Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs

282 F. Supp. 3d 91
Court of Appeals for the D.C. Circuit·Decided October 11, 2017·No. Civil Action No. 16–1534 (JEB); (Consolidated Case Nos. 16–1769)·Published·Cited by 31 cases

Opinion

Under Allied-Signal, the severity of an agency's errors below turns on "the extent of doubt whether [it] chose correctly."

*98988 F.2d at 150-51. The Court therefore must assess the likelihood that, on remand, the Corps will be able to justify its prior decision to issue an EA and FONSI, rather than preparing a full EIS. Such assessment looks at each issue in turn.

1. Highly Controversial

The prior Opinion found that the Corps had failed to fully consider "the degree to which [DAPL's] effects on the quality of the human environment are likely to be highly controversial." Standing Rock III, 255 F.Supp.3d at 127, 2017 WL 2573994, at *13 (citing 40 C.F.R. § 1508.27(b)(4) ). This factor must be addressed in "cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use." Town of Cave Creek, Arizona v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003). Here, the Court found that certain of the Tribes' expert reports submitted after July 24, 2016, created such a controversy and thus directed the Corps to address those "scientific critiques." Standing Rock III, 255 F.Supp.3d at 129, 2017 WL 2573994, at *14. Plaintiffs contend that doing so on remand will require Defendants to "explicitly ... find[ ] meritless each of the many technical criticisms and supporting data" in the expert reports. See Tribes Brief at 19. They therefore assert that the Court's holding reflects not an "easily explained oversight," but a "substantial legal flaw." Id. at 20. Defendants feel differently. The Corps argues that, as noted in the prior Opinion, the record after remand may demonstrate that Defendants "reasonably" determined that the Tribes' reports had "material flaws." Corps Brief at 10; Standing Rock III, 255 F.Supp.3d at 129-30, 2017 WL 2573994, at *14. The agency asserts, moreover, that there is a serious possibility that the 36 conditions on the existing easement already address any of the experts' legitimate concerns. See Corps Brief at 10-11.

The Court recognizes that the "lack of a reasoned explanation is a serious failing in an agency's decision, because it leaves the Court in doubt as to whether the agency chose correctly in making its decision." AARP v. United States Equal Employment Opportunity Comm'n, 2017 WL 3614430, at *16 (D.D.C. Aug. 22, 2017) (internal citation omitted). The question with respect to vacatur, however, is the extent of that doubt. See Allied-Signal, 988 F.2d at 150. In this case, the Court did not find that the expert reports submitted after July 25, 2016, presented an insurmountable obstacle to justifying the Corps' prior EA. Rather, the Opinion stated that "[i]t may well be the case that the Corps reasonably concluded that these expert reports were flawed or unreliable and thus did not actually create any substantial evidence of controversial effects." Standing Rock III, 255 F.Supp.3d at 129, 2017 WL 2573994, at *14. What was missing, the Court found, was that the Corps "never said as much." Id.

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Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 282 F. Supp. 3d 91 (D.C. Cir. 2017).

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