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

Decision Date09 September 2016
Docket NumberCivil Action No. 16-1534 (JEB)
Parties STANDING ROCK SIOUX TRIBE, et al., Plaintiffs v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.
CourtU.S. District Court — District of Columbia

Jan Hasselman, Stephanie Tsosie, Patti A. Goldman, Earthjustice Legal Defense Fund, Seattle, WA, for Plaintiffs.

Matthew M. Marinelli, Erica M. Zilioli, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

"Since the founding of this nation, the United States' relationship with the Indian tribes has been contentious and tragic. America's expansionist impulse in its formative years led to the removal and relocation of many tribes, often by treaty but also by force." Cobell v. Norton , 240 F.3d 1081, 1086 (D.C.Cir.2001). This case also features what an American Indian tribe believes is an unlawful encroachment on its heritage. More specifically, the Standing Rock Sioux Tribe has sued the United States Army Corps of Engineers to block the operation of Corps permitting for the Dakota Access Pipeline (DAPL). The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue. The Motion will thus be denied.

I. Background

DAPL is a domestic oil pipeline designed to move over a half-[M]illion gallons of crude oil across four states daily. The oil enters the pipeline in North Dakota, crosses South Dakota and Iowa, and winds up in Patoka, Illinois, nearly 1,200 miles later. Although the route does not actually cross the Standing Rock reservation, it runs within a half-mile of it.

A project of this magnitude often necessitates an extensive federal appraisal and permitting process. Not so here. Domestic oil pipelines, unlike natural-gas pipelines, require no general approval from the federal government. In fact, DAPL needs almost no federal permitting of any kind because 99% of its route traverses private land.

One significant exception, however, concerns construction activities in federally regulated waters at hundreds of discrete places along the pipeline route. The Corps needed to permit this activity under the Clean Water Act or the Rivers and Harbors Act—and sometimes both. For DAPL, accordingly, it permitted these activities under a general permit known as Nationwide Permit 12. The Tribe alleges that the Corps violated multiple federal statutes in doing so, including the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). In its Complaint, the Tribe asserts that this DAPL permitting threatens its environmental and economic well-being, as well as its cultural resources.

Despite this broad lawsuit, however, the Standing Rock Sioux now seek a preliminary injunction only on the alleged violation of the NHPA. That statute encompasses sites of cultural or religious significance to Indian tribes and requires that federal agencies consult with tribes prior to issuing permits that might affect these historic resources. The Tribe claims that the Corps did not fulfill this obligation before permitting the DAPL activities. It bears noting that the Tribe does not press its environmental claims under NEPA here. Nor does it seek a preliminary injunction to protect itself from the potential environmental harms that might arise from having the pipeline on its doorstep. Instead, it asserts only that pipeline-construction activities—specifically, the grading and clearing of land—will cause irreparable injury to historic or cultural properties of great significance.

The statutes and permitting scheme involved in this Motion are undeniably complex. The Court first sets forth the operation of the NHPA, which the Tribe asserts was violated. It next explains the Clean Water Act and the Rivers and Harbors Act, under which the Corps permitted the DAPL activities. Subsequent sections lay out the factual and legal proceedings that have taken place thus far.

A. National Historic Preservation Act

Congress enacted the NHPA in 1966 to "foster conditions under which our modern society and our historic property can exist in productive harmony." 54 U.S.C. § 300101(1). To this end, Section 106 of the Act requires a federal agency to consider the effect of its "undertakings" on property of historical significance, which includes property of cultural or religious significance to Indian tribes. Id. §§ 306108, 302706(b). An undertaking is defined broadly to include any "project, activity, or program" that requires a federal permit. Id. § 300320. Section 106, like the National Environmental Policy Act, is often described as a "stop, look, and listen" provision. See Narragansett Indian Tribe v. Warwick Sewer Auth. , 334 F.3d 161, 166 (1st Cir.2003) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv. , 177 F.3d 800, 805 (9th Cir.1999) (per curiam )). The agency must also give the Advisory Council on Historic Protection, which is charged with passing regulations to govern the implementation of Section 106, "a reasonable opportunity to comment on the undertaking." 54 U.S.C. § 306108. The agency must further consult with, inter alia , tribes "that attach religious or cultural significance to [affected] property." Id. § 302706(b). Once this is done, Section 106 is satisfied. In other words, the provision does not mandate that the permitting agency take any particular preservation measures to protect these resources. See CTIA–Wireless Ass'n v. FCC , 466 F.3d 105, 106–07 (D.C.Cir.2006) (citing Davis v. Latschar , 202 F.3d 359, 370 (D.C.Cir.2000) ).

The Advisory Council also promulgates the regulations necessary to implement Section 106, see 54 U.S.C. § 304108(a), and these regulations "command substantial judicial deference." McMillan Park Comm. v. Nat'l Capital Planning Comm'n , 968 F.2d 1283, 1288 (D.C.Cir.1992). Under them, the permitting agency—here, the Corps—first determines "whether the proposed Federal action is an undertaking ... and, if so, whether it is a type of activity that has the potential to cause effects on historic properties." 36 C.F.R. § 800.3(a). Where the agency decides either that there is no undertaking or that the undertaking is not the "type of activity" that has the "potential to cause effects on historic properties, assuming such ... properties were present," the Section 106 process is complete. Id. § 800.3(a)(1). No consultation happens and the permit may issue. Id.

Things get more complicated where the agency cannot make this determination. In such a situation, the agency must complete a multi-step "consultation" process before it permits the undertaking. Id. § 800.16(f). Indian tribes that "attach religious and cultural significance to historic properties" that may be affected by the "undertaking" are a consulting party in this process even when the properties are located outside reservation lands. Id. § 800.2(a)(4), (c)(2)(ii). The regulations in fact instruct agencies to recognize that property of importance to Indian tribes is "frequently" located on "ancestral, aboriginal, or ceded lands." Id. § 800.2(c)(2)(ii)(D). Once its interests are implicated, the affected tribe must be given a reasonable opportunity: "to identify its concerns about [these] properties"; to "advise on the identification and evaluation of" them; to "articulate its views on the undertaking's effects"; and to "participate in the resolution of adverse effects." Id. § 800.2(c)(2)(ii)(A). The agency is further directed to conduct these consultations "early in the planning process," id. in a "sensitive manner respectful of tribal sovereignty," and recognizing "the government-to-government relationship between the Federal Government and Indian tribes." Id. § 800.2(c)(2)(ii)(B)-(C).

The regulations then put meat on these aspirational bones by laying out the step-by-step consultative process that must occur. The process begins with initial planning, where the agency "determine[s] the appropriate SHPO ... to be involved." Id. § 800.3(c). The State Historic Preservation Officer—viz. , SHPO—is designated by the governor of the state to, inter alia , administer this national historic-preservation program at the state level. In consultation with this Officer, an agency official then "identif[ies] any other parties entitled to be consulting parties and invite[s] them to participate." Id. § 800.3(f).

Such parties then assist the agency to identify potential historic properties in the first phase. The permitting official, along with the SHPO, initially "[d]etermine[s] and document[s] the area of potential effects," "[r]eview[s] existing information on historic properties within the area of potential effects," "[s]eek[s] information, as appropriate, from consulting parties," and "[g]ather[s] information from any [consulting] tribe ... to assist in identifying properties" of potential significance to them. Id. § 800.4(a). Based on this information, the agency then "shall take the steps necessary to identify historic properties within the area of potential effects." Id. § 800.4(b). This identification effort extends to the "geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." Id. § 800.16(d) (defining "area[s] of potential effects"). The scope of this area is also "influenced by the scale and nature of an undertaking and may...

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