Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs

• Decision Date: 19 March 2018
• Docket Number: ( Consolidated Case Nos. 16–1769 and 16–267),Civil Action No. 16–1534 (JEB)
• Citation: 301 F.Supp.3d 50
• 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: U.S. District Court — District of Columbia

301 F.Supp.3d 50

STANDING ROCK SIOUX TRIBE, Plaintiff,andCheyenne River Sioux Tribe, Plaintiff–Intervenor,

v. U.S. ARMY CORPS OF ENGINEERS, Defendant,andDakota Access, LLC, Defendant–Intervenor and Cross–Claimant.

Civil Action No. 16–1534 (JEB)

( Consolidated Case Nos. 16–1769 and 16–267)

United States District Court, District of Columbia.

Signed March 19, 2018

Jan Hasselman, Pro Hac Vice, Stephanie Tsosie, Pro Hac Vice, Patti A. Goldman, Earthjustice Legal Defense Fund, 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.

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

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

MEMORANDUM OPINION

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

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

I. Background

A. Factual and Statutory Background

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

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

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

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

NEPA requires that federal agencies evaluate the environmental effects of major government actions, but it "imposes only procedural requirements." Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). If a project will "significantly" affect the "quality of the human environment," NEPA requires that the agency complete a detailed Environmental Impact Statement (EIS). See 42 U.S.C. § 4332(C). To determine whether or not there will be such significant effects, however, the agency first prepares a shorter Environmental Analysis (EA). This "concise public document" discusses the need for the proposal, the alternatives, the environmental impacts of the proposed action, and the agencies and persons consulted. See 40 C.F.R. § 1508.9(a), (b). If the EA concludes that there will be no significant environmental impact, the agency may forgo completing a full EIS and may instead issue the EA and a Finding of No Significance (FONSI).

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

B. Procedural History

1. History of DAPL Litigation

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

For the past fourteen months, others among the consolidated Plaintiffs have made multiple attempts to prevent oil from flowing through the pipeline. Indeed, this Court has now issued five Opinions...