STANDING ROCK SIOUX TRIBE v. UNITED STATES ARMY CORPS OF ENGINEERS
MEMORANDUM OPINION re 417 Order on Motion to Complete the Administrative Record. Signed by Judge James E. Boasberg on 5/8/2019. (lcjeb1)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STANDING ROCK SIOUX TRIBE,
CHEYENNE RIVER SIOUX TRIBE,
Plaintiff-Intervenor, et al.,
Civil Action No. 16-1534 (JEB) (and
Consolidated Case Nos. 16-267 and
U.S. ARMY CORPS OF ENGINEERS,
DAKOTA ACCESS, LLC,
Defendant-Intervenor and CrossClaimant.
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
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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
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
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consequences of a spill for the Tribes’ fishing and hunting rights; and (3) the environmentaljustice 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.
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.
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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).
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)
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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.
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.
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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, nonspeculative 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
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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
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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.
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
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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
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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.
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 integritymanagement 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
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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
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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
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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 asbuilt drawings and the reasons, if any, that the information could not be revealed to Plaintiffs
subject to the protective order.
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
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