Standing Rock Sioux Tribe v. United States Army Corps of Engineers
205 F.Supp.3d 4
D.D.C.2016Background
- Dakota Access Pipeline (DAPL) is a ~1,172-mile oil pipeline; ~99% on private land, but crossings of U.S. waters required Corps authorization under the Clean Water Act / Rivers and Harbors Act, mainly via Nationwide Permit 12 (NWP 12).
- Standing Rock Sioux Tribe (Tribe) alleges the U.S. Army Corps of Engineers (Corps) violated Section 106 of the National Historic Preservation Act (NHPA) by failing to adequately consult about cultural/historic sites potentially affected by DAPL construction near the reservation (notably Lake Oahe).
- Corps used NWP 12 and its General Conditions (including GC 20 requiring pre-construction notice (PCN) where historic properties may be affected and GC 21 discovery procedures). Corps identified 204 crossings requiring PCNs and verified them with conditions (including tribal monitoring); most PCN sites had construction already completed or nearly complete.
- The Corps documents repeated efforts (letters, meetings, site visits) to consult with Standing Rock from 2014–2016; Tribe frequently declined participation or insisted on a broader scope (treating the entire pipeline as the undertaking) and challenged early soil-bore testing.
- Procedure: Tribe sued under the Administrative Procedure Act and sought a preliminary injunction (PI) to enjoin Corps permitting; District Court held an expedited evidentiary record and denied the PI, finding Tribe unlikely to prevail on NHPA claims and failing to show likely irreparable harm preventable by injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of NWP 12 absent Section 106 consultations | NWP 12 was promulgated without adequate tribal consultation; Corps should have completed Section 106 before issuing NWP 12 | Corps engaged in outreach and listening sessions before reissuing NWP 12 and reasonably deferred site-specific Section 106 to later PCN process | Court: Corps adequately consulted for a general permit and reasonably deferred site-specific review; facial attack on NWP 12 unlikely to succeed |
| Corps permitting at non-PCN (general) sites under NWP 12 | GC 20 improperly delegates Section 106 screening to permittees, so Corps unlawfully allowed activities without site-specific NHPA determinations | Corps retained responsibility and used surveys/maps to identify which crossings needed PCNs; it reviewed data and required PCNs where appropriate | Court: On this record Corps’ determination of which sites needed PCNs was reasonable and not arbitrary or capricious |
| Scope of Section 106: whether Corps had to treat the entire pipeline as the undertaking | Tribe: Corps must analyze effects of entire pipeline (indirect effects) when permitting water-crossing activities | Corps: its jurisdiction and control are limited to discrete water crossings and proximate APE; may limit analysis to federal undertaking scope | Court: Corps’ narrower scope (crossings and adjacent APE) is reasonable and entitled to deference; not required to analyze whole pipeline |
| Sufficiency of consultations at PCN sites (including Lake Oahe) | Tribe: consultations were inadequate, excluded tribal surveying and early input, producing a flawed Section 106 process | Corps: documented numerous attempts, multiple meetings and site visits, SHPO concurrence, mitigation and monitoring measures; adjusted alignment when resources identified | Court: Corps’ consultations were generally sufficient; Corps took meaningful steps and in some instances changed plans to avoid resources; Tribe unlikely to prevail |
Key Cases Cited
- Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) (context on federal/tribal history cited in opinion)
- Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161 (1st Cir. 2003) (Section 106 described as "stop, look, and listen")
- Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) (Section 106 consultation importance)
- CTIA–Wireless Ass'n v. FCC, 466 F.3d 105 (D.C. Cir. 2006) (agency obligations under statutory process do not mandate particular substantive outcomes)
- McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 968 F.2d 1283 (D.C. Cir. 1992) (deference to Advisory Council regulations implementation)
- Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31 (D.C. Cir. 2015) (limited federal involvement does not require analysis of entire linear project)
- Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (10th Cir. 2015) (upholding partial deferral and Corps’ approach to nationwide permits)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction: likelihood of success and irreparable harm)
- Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (discussing preliminary injunction burden post-Winter)
- Kleppe v. Sierra Club, 427 U.S. 390 (1976) (APA standard for agency action review)
- Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004) (limits on agency causation where agency lacks authority to prevent effects)
- Lee v. Thornburgh, 877 F.2d 1053 (D.C. Cir. 1989) (purpose of Section 106 is to discourage ignoring preservation values)