Standing Rock Sioux Tribe v. United States Army Corps of Engineers

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,

Plaintiff,

and

CHEYENNE RIVER SIOUX TRIBE,

Plaintiff-Intervenor, et al., 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 OPINION

For three years, this Court has presided over a dispute regarding the legality of the

construction and operation of the Dakota Access Pipeline. In 2017, it remanded several National

Environmental Policy Act issues to the Army Corps of Engineers for reconsideration. The Corps

has now issued its decision on remand, which is the subject of challenges from Plaintiffs,

assorted American Indian Tribes. The substance of those challenges is not yet at issue; instead,

the Court now addresses a threshold matter. Plaintiffs have moved for the inclusion of several

documents and sets of documents in the administrative record that they believe were considered

1 by the agency but improperly excluded. Finding merit in some of these requests but not in

others, the Court will grant in part and deny in part the Motion to Complete the Administrative

Record.

I. Background

The legal and factual background of this case has been laid out extensively in the Court’s

prior Opinions. Only a small subset is relevant to the present dispute.

On June 14, 2017, the Court ruled on cross-motions for partial summary judgment

relating to “the Corps’ alleged failure to comply with the National Environmental Policy Act”

when it “grant[ed] permits to Dakota Access to construct and operate [the pipeline] under Lake

Oahe.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock III), 255 F.

Supp. 3d 101, 112 (D.D.C. 2017). NEPA requires that an agency “prepare an Environmental

Impact Statement [(EIS)] for any proposed major federal action ‘significantly affecting the

quality of the human environment.’” Id. at 113 (quoting 42 U.S.C. § 4332(2)(C)). To determine

whether it must prepare an EIS, an agency “first drafts an Environmental Assessment [(EA)].”

Id. “If, after preparing an EA, the agency determines that an EIS is not necessary, it must

prepare a Finding of No Significant Impact (FONSI) setting forth the reasons why the action will

not have any significant impact on the environment.” Id. If there will be no significant impact

on the environment because of the agency’s commitment to ensure mitigation measures are

performed, it prepares a Mitigated FONSI. Id. In this case, the Corps determined, after

preparing an EA, that a Mitigated FONSI was all that was required. Id. at 116.

The Court found that “the Corps’ decision . . . largely complied with NEPA,” but with

“substantial exceptions.” Id. at 147. Consequently, it remanded to the Corps to consider: “(1)

the degree to which the project’s effects are likely to be highly controversial; (2) the

2 consequences of a spill for the Tribes’ fishing and hunting rights; and (3) the environmental-

justice impacts of the project.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs

(Standing Rock IV), 282 F. Supp. 3d 91, 96 (D.D.C. 2017) (citing Standing Rock III, 255 F.

Supp. 3d at 111–12).

The Corps completed the remand process on August 31, 2018. See ECF No. 407, Exh.

A-1 (Remand Administrative Record) at 1. It “conclude[d] that a formal reconsideration of the

. . . [EA] and [FONSI] or the preparation of supplemental [NEPA] documentation [was] not

required.” Id. That is, upon further analysis, it stood by its prior conclusions. Plaintiffs have

now moved to complete the Administrative Record on which the Corps relied in reaching its

decision after remand. See ECF No. 401 (Plaintiffs’ Motion). In doing so, they seek to have the

Corps add documents that they contend it actually considered in its decision. Id. at 4. Plaintiffs

request, consequently, that the Court “direct the Corps to complete the record” with the

documents they enumerate. Id. at 5. The purpose of their effort is to ensure that the Court has

certain material before it when assessing the merits of the Corps’ decision on remand.

II. Legal Standard

In any regulatory challenge, the Court’s “review is to be based on the full administrative

record that was before the Secretary at the time [s]he made h[er] decision.” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); see also 5 U.S.C. § 706 (“[T]he court

shall review the whole record or those parts of it cited by a party.”). As part of the record, the

Court may consider “any document that might have influenced the agency’s decision” and not

merely those documents the agency expressly relied on in reaching its final determination. See

Nat’l Courier Ass’n v. Bd. of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir.

1975); see also Amfac Resorts, LLC v. U.S. Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C.

3 2001). The goal, ultimately, is for the Court to have before it a “record that delineates the path

by which [the agency] reached its decision.” Occidental Petroleum Corp. v. SEC, 873 F.2d 325,

338 (D.C. Cir. 1989).

And so the agency is responsible for producing such administrative record. See Univ. of

Colo. Health at Mem. Hosp. v. Burwell, 151 F. Supp. 3d 1, 12 (D.D.C. 2015). When the agency

does so, the record “is entitled to a strong presumption of regularity.” Sara Lee Corp. v. Am.

Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008); see also Marcum v. Salazar, 751 F. Supp. 2d 74,

78 (D.D.C. 2010). A plaintiff may show that the record is “[i]nsufficien[t]” — i.e., incomplete

— only if she is able to “specif[y] . . . documents that ha[ve] been omitted.” NRDC v. Train, 519

F.2d 287, 291 (D.C. Cir. 1975). In other words, “a plaintiff must put forth concrete evidence”

and “identify reasonable, non-speculative grounds for its belief that the documents were

considered by the agency and not included in the record.” Marcum, 751 F. Supp. 2d at 78

(quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d

1, 6 (D.D.C. 2006)). Then, if the Court finds that the record produced “clearly do[es] not

constitute the ‘whole record’ compiled by the agency,” it will order the agency to complete the

record. See Overton Park, 401 U.S. at 419 (quoting 5 U.S.C. § 706).

III. Analysis

The instant dispute revolves around three categories of documents Plaintiffs believe

should have been included in the record. They originally sought five but have apparently

accepted the Corps’ representation that the other two either were not considered or already

appear in the record — namely, those relating to a third-party audit and final versions of

documents they believed were provided only in draft. See ECF No. 405 (Plaintiffs’ Reply) at

11–12. At issue here, consequently, are: (1) sources discussed in the Remand Analysis; (2)

4 documents Plaintiffs maintain should have been included in the prior Administrative Record

underlying the Corps’ original NEPA decision; and (3) documents related to the terms of Dakota

Access’s easement to operate the pipeline at Lake Oahe. The Court will address each in turn.

A. Sources Discussed in Remand Analysis

Plaintiffs first contend that the “Remand Analysis cites to and relies on a number of

technical supporting documents that are not in the record.” Pl. Mot. at 8. Several of these the

Corps has agreed should properly have been included and has thus committed to add them. See

ECF No. 402 (Defendant’s Opposition) at 4, 17. Remaining at issue, therefore, are a report on

pipeline spills and the Pipeline and Hazardous Materials Safety Administration (PHMSA) data

underlying it; technical citations from the EA cited in the Remand Analysis; and the list of

references and sources cited within “two key supporting technical documents that support the

Remand Decision” — the “Downstream Receptor Report” (DRR) and the “Spill Model Report”

(SMR). See Pl. Mot. at 8, 9. In addition to specifically enumerating those documents, Plaintiffs

also request generally that the “Corps . . . complete the record with all sources cited in the

Remand Analysis.” Id. at 10. The Court will begin with the report derived from PHMSA data

before moving to the sources cited in the Remand Analysis and, finally, the sources cited within

the DRR and SMR.

The Tribes believe that, rather than including the report on pipeline spills or underlying

PHMSA data in the record, the Corps provided only a website where one could generate a new

report. Id. at 8. Inclusion of the website, they contend, is no substitute. Id. The Corps rejoins

that the information Plaintiffs request is “already contained within the record.” See Def. Opp. at

6. In the Remand Analysis, the Corps — based on annual reporting data from PHMSA’s website

— “analyzed the frequency of reported hazardous liquid ‘accidents.’” RAR 14 & n.4; see Def.

5 Opp., Exh. 1 (Declaration of Colonel John L. Hudson), ¶ 3. The Remand Analysis expresses that

data in a series of tables. See RAR 15–16. Plaintiffs have not offered reasonable, non-

speculative grounds to believe that the agency had access to additional data or reports that are not

included. Indeed, they barely press this claim in their Reply. See Pl. Reply at 2–5. The Court,

accordingly, finds that no additional documents are required on this score.

Next, Plaintiffs posit that the record ought to include, apparently, both the material

underlying the technical citations from the EA that appears in block quotations in the Remand

Analysis and “all sources cited in the Remand Analysis.” Pl. Mot. at 10. Rather than contending

that these documents lack sufficient indicia of consideration, the Corps instead responds only

that Plaintiffs’ request fails for lack of specificity. Plaintiffs must, in the Corps’ view, request

particular documents, rather than this broad category. See Def. Opp. at 6. The Corps’ exacting

position finds no support in the case law, however. While requesters may not satisfy their burden

to identify specific documents by asking for amorphous categories of information that may or

may not exist or have been before the agency, see, e.g., Charleston Area Med. Ctr. v. Burwell,

216 F. Supp. 3d 18, 25–26 (D.D.C. 2016); Comm. of 100 on the Fed. City v. Foxx, 140 F. Supp.

3d 54, 60–61 (D.D.C. 2015), it is not legally necessary for Plaintiffs to enumerate every

document they want in a list or appendix.

Additional specificity would, however, have been helpful since the Remand Analysis is

well over a hundred pages. It is clear, at least, that Plaintiffs are entitled to more than what the

Corps has now agreed to include in the record. For example, the Tribes specifically request an

O’Reilly study cited by the Remand Analysis, contending its use is sufficient indication that

agency decisionmakers considered it. See Pl. Mot. at 8–9. The Corps has agreed that that study

is properly included in the record. See Def. Opp. at 17. Yet, as Plaintiffs point out, see Pl. Reply

6 at 4–5, the Remand Analysis cites several additional studies on the same page for similar

propositions. The Corps has not agreed to include those, nor explained how, in its view, the

O’Reilly study is distinguishable from the others. There seem also to be additional sources in the

Remand Analysis that, like those studies, are cited to support a factual proposition. And while

the Corps is correct that a mere reference to a document is not sufficient to meet a movant’s

burden to show that the agency actually considered it, see Franks v. Salazar, 751 F. Supp. 2d 62,

70 (D.D.C. 2010), citation of a source to support a factual proposition is generally enough to

manifest actual consideration by the agency and support inclusion in the record. See Oceana,

Inc. v. Ross, 290 F. Supp. 3d 73, 79–80 (D.D.C. 2018) (reasoning that “documents . . . that were

cited substantively, i.e. to justify a factual statement or assertion made in the [decisional

document] . . . [were] clearly considered” while “mere mention of a document’s existence” does

not show agency consideration). The Court, accordingly, will require Plaintiffs, within fourteen

days, to file a Notice containing a list of sources substantively cited in the Remand Analysis to

support a factual proposition. The Corps should, in the fourteen days thereafter, indicate which,

if any, of those documents it objects to including in the record. The Court will resolve any

disagreement that persists.

Finally, Plaintiffs request all sources cited in the DRR and SMR. See Pl. Mot. at 9.

These reports themselves are heavily cited in the Remand Analysis, and they appear in the

record. Plaintiffs’ request to include all documents cited within the DRR and SMR, however,

falls short because they have offered no reasonable, non-speculative basis to believe that the

agency considered those citations. The DRR and SMR were prepared by a third party, and

although the Corps relied on them, there is no suggestion the agency also actually relied on the

sources those reports cite. Plaintiffs cite to a case holding that documents cited in an EIS must

7 be included in the record. See Pl. Mot. at 10 (citing Oceana, 290 F. Supp. at 79). Yet the EIS is

prepared by the agency itself; the reports in question were not. Plaintiffs protest that, although

the SMR and DRR were prepared by a third party, the Corps relied on them so heavily that they

are functionally part of the decision and that the sources cited therein are equivalent to those

cited by the Remand Analysis. See Pl. Reply at 5–6. Yet the Corps’ heavy reliance on the

reports suggests only that they should be in the record, as they are. Requiring otherwise would

stretch the chain of indirect consideration ad infinitum. Plaintiffs offer no authority for the

proposition that agencies must include in the record all sources cited within the documents on

which they rely — or even heavily rely — in preparing their decision. That absence makes

sense, since there is no indication here that agency decisionmakers considered not only the

reports but every source they cite.

B. Documents from Original Administrative Record

Plaintiffs next explain that they have now reviewed the original administrative record —

the one the Corps lodged in March 2017, related to its February 2017 Lake Oahe easement

decision — and identified several “documents that were missing from it.” Pl. Mot. at 10–11. In

particular, they identify the absence of a “spill model” in the original record, which would be

“important to the Tribes’ challenge of the remand decision.” Id. at 11. In addition, they contend

that a “key document in the original administrative record was a lengthy review compiling and

responding to internal technical comments,” and that it “in turn references several critical

comments that bear directly on the adequacy of the Corps’ analysis.” Id. Those comments

referred to or elicited responses that are not themselves in the record. Id. Finally, Plaintiffs point

to “other examples,” including a mention of an email — not itself in the record — that “provided

the rationale” for certain calculations. Id. at 12. In Plaintiffs’ view, these documents “were

8 directly relevant to the Corps’ decision, . . . plainly relate to whether the Corps’ original decision

was arbitrary and capricious,” and “will help the Tribes explain why the Corps’ conclusions on

remand ignore critical information and fail to address contrary conclusions.” Id.

As an initial matter, the Court is dubious about the Tribes’ contention that it is raising

these claims now because “there was never an opportunity for any plaintiff Tribe to challenge the

scope or adequacy of the original administrative record during the initial round of summary

judgment motions.” Id. at 10. The Corps lodged the record at issue over two years ago — in

March 2017 — and Dakota Access challenged the record’s completeness not long afterward.

See ECF No. 216 (Dakota Access’s Motion to Compel Prompt Completion of the Administrative

Record). In June 2017, the Court ruled on Plaintiffs’ claims challenging the decision that the

record underlies. While the Tribes are correct, therefore, that they have not flouted a specific

deadline to challenge that record’s completeness, see Pl. Reply at 7, their claims are less than

timely and, in any event, are moot given that the Court has already passed on the lawfulness of

the agency decision supported by that record.

It would not be appropriate to add those documents to the record at issue here, moreover,

because Plaintiffs have not made any showing that any of these documents were actually before

agency decisionmakers in the remand process. Their assertions that the documents were relevant

to the lawfulness of the original decision or provide additional information Plaintiffs could use to

rebut the Corps’ conclusions on remand do not conform to that standard. The question is not

whether the documents would now be useful to Plaintiffs, but whether they can provide

“reasonable, non-speculative grounds for [the] belief that the documents were considered by the

9 agency and not included in the record.” Marcum, 751 F. Supp. 2d at 78 (quoting Pac. Shores,

448 F. Supp. 2d at 6). That they have not done.

C. Documents Relating to Easement

Finally, Plaintiffs point out that under the terms of the easement, Dakota Access is

“required to submit to the Corps” an “extensive body of technical information . . . related to the

integrity and ongoing safe operation of the pipeline at Lake Oahe.” Pl. Mot. at 13. Three reports

— including any root-case-failure analyses, inspection reports from the cathodic protection

systems, and an annual report with any deviations from limits imposed to reduce corrosion — are

at issue. Id. at 13–14. (Plaintiffs concede, however, based on the Corps’ representation that the

first of those does not exist — because no failure has occurred requiring its generation — that it

need not be included in the record, leaving two at issue. See Pl. Reply at 10.) Additionally,

Dakota Access is required to submit an operations and maintenance manual, an integrity-

management plan, and “as-built drawings” for the Lake Oahe crossing. See Pl. Mot. at 13. The

record should be completed with these documents, Plaintiffs maintain, because they “are

centrally relevant to the issues before the Corps on remand, [since] they bear[] on the integrity

and safe operation of the pipeline.” Id. at 14. These contentions are a mixed bag for the Tribes.

Because the documents require differing treatment, the Court will analyze them in order,

beginning with the two reports and proceeding to the O & M manual, integrity-management

plan, and as-built drawings.

As to the two remaining reports, Plaintiffs have not made the required showing. As

before, they emphasize the relevance of these documents to the Corps’ action. But that is not the

proper inquiry. See Pac. Shores, 448 F. Supp. 2d at 6 (“Pacific Shores cannot meet its burden

simply by asserting that the documents are relevant[.]”); Stand Up for Cal.! v. U.S. Dep’t of

10 Interior, 315 F. Supp. 3d 289, 295 (D.D.C. 2018) (“Plaintiffs’ mere assertion that these

documents ‘are obviously important to the decision’ do not warrant supplementing the record.”).

The Tribes must identify reasonable, non-speculative grounds to support their contention that the

Corps considered them in formulating the remand decision but did not include them in the

record. The fact that Dakota Access is required to submit them to the agency is not enough. See

Pac. Shores, 448 F. Supp. 2d at 5 (“[I]nterpreting the word ‘before’ so broadly as to encompass

any potentially relevant document existing within the agency or in the hands of a third party

would render judicial review meaningless.” (citation omitted)). That Plaintiffs have not been

able to make the required showing is perhaps not surprising. It is not obvious that the agency

would consider any of that material during the course of the remand, given that those three

reports relate to the pipeline’s ongoing operation but not necessarily on the precise set of issues

the Corps had to resolve.

The Court moves next to the O & M manual and the integrity-management plan. Both of

those documents do, in fact, appear in the record. See RAR 4507, 4827, 4830. Plaintiffs protest

that the included O & M manual and integrity-management plan are generic documents, rather

than being specific to the pipeline, as required by the terms of the easement. See Pl. Reply at 9–

10 (citing RAR 4499–4500, 4741–42). The Corps insists that they are appropriately specific in

that they are plainly applicable to this pipeline. See Def. Opp. at 13–14. This dispute only

demonstrates, however, that the Tribes are really taking issue with Dakota Access’s compliance

with the easement conditions, not with whether the agency considered some additional set of

documents on remand. Indeed, Plaintiffs suggest as much themselves. See Pl. Mot. at 13

(“Either [Dakota Access] is out of compliance with . . . easement conditions, or the Corps has

failed to provide materials that have been provided to it that are salient to its decision on

11 remand.”). Dakota Access’s compliance with easement conditions during the pendency of the

Corps’ remand analysis is separate from the question of whether the Corps considered documents

it did not include in the record.

Last at issue are the as-built drawings. These present a different issue from the previous

sets of documents because they are in the record but are redacted. See RAR 4894–4901. The

record index indicates that they are redacted because they contain critical infrastructure data,

although the Corps now avers that this is incorrect and that they are instead “properly redacted in

accordance with PHMSA guidance.” See Hudson Decl., ¶ 5. Plaintiffs protest that this

explanation is “inscrutable” because the “Corps does not cite to any guidance, or any statute or

regulation, which allows this material to be redacted.” Pl. Reply at 10. As a result, Plaintiffs

believe, this “information is protected by the existing protective order,” and “the Corps should be

required to complete the record with an unredacted version of this document.” Id.

Without the precise provision the Corps is invoking to support the redaction, the Court

cannot resolve this dispute. Some categories of information can properly be excluded from the

record based entirely on their sensitive status. See, e.g., Amfac Resorts, 143 F. Supp. at 13

(information subject to deliberative-process privilege); Serono Labs., Inc. v. Shalala, 35 F. Supp.

2d 1, 3–4 (D.D.C. 1999) (trade secrets). Information redacted pursuant to agency guidance,

however, is not in one of those entirely excludable categories. Whether it can remain redacted,

therefore, is a harder question that courts in this circuit have not clearly resolved. What is clear,

however, is that at least some information redacted pursuant to a specific statutory scheme may

properly remain withheld, even where subject to a protective order. See Pub. Emps. for Envtl.

Responsibility v. Beadreau, 2012 WL 12942599, at *8 (D.D.C. Nov. 9, 2012) (affirming as

“proper” withholding of six photographs “in accordance with the National Historic Preservation

12 Act” notwithstanding that protective order was in effect). The Court will thus require the Corps

to submit, within two weeks, an affidavit detailing its legal rationale for the redaction of the as-

built drawings and the reasons, if any, that the information could not be revealed to Plaintiffs

subject to the protective order.

IV. Conclusion

For these reasons, the Court will grant in part and deny in part Plaintiffs’ Motion to

Complete the Administrative Record. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: May 8, 2019