July 2020 Māori Law Review

Rights of Indigenous peoples – the Sioux tribes’ opposition to the Dakota Access Pipeline – Standing Rock VI

Standing Rock Sioux Tribe v US Army Corps of Engineers (DDC) Civil Action No 16-1534

United State District Court for the District of Columbia

25 March 2020 and 6 July 2020

Dr Stephen Young examines two 2020 judgments in the ongoing dispute about the Dakota Access Pipeline brought by Sioux Indigenous peoples. These judgments deal with whether the pipeline can be used while required environmental impact assessments are outstanding.

Download Standing Rock Sioux Tribe v US Army Corps of Engineers (DDC) Civil Action No 16-1534 and Standing Rock Sioux Tribe v Army Corps of Engineers (Subsequent Determination), --- F Supp 3d ---, 2020 WL 3624426 (DDC)

Overview and result

Rights of Indigenous peoples - Sioux tribes’ continuing opposition to the Dakota Access Pipeline - environmental assessment
Date25 March 2020 and 6 July 2020
CaseStanding Rock Sioux Tribe v US Army Corps of Engineers (Standing Rock VI), --- F Supp 3d ---, 2020 WL 1441923 (DDC) Civil Action No 16-1534 (25 March 2020) and Standing Rock Sioux Tribe v Army Corps of Engineers (Subsequent Determination), --- F Supp 3d ---, 2020 WL 3624426 (DDC) (6 July 2020)
CourtUnited State District Court for the Federal District of Columbia
Earlier/later decisionsStanding Rock Sioux Tribe v US Army Corps of Engineers (Standing Rock I), 205 F Supp 3d 4 (DDC 9 Sept 2016); Standing Rock Sioux Tribe v US Army Corps of Engineers (Standing Rock II) 239 F Supp 3d 77 (DDC 14 June 2017); Standing Rock Sioux Tribe v US Army Corps of Engineers (Standing Rock III) 255 F Supp 3d 101 (DDC, 11 Oct 2017); Standing Rock Sioux Tribe v US Army Corps of Engineers (Standing Rock IV) 282 F Supp 3d 91 (DDC 4 Dec 2017)
Legislation citedNational Environmental Policy Act (NEPA); National Historic Preservation Act (NHPA); Administrative Procedure Act; Mni Waconi Act of 1988
Cases citedNational Parks Conservation Association v Semonite 916 F3d 1075 (DC Cir 2019); Baltimore Gas & Electric v NRDC 462 US 87 (1983); Weinberger v Catholic Action of Haw 454 US 139 (1981); Citizens Against Burlington v Busey 938 F2d 190 (DC Cir 1991); Grand Canyon Trust v FAA 290 F3d 339 (DC Cir 2002); Sierra Club v Peterson 717 F2d 1409 (DC Cir 1983); Communities Against Runway Expansion v FAA 355 F3d 678 (DC Cir 2004); Anderson v Liberty Lobby 477 US 242 (1986); Holcomb v Powell 433 F3d 889 (DC Cir 2006); Scott v Harris 550 US 372 (2007); Sample v Bureau of Prisons 466 F3d 1086 (DC Cir 2006); Defenders of Wildlife v US Border Patrol 623 F Supp 2d 83 (DDC 2009); Sierra Club v FERC 867 F3d 1357 (DC Cir 2017); Rempfer v Sharfstein 583 F3d 860 (DC Cir 2009); FCC v Fox Television Stations 556 US 502 (2009); Motor Vehicle Manufacturers Association v State Farm Mutual Auto Insurance 463 US 29 (1983); Airmotive Engineering v FAA 882 F3d 1157 (DC Cir 2018); Bowman Transportation v Arkansas-Best Freight System 419 US 281 (1974); National Environmental Development Associations Clean Air Project v EPA 686 F3d 803 (DC Cir 2012); Myersville Citizens for a Rural Community v FERC 783 F3d 1301 (DC Cir 2015); Michigan Gambling Opposition v Kempthorne 525 F3d 23 (DC Cir 2008); Town of Cave Creek v FAA 325 F3d 320 (DC Cir 2003); Foundation for North America Wild Sheep v USDA 681 F2d 1172 (9th Cir. 1982); National Parks Conservation Association v United States 177 F Supp 3d 1 (DDC 2016); WildEarth Guardians v Zinke 368 F Supp 3d 41 (DDC 2019); Oklahoma Tax Commission v Citizen Band Potawatomi Tribe of Oklahoma 498 US 505 (1991); Cherokee Nation v Georgia 30 US (5 Pet) 1 (1831); Kingdomware Technologies v United States 136 S Ct 1969 (2016); PETA v Gittens 396 F3d 416 (DC Cir 2005); United States v Navajo Nation 537 US 488 (2003); El Paso Natural Gas v United States 750 F3d 863 (DC Cir 2014); Humane Society of US v Johanns 520 F Supp 2d 8 (DDC 2007). Cases cited within the enumerated cases have not been mentioned here.
TreatyFort Laramie Treaty of 1851
Overview and resultThe Court partially granted and denied the Tribes’ motions for summary judgment and partially granted and denied the Corps’ cross-motion for summary judgment. In effect, the Corps must comply with the National Environmental Policy Act and prepare an Environmental Impact Statement. The Court directed the parties to present briefs on the issue as to whether the Court should take legal actions that would halt the flow of oil through the Dakota Access Pipeline until the Corps completes an Environmental Impact Statement. In a recently published subsequent determination, the Court ordered the pipeline to shut down until the Corps fulfils its legal requirements.

Introduction

Standing Rock Sioux Tribe v US Army Corps of Engineers (Standing Rock VI)* is a recent and significant case, one in a series of cases where Sioux Tribes have challenged the legal authorisation for the Dakota Access Pipeline (“DAPL”) to protect the water flowing through their unceded ancestral lands. Dakota Access LLC constructed the DAPL, a 1,881-kilometre pipeline, to move oil from North Dakota to Illinois. Its construction was completed in 2017 and it has been operating since then despite its legal authority having never been fully finalised. In March 2020, in a reversal of fortune for the Tribes, the United States District Court for the District of Columbia affirmed the Sioux Tribes’ contention that the DAPL’s permits were illegally issued in Standing Rock VI.

Standing Rock VI is a technical case primarily involving the administrative and environmental legal authorisation for the Dakota Access Pipeline, but it has a wider significance. It involves Treaty rights, unceded ancestral lands, and environmental justice issues. It is a legal development of, perhaps, the better-known 2016 #NoDAPL movement that ‘helped give rise to the global movement of indigenous resistance to fossil-fuel infrastructure projects’.[1] And Standing Rock VI became even more significant when, in July 2020, the Court accepted the Sioux Tribes’ argument that the DAPL should be shut down and emptied until US agencies ensure that the DAPL’s permits comply with US law (see Subsequent Determination at 23-24).

This note provides some of the background to explain why the various Sioux Tribes oppose the DAPL and the significance of Standing Rock VI.[2] In doing so, it showcases the complexity of administrative and environmental United States law that tribes must engage with as well as why this case, although limited in scope and likely a step towards additional rounds of litigation, is an important win for the Standing Rock Sioux Tribe.

(* The numbering of the cases used in this note follows Judge Boasberg’s numbering. Standing Rock Sioux Tribe v US Army Corps of Engineers, --- F Supp 3d ---, 2020 WL 1441923 (DDC) (25 March 2020) is “Standing Rock VI” while Standing Rock Sioux Tribe v US Army Corps of Engineers, --- F Supp 3d ---, 2020 WL 3624426 (DDC) (6 July 2020) is called the “Subsequent Determination”.)

Background

The DAPL crosses the Missouri River at a location that the United States recognised as belonging to the Sioux or Dakota Nation in the 1851 and 1868 Fort Laramie Treaties. However, since the 1870s, laws and policies of the United States – many of which were related to natural resource exploitation – reduced the size of the Sioux Nation’s territories without properly adhering to those Treaties. The effect is that the location where the DAPL crosses the Missouri River is not within the present-day reservations belonging to the Standing Rock, Cheyenne River, Yankton, and Crow Creek Sioux Tribes (“Tribes”). The location is just north of the Standing Rock Sioux Tribe Reservation, which, according to the United States, is maintained by the United States Army Corps of Engineers (“Corps”). The Corps maintains the banks of the Missouri River/Lake Oahe because, in the 1950s and 1960, the Corps built the Oahe Dam that created Lake Oahe. The flooding of the Missouri River that created Lake Oahe dispossessed the Tribes of over 160,000 acres (65,000 ha approximately) of their remaining treaty and ancestral lands. Having passed a resolution in 2016 to support activities that respect and defend the rights of Mother Earth, [3] the Tribes oppose the DAPL to defend their drinking and spiritual waters from any pollution, but also because defending that land is a defence of their Treaties and their unceded ancestral lands.

For the developers to construct the DAPL across land maintained by the Corps, the Corps had to comply with Federal law, including, amongst other acts, the National Environmental Policy Act (“NEPA”).

As a first step, NEPA requires federal agencies, like the Corps, to complete and publish a draft Environmental Assessment (“EA”). In 2016, the Corps released its draft EA. Essentially, it found that granting of an easement for the development of the DAPL for the segment that runs under Lake Oahe would not have significant environmental impacts. If it had found that there would be a significant impact, then NEPA would require the Corps to prepare an Environmental Impact Statement (“EIS”).[4]

In response to the draft EA, several Tribes and the Department of Interior urged the Corps to prepare an EIS. The Environmental Protection Agency said the Corps should do more than prepare an EA. However, the Corps disagreed and in July 2016 finalised its EA, which also contained a finding of no significant impact.

Various Sioux Tribes commenced proceedings in the United States District Court for the District of Columbia, arguing that the Corps had to complete an EIS to comply with NEPA, must consult with them under the National Historic Preservation Act, must comply with the Religious Freedom Restoration Act, uphold their Treaty rights, and other claims.[5]

Judge James Boasberg largely rejected the initial NEPA claims.[6] But while those claims were moving through the legal system, the Tribes set up protest camps, which grew into an international movement known online as #NoDAPL. In response to the #NoDAPL movement, the Obama administration ordered the Corps to prepare an EIS in late 2016. On taking office in January 2017, one of President Trump’s first actions was to issue a Presidential Memorandum telling agencies to accelerate pipeline projects, including the DAPL.

The Corps then changed its decision and decided not to prepare an EIS.[7] It published its EA and granted an easement in favour of the developers.

The Tribes sued again, arguing that the Corps must prepare an EIS.

In June 2017, Judge Boasberg disagreed in Standing Rock II, finding that the Corps’ decision largely complied with NEPA.[8] However, Judge Boasberg also found there were “substantial exceptions” that the Corps had to consider and remanded the decision-making back to the Corps to complete accordingly. Judge Boasberg found that the Corps had “failed to adequately consider the impacts of an oil spill on Standing Rock’s fishing and hunting rights’ as recognised in the Treaties, “on environmental justice”, and the Corps’ responsibility to address whether the DAPL’s effects were likely to be “highly controversial”, as experts had criticised the pipeline for design flaws that could result in extensive environmental harm.[9]

Despite these “substantial exceptions”, at that time Judge Boasberg held that the easement should not be set aside during the period of reconsideration “in light of the serious possibility that the Corps would be able to substantiate its prior conclusions”.[10] In short, the easements remained in place, but the Corps had to consider and respond to the issues the Court had identified with the EA.

In February 2019, the Corps completed its review of those issues – finding it had acted properly.

Again, the Tribes challenged the Corps’ conclusions with further litigation.

All parties moved for summary judgment, with the Tribes raising all of the issues that had been sent back to the Corps for further consideration and jointly claiming that the Corps had failed to comply with its NEPA violations during that further decision-making.[11]

Discussion

Judge Boasberg’s March 2020 judgment, Standing Rock VI, mostly focuses on the NEPA claim, although the Tribes also made claims under other statutes. This note, likewise, focuses mainly on the NEPA analysis. That reflects Judge Boasberg’s holding that the Corps violated NEPA and must now complete an EIS, which requires it to address expert criticisms, determine how an oil spill from DAPL might affect the Tribe’s Treaty hunting and fishing rights, and environmental justice issues, but not other issues that the Tribes pleaded.[12]

NEPA is mostly a procedural piece of legislation that requires agencies to take specific actions at certain times. It requires agencies of the United States, like the Corps, to prepare an EIS if any of its proposed actions might result in “significant” environmental impacts. To determine if an agency’s proposed action might result in “significant” impacts, an agency must evaluate the context and intensity of the proposed action according to ten factors. If any of those factors are triggered, then an EIS may be required.[13]

The factor Judge Boasberg focused on in Standing Rock VI was “the degree to which the project’s effects on the quality of the human environment are likely to be highly controversial”.[14]  An effect may be controversial where there is a “substantial dispute as to the size, nature, or effect” of the action. This could involve “scientific or other evidence that reveals flaws in the methods or data” the Corps used to makes its decision, but not “the fact that some people may be highly agitated” or are “willing to go to court over the matter”.[15]

Courts have the authority to review an agency’s decisions under the Administrative Procedure Act, but it is not always clear what evidence a court should consider in a review. In Standing Rock II, Judge Boasberg held that the Corps must address expert comments about the pipeline's design, how spills could impact Treaty rights and environmental justice, in further consideration directed by the Court. While the Corps was considering those issues, the District of Columbia Circuit Court issued the Semonite decision, which clarified the court’s role in reviewing agency decisions.[16] The Court in Semonite established that when other United States agencies present criticisms to an agency, like the Corps, and that agency must comply with NEPA, then it must do more than “address concerns raised…by, for example, instructing [the equivalent of DAPL here] to revise its analysis to address the shortcomings identified… The question is not whether the Crops attempted to resolve the controversy, but whether it succeeded”.[17]

Judge Boasberg applied the Semonite reasoning in Standing Rock VI. As found in Standing Rock II, other United States agencies, including “the Department of Interior and the EPA, under the [Obama] administration”, expressed concerns with the Corps’ analysis.[18] Those agencies changed their views when President Trump took office, which is their prerogative, but that does not undercut the fact that US agencies had previously made criticisms that the Corps must successfully address.[19] Additionally, in response to the Corps’ argument that the criticisms stemming from the Tribes and their experts were “akin to ‘non-governmental organizations’” – and thus distinguishable from Semonite – Judge Boasberg re-iterated the well-known statement from Cherokee Nation v. Georgia that “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereignty authority over their members and territories”, giving this as a reason not to “deviate from Semonite”.[20]

The Court then analysed whether the Corps had succeeded in addressing the concerns raised by experts about the DAPL. It focused on four points of controversy to demonstrate that “unresolved scientific controversy … remains”.[21] Judge Boasberg considered expert criticisms about the pipeline’s leak-detection system,[22] its operator safety record,[23] how the operator would respond if a leak were discovered in winter conditions,[24] and its modelling for worst-case discharge from a leak.[25]

A significant portion of the judgment considers technical criticisms of pipeline design and how the Corps responded. Judge Boasberg found that the “Corps has not succeeded in resolving the controversy” that the experts raised and, therefore, “violated NEPA by determining that an EIS was unnecessary even though one of the EIS-triggering factors was met”.[26]

As an example of that analysis, in the section about the DAPL’s leak-detection system, experts raised concerns over, first, the efficacy of the leak-detection system. Experts noted that one pipeline detection system only detects hazardous leaks 28 percent of the time while another system detected leaks only 20 percent of the time.[27] The Corps’ response did not address the data, but described the DAPL’s system as including “state-of-the-art pipeline monitoring tools”, which the Court found, “plainly do[es] not succeed in resolving the serious concerns raised”.[28]

Second, experts criticised the leak-detection system for not detecting leaks that were less than 1 percent of the flow rate. Although 1 percent does not sound like much, that could be 6, barrels or approximately 954,000 litres of oil each day, which could leak over a long time without detection.[29] The Corps did not directly respond to that comment but, elsewhere, stated that the detection system could detect leaks “down to 1 percent or better”.[30] The Court found that acknowledging the system might detect leaks at that level was not a successful response to the experts' concerns that leaks at or under 1 percent of flow rate were still significant.

A third criticism was that monitoring devices should be at each milepost, which the Corps responded to by saying that it had considered leak detection monitoring at each milepost.[31] The Court found that even if “considering” that information was a “good start”, when combined with the first two concerns, the Corps’ response demonstrates that it did not successfully respond to address the issue.

In summary, the Corps had not successfully responded to expert criticisms of the project, which evidenced a substantial dispute that was “highly controversial”. That is a triggering factor for an EIS. As the Corps had not completed an EIS it had breached the NEPA.

The remedy is that the Corps must now prepare an EIS, a more time-intensive process that requires publishing a draft EIS, a public comment period, responding to publicly submitted comments, and a waiting period.[32] The Corps estimates that will be able to prepare an EIS by mid-2021, which, lawyers for the Standing Rock Sioux Tribe said, “already signal[s] that it will not take the process seriously”.[33]

Nevertheless, the looming question has become what should happen to the easement granted by the Corps to the DAPL developers, and whether the oil should continue to flow while the Corps is preparing an EIS? Judge Boasberg asked the parties to file further submissions on the issue.

After obtaining submissions from the parties, as well as numerous amici, on 6 July 2020 Judge Boasberg subsequently determined that “the Court is forced to conclude that the flow of oil must cease”.[34] To determine whether the Corps’ easement should be set aside during the period of reconsideration, which would stop the flow of oil, the Court considered how serious the legal deficiencies were and balanced them against the disruptive consequences that would arise.[35] The serious legal deficiencies “weigh entirely in favor of” setting the easement aside.[36] The disruptive consequences of setting the easement aside were a “closer call”.[37] The Court considered economic hardships, loss of jobs, public health and environment risks associated that are with continued operation.[38] It also expressed concerns that not setting aside the easement would set precedent that would subvert NEPA by embracing a “build first and consider environmental consequences later” approach.[39] Judge Boasberg noted that shutting the pipeline down while the Corps complies with NEPA will disrupt the oil industry, the economy of several states, and individual jobs. That, however, did not outweigh the “Corps’ NEPA error, the impossibility of a simple fix, the fact that [the developers] did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates”.[40]

For now, oil cannot legally flow through the pipeline, but whether it will continue to flow after the EIS is completed will be decided later. In the meantime, it is unknown how long it will take the Corps to complete an EIS. Although the average time for EIS completion across all federal agencies is 3.6 years and the Corps’ average time is longer, the Corps estimates that it will complete the EIS in 13 months.[41] This shutdown may cost the developers, and its investors, millions or billions of dollars.

Conclusion

As this short note demonstrates, Standing Rock VI is a technical case that is primarily about administrative and environmental law that is linked to many other significant issues. The Court did not fully explicate many of the controversies that arise under NEPA that the Corps must address in the EIS, like the potential impacts on hunting and fishing rights as recognised in the 1851 Treaty or the environmental justice issues, because the Court only had to find that the Corps had violated NEPA to require the Corps engage in an EIS, which has a more robust consultation process.

And even though an EIS is a more robust consultation process, it may not reach the level of consultation that the Tribes demand or desire. In Standing Rock II, the Standing Rock Sioux Tribe argued that their Treaty rights should be upheld as “rights which embody the fundamental rights of a people tied to a place since time immemorial and thus demand a more existential analysis”.[42] Judge Boasberg found that the Tribe “may be right that” DAPL “could affect its members in the broad and existential ways it details, but it offers no case law, statutory provisions, regulations or other authority to support its position that NEPA requires such a sweeping analysis”.[43] So where Standing Rock VI notes that Tribes are domestic dependent nations to find that the Corps must listen to Tribes as like government agencies for NEPA purposes, Standing Rock II maintained a paternalistic position that Tribal governments are domestic nations dependent on the United States.

Furthermore, because the Corps must now complete an EIS, the consultation issues Tribes raised under the National Historic Preservation Act were moot (no longer live), and, if they were not, the Court would have rejected them.[44] The Court also rejected the claim brought by the Oglala Tribe that the Mni Waconi Act imposes a fiduciary obligation on the Corps to act in their interests. Judge Boasberg found that it imposes an obligation to provide clean and safe water, but not a fiduciary obligation.[45]

Despite limitations imposed by the United States and its legal frameworks, Standing Rock VI and the Court's subsequent determination validate the Tribes’ claims that the Corps did not listen to them. It is also a hopeful case. Standing Rock Sioux Tribe Chairman Mike Faith said of the case, “[i]t’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet. Perhaps in the wake of this court ruling the federal government will begin to catch on, too, starting by actually listening to us when we voice our concerns”.[46]

Notes

[1] Shauna Long and Jacqueline Koch, “Standing Rock Sioux Tribe Returns to Court in Legal Challenge to DAPL” EarthJustice <https://earthjustice.org/news/press/2020/standing-rock-sioux-tribe-returns-to-court-in-legal-challenge-to-dapl>.

[2] For a more detailed histories, see Nick Estes Our History is the Future: Standing Rock versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance (Verso, London, 2019); Stephen Young “The Sioux’s Suits: Global Law and the Dakota Access Pipeline” (2017) 6(1) Am Ind L J 173-238.

[3] Long and Koch, above note 1.

[4] At 5. An EIS is a more detailed, time-intensive document. It involves a publishing a notice of intent in the Federal Register, drafting an EIS and publishing it for public review and comment (for a minimum of 45 days), finalising an EIS and publishing it, which has a 30-day wait period before it makes a final decision, followed by issuing a Record of Decision. For a general overview see United States Environmental Protection Agency “National Environmental Policy Act Review Process” <https://www.epa.gov/nepa/national-environmental-policy-act-review-process>.

[5] See generally Standing Rock I and Standing Rock II.

[6] Standing Rock II, at 37.

[7] Standing Rock VI, at 6.

[8] Standing Rock II, at 147.

[9] Standing Rock VI, at 7.

[10] At 8 (internal citations omitted).

[11] At 8.

[12] At 39-41.

[13] At 12-13, citing Semonite, at 1082.

[14] At 13, citing NEPA regulations (40 C.F.R. § 1508.27(b)(4)).

[15] At 13 (internal citations omitted).

[16] At 14, citing National Parks Conservation Association v Semonite, 916 F3d 1075, 1078-80 (DC Cir 2019).

[17] At 15 (original brackets and emphasis).

[18] At 16.

[19] At 16.

[20] At 17, citing Oklahoma Tax Commission v Citizen Band Potawatomi Tribe of Oklahoma 498 US 505, 509 (1991) (quoting Cherokee Nation v Georgia 30 US (5 Pet) 1, 10 (1831)).

[21] At 18.

[22] At 19-22.

[23] At 22-24.

[24] 24-26.

[25] 26-34.

[26] At 35.

[27] At 18.

[28] At 19.

[29] At 20. Judge Boasberg stated that the leak could amount to 25,200 gallons per day, which would be .1 percent of 600,000 gallons of oil per day instead of 1 percent.

[30] At 20-21.

[31] At 21-22.

[32] United States Environmental Protection Agency, above note 4.

[33] EarthJustice, “The Standing Rock Sioux Tribe’s Litigation on the Dakota Access Pipeline” <https://earthjustice.org/features/faq-standing-rock-litigation>.

[34] Standing Rock VI Subsequent determination, at 23.

[35] At 8.

[36] At 9-14.

[37] At 23.

[38] At 14-23.

[39] At 18-19.

[40] At 23.

[41] At 17.

[42] Standing Rock II, at 131.

[43] At 131.

[44]Standing Rock VI, at 38.

[45] At 39-41.

[46] Rebecca Bowe and Liz Trotter “Standing Rock Sioux Tribe Prevails as Federal Judge Strikes Down DAPL Permits” EarthJustice <https://earthjustice.org/news/press/2020/standing-rock-sioux-tribe-prevails-as-federal-judge-strikes-down-dapl-permits>.

Author: Stephen Young

Dr Young is a lecturer at Te Whare Wānanga o Otāgo, the University of Otago. His areas of research involve the intersection of Indigenous peoples and law, human rights, and duties and obligations, drawing from critical and social theories. https://www.otago.ac.nz/law/staff/stephen-young.html