Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, Civil Action No. 16–1534 (JEB)

• Citation: 239 F.Supp.3d 77
• Decision Date: 07 March 2017
• Docket Number: Civil Action No. 16–1534 (JEB)
• Parties: STANDING ROCK SIOUX TRIBE, Plaintiff, and Cheyenne River Sioux Tribe, Plaintiff–Intervenor, v. U.S. ARMY CORPS OF ENGINEERS, Defendant, and Dakota Access, LLC, Defendant–Intervenor and Cross–Claimant.
• Court: United States District Courts. United States District Court (Columbia)

239 F.Supp.3d 77

STANDING ROCK SIOUX TRIBE, Plaintiff,
and
Cheyenne River Sioux Tribe, Plaintiff–Intervenor,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant,
and
Dakota Access, LLC, Defendant–Intervenor and Cross–Claimant.

Civil Action No. 16–1534 (JEB)

United States District Court, District of Columbia.

Signed March 7, 2017

239 F.Supp.3d 79

Jan Hasselman, Stephanie Tsosie, Patti A. Goldman, Earthjustice, Seattle, WA, for Plaintiff.

Conly John Schulte, Fredericks Peebles & Morgan LLP, Louisville, CO, Joseph V. Messineo, Nicole E. Ducheneaux, Fredericks Peebles & Morgan LLP, Omaha, NE, for Plaintiff–Intervenor.

239 F.Supp.3d 80

Matthew M. Marinelli, Reuben S. Schifman, Amarveer Singh Brar, Erica M. Zilioli, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendant.

Kimberly Hope Caine, Norton Rose Fulbright US LLP, David Debold, Miguel A. Estrada, Gibson, Dunn & Crutcher, LLP, William S. Scherman, Gibson, Dunn & Crutcher, LLP, Washington, DC, Alan M. Glen, Nossaman LLP, Austin, TX, Robert D. Comer, Norton Rose Fulbright US LLP, Denver, CO, for Defendant–Intervenor and Cross–Claimant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Since last summer, the question of whether Dakota Access should route its oil pipeline near the reservations of American Indian tribes has engendered substantial debate both on the ground in North and South Dakota and here in Washington. This Court, meanwhile, has focused on the specific legal challenges raised by the Standing Rock and Cheyenne River Sioux Tribes in their efforts to block government permitting of the pipeline. See Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (Standing Rock I ), 205 F.Supp.3d 4, 2016 WL 4734356 (D.D.C. Sept. 9, 2016).

At the start of 2017, that pipeline was nearly complete, save a stretch—awaiting an easement—that was designed to run under the bed of Lake Oahe, a federally regulated waterway that forms part of the Missouri River and straddles North and South Dakota. Upon assuming office, President Trump directed an expedited approval process, and on February 8, the Army Corps of Engineers issued the easement that permitted Dakota Access to drill under the lake.

Fearing that the presence of oil in the pipeline under Lake Oahe will cause irreparable harm to its members' religious exercise, Cheyenne River responded with a Motion for Preliminary Injunction, in which it argues that the easement's grant violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. , and requests that the Court enjoin the effect of the easement and thus the flow of oil, which is expected to commence in the next week or two. See ECF No. 156 (Status Report of Dakota Access, Mar. 6, 2017). As the Court concludes that the extraordinary relief requested is not appropriate in light of both the equitable doctrine of laches and the Tribe's unlikelihood of success on the merits, it will deny the Motion.

I. Background

The Dakota Access Pipeline (DAPL) is a domestic-oil pipeline designed to move more than half a million gallons of crude oil across four states every day. Standing Rock I , 205 F.Supp.3d at 7–8, 2016 WL 4734356, at *1. Its construction has sparked legal challenges from several American Indian tribes: the Standing Rock and Cheyenne River Sioux Tribes here, as well as others. See Yankton Sioux Tribe v. U.S. Army Corps of Engineers , No. 16–1796, 2016 WL 4706774 (D.D.C., filed Sept. 8, 2016) ; Oglala Sioux Tribe v. U.S. Army Corps of Engineers , No. 17–267 (D.D.C., filed Feb. 11, 2017). The present action originally sought, in principal part, to block permitting by the Corps of the construction and operation of DAPL underneath Lake Oahe, a federally regulated waterway created by the Corps in 1958 via a dam constructed on the Missouri River. Standing Rock I , 205 F.Supp.3d at 12–13, 2016 WL 4734356, at *6. The Lake Oahe crossing sits about half a mile north of the Standing Rock Reservation and 73 miles north of the Cheyenne River Reservation.

239 F.Supp.3d 81

">*

239 F.Supp.3d 81

Id.

; ECF No. 127–3, Exh. 1. The crossing, which will run under the lakebed but not through the water itself, is the only portion of DAPL that is not yet finished. See ECF No. 89–1 (Presidential Memorandum of Jan. 24, 2017), § 1; Preliminary Injunction Oral Argument Transcript (Feb. 28, 2017) at 9:22–10:2.

The Court has previously discussed the permitting schemes for construction activities in federally regulated waters and documented the Corps' application of those schemes to DAPL. See Standing Rock I , 205 F.Supp.3d at 7–26, 2016 WL 4734356, at *1–17. It thus will recap only the developments relevant to the present Motion.

Dakota Access formally requested a permanent easement at Lake Oahe in October 2014, see ECF No. 73–4 at 2, and submitted an application for such an easement to the Corps in June 2015. See ECF No. 73–5. On July 25, 2016, the Corps granted permission under the Rivers and Harbors Act, 33 U.S.C. § 408, for DAPL's placement at Lake Oahe. See ECF No. 73–7. 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 No. 57 (Dakota Access Cross–Claim); ECF No. 66 (Dakota Access Mot. for Summary Judgment); ECF No. 73 (Corps Mot. for Summary Judgment). Two days later, the Standing Rock Sioux Tribe 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 Cheyenne River joined 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 38–55. Significantly, neither Plaintiff asserted a count under the Religious Freedom Restoration Act.

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 7–26, 2016 WL 4734356, 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.

Two months later, on November 14, 2016, Assistant Secretary of the Army for Civil Works Jo–Ellen Darcy wrote to Dakota Access and Standing Rock to explain that the Army had completed the review called for on September 9 and had "determined that additional discussion with the Standing Rock Sioux Tribe and analysis [were] warranted." ECF No. 56–1 at 2. The Army invited Standing Rock to engage in discussions concerning "[p]otential conditions in an easement for the pipeline crossing" and "[i]n light of such conditions, whether to grant an easement for the pipeline

239 F.Supp.3d 82

to cross Lake Oahe at the location currently proposed." Id.

Then, on December 4, Assistant Secretary Darcy issued a memorandum to the Corps' Commander stating that the Army would "not grant an easement to cross Lake Oahe at the proposed location based on the current record." ECF No. 65–1, ¶ 12 (emphasis added). She directed a "robust consideration of reasonable alternatives," which she thought would be "best accomplished ... by preparing an Environmental Impact Statement." Id. On January 18, 2017, Darcy published in the Federal Register a notice of intent to prepare an EIS. See 82 Fed. Reg. 5,543 (Jan. 18, 2017).

The government's position on the easement shifted significantly, however, once President Trump assumed office. A Presidential Memorandum issued on January 24, 2017, 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. See ECF No. 89–1, § 2. The Army completed a review, see ECF No. 114–1 (Memorandum re: Dakota Access Pipeline; USACE Technical & Legal Review for the Dep't of the Army, Feb. 3, 2017), provided notice to Congress of its intent to issue the easement, see ECF No. 95, and did so on February 8. See ECF No. 96–1.

The next day, Cheyenne River filed the present Motion for Preliminary Injunction along with an Application for a Temporary Restraining Order. See ECF No. 99. The Tribe does not consistently describe the nature of the requested injunctive relief. At points, it asks that the Court direct the Corps "to withdraw the easement." Notice of Mot. at 1; ECF No. 98–12 (Text of Proposed PI Order) at 1. It elsewhere asks the Court to enjoin "the effect of the easement" and to enjoin further construction by Dakota Access "in the area described in the easement." Mot. at 1; see alsoid. at 2, 3–4. Because the impact of withdrawing the easement or suspending its...