Standing Rock Sioux Tribe v. United States Army Corps of Engineers
249 F. Supp. 3d 516
| D.D.C. | 2017Background
- Standing Rock and Cheyenne River Sioux Tribes challenged the Army Corps’ July 2016 permitting decisions for the Dakota Access Pipeline (DAPL); the Corps lodged an administrative record in Nov. 2016.
- Dakota Access sought a protective order to redact portions of 11 documents in the administrative record, fearing disclosure would enable terrorists or others to inflict environmental harm on the pipeline.
- The 11 documents comprised five “Spill Model Discussion” reports, five geographic response plans, and one HDD (horizontal directional drilling) prevention-and-response plan.
- Dakota Access argued the material constituted Sensitive Security Information (SSI), Critical Infrastructure Information (CII), and/or confidential commercial information warranting protection under Rule 26(c).
- TSA’s SSI program chief reviewed the documents and concluded they do not contain SSI; PHMSA reviewed and recommended targeted redactions to the five spill-model reports under FOIA Exemption 7(F).
- The Corps opposed most redactions (consenting only to limited PHMSA redactions); the Tribes opposed any withholding; all parties’ counsel received full unredacted documents for litigation purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents constitute Sensitive Security Information (SSI) | Dakota Access: pipeline security-related materials are SSI and should be withheld | TSA (and Corps): TSA reviewed and determined documents are not SSI | Denied: court cannot override TSA’s SSI determination; SSI claim rejected |
| Whether documents qualify as Protected Critical Infrastructure Information (CII/PCII) | Dakota Access: information about DAPL is critical infrastructure and should be protected | Corps/Tribes: no showing documents were submitted or labeled under the PCII program | Denied: no PCII labeling or designation; statute inapplicable |
| Whether Rule 26(c) protective order warranted for spill-model reports | Dakota Access: redaction needed to prevent malicious use that would maximize environmental harm | Corps/Tribes: public interest and agency interest favor disclosure; Corps consented to limited redactions recommended by PHMSA | Granted in part: court found good cause for PHMSA-proposed ~50 targeted redactions to the five spill-model reports under balancing test and safety concerns |
| Whether Rule 26(c) protective order warranted for geographic-response plans and HDD plan | Dakota Access: seek broader redactions (maps, contact info, crossing IDs, boom locations) to prevent malicious exploitation | Corps/Tribes: much information is public; parties need public access for scrutiny; PHMSA did not recommend redacting these documents | Denied: Dakota Access failed to make specific factual showing of harm; no good cause for redacting these six documents |
Key Cases Cited
- Lacson v. Dep’t of Homeland Sec., 726 F.3d 170 (D.C. Cir. 2013) (TSA SSI determinations and exclusive judicial review in certain fora)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (trial courts have broad discretion to issue protective orders)
- United States v. Microsoft Corp., 165 F.3d 952 (D.C. Cir. 1999) (good-cause balancing standard for protective orders)
- Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195 (D.C. Cir. 2014) (infrastructure-related maps may be withheld under Exemption 7(F) to prevent endangering life)
- Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (discussion of FOIA exemptions and related risks)
- Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (third parties may challenge agency disclosure decisions)