource issues of importance to their Tribes.”
Chieply Decl, ¶ 24. As a result of concerns Standing Rock expressed at that meeting regarding
certain tribal cultural resources, including burial sites, at the James River crossing, the Corps
successfully urged Dakota Access to move the pipeline’s route to avoid them. Id.
In addition to those meetings, the Corps vainly tried for several months to contact and
meet with Chairman Frazier. In response to a voicemail Frazier left for Joel Ames, the Corps’
Tribal Liaison, on February 8, Ames left several phone messages with Frazier’s secretary, called
his cell phone, sent multiple emails, and even asked Vance and the Tribe’s Vice Chairman for
help, all to no avail. See ECF No. 183-22 (Emails from Joel Ames to Harold Frazier, Feb. 22 –
Mar. 7, 2016) (listing five emails from Corps to Frazier requesting phone call); ECF No. 185-1,
Exh. EE (Declaration of Joel Ames, Aug. 18, 2016), ¶¶ 23-24 (describing repeated attempts to
return Frazier’s Feb. 8, 2016, voicemail), ¶ 26 (explaining how, in response to Vance’s request
that the Corps consult with Cheyenne River, he told Vance of his efforts to contact Frazier, and
Vance “agreed to help make it happen”); ECF No. 218-1 at 292 (Emails between Julie Price and
Larry Janis, Mar. 3, 2016) (discussing Price’s communications with Vance and Frazier’s
secretary to arrange meeting with Frazier); ECF No. 185-1, Exh. QQ (Email from Joel Ames to
Corps Personnel, May 9, 2016) (stating Ames had recently met Cheyenne River’s Vice
Chairman and communicated that he was trying to reach Chairman Frazier to arrange meeting).
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On May 6, Henderson sent an email to Frazier explaining that the Corps had “been unsuccessful
in identifying any potential meeting dates” with the Tribe and expressing his desire “to meet to
discuss not only the DAPL project, but any other topics you may want to discuss.” ECF No.
183-21 (Letter from John Henderson to Harold Frazier, May 6, 2016).
Vance sent two letters to the Corps in May that articulated concerns about DAPL’s
impact on the Tribe’s historic sites, expressed frustrations with the lack of consultation to date,
and repeated Standing Rock’s comments that the draft EA was “insufficient for oil pipelines”
and an EIS should be completed. See ECF No. 185-1, Exh. II (Letter from Steve Vance to
Richard Harnois, May 2, 2016); ECF No. 183-19 (Letter from Steve Vance to John Henderson,
May 19, 2016). Frazier, however, did not respond to the Corps’ repeated outreach efforts until
June, when he sent a letter stating that it had not initiated the requisite consultation and that the
draft EA insufficiently analyzed DAPL’s impact on the Tribe’s cultural resources and historic
sites and did not contain “proper environmental analysis.” ECF No. 183-20 (Letter from Harold
Frazier, June 3, 2016). The Corps responded to these letters with “recent Question and Answer
summar[ies]” from recent consultation meetings that addressed, inter alia, actions the Corps was
considering regarding DAPL, its expected decisionmaking timeline, and the impact of HDD on
cultural resources. See ECF No. 183-23 (Letter from Martha Chieply to Steve Vance, June 13,
2016); ECF No. 185-1, Exh. JJ (Letter from John Henderson to Harold Frazier, June 22, 2016).
When the Corps published the EA in July 2016, it included an appendix with the various
comments received in response to the public notice of the Draft EA. See ECF No. 172-4
(Appendix J) at 38-58. No comments from Cheyenne River appear in the appendix, and the EA
does not list Cheyenne River as a consulting party on the EA. See EA at 111-14 (list of “all
individuals and agencies consulted during preparation of the EA”). On this point, the Court must
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briefly digress from its review of the communication between the Corps and the Tribe.
Cheyenne River protests its exclusion from Appendix J “even though the Corps received
comments from the Tribe” as evidence of “the length to which the Corps went to exclude the
Tribe from its analysis.” CRST MSJ at 29. Rather than responding, as Dakota Access did, that
the Tribe did not submit any timely comments to the Draft EA, but rather sent letters much later,
see DA CRST MSJ at 2, 5, the Corps puzzlingly accuses Cheyenne River of misstating the facts.
“Appendix J explicitly states Cheyenne River provided comments and also states those
comments,” it asserts. See Corps CRST MSJ at 35 n.18. But the Corps cites to comments from
Northern Cheyenne, an entirely different tribe. See CRST Reply at 43 n.19. The Court trusts
this error is simply a clerical oversight, albeit one with unfortunate connotations regarding how
distinct Tribes may be perceived.
Appendix J confusion aside, the record clearly indicates that the Corps solicited
Cheyenne River’s views on the DAPL project well before publishing the EA and issuing the
Section 408 permit and easement, and communicated regularly with Vance and Frazier via phone
calls, letters, and in-person meetings. These actions were sufficient to satisfy the early-comment
and consultation goals articulated in the Defense Department Instruction and NEPA’s
implementing regulations.
Cheyenne River’s protests to the contrary do not persuade the Court otherwise. First, the
cases on which the Tribe relies to demand a more robust consultation process rest on federal
statutes governing the Bureau of Indian Affairs’ consultation responsibilities and the NHPA’s
Section 106 substantive-consultation requirements, not the DoD Instruction and NEPA. See
CRST MSJ at 23-24, 27-28 (citing Wyoming v. Dep’t of Interior, 136 F. Supp. 3d 1317, 1345-46
(D. Wyo. 2015), vacated and remanded sub nom. Wyoming v. Sierra Club, No. 15-8126, 2016
88
WL 3853806 (10th Cir. July 13, 2016); Cheyenne River Sioux Tribe v. Jewell, 205 F. Supp. 3d
1052, 1057-58 (D.S.D. 2016); Quechan Tribe of Fort Yuma Indian Reservation v. Dep’t of
Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010); Yankton Sioux Tribe v. Kempthorne, 442 F.
Supp. 2d 774, 784 (D.S.D. 2006)).
The Tribe also argues that many of the contacts from the Corps were focused on the
protection of cultural, religious, and historic sites implicated by Section 106 of NHPA and thus
cannot “constitute consultation on the impact of DAPL on trust and treaty resources under
NEPA.” CRST MSJ at 30; see also CRST Reply at 40. The Corps, however, repeatedly invited
the Tribe to share comments on the project that went beyond Section 106 concerns. And
NHPA’s implementing regulations encourage federal agencies “to coordinate compliance” with
Section 106 and NEPA. See 36 C.F.R. § 800.8(a)(1); see also id. (“Agencies should consider
their section 106 responsibilities as early as possible in the NEPA process, and plan their public
participation, analysis, and review in such a way that they can meet the purposes and
requirements of both statutes in a timely and efficient manner.”); Apache Survival Coal. v.
United States, 21 F.3d 895, 906 (9th Cir. 1994) (“NHPA’s implementing regulations contemplate
that NEPA and NHPA review should be integrated closely.”).
Cheyenne River further maintains that the Corps made its decision on the Section 408
permit long before the EA was published, thus truncating the time period for meaningful
comment. See CRST MSJ at 24-25. Its support for that proposition is wanting. The Tribe
relies, for example, on a December 10, 2015, memorandum from the Chief of the Corps’
Geotechnical Engineering and Sciences Branch that it characterizes as “sign[ing] off” on the
permit, and points to the lack of comments from the Water Control and Water Quality Branch on
the draft EA and the absence of a “Record of Decision for the Recreation and Natural Resource
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Branch.” Id. at 24-25. The cited memo, however, simply explains that the thirteen “geotechnical
comments . . . generated during the technical review” had been “satisfactorily addressed by the
Engineer-of-Record, Dakota Access LLC and GeoEngineers” and so “were closed out.” ECF
No. 209-10 at 73. In direct conflict with the Tribe’s early-decision claim, it states: “The
comments herein pertain only to the geotechnical and flowable easement issues related [to] HDD
and Geotechnical investigations in the floodway and do not constitute USACE approval of any
permits that may be required.” Id. (emphasis added). The Water Quality Branch, moreover, did
review the Lake Oahe crossing. See Section 408 Decision Package at 1.
The Tribe last argues that it could not have been adequately consulted prior to the
permitting decisions because the Corps did not provide it with the Scoping Comments in
Appendix J or the environmental-justice-considerations memo until December 2016, and it did
not release the Spill and Analysis and Facility Response Plans to the Tribe’s experts until
February 2017. See CRST MSJ at 28; CRST Reply at 40. As the Court has previously
explained, however, some of those documents were appropriately withheld from public
disclosure. Standing Rock III, 2017 WL 1316918, at *5-6. More important, Cheyenne River
does not explain how lacking access to those documents hindered its ability to meaningfully
comment and consult on the EA when it was given access to the draft several months before the
final version was published and offered repeated access to Corps personnel.
***
In sum, then, the Court reaches the same decision on Cheyenne River’s claims as it did
on Standing Rock’s. Aside from the discrete issues that will be the subject of remand, the Court
concludes that the Corps complied with its statutory responsibilities. In addition, it will similarly
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permit Cheyenne River to participate in the briefing on vacatur pending remand, as set forth in
Section III.D, supra.
V. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part Standing Rock’s
Motion for Partial Summary Judgment and grant in part and deny in part the Corps’
corresponding Cross-Motion for Partial Summary Judgment. The Court also will deny in part
Cheyenne River’s Motion for Partial Summary Judgment and defer a decision on those claims
that may be affected by the remand ordered in response to Standing Rock’s Motion. It
accordingly grants in part the corresponding Cross-Motions for Partial Summary Judgment from
the Corps and Dakota Access. A contemporaneous Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 14, 2017
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