UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STANDING ROCK SIOUX TRIBE,
Plaintiff,
and
CHEYENNE RIVER SIOUX TRIBE,
Plaintiff-Intervenor,
v. Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-267 and 16-1769) U.S. ARMY CORPS OF ENGINEERS,
Defendant,
DAKOTA ACCESS, LLC,
Defendant-Intervenor and Cross- Claimant.
MEMORANDUM OPINON AND ORDER
In this long-running battle between American Indian Tribes and the U.S. Army Corps of
Engineers over the Dakota Access Pipeline, the parties have engaged in an extensive motions
practice, requiring the Court to issue myriad substantive Opinions. Now, as the litigants focus on
the Corps’ remand efforts, one Tribe – the Oglala Sioux – asks to rewind the clock and amend its
Complaint to return to an issue long since decided. As such amendment is both prejudicial to
1 Defendants and futile, inasmuch as the Court has already addressed it, the Motion to Amend will
be denied.
I. Background
Although the parties have briefed a congeries of complex issues throughout this
litigation, the one relevant to this Motion is the allegation by a number of Tribes that the Corps
violated the National Environmental Policy Act in early 2017 when it withdrew its notice of
intent (NOI) to prepare an environmental-impact statement (EIS) and issued an easement to
Dakota Access to build its pipeline under Lake Oahe on the Missouri River. See Standing Rock
Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 117-20 (D.D.C. 2017). This
was one subject (of many) that the Court addressed in its summary-judgment Opinion, issued in
June 2017, in which it held that the Corps’ reversal of field on this point was not arbitrary and
capricious. Id. at 143. In that Opinion, the Court granted Defendants summary judgment in part,
finding that the Government had substantially complied with NEPA, but remanding certain
matters unrelated to the NOI for the Corps to reconsider. Id. at 112.
The remand is now complete, and the Court has set a briefing schedule relating to the
administrative record on remand and will then proceed to entertain another round of summary-
judgment briefing, this time about the remand issues. It permitted all Plaintiffs an opportunity to
seek to supplement or amend their Complaints relating to remand. Many have done so, which
the Court has permitted, see Minute Order of Jan. 3, 2019, as the supplementation relates solely
to the remand process. The Oglala Sioux alone have also sought to augment a claim unrelated to
remand. The Tribe asks for permission to add only one sentence of additional allegations. More
specifically, it wishes to allege that the Corps’ decision to withdraw the NOI and issue the
easement was made without reviewing thousands of submissions in response to the NOI. See
2 ECF No. 376 (Motion to Amend) at 3. The Corps and Defendant-Intervenor Dakota Access
resist, arguing that this ship has long since sailed.
II. Legal Standard
A plaintiff may amend her complaint once as a matter of course within 21 days of serving
it or within 21 days of being served a responsive pleading. See Fed. R. Civ. P. 15(a)(1).
Otherwise, she must seek consent from the defendant or leave from the court. See Fed. R. Civ.
P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. In deciding
whether to grant leave to file an amended complaint, the court may consider “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). In this
Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Furthermore, under Rule 15, “the
non-movant generally carries the burden in persuading the court to deny leave to amend.”
Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).
It is clear, however, that amendment should not be permitted if it would be futile. In
other words, if the proposed amendment would render the complaint deficient, the court need not
grant leave. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010)
(“[A] district court may properly deny a motion to amend if the amended pleading would not
survive a motion to dismiss.”); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim
would not survive a motion to dismiss.”).
3 III. Analysis
In contesting Plaintiff’s Motion to Amend, Defendants argue that the proposed
amendment here is both prejudicial and futile. As to the former, Defendants correctly point out
first that this is no simple litigation. The docket’s heft bears this out. Three cases have been
consolidated involving multiple Tribes, numerous individuals, and many amici. Parties have
intervened on both Plaintiffs’ and Defendants’ side. The Court has issued numerous lengthy
Opinions, including expedited ones on preliminary-injunction motions. Through it all, the Court
has endeavored to manage the litigation in a way that permits all parties to be heard and that
devotes significant time and attention to the claims and defenses raised. The current Motion
seeks to derail and substantially delay that train. See Thorp v. Dist. of Columbia, 325 F.R.D.
510, 514 (D.D.C. 2018) (“Such prejudice is particularly pronounced because Plaintiff’s Motion
arrives at a critical juncture of [the] case . . . [where] the issues in this case . . . [have] been
narrowed by the Court’s prior Opinion . . . [and] the parties’ cross-motions for summary
judgment are now ripe.”) (internal quotation marks and citations omitted).
Although the principal Plaintiffs – the Standing Rock Sioux Tribe and the Cheyenne
River Sioux Tribe – filed their suits in July and August 2016, the Oglala Sioux waited to file
their initial Complaint until February 2017. See No. 17-267, ECF No. 1. The Tribe has also
now waited almost two years to seek amendment, even though the litigation has been proceeding
through different stages. In so doing, it offers no explanation whatsoever for such delay. This
delay alone is sufficient grounds to deny the Motion.
Once the Court granted summary judgment to the Corps on most claims while remanding
others, moreover, it fully expected that only the remanded claims would remain to be decided.
While the Oglala Sioux argue that the Court permitted amendment following remand, this was
4 simply for Plaintiffs to refine any claims relating to remand, not to return to the starting blocks.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STANDING ROCK SIOUX TRIBE,
Plaintiff,
and
CHEYENNE RIVER SIOUX TRIBE,
Plaintiff-Intervenor,
v. Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-267 and 16-1769) U.S. ARMY CORPS OF ENGINEERS,
Defendant,
DAKOTA ACCESS, LLC,
Defendant-Intervenor and Cross- Claimant.
MEMORANDUM OPINON AND ORDER
In this long-running battle between American Indian Tribes and the U.S. Army Corps of
Engineers over the Dakota Access Pipeline, the parties have engaged in an extensive motions
practice, requiring the Court to issue myriad substantive Opinions. Now, as the litigants focus on
the Corps’ remand efforts, one Tribe – the Oglala Sioux – asks to rewind the clock and amend its
Complaint to return to an issue long since decided. As such amendment is both prejudicial to
1 Defendants and futile, inasmuch as the Court has already addressed it, the Motion to Amend will
be denied.
I. Background
Although the parties have briefed a congeries of complex issues throughout this
litigation, the one relevant to this Motion is the allegation by a number of Tribes that the Corps
violated the National Environmental Policy Act in early 2017 when it withdrew its notice of
intent (NOI) to prepare an environmental-impact statement (EIS) and issued an easement to
Dakota Access to build its pipeline under Lake Oahe on the Missouri River. See Standing Rock
Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 117-20 (D.D.C. 2017). This
was one subject (of many) that the Court addressed in its summary-judgment Opinion, issued in
June 2017, in which it held that the Corps’ reversal of field on this point was not arbitrary and
capricious. Id. at 143. In that Opinion, the Court granted Defendants summary judgment in part,
finding that the Government had substantially complied with NEPA, but remanding certain
matters unrelated to the NOI for the Corps to reconsider. Id. at 112.
The remand is now complete, and the Court has set a briefing schedule relating to the
administrative record on remand and will then proceed to entertain another round of summary-
judgment briefing, this time about the remand issues. It permitted all Plaintiffs an opportunity to
seek to supplement or amend their Complaints relating to remand. Many have done so, which
the Court has permitted, see Minute Order of Jan. 3, 2019, as the supplementation relates solely
to the remand process. The Oglala Sioux alone have also sought to augment a claim unrelated to
remand. The Tribe asks for permission to add only one sentence of additional allegations. More
specifically, it wishes to allege that the Corps’ decision to withdraw the NOI and issue the
easement was made without reviewing thousands of submissions in response to the NOI. See
2 ECF No. 376 (Motion to Amend) at 3. The Corps and Defendant-Intervenor Dakota Access
resist, arguing that this ship has long since sailed.
II. Legal Standard
A plaintiff may amend her complaint once as a matter of course within 21 days of serving
it or within 21 days of being served a responsive pleading. See Fed. R. Civ. P. 15(a)(1).
Otherwise, she must seek consent from the defendant or leave from the court. See Fed. R. Civ.
P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. In deciding
whether to grant leave to file an amended complaint, the court may consider “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). In this
Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Furthermore, under Rule 15, “the
non-movant generally carries the burden in persuading the court to deny leave to amend.”
Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).
It is clear, however, that amendment should not be permitted if it would be futile. In
other words, if the proposed amendment would render the complaint deficient, the court need not
grant leave. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010)
(“[A] district court may properly deny a motion to amend if the amended pleading would not
survive a motion to dismiss.”); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim
would not survive a motion to dismiss.”).
3 III. Analysis
In contesting Plaintiff’s Motion to Amend, Defendants argue that the proposed
amendment here is both prejudicial and futile. As to the former, Defendants correctly point out
first that this is no simple litigation. The docket’s heft bears this out. Three cases have been
consolidated involving multiple Tribes, numerous individuals, and many amici. Parties have
intervened on both Plaintiffs’ and Defendants’ side. The Court has issued numerous lengthy
Opinions, including expedited ones on preliminary-injunction motions. Through it all, the Court
has endeavored to manage the litigation in a way that permits all parties to be heard and that
devotes significant time and attention to the claims and defenses raised. The current Motion
seeks to derail and substantially delay that train. See Thorp v. Dist. of Columbia, 325 F.R.D.
510, 514 (D.D.C. 2018) (“Such prejudice is particularly pronounced because Plaintiff’s Motion
arrives at a critical juncture of [the] case . . . [where] the issues in this case . . . [have] been
narrowed by the Court’s prior Opinion . . . [and] the parties’ cross-motions for summary
judgment are now ripe.”) (internal quotation marks and citations omitted).
Although the principal Plaintiffs – the Standing Rock Sioux Tribe and the Cheyenne
River Sioux Tribe – filed their suits in July and August 2016, the Oglala Sioux waited to file
their initial Complaint until February 2017. See No. 17-267, ECF No. 1. The Tribe has also
now waited almost two years to seek amendment, even though the litigation has been proceeding
through different stages. In so doing, it offers no explanation whatsoever for such delay. This
delay alone is sufficient grounds to deny the Motion.
Once the Court granted summary judgment to the Corps on most claims while remanding
others, moreover, it fully expected that only the remanded claims would remain to be decided.
While the Oglala Sioux argue that the Court permitted amendment following remand, this was
4 simply for Plaintiffs to refine any claims relating to remand, not to return to the starting blocks.
To permit one Plaintiff among many to reset the litigation would prejudice at least Dakota
Access, which has long had to balance its obligations regarding the operation of the pipeline with
the demands of this litigation. To require it and the Government to relitigate issues already
decided at an earlier stage would impose substantial expense and concomitant uncertainty.
In addition, the Tribe has already raised the points it seeks to include in an Amended
Complaint, thus showing the futility of amendment now. In previously setting forth NEPA
claims, the Tribe alleged in its initial Complaint that “[t]he Corps’ decision to withdraw the NOI
for the EIS before the end of the public comment period and without holding a scoping session
violated NEPA.” Id., ¶ 88. In its summary-judgment briefing on the NEPA allegations,
furthermore, the parties directly contested the propriety of the Corps’ issuance of the NOI. The
Oglala Sioux, appearing as amicus for Standing Rock’s motion for summary judgment,
specifically asserted that “[t]he withdrawal of the NOI is arbitrary and capricious because it does
not take into account the comments of the [Oglala Sioux] and its expert . . . , or other numerous
comments received by the Corps subsequent to the EA.” ECF No. 138 (Oglala Sioux Amicus
Brief) at 20. Cheyenne River, similarly, contended that the Corps did not consider “more than
200,000 comments filed in response to the EIS Notice.” ECF No. 131 (Cheyenne River MSJ) at
5 n.3. This Court nonetheless determined that the withdrawal of the NOI and the issuance of the
easement was not arbitrary and capricious. Standing Rock Sioux Tribe, 255 F. Supp. 3d at 143.
While its earlier Opinion may not have specifically addressed the comments issue the Tribe
seeks to include now, that question was subsumed in the NEPA claim regarding the issuance of
the easement. The Tribe’s desire to offer slightly different arguments would not change the
result.
5 The Court, accordingly, ORDERS that the Oglala Sioux’s Motion to Amend is DENIED.
IT IS SO ORDERED.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge
Date: January 10, 2019