in the united states district court for the district of … · 2017-02-23 · mahmoud, vice...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE, Plaintiff, and CHEYENNE RIVER SIOUX TRIBE, Intervenor-Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, Defendant. and DAKOTA ACCESS, LLP, Intervenor-Defendant.

Case No. 1:16-cv-1534-JEB

CHEYENNE RIVER SIOUX TRIBE’S SEPARATE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT

Case 1:16-cv-01534-JEB Document 131-1 Filed 02/22/17 of 53

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TABLE OF CONTENTS

I. General Facts About the Cheyenne River Sioux Tribe ..................................... 1

II. Facts Related to the Section 408 Permit Decision .............................................. 2

The Flood Control Act of 1944 ............................................................................ 7

The Missouri River Maintstem System Master Water Control Manual ......... 8

Facts About the the Corps Mitigated FONSI EA and Actual Impact on the Tribe ..................................................................................................................... 10

Injurious to Public Interest Facts ...................................................................... 19

III. Facts Related to Tribal Consultation. ............................................................... 21

The Corps Duty to Consult ................................................................................ 21

Failure to Consult Prior to Issuance of the Draft EA FONSI, the Section 408 Permit, and the MLA Easement ................................................................. 22

Facts Related to the Separate NHPA § 106 Consultation ............................... 33

IV. Facts Related to the Corps’ Fiduciary Duty and the Tribe’s Treaty Rights and Trust Resources ............................................................................... 35

The Corps Fiduciary Duty ................................................................................. 35

The Tribe’s Treaty Rights .................................................................................. 36

The 1851 Fort Laramie Treaty .......................................................................... 36

The 1868 Fort Laramie Treaty .......................................................................... 37

Statutes and Executive Orders Confirming the Tribe’s Treaty Rights ......... 39

V. The MLA Easement Decision ............................................................................ 43


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I. General Facts About the Cheyenne River Sioux Tribe.

1. The Cheyenne River Sioux Tribe (“CRST” or “the Tribe”) is a federally-recognized Indian

tribe. 25 U.S.C. § 479a; 81 Fed. Reg. 5020 Jan. 29, 2016); Dakota Access LLC’s Answer

to Intervenor-Plaintiff Cheyenne River Sioux Tribe’s First Amended Complaint, ECF 57 at

¶ 1, p. 1.

2. CRST governs the Cheyenne River Sioux Indian Reservation (“Reservation”) in Dewey

and Ziebach County, South Dakota. South Dakota v. Ducheneaux, No. 88-3049, 1990 WL

605077 (D.S.D. Aug. 21, 1990) at *2.

3. The Cheyenne River Sioux Tribe includes the Itazipco, Siha Sapa, Minniconjou, and

Oohenumpa bands of the Great Sioux Nation. Cheyenne River Sioux Tribe Equitable

Compensation Act, Pub. L. 106–511 (Nov. 13, 2000), 114 Stat 2365, § 103(1).

4. The Cheyenne River Sioux Indian Reservation’s eastern external boundary is the center of

the channel of the Missouri River underlying Lake Oahe. Act of March 2, 1889, 25 Stat.

888, Section 2; Pub. L. 106–511, (Nov. 13, 2000), 114 Stat 2365, § 102(A) (2)(b).

5. The Cheyenne River Sioux Reservation consists of 1,450,644 trust acres in Ziebach and

Dewey County in central South Dakota; in addition to acreage held in trust by the United

States for the Tribe in Meade, Stanley, Haakon, Perkins, and Lawrence Counties. The

Tribe also owns 480 acres of fee land in Crook County, Wyoming. Cheyenne River Agency,

Department of Interior, Indian Affairs,

https://www.indianaffairs.gov/WhoWeAre/RegionalOffices/GreatPlains/WeAre/Agencie

s/Cheyenne/index.htm (last updated Feb. 17, 2017).


https://www.indianaffairs.gov/WhoWeAre/RegionalOffices/GreatPlains/WeAre/Agencies/Cheyenne/index.htm

https://www.indianaffairs.gov/WhoWeAre/RegionalOffices/GreatPlains/WeAre/Agencies/Cheyenne/index.htm

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6. The Cheyenne River Sioux Indian Reservation is located approximately 60 miles

downstream of the siting of the proposed Dakota Access Pipeline (“DAPL”) Lake Oahe

crossing. Distance from Cannonball, North Dakota to Mobridge, South Dakota, USA Geo,

http://www.usageo.org/distance/3812020-4643180 (last accessed Feb. 20, 2017).

7. The Mni Waste’ Water intake serving the Cheyenne River Sioux Reservation is

downstream of the DAPL Lake Oahe Crossing. Declaration of Leo Fischer attached hereto

as Exhibit 1 (“Fischer Decl.”) at ¶ 5, Attachment A.

II. Facts Related to the Section 408 Permit Decision.

8. The Environmental Assessment (“EA”) associated with the Section 408 permit was drafted

exclusively by Dakota Access, LLC (“Dakota Access”) and submitted to the Army Corps

of Engineers (“Corps”) in March 2015. AR 0075101-0075191.

9. The Final EA was issued by the Corps in July 2016 and was drafted by Dakota Access,

LLC. AR0071220-AR0071382.

10. All of the responses to the EA were set forth in an Appendix J to the EA, which was not

publicly disclosed and was drafted exclusively by Dakota Access. AR 071774;

AR9973186.

11. The Corps permitted companies retained by Dakota Access and Energy Transfer Partners

to draft responses to every comment on the EA. AR0073186 (March 25, 2016 Email from

Corps to Dakota Access and Energy Transfer retained companies).

12. Scoping letters on the EA were sent directly to agencies and interested parties by Dakota

Access, and commenters were directed to submit their comments directly to Dakota

Access. AR 071774.


http://www.usageo.org/distance/3812020-4643180

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13. The Corps sent a Draft Scoping letter to Dakota Access for the 408 Permit on March 30,

2015. AR0075274. The Administrative Record does not demonstrate that the scoping

letter was sent to CRST or any other Tribe. As early as December 2013, a draft letter

seeking “Tribal and public comment” was being vetted within the Corps offices in Omaha.

AR0067166-0067168. Dakota Access did not send the letter to any Indian tribe. Final

EA, Appendix J, AR0071720—0071776. Joel Ames, Tribal Liaison for the Corps’

Omaha District, did not send the letter to any Indian tribe. ECF No. 21-17. No letter was

sent to CRST until February 17, 2015, when the Corps sent a letter to the CRST Tribal

Historic Preservation Officer, seeking consultation pursuant to Section 106 of the National

Historic Preservation Act (“NHPA”) in relation to Section 10 and Section 404 permitting

— not Section 408 permitting. AR0070663-0070664. No consultation letter was sent to

any Indian tribe on the 408 permit. Id.

14. The Biological Assessment was drafted exclusively by Dakota Access and submitted by

Dakota Access directly to the Corps. AR 0001386; AR 0001555-56 (email from Joey

Mahmoud, Vice President of Dakota Access and Executive Vice President of Engineering

& Construction of Energy Transfer Partners, L.P. (“Mahmoud”) transmitting Biological

Assessment to Corps).

15. The Corps did not retain a single engineer with experience either in oil pipeline

construction or in horizontal directional drilling (“HDD”), the method by which the DAPL

has been permitted to drill under Lake Oahe, to review the spill risk or response plans

submitted by Dakota Access to the Corps as part of the EA process. AR0071180.


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16. The Corps does not have a single engineer on staff with any certification or experience in

oil pipeline construction that reviewed the spill risk or facility response plans submitted by

Dakota Access. AR0071180.

17. The Corps stated in an NHPA § 106 public meeting with Dakota Access on February 17,

2016 that the Corps had no role in assessing and evaluating the safety of the oil pipeline,

and that the Corps cannot “tell the applicant how to build their pipeline.” AR 0068779.

18. The Corps has repeatedly disavowed any responsibility to assess the risk of an oil spill,

stating “[a]nalysis of oil spills during operation and maintenance of a pipeline falls outside

of USACE authorities under the Clean Water Act. Our Clean Water Act authority is limited

to the authorization of impacts to waters of the United States associated with the discharge

of dredge/fill material into such waters or work in those waters during construction of the

pipeline.” AR006424; ECF No. 19-3 at 16 (“the Corps does not monitor and enforce

compliance”); AR00068358 (Corps letter to Advisory Council on Historic Preservation

(“ACHP”) on April 11, 2016 noting “the Corps doesn’t regulate or oversee the construction

of pipelines…”).

19. Numerous federal agencies raised concerns that the Corps had not adequately assessed and

evaluated impacts on tribal trust resources and had not consulted with any Indian tribes on

these impacts. AR0068891 (February 25, 2016 email documenting call from EPA with

concerns why alternate crossing had not been considered north of Bismarck and impacts

on tribal water supply); AR0072159 (March 29, 2016 letter from Department of Interior to

Corps noting Corps failure to assess spill impacts on Indian tribes and failure to initiate

government-to-government consultation on those impacts and recommending an EIS);

AR0073187 – 0073190 (March 11, 2016 letter from EPA documenting concerns with


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contamination of water intakes of all Tribes on the Missouri River, and failure to document

consultation with Tribes on that impact, and documenting failure of Corps to consider

adequately alternatives and recommending new EA and additional comment and tribal

involvement); AR007402174024 (January 8, 2016 letter from EPA to Corps concluding

the Draft EA does not support a Finding of No Significant Impact (“FONSI”),

recommending an EIS, and noting the lack of access to review documents on spill risk);

AR0082926 (November 25, 2015 email from EPA to Corps stating, “There will not be, by

application of all these treatments, the ’hard look’ NEPA was intended to apply to federal

actions. …What troubles me is whether absence of any ‘hard look’ at the full project makes

good public policy... It might be a different story if FERC was licensing the full project.

As Jeff Goldblume [sic] said in Jurassic Park, ‘You were so busy thinking how you could[,]

you forgot to ask whether you should.’ ”).

20. Corps employees on March 19, 2015 started to ask their superiors why the pipeline could

not be built on the East side of the Missouri River and not cross Lake Oahe, let alone cross

the Missouri River twice. AR0075290-0075292. The Administrative Record contains no

response to these inquiries. AR0075290.

21. The Corps determined as early as December 1, 2015 that it would, “likely categorically

exclude from NEPA and find no potential to effect historic properties and no effect to

[threatened and endangered] species on the 408 action.” AR0082925.

22. The Corps issued its FONSI on July 25, 2016. AR0071171-0071179. The Corps stated

that, “[t]he EA establishes that the district made a good faith effort to consult with the tribes

and that it considered all tribal comments. In addition, the pipeline will be located under

Lake Oahe, and Dakota Access has developed response and action plans, and will include


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several monitoring systems, shut-off valves and other safety features to minimize the risk

of oil spills and replace or remediate any potential damages.” AR 0071175.

23. The EA FONSI includes the statement of Colonel John Henderson, Omaha District

Commander, that, “I have evaluated the anticipated environmental, economic, cultural, and

social effects, and any cumulative effects of the Proposed Action and determined that the

Proposed Action is not injurious to the public interest and will not impair the usefulness of

the federal projects.” AR0071179.

24. The EA FONSI provides no discussion or rationale for the conclusion that the “Proposed

Action is not injurious to the public interest and will not impair the usefulness of the federal

projects.” AR0071179.

25. The Record of Decision on the Section 408 permit contains no record of decision on the

Oahe crossing and thus no rational and no sign-off by the Oahe District Recreation and

Natural Resources Branch on the Section 408 Permit. AR0071195-0071197. The

Memorandum of Decision issued by the Corps’ Engineering Division on December 10,

2015 states “the comments herein pertain only to the geotechnical and flowable easement

issues related HDD and Geotechnical Investigations in the floodway…” AR0071201.

This Memorandum contains no analysis of whether DAPL affects the project purposes.

The Corps Water Quality Team Review Memorandum of Decision was issued on

November 4, 2015. AR0071205. It offers no rationale for its concurrence in the FONSI,

and simply states the Water Quality division “has no comments at this time.” Id. There is

a Memorandum of Decision on the Lake Sakakawea crossing related to Flood Risk and

Flood Management dated March 9, 2016, but there is no such Memorandum of Decision

regarding Flood Management on the Lake Oahe crossing. AR0071206-0071207.


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26. The Corps has informed Dakota Access that proceeding with construction prior to

approvals of all Corps requirements is at its own risk. AR0005729.

The Flood Control Act of 1944 27. The Corps of Engineers has authority to operate the dams located on the Missouri River in

North and South Dakota pursuant to the Flood Control Act of 1944 and the Rivers and

Harbors Act of 1945, for the purposes set forth in those statutes. 58 Stat. 887, Section 1(a)

and (b); 59 Stat. 11, Section 1(b).

28. The exclusive purposes of the reservation of authority to the Corps of Engineers to operate

the system were:

a) Flood Control; b) Navigation; c) Domestic water supply; d) Municipal water supply; e) Stock water; f) Irrigation; g) Mining; h) Industrial purposes; (specifically hydroelectric power); and i) Public park and recreational facilities.

58 Stat. 889, Sections 1 & 2, 58 Stat. 889-890, Section 4; Section 58 Stat. 890, Section 5;

58 Stat. 891, Section 6.

29. Section 1(b) of the Rivers and Harbors Act and the Flood Control Act of 1944 both state

that only “beneficial consumptive use, present or future,” for “domestic, municipal, stock

water, irrigation, mining, or industrial purposes” are authorized purposes. (Emphasis

added.) 58 Stat. 889; 59 Stat. 10-11, Section 1(b).

30. Section 1(b) of the Flood Control Act of 1944 and the Rivers and Harbors Act of 1945

preserves to users within states wholly or partly west of the ninety-eight meridian, which


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includes both North and South Dakota, priority in the Mainstem Missouri River System for

their specified beneficial consumptive uses both present and future. It states:

The use for navigation in connection with the operation and maintenance of such works herein authorized for construction, of waters arising in States lying wholly or partially west of the ninety-eighth meridian shall be only such use as does not conflict with any beneficial consumptive use, present or future, in States lying wholly or partly west of the ninety-eighth meridian, of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes.”

58 Stat. 889; 59 Stat. 10-11, Section 1(b).

31. Industrial and domestic consumptive uses of water are only authorized once there has been

a determination there is surplus water available, and a determination that such use “will not

adversely affect then existing lawful uses of such water.” 58 Stat. 890, Section 6 (emphasis

added).

The Missouri River Maintstem System Master Water Control Manual 32. The Corps of Engineers operates the Missouri River in accordance with a Master Manual

first adopted in 1979 and subsequently updated and amended periodically, with the last

amendment enacted in 2006. Under the latest 2006 revision, the Master Manual specifies

the authorized purposes for which the Corps operates the System. Specifically, Section IV,

4-02 states,

The six System dams are regulated as a hydrologically and electrically integrated system for the congressionally authorized purposes of flood control, navigation, hydropower, water supply, water quality, irrigation, recreation, and fish and wildlife….The Endangered Species Act of 1973 …states that the policy of Congress is for all federal departments and agencies to seek to conserve endangered and threatened species and to utilize their authorities in furtherance of the purposes of the Act. …The system has endangered species and has, therefore, operated for the continued existence of these species in coordination with the Service. The Missouri River Mainstem System Master Water Control Manual presents the guidelines and operational objectives for regulating the System for the


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congressionally authorized purposes, with recognition that other incidental benefits are also achieved.

Missouri River Mainstem Reservoir System Master Water Control Manual, Missouri River

Basin, U.S. Army Corps of Engineers, Northwestern Division – Missouri River Basin

(March 2006) (“Master Manual”). Excerpts cited form the Master Manual are attached

hereto as Attachment A to the Declaration of Nicole Ducheneaux attached hereto as

Exhibit 2 (“Ducheneaux Decl.”) at ¶ 2.1

33. The Current Water Control Plan set forth in the Master Manual has four objectives:

First to serve the contemporary needs of the basin and the Nation; second, to serve the Congressionally authorized purposes; third to comply with other applicable statutory and regulatory requirements including environmental laws such as the Endangered Species Act (ESA); and fourth, to fulfill the Corps’ responsibilities to Federally recognized Tribes.

Master Manual 7-01.1, Ducheneaux Decl., Ex. 2, Attachment A at p. 92.

34. One of the considerations throughout the Master Manual is the availability of water for

water intakes, as well as the quality of water available to provide water supply. Section 7-

03.7 of the Master Manual sets forth considerations taken into account during drought

including water intake access on the upper three reservoirs including Lake Oahe, and

reservoir and river water quality. Master Manual, Ducheneaux Decl., Ex. 2, Attachment A

at p. 103.

35. There are more than 1,600 water intakes in the Missouri River including 302 intakes and

intake facilities serving American Indian Tribes. Master Manual § 7-11.2, Ducheneaux

Decl., Ex. 2, Attachment A at p. 136.

1 Because the Master Manual is several hundred pages long, for the convenience of the Court and the parties, the Tribe has attached Excerpts relied upon herein at Attachment A to Exhibit 2. A full copy of the current Master Manual can be found at http://www.nwd-mr.usace.army.mil/rcc/reports/mmanual/MasterManual.pdf


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36. On Lake Oahe alone, there are 218 water intakes serving a population of 48,050 people.

Master Manual § E-01.1.1.5, Ducheneaux Decl., Ex. 2, Attachment A at p. 165.

37. Of these, 14 water intakes serve the Standing Rock Sioux Reservation and 9 water intakes

serve the Cheyenne River Reservation. Master Manual § E-01.1.1.5. Id.at 165.

38. The Corps of Engineers is responsible under the Master Manual for guaranteeing that “the

supply of water in the Missouri River is adequate to meet this project purpose.” Master

Manual § 7-11.2, Ducheneaux Decl. Ex. 2, Attachment A at p. 136.

39. The Corps of Engineers expends funds on System Water Quality Monitoring and Modeling

to ensure its operation of the Mainstem System does not negatively impact water quality

and engages in system regulation activities to ensure water quality is preserved. Master

Manual § 6-04.1.7, Ducheneaux Decl., Ex. 2, Attachment A at p 84.

40. The Corps of Engineers recognizes that Tribes along the Missouri River, “are entitled to

water rights in streams running through and along their Reservations under the Winters

Doctrine…. These water rights are not forfeited by non-use.” Master Manual § E-06,

Ducheneaux Decl., Ex. 2, Attachment A at p 170.

41. EC 1165-2-216(7)(c)(4)(b)(i) requires the Corps to “ensure that the proposed alteration will

not limit the ability of the project to function as authorized and will not compromise or

change any authorized project conditions, purposes, or outputs. …If at any time it is

concluded that the usefulness of the authorized project will be negatively impacted, any

further evaluation under 33 U.S.C. §408 should be terminated.” AR 0012846-0012915.

Facts About the Corps Mitigated FONSI EA and Actual Impact on the Tribe.

42. The EA relied upon Dakota Access and a firm that it hired to conduct a risk assessment.

AR 0075101-0075191.


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43. The only independent reviews of the risks posed by DAPL were conducted by, and at the

expense of Indian tribes, and they all concluded the risks of an oil spill are underestimated

in the EA, and the impacts would be substantial. See, ECF No. 117-1 (SRST Motion for

Partial Summary Judgment, Section III.A.); ECF No. 117-5 (Accufacts Review); ECF Nos.

117-18 (Earthfax Report); ECF Nos. 117-23 (ENVY Preliminary Report) (also included in

the Declaration of Rollie Wilson attached hereto as Exhibit 4 (“Wilson Decl.”) Attachment

A at Bates Nos. 101 to 1742; See also Wilson Decl., Ex. 4, Attachment A at Bates Nos.

0175 to 189 (Bowser Report); see also Wilson Decl., Ex. 4, Attachment A at Bates Nos.

190 to 229 (Nezafati Report); see also, Declaration of Steve Martin (filed under seal) and

Declaration of Hakan Bekar (filed under seal).

44. The Corps has authority to require independent experts in pipeline construction and in

pipeline spill risk under its Section 408 regulations, particularly where its staff is “lacking

the appropriate expertise.” EC 1165-2-216(7)(c)(3)(f); EC 1165-2-216(7)(c)(4)(a) & (b).

AR 0012846-0012915.

45. The only Corps’ personnel who reviewed the 408 permit are not HDD drilling experts, and

have no experience in construction or operation of pipelines. AR0071180.

46. The Cheyenne River Sioux Tribe owns the Cap Point Water Intake that was constructed by

the Corps of Engineers in 2006 and 2007. Fischer Decl. Ex. 1, at ¶ 5.

47. The Corps of Engineers determined in a 2005 Project Information Report that there is no

alternative potable water supply for the 14,000 residents of the Cheyenne River Sioux

2 For the convenience of the Court and the parties, the Tribe has added bate stamp page numbers to Attachment A to aid in reference to the document due to its size.


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Reservation other than the Missouri River. Fischer Decl. Ex 1, at ¶ 9.a, Attachment B at

p. 9-13; ECF No. 99-7 at 13.

48. The Corps determined in a Project Information Report that it prepared during a significant

drought that affected the Cheyenne River Sioux Reservation in 2005 that, as of 2005, at

least 70,000 gallons of water a day would be needed for human consumption needs on the

Cheyenne River Sioux Reservation alone if the water intake on the Missouri River could

not be used, based on a population of 14,000 users drinking 5 gallons of water a day. The

roughly estimated cost of providing bottled water for one year for 14,000 people at the rate

of only 5 gallons a day in 2005 was $19.8 million dollars. This did not include the cost of

providing water for livestock, agriculture, human sanitation, business uses, or health care

uses by the hospital or dialysis units serving these communities. Fischer Decl., Ex. 1, at ¶

9.a, Attachment B at p. 9-13; See also, ECF No. 99-7 at 9-13.

49. In 2005, the Corps determined that ground water wells are not a feasible alternative to a

water intake on the Missouri River, because the aquifer underlying Dewey and Ziebach

County is too deep, has very high levels of water hardness and mineral content, and that

previous wells had to be abandoned for this reason as well in Dupree, SD, [which is on the

CRST Reservation] that was drilled to a depth of 4,700 feet had to be abandoned for this

reason. Fischer Decl., Ex. 1. at ¶ 9.a -9.b, and Attachment B at p. 11 at ¶ 9.a; See also,

ECF No. 99-7 at p. 9-13.

50. As a result of its Project Information Report findings, the Corps of Engineers entered into

a Cooperative Agreement with the Cheyenne River Sioux Tribe under Public Law 84-99

and constructed the new Cap Point water intake. Fischer Decl., Ex. 1, at ¶ 10. Total

funding for the new water intake was $18,473,254.34. Of that amount, the Corps of


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Engineers funded $10,440,726.00, and CRST funded $1,333,000.00, Indian Health Service

funded $1 million, the Bureau of Indian Affairs funded $1 million, the state of South

Dakota funded $1 million, HUD funded $400,000.00 and USDA provided $3.3 million, of

which $1 million was a loan to the Mni Waste’ Water Company. Fischer Decl., Ex. 1, at

¶ 10, Attachment C.

51. Since the new intake was constructed, the Tribe and Mni Waste’ Water Company have

worked together to build a new Water Treatment plant for the new water intake, and a new

main line from the new intake site to the Tribe’s headquarters in Eagle Butte, South Dakota.

Additional water lines and storage are under construction. The cost to date for the new

infrastructure from the new water intake has been $65,871,293.00. This is in addition to

the cost of the new water intake set forth above. Of that amount, $56,241,293.00 was paid

from USDA Rural Development grants, $872,500.00 was paid from Indian Health Service

Funding, $7 million paid by the Cheyenne River Sioux Tribe, and $1,757,700.00 was a

loan to the Mni Waste’ Water Company. Fischer Decl., Ex. 1 at ¶ 10, Attachment D.

52. The water system currently serves approximately 14,000 people in an area that is the size

of the State of Connecticut. Fischer Decl., Ex. 1 at ¶ 12.

53. The water system also provides water for irrigation and livestock, which are the primary

source of income for the local economy. In many areas of the system, there are not

alternative sources of water supply for livestock that are suitable because the aquifers are

too deep to drill wells, and there is limited potential for the construction of stock dams to

capture water runoff for this purpose. Fischer Decl., Ex. 1 at ¶ 15.

54. The intake system for this water supply system at Cap Point is a 30-inch diameter pipeline.

While it has intake screens on the intake located 80 feet below the surface of Lake Oahe to


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prevent the intake from taking in fish and wildlife or debris, those screens would be clogged

if petroleum- based water were to infiltrate the water column. The intake is not designed

to filter out petroleum products. If the intake screens were clogged, it would require that

the water intake system be shut down. Fischer Decl., Ex 1 at ¶ 16.

55. The water storage available in the current water supply system is only adequate to supply

drinking water for up to 24 hours to the population it serves. The water system was recently

shut down due to an ice blizzard and loss of electrical supply, during which time areas

within the system were out of water for 3-5 days, notwithstanding water- use restrictions.

Fischer Decl., Ex. 1 at ¶ 16.

56. There is no technology known to be available that would allow the water system that serves

CRST to prevent petroleum-based product from coming into the intake in large quantities.

It would require a full engineering study and detailed information to determine what actions

would keep the intake operational if lesser quantities of oil entered the water intake and

water treatment system. To date, no one has consulted with the Mni Waste’ Water

Company about, or performed any assessment of, the how this water intake could remain

operational in the event of an oil spill form DAPL. Because this is the sole source of

potable water for an area that is the size of Connecticut, any risk of oil contamination needs

to be planned for in advance in order to avoid a catastrophe. Fischer Decl., Ex. 1 at ¶ 17.

57. The impacts to CRST and other water users would be catastrophic if the water intake

system fails to operate for even a week. Fischer Decl., Ex.1 at ¶ 19; See, Declaration of

Harold Frazier attached hereto as Exhibit 3 (“Frazier Decl.”) at ¶ 9. Some of the effects

include:

a. No ability to fight fires in the 17 communities served by the water system.


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b. There would be no water available for dialyzing kidney patients served by the

dialysis unit in Eagle Butte, South Dakota, the current site of the Tribe’s

headquarters. The patients currently served would have to be moved to other cities

in South Dakota to receive dialysis. There are 44 dialysis patients receiving dialysis

in Eagle Butte with an average of receiving dialysis 3 times a week.

c. There would be no water for the federally-owned and operated Indian Health

Service hospital located in Eagle Butte, which provides health care to the entire

CRST tribal population. Without water supply, the hospital and its clinic cannot

provide services. The nearest hospitals that would have water supply in the event

of a spill in Lake Oahe are over 90 miles from Eagle Butte.

d. An oil spill from DAPL on Lake Oahe would cause an increased risk of waterborne

diseases such as typhoid and diseases that result from lack of clean water, such as

dysentery.

Id. at 9.

58. The Cheyenne River Sioux Tribe does not have the resources to sustain or address a loss

of water supply to its population for even one month. Frazier Decl., Ex 3 at ¶ 10.

59. Any loss of use of the Cap Point water intake would threaten the Cheyenne River Sioux

Tribe’s ability to govern, and would thus threaten its tribal sovereignty. Frazier Decl., Ex

3 at ¶ 14.

60. The EA itself concludes that this area is a high risk for landslides. AR0071250-0071251,

(“landslides can represent a significant geologic hazard during construction and operation

of the pipeline….”; “0.4 acre of the permanent easement through the federal property on

the west side of the Lake Oahe (Morton County) is classified as having a high incidence of


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landslides;” “on the west side of Lake Oahe, 1.2 acres of the HDD workspace (exit point)

and 13.1 acres of the pipe stringing area are designated as having a high incidence for

landslides. Additionally, the stringing area encompasses approximately 1.8 acres of land

that is classified as highly susceptible to landslides. Approximately 0.9 acre within the

stringing area has slopes exceeding 25%. Approximately 1.2 acres of the HDD entry point

workspace on the east side of Lake Oahe is designated as having a high incidence of

landslides . . .” )

61. The EA refers to Appendix D, which is not a public document. Id.

62. The EA does not assess the impacts on project uses if the pipeline is damaged by an

earthquake or landslide. AR 0071250-0071251. The actual impact of a landslide

damaging the pipeline on project purposes would be catastrophic. Wilson Decl., Ex. 4,

Attachment A at Bates Nos. 0165-0166 (Envy Report); ECF 117-23 at 65-68.

63. The EA states, “drinking water could be at risk if there was a release that reached these

bodies of water in the vicinity of the intake structures.” AR0071262.

64. The EA states,

in the unlikely event of a pipeline leak” response measures to protect the users of downstream intakes will be implemented to minimize risks to water supplies. Dakota Access would be the responsible party for implementing the response actions in accordance with Geographical Response Plan (GRP) and the Facility Response Plan (FRP). The potential for a spill to compromise a potable water supply intake would be continually evaluated as part of the response action. Alternative sources would be included as part of the contingency planning. Shutting down certain intakes and utilizing others or different drinking water sources or bottled water will be evaluated as part of this process. AR0071263.

65. Because the Corps built the Mni Waste’ Water Intake for the Tribe in 2005-2007, the Corps

knew that the Tribe has no alternative drinking water supplies available. The Corps already


17

determined that the loss of use of this water intake would be catastrophic on the Tribe.

Fischer Decl, Ex. 1, Attachment B; ECF No. 99-7.

66. The EA states “[a]ccidental releases from the pipeline system during operations could

potentially affect groundwater.” AR0071269.

67. The EA fails to discuss or even mention risks to vegetation and plants. AR0071274-

0071293.

68. The EA concludes that “[i]ncreased levels of sedimentation and turbidity from an

inadvertent release could adversely affect fish eggs, juvenile fish survival, benthic

community diversity and health, and spawning habitat.” AR0071293.

69. Without any explanation of how, the EA concludes that Facility Response Plans

“minimize” this risk. AR0071293.

70. The Tribe’s expert disagrees and the Tribe filed a copy of his report on the potentially

catastrophic effects on wildlife with the Corps on January 19, 2016. Wilson Decl., Ex. 4,

Attachment A at Bates Nos. 0175 to 0189 (Bowser Report).

71. The EA states that, “[b]ecause Lake Oahe already meets state water quality standards, the

Proposed and Connected Action Areas are not anticipated to result in impacts that would

cause an impairment of water quality or the designated use of Lake Oahe.” AR0071298.

72. The EA fails to conduct any analysis of the impact of an oil spill on water quality.

AR0071298. The Tribe’s Expert strongly disagreed. Wilson Decl., Ex. 4, Attachment A

at Bates Nos. 0190-0229 (Nezafati Report).

73. The EA makes no mention of, and the Section 408 Permit offers no analysis of, the impact

of the permit on the other purposes listed in the Flood Control Act of 1944, including stock


18

water, irrigation, navigation, industrial (including hydropower), or flood control.

AR0071298-AR0071363

74. The Tribe submitted its Preliminary Comments to the Environmental Impact Statement

(“EIS”) Notice dated January 18, 2017 and hand delivered to the Army Corps on January

19, 2017 as directed by the Army Corps. Wilson Decl., Ex. 4, at ¶ 2, Attachment A.

75. Those Preliminary Comments included an analysis of the publicly available records in the

Record, since the Corps had not yet released several documents to the Tribe, including the

Spill Risk Analysis and Environmental Justice Considerations Memorandum. Wilson

Decl., Ex. 4, Attachment A at Bates No. 0002.

76. The Preliminary Comments included analysis by Pipeline Engineers who analyzed the

publicly available documents and determined that the Dakota Access-drafted documents

understated the actual risks of an oil spill in Lake Oahe. Wilson Decl., Ex. 4, Attachment

A at Bates Nos. 0166 to 0167 (Envy Report).

77. The Envy Report concludes that there are several underestimated risks including:

a. This is the largest known oil pipeline crossing of this length under a fresh water lake in

the world, meaning it is unique. Wilson Decl., Ex. 4, Attachment A at Bates No. 0117.

b. The SCADA (supervisory control and data acquisition) and LDS (laser detection

systems) cannot detect leaks of less than 1% and because the pipeline is underground,

there is risk of contamination of water aquifers for the entire region before any oil spill

would be detected, which could never be remediated. Wilson Decl., Ex. 4, Attachment

A at Bates Nos. 0151-156.


19

c. The maximum number of barrels of oil that would be discharged is underestimated

because of human error factors not considered in the EA. Wilson Decl., Ex. 4,

Attachment A at Bates Nos. 0137-0138.

d. The ranking of risk in assessing the best alternative was flawed in many ways resulting

in an erroneously calculation that the Lake Oahe crossing site was the lowest impact

alternative. Wilson Decl., Ex. 4, Attachment A at Bates Nos. 0139-0146.

e. The risks of construction are greater at the Lake Oahe site because of the size of the

pipeline and the length of the HDD bore, and the EA and analysis fail to account for

this higher risk in any way. Wilson Decl., Ex. 4, Attachment A at Bates Nos. 0120 to

0121.

f. The EA fails to explain or evaluate the fact that remediation of an oil spill in a

freshwater lake can never fully capture all of the oil released. Wilson Decl., Ex. 4,

Attachment A at Bates Nos. 0136, 0150, 0156 to 0158, and 0166.

g. The EA fails to account for the fact that because of the HDD bore, there is a risk that

oil will leak for a long period of time before it is detected as it reaches the water

overlying the HDD bore, resulting in the EA underestimating the actual risk. Wilson

Decl., Ex. 4, Attachment A at Bates No. 0136.

h. This Lake Oahe Crossing is unique because there is not another known HDD crossing

of this length with this large of an oil pipeline anywhere in the world. Wilson Decl.,

Ex. 4, Attachment A at Bates No. 0117.

Injurious to Public Interest Facts


20

78. The Corps has an obligation under 33 U.S.C. § 408 to determine that the occupation of the

Project by DAPL “will not be injurious to the public interest and will not impair the

usefulness of such work” prior to approving the section 408 permit. 33 U.S.C. § 408.

79. The Corps’ Policy and Procedure Guide for Section 408 projects, EC1165-2-16, does not

permit the Corps to accept funds from oil pipeline developers because they are not public

utilities. EC 1165-2-216, Appendix G, § G-4(f). Congress and the Corps have already

determined that oil pipelines do not serve a public interest in prohibiting oil pipeline

developers from funding Section 408 permitting, stating, “[f]unding can only be accepted

and expended through Section 214 funding agreements to expedite a Section 408 review if

the proposed alteration serves a public purpose.” EC 1165-2-216, Appendix G, §G-4(c).

AR 0012846-0012915.

80. The Social and Economic analysis in the EA discusses the amount of money invested by

Dakota Access and jobs created by the oil industry – all of which are asserted and not

supported by any analysis. AR0071329-0071330.

81. The Social and Economic analysis in the EA gives no analysis of the negative impact of

the pipeline on downstream tribal populations in the event of an oil spill. AR0071329-

0071330.

82. The Social and Economic Analysis in the EA contains no analysis of negative impacts on

the seven authorized purposes of the Missouri River Mainstem System. AR0071329-

0071330.


21

III. Facts Related to Tribal Consultation.

The Corps Duty to Consult

83. The Corps is required to consult with Tribes “on a government-to-government basis on

matters that may have the potential to significantly affect protected tribal resources, tribal

rights, or Indian Lands…” Dep’t of Def. Instruction 4710.02, § 5.3.4. The Corps

Northwest Division Office reiterated the independent duty to Consult with Tribes subject

to treaties outside of the NHPA Section 106 process, stating “[f]or purposes of consultation

with Federally recognized tribes, the Corps must ensure that any activities subject to its

statutory authorities do not impair tribal rights, including but not limited to reserved water

rights and treaty fishing and hunting rights. NWO will work with districts to determine

which Federally recognized tribes may have interest in the proposal.” AR 0000757; See

also, AR 0000759 (requiring the Corps to engage in government to government

consultation to “ensure activities that require DA authorization do not impair treaty

rights”).

84. Department of Defense Components are required to “involve tribal governments early in

the planning process for proposed actions. . . . Early involvement means that a tribal

government is given an opportunity to comment on a proposed action in time for the tribal

government to provide meaningful comments that may affect the decision.” Dep’t of Def.

Instruction 4710.02 Section 6.6. Ducheneaux Decl., Ex. 2 at ¶ 3, Attachment B.

85. The administrative record for decision must “show that the Department of Defense has

given careful consideration to all the available evidence and points of view before making

a final decision.” Dep’t of Def. Instruction 4710.02 Enclosure 2, § E2.9. In addition, the

Corps Tribal Consultation Policy requires that consultation be an “[o]pen, timely,


22

meaningful, collaborative and effectively deliberative process that emphasized trust,

respect and shared responsibility,” and that “consultation works toward mutual consensus

and begins at the earliest planning stages, before decisions are made and actions are taken.”

Memorandum for Commanders, Directors, and Chiefs of Separate Offices, U.S. Army

Corps of Engineers: Tribal Consultation Policy, Dep’t of Army, Nov. 1, 2012 at Section

3.b.; Ducheneaux Decl., Ex. 2 at ¶ 3; Attachment C; ECF No. 24-7.

86. The Corps is required to “share information that is not otherwise controlled or classified

information” as part of the tribal consultation process. Id. at Section 5.b.(5).

87. Other Courts have held that Corps’ duty to consult on treaty rights and trust resources is a

binding obligation from flowing from treaties with Tribes and from the government’s

obligations as a fiduciary. Klamath Tribes v. United States, No. 96-381, 1996 WL 924509,

at *8 (D. Or. Oct.2, 1996), (USFS action to sell tribal timber without consulting with the

tribe violated its duty “to avoid adverse effects on treaty resources.”); Confederated Tribes

and Bands of the Yakama Nation v. U.S. Department of Agriculture, No. 10-3050, 2010

WL 3434091, at *4 (E.D. Wash. Aug.30, 2010) (USDA approval of landfill next to tribal

lands without consulting violated Yakama Treaty of 1855 and federal common law);

Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988) (preliminary

injunction against Corps permit authorizing marina that interfered with treaty rights).

Failure to Consult Prior to Issuance of the Draft EA FONSI, the Section 408 Permit, and the MLA Easement

88. The Corps knew of Dakota Access’ plans to cross Lake Oahe as early as September 23,

2014, when it started having bi-weekly meetings with Energy Transfer Partners employees.

AR 0000799.


23

89. Dakota Access stated that it intended to be in operation by end of the fourth quarter of

2016. AR0071156-57 (June 23, 2014 Email from Monica Howard, ETP employee,

expressing intent to be in operation by fourth quarter 2016); AR0001657-0001658 (July

29, 2015 email exchange between Danny McLendon to Monica Howard responding to

email pushing for PCN decisions within “the commercially required timeframe”, and

response from Corps that, “we need to close the loop on all these crossings so that we can

ensure that we are completing the administrative record in a defensible manner.”).

90. On or about March 24, 2015, Dakota Access sent an EA scoping letter to interested parties

to be consulted requesting comments on the Draft EA. In this scoping letter Dakota Access

instructed that comments were to be submitted directly to Dakota Access, not the Corps,

by March 15, 2015. AR0075287-0075289. This scoping letter was not sent to any Indian

tribe. AR0075281-0075283. The Corps provided Dakota Access with the list of persons

and entities that were to receive this scoping letter. AR0075274.

91. On September 18, 2015 Dakota Access submitted a revised EA to the Corps and included

new documents including for the first time a Lake Oahe Spill Model. AR0074087;

AR0074119-AR0074226.

92. On December 8, 2015, the Corps issued its Draft Environmental Assessment, Finding Of

No Significant Impact. AR0072460. Thereafter, on December 4, 2015, the Corps issued

a notice “seeking Tribal and public comments on the environmental assessment” for the

Lake Oahe DAPL project area. AR 0067166. Id.

93. Corps officials acknowledged in internal correspondence that the Corps had an obligation

to engage in government-to-government consultation with Indian tribes on the DAPL

project, and that as of November, 6, 2015, the Corps had not yet engaged in such


24

consultation. AR 0069197 (Corps internal email concluding, “We should not wait for

another agency determination to begin G2G [shorthand for government-to-government

consultation]. We have responsibilities and should act.”).

94. The Corps informed CRST THPO on November 19, 2015 that, “The DRAFT DAPL

Environmental Assessment (EA) is also ongoing. A first copy of the draft EA will be

distributed for Tribal, Federal and State Agency and public comments in mid-December

2015. It is our hope the draft EA will assist you with the Section 106 Review and address

any other concerns as well. The Corps contact for the DAPL EA is environmental Resource

Specialist, John Shelman…We will try to contact you in person to ensure you are aware of

the mailing and comment due dates for this draft.” AR0066830-0066831.

95. The Corps sent CRST a letter on November 20, 2016, addressed to the Cheyenne River

Sioux Tribal Chairman Harold Frazier, to notify the Tribe of an “(NHPA) Section 106

consultation meeting that will be taking place. We will be holding an initial consultation

meeting on 8 and 9 Dec at the Sheraton Hotel in Sioux Falls, South Dakota. …Energy

Transfer has covered the cost of lodging and will cover travel as well as providing

Breakfast and lunch…” AR0066820. The letter stated nothing about the Draft EA or

consulting on the draft EA. The Agenda for that December 8, 2016 meeting and notes for

that meeting indicated it was a one day meeting, and covered only NHPA Section 106

issues. AR0003354-0003357; AR0003193-0003194.

96. On February 4, 2016 the Corps sent a letter to Tribal Chairman Frazier indicating there was

a “follow up consultation meeting” on February 18-19, 2016 in Niobrara, Nebraska. It

mentions a January 25, 2016 “consultation meeting.” The letter goes on the conclude that

“your assistance is critical in the Corps determination on the effect of this project by


25

providing information or identification of all historic properties, including sites of religious

and cultural significance, or traditional cultural properties (TCP) that may be in the areas.”

AR 0069092-093. The transcript from January 25, 2016 meeting was hosted by Energy

Transfer Partners, and attended by Tribal Historic Preservation Officers. The subject

matter of the meeting was NHPA § 106 surveying. This meeting was not a tribal

consultation meeting with the Corps on trust resources. AR0066575-0066720. The

February 18-19, 2016 meeting was paid for by Dakota Access, LLC. AR0069092.

97. The Corps’ notes from the February 18-19, 2016 meeting demonstrate that Tribes were

told by Mahmoud, that DAPL “intends to start construction [of the Lake Oahe crossing]

regardless of whether tribal consultation is done or not.” AR0066390.

98. The Corps’ notes from the February 18-19, 2016 meeting also document that the Tribes in

attendance (including the CRST Tribal Historic Preservation Officer (“THPO”), who

attended because it was a continuation of an NHPA § 106 notice according to the Corps

written notice), raised concerns about oil spills, the need for the Corps to meet with CRST

at its tribal headquarters, that CRST had passed a resolution in opposition to the DAPL at

its present location, questioned the safety of the pipeline, and requested that an EIS be

prepared for the DAPL project. AR0068777-0068783.

99. In a “Question and Answer Sheet” sent by Colonel Henderson to Chairman Frazier on June

22, 2016, and sent by Martha Chieply, Corps’ Omaha District Regulatory Officer, to

Cheyenne River THPO Steve Vance on June 13, 2016;the Corps stated, “The Corps will

consider all comments received from the tribes and public and will address them in the

final EA and decision document.” AR 0067706.


26

100. An email from Martha Chieply in the Corps regulatory office to Corps Tribal Liaison Joel

Ames and other Corps officials dated January 12, 2016 verifies the Corps knew the NHPA

§106 meetings did not constitute the required consultation on the impacts to trust and treaty

rights required on the Draft EA as of January 12, 2016. (Email from Martha Chiepley

requesting “a consolidated way going forward for Section 106 and tribal trust

responsibilities and ensure Dakota Access is aware for both Regulatory 404 Section 106

compliance and the 408 process.”) Thereafter, the Corps never requested any Tribes to

consult with the Corps on the impact of the Lake Oahe crossing on trust resources. AR

0004383.

101. In granting the Section 408 permit, the Corps never consulted with Tribes prior to issuing

a Draft EA. In or about December 2015, the Corps issued a press release stating, “The

draft EA was available for public review online from December 9, 2015 to January 8, 2016.

In addition, the Omaha District conducted NHPA Section 106 consultation with Tribes,

Tribal Historic Preservation Offices, State Historic Preservation Offices and interested

parties to gather additional information prior to a decision being made.” “Dakota Access

Pipeline Final EA and FONSI released for ND Section 408 crossings” (July 28, 2016),

http://www.nwo.usace.army.mil/Media/News-Releases/Article /878649/dakota-access-

pipeline-final-ea-and-fonsi-released-for-nd-section-408-crossings/ (Press release noting

COE consulted with Tribes under Section 106 only). See also, AR0067589-0067590 (June

28, 2016 Letter from Colonel Henderson to Department of Interior Assistant Secretary of

Indian Affairs acknowledging Corps only sought “comments” prior to issuance of the EA.).

102. The Final EA, Section 7.0 lists “all individuals and agencies consulted during the

preparation of the EA…” AR 0071335. No Tribe is listed as a party that consulted


27

during the preparation of the EA. Id. Even a cursory review shows that numerous North

Dakota County and State agencies and federal agencies including NRCS and USDA, and

even private entities including Sierra Club and American Rivers in Washington, D.C. were

sent letters to consult, but no tribes were sent a letter.

103. The Cheyenne River Sioux Tribe requested consultation with the Corps on the potential

impact to its treaty rights, including its right to reserved waters in the Missouri River and

its property and natural resources, as early as March 23, 2015. AR 070574 (March 23,

2015 emails confirming call with Steve Vance, CRST THPO); AR 0070576 (March 19,

2015 Email confirming Cheyenne River THPO Steve Vance called and confirmed wants

to comment on the Project); AR 0066996 (Aug. 17, 2015 Letter from THPO Steve Vance

raising Section 106 concerns, oil spill risks, pipeline construction defects, and spiritual

concerns); AR 0066801 – 806 (Tribal Resolution No. 324-2015-CR requesting Corps

compliance with NEPA by conducting an EIS and initiating full consultation on more than

Section 106 and listing concerns with water intakes and treaty and trust resources); AR

0068777-0068783 (Documenting in public meeting notes from a February 18, 2016

meeting the CRST request to consult with Colonel Henderson at Tribal Council Chambers,

opposition to and request to consult on pipeline impacts on the Tribe in addition to cultural

surveys and documenting threat by DAPL representatives at the meeting that Tribes had to

complete survey s in a week or no tribal surveys would be permitted by DAPL); AR

0000283 (March 2016 Fact Sheet documenting CRST request to consult at Tribal

Headquarters); AR 0064357-359 (May 2, 2016 Ltr. from Chairman to Richard Harnois

reiterating tribal consultation request, concerns with DAPL including Section 106 concerns

and impact on tribal trust resources); AR 0064221 (May 19, 2016 letter to Col. Henderson


28

from Tribal Chairman Harold Frazier reiterating consultation request on more than Section

106 and reiterating verbal request first made in December 2015 meeting to meet with the

Tribal Council per Tribal protocol, and requesting the Bureau of Land Management be lead

on consultation because of Corps lack of a good faith effort to consult). AR 0064137 (June

3, 2016 Letter from Chairman Frazier to Colonel Henderson demanding tribal consultation

on the Draft EA as failing to meaningfully analyze issues without consultation or

environmental analysis).

104. The Corps did not respond to the Tribe’s requests to consult on its trust resources until June

2016. The Corps Tribal Liaison Joel Ames documented in emails that he tried to email

Tribal Chairman Frazier, and call him in February 2016, but Mr. Ames did not indicate in

these communications why he was attempting to contact Chairman Frazier. AR 066732.

105. In June 2015, the Corps met with DAPL representatives and discussed decision-making

matters, including pre-reviewing responses of the Corps to other agencies including United

States Fish and Wildlife Service (“USFWS”) and ACPH. AR 0000604; AR 0003173;

AR0001516 (documenting June 2015 meeting with Dakota Access, USFWS and Corps

and assigning Dakota Access to draft the Biological Assessment approach for agency

consideration based on the Enbridge pipeline model).

106. The Corps did not respond to requests by the Cheyenne River Sioux Tribe for access to the

information upon which the Corps had determined there would be no significant impact

resulting the DAPL construction until the Corps released part of the Administrative Record

to the Tribe in relation to this litigation on November 7, 2016. AR 0000282; AR 0066390.

107. On September 9, 2016, the Corps decided to withhold the authorization of an easement

under the Mineral Leasing Act (“MLA”) pending additional research into the Standing


29

Rock Sioux Tribe’s Treaty rights, the impact of an oil spill on tribal resources and rights,

and further review. ECF No. 6-3 at 215.

108. On November 14, 2016 Chairman Frazier received a letter from Jo-Ellen Darcy, Assistant

Secretary of the Army (Civil Works) stating that the Corps wanted to discuss conditions of

the proposed easement for crossing Lake Oahe. Frazier Decl., Ex. 3 at ¶ 16, Attachment

A.

109. On November 16, 2016 officers of the Army Corps met with representatives of the Great

Plains Tribal Chairpersons’ Association (GPTCA), including Chairman Frazier. Assistant

Secretary Darcy confirmed that the Corps’ November 14 letters to the Tribes constituted

an invitation to the tribes to provide any new information that the Tribes may have that was

relevant to the Corps’ consideration of the easement. Furthermore, she told the GPTCA

that her office, not the Omaha Regional Command, would be making the decision on the

easement. Frazier Decl., Ex. 3 at ¶ 17.

110. In response to this invitation to provide information concerning the easement, Tribal

Attorney Mark Van Norman arranged a meeting between Assistant Secretary Darcy and

the Cheyenne River Sioux Tribe to occur on December 9, 2016, at which the Tribe

proposed to provide the requested information. Frazier Decl., Ex. 3 at ¶ 18.

111. On December 2, 2016, Colonel Henderson met with members of the Standing Rock Sioux

Tribe and received technical information regarding the easement. The Cheyenne River

Sioux Tribe was not invited to this meeting and no Cheyenne River Sioux tribal leader

attended the meeting. Frazier Decl., Ex. 3 at ¶ 19.

112. The Corps issued a Memorandum on December 4, 2017 that determined that the Corps had

not released key documents to the Tribes including the Environmental Justice


30

Considerations Memorandum, the Lake Oahe Spill Model Discussion Report, and the

HDD Risk Analysis Report for Lake Oahe. ECF No. 65-1 at ¶ 14. The December 4, 2016

Memorandum further determined that the Corps would conduct an Environmental Impact

Statement (EIS). Id.at ¶ 12.

113. On December 9, 2016 Chairman Frazier, along with officials from other tribes, met with

the Corps, the Department of the Interior and the Department of Justice in Washington,

D.C. At this meeting tribal officials requested information concerning the proposed EIS

process. Assistant Secretary Darcy did not attend; instead she was represented by her

principle deputy, Lowry Crook. The Federal government officials would not provide detail

to the tribal officials, other than to reiterate what had been set forth in the December 4

Memorandum and to inform them that a notice regarding further action to be taken by the

Corps would be published in the Federal Register by the end of the year. Frazier Decl.,

Ex. 3 at ¶ 20.

114. The Corps published a Notice of Intent to Conduct an EIS in the Federal Register on

January 18, 2017. 82 Fed. Reg. 5543 (Jan. 18, 2017).

115. CRST submitted Preliminary Comment to the EIS Notice via hand delivery to the Corps

on January 19, 2017, including its Preliminary Expert Reports analyzing the actual risks to

the Tribe’s resources and assessment of the risk of reasonable alternatives to the best of the

Tribe’s ability without access to the key documents from DAPL that the Corps relied upon

in the Section 408 determination. Wilson Decl., Ex 4 at ¶ 2, Attachment A. Those

Preliminary Comments included requests for access to the key technical documents still

being withheld from the Tribe. Wilson Decl., Ex. 4 at ¶ 4.


31

116. On January 18, 2017, Chairman Frazier sent a letter to Assistant Secretary of the Army Jo-

Ellen Darcy stating that CRST must be included in the EIS process, and that CRST

requested to participate in the EIS process as a “Cooperating Agency.” Frazier Decl., Ex.

3 at ¶ 21, Attachment B.

117. On January 18, 2017 the CRST’s legal counsel emailed the Corps and requesting a

consultation meeting with the Assistant Secretary Darcy’s office. Wilson Decl. at ¶ 5. The

Corps official in the Corps’ Washington, D.C. office responded to the Tribe’s attorney that

their schedule was hectic, but the Corps would try to arrange a meeting the following week.

Wilson Decl., Ex. 4 at ¶ 5.

118. On January 19, 2017 CRST legal counsel asked for direction on a tentative date to meet so

the Tribe could make travel arrangements. The Corps tentatively agreed to a meeting on

January 26, 2017. Wilson Decl., Ex. 4 at ¶ 7.

119. On January 24, 2017, President Donald Trump issued an Executive Memorandum to the

Secretary of the Army directing the Army to issue the easement for DAPL within legal

authorities without conducting an EIS, without further analysis, and to waive the Corps

Policy of providing 14 days’ notice to Congress of the issuance of an easement. ECF No.

89-1.

120. CRST legal counsel emailed the Corps on January 25, 2017 to set up a time for a call. On

January 26, 2017, the Corps official sent an email canceling all calls with tribal leaders,

and directed CRST to contact the Omaha District Office. Wilson Decl., Ex. 4 at ¶ 8.

121. On January 27, 2017, CRST sent a written request for government-to-government

consultation on President Trump’s January 24, 2017 memorandum prior to an MLA


32

easement decision, and renewing the Tribe’s request for access to documents being

withheld. Frazier Decl. Ex. 3 at ¶ 22, Attachment C.

122. The Secretary of the Army issued a Memorandum to the Corps to comply with the

Executive Memorandum on January 31, 2017. ECF No. 91-1.

123. On February 1, 2017, CRST sent a letter to the Omaha District Office with a copy to the

Secretary of the Army requesting government to government consultation before issuance

of the proposed easement, and renewed the Tribe’s request for release of documents being

withheld by the Corps. Frazier Decl., Ex. 3 at ¶ 23, Attachment D.

124. On February 3, 2017, Colonel Henderson of the Omaha District sent a letter to Tribal

Chairman Frazier that requested the Tribe’s assistance in enforcing the Omaha District’s

decision to close public access to Corps lands north of the Standing Rock Reservation

where DAPL is crossing Lake Oahe, and in clearing the camp and its residents, citing

concerns about the “fragile ecosystem in this area” and to prevent “contamination of our

precious water resources.” The letter made no mention of the Chairman’s February 1, 2017

letter requesting to consult. Neither Colonel Henderson nor any other Corps official has

ever responded to the Tribe’s requests to engage in government to government consultation

before the issuance of the easement. Frazier Decl., Ex. 3 at ¶¶ 23 & 24, Attachment E.

125. On February 5, 2017, I emailed another Corps’ Official regarding the number of comments

submitted in response to the EIS Notice. Wilson Decl., Ex. 4 at ¶ 13.

126. On February 6, 2017, Mr. Owen replied to my email inquiry and stated that the Corps had

received over two hundred thousand email comments in response to the EIS Notice.

Wilson Decl., Ex. 4 at ¶ 14.


33

125. On February 7, 2017, the Corps and Secretary of the Army, without any prior notice to or

consultation with the Tribe, issued a Notice of Termination of the EIS Process, a

Memorandum providing Congress with only 24 hours’ notice of issuance of an easement

to DAPL, and a Memorandum of Decision to Issue an Easement to DAPL. ECF No. 95-

1, 95-2, and 95-3.

126. The Corps relied upon a February 3, 2017 Memorandum that was not included with the

DOJ filings with the Court on February 7, 2017. ECF No. 95-3.

127. On February 8, 2017, the Corps issued an easement to DAPL, ostensibly under the Mineral

Leasing Act (the “Easement”). ECF No. 96-1.

Facts Related to the Separate NHPA § 106 Consultation

128. The Corps only requested NHPA § 106 Consultation on cultural sites. AR 70663 (Feb. 17,

2015 Section 106 Ltr. To Steve Vance, THPO on NHPA § 106 consultation on PCN’s

issued under NWP and Section 404); ECF 19-3 at 2 (Sept. 3, 2015 Letter to Chairman

Frazier initiating Section 106 Review on PCNs and Section 404 after Surveys had already

begun, and Information Sheet attached at ECF 19-3 at 16, concluding if an individual

permit must issue, then “there will be an opportunity to comment on that section.”); AR

0066323 (documenting that a message was left with THPO Steve Vance requesting

government to government consultation, which would be consultation on Section 106 of

the NHPA in March 2016); AR 0064038 (July 8, 2016 Ltr. from Martha Chiepley to THPO

Steve Vance thanking him for calls and letters and interest in construction monitoring of

cultural sites); AR 006068 (July 12, 2016 Email response from THPO Steve Vance to Joel

Ames and Martha Chieply on construction monitoring notice and verbal call notes of


34

Martha Chieply offering to consult with the Tribe on cultural sites); ECF 21-18 (Martha

Chieply Notice of NHPA Section 106 meeting in Sioux Falls, South Dakota).

129. The Corps made its determination of No Significant Effect under Section 106 of the NHPA

on July 25, 2016. AR 0000709.

130. With respect to NHPA Section 106 consultation, the Corps noted its violations of the

NHPA Section 106 requirements that occurred in meetings with tribal officials funded and

hosted by Dakota Access in December 2015 and February 2016. AR 0066390; ECF No.

22-1 at 18, § 42(g) (Decl. of Joey Mahmoud that Dakota Access and Energy Transfer

Partners “funded and hosted” December and February meetings).

131. Dakota Access and the Corps refused to disclose information to Tribes that attended the

public meetings in December 2015 and February 2016. Specifically, the Corps noted in

email correspondence that Dakota Access employee Joey Mahmoud refused to disclose

information and engaged in inappropriate behavior towards the tribes including, “flat out

telling [Tribes] he has no intention of sharing his response plan”; “telling them he intends

to start construction regardless of whether consultation is done or not”; “their unwillingness

to allow for Tribal Monitors to be onsite during construction”; “forcing unrealistic

turnaround times on information requests”; “basically coming out and telling tribes he does

not care, he is starting construction and they are not going to hold him up”; and that “Tribes

need to end consultation if they want to do surveys.” AR 0066390.

132. At one meeting announced an NHPA Section 106 Meeting by the Corps, AR0066820, on

February 19, 2016, Energy Transfer Partners employee Monica Howard informed tribal

officials that, “any agreement for DAPL to pay for surveying and monitoring, etc. was tied


35

to [Tribes] notifying the federal agencies that no further consultation was needed from that

tribe.” AR 0066413.

133. Dakota Access paid for the December and February meetings, and “led” those meetings.

ECF 22-1, ¶ 42(g); AR 0001116.

134. At least one Corps employee commented on how inappropriate it was for the Corps to have

the Tribes meet with the project proponent as part of the NHPA Section 106 process. AR

0003167.

135. Tribes themselves notified the Corps they would not engage with Dakota Access in a

NHPA Section 106 consultation because that would be inappropriate. ECF No. 22-11 at

4, ¶ 14.

136. A Dakota Access representative sent email correspondence to the Corps on January 12,

2016, asking the Corps if it had scheduled meetings on Section 106 consultations and

asking, “when is a line going to be drawn so that this doesn’t continue to hold up the

approval process…” AR 004384. In a January 8, 2016 email from Joey Mahmoud to

Retired Brigadier General Robert Crear. Mahmoud states, “[a]s we suspected, the Native

American groups are trying to slow us down by requiring or wanting to survey the work

areas before they sign off, [sic] We [sic] are working with them, but we are not going to

agree to do what they want, which is going to create a conflict with USACE.” AR

0004387-88.

IV. Facts Related to the Corps’ Fiduciary Duty and the Tribe’s Treaty Rights and Trust Resources.

The Corps Fiduciary Duty

138. The rights of the Cheyenne River Sioux Tribe and its members’ treaty rights to hunt, fish,

graze livestock, access and use Lake Oahe, and extract minerals in the taken area are all


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subject to regulation by the United States Army Corps of Engineers. Act of September 3,

1954, Section VI & X, 68 Stat. 1192-93.

139. The United States has a fiduciary trust obligation to protect tribal treaty rights. Seminole

Nation v. United States, 316 U.S. 286, 297, 62 S.Ct. 1049, 1490 (1942); Muckleshoot

Indian Tribe v. Hall, 698 F. Supp. 1504, 1510–11 (W.D. Wash. 1988); ECF No. 22-42 at

4 (Colonel Henderson Letter to ACHP acknowledging “our trust responsibility…”).

140. The Corps of Engineers Master Manual states,

Native American reserved water rights are rights to divert water for a stream for beneficial use. When a Tribe exercise its water rights, these consumptive uses will then be incorporated as an existing depletion. …Further modifications to System operation, in accordance with pertinent legal requirements, will be considered as Tribal Water rights are exercised in accordance with applicable law.

Master Manual § E-06.3, Ducheneaux Decl., Ex. 2, Attachment A at p. 170.

Corps of Engineers regulation of the waters of Lake Oahe is pervasive. Id. The Water

Control Plan for Lake Oahe is an entire Volume, and there are seven Water Control Plans

for the entire Missouri River system, in addition to the Master Water Control Manual, that

govern regulation and operations and the waters of the Missouri River and Lake Oahe.

Master Manual § 1-02, Duchneaux Decl. Ex. 2, Attachment A at p. 21.

The Tribe’s Treaty Rights

The 1851 Fort Laramie Treaty

141. The Fort Laramie Treaty of 1851 was signed by the United States and representatives of

the Sioux, Cheyenne, Arapaho, Crow, Assiniboine, Mandan, and Arikara Nations. Treaty

of Fort Laramie with Sioux, Etc., Sept. 17, 1851, 11 Stat. 749 (Sep. 17, 1851) (hereinafter

the “1851 Fort Laramie Treaty”).


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142. Article 5 of the Fort Laramie Treaty of 1851 recognized the territories of the signatory

tribal nations and described the territory of the Sioux Nation as,

commencing [at] the mouth of the White Earth River, on the Missouri River; thence in a southwesterly direction to the forks of the Platte River; thence up the north fork of the Platte River to a point known as Red Bute [sic], or where the road leaves the river; thence along the range of mountains known as the Black Hills, to the headwaters of the Heart River; thence down the Missouri River to the place of beginning.” Id.

143. Article 5 of the Fort Laramie Treaty of 1851 recognized and affirmed that the signatory

tribal nations, including the Sioux Nation, “do not hereby abandon or prejudice any rights

any rights or claims they may have to other lands; and further, that they do not surrender

the privilege of hunting, fishing, or passing over any of the tracts of country heretofore

described.” Id. at 750.

The 1868 Fort Laramie Treaty

145. The 1868 Treaty of Fort Laramie was signed by the United States and bands of the Sioux

Nation and the Arapahoe on April 29, 1868. 15 Stat. 635. Treaty with the Sioux – Brule,

Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arc, and

Santee – And Arapahoe, 15 Stat. 635 (Apr. 29, 1868) (hereinafter “1868 Fort Laramie

Treaty”). It was ratified on February 16, 1869, and Proclaimed by the President of the

United States on February 21, 1869. Id.

146. Article 2 of the 1868 Treaty of Fort Laramie recognized and “set apart for the absolute and

undisturbed use and occupation” of the Sioux Nation the territory described as:

Commencing on the east bank of the Missouri River where the forty-sixth parallel of north latitude crosses the same, thence along the low-water mark down said east bank to appoint opposite where the northern line of the state of Nebraska strikes the river, thence west across said river, and along the


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northern line of Nebraska to the one hundred and fourth degree of longitude west from Greenwich, thence north on said meridian to a point where the forty-sixth parallel of north latitude intercepts the same, thence due east along said parallel to the place of beginning; and in addition thereto, all existing reservations on the east bank of said river…

15 Stat. 635.

147. Article 11 of the 1868 Fort Laramie Treaty recognized the reserved rights to hunt on any

lands north of North Platte, Nebraska, and on the Republican Fork of the Smoky River. 15

Stat. 635.

148. In Article 16 of the 1868 Fort Laramie Treaty, the United States agreed and stipulated that:

“the country north of the North Platte River and east of the summits of the Big Horn Mountains shall be held and considered to be unceded Indian territory, and also stipulates and agrees that no white person or persons shall be permitted to settle upon or occupy any portion of the same; or without consent of the Indians first had an obtained, to pass through the same;…”

15 Stat. 635.

149. In Article 1 of the 1868 Fort Laramie Treaty, the United States committed to the

punishment of “bad men among the whites, or among other people subject to the authority

of the United States” who “commit any wrong upon the person or property of the Indians.”

15 Stat. 634. The United States also bound itself to “reimburse the injured person for the

loss sustained.” Id.

150. Article 12 of the 1868 Fort Laramie Treaty provided,

No treaty of cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all adult male Indians, occupying or interested in the same.

15 Stat. 635.


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Statutes and Executive Orders Confirming the Tribe’s Treaty Rights.

151. An Executive Order issued by the President of the United States on March 16, 1875

extended the eastern border of the recognized territory of the Sioux Nation from the forty-

ninth parallel north along the east bank of the Missouri River to the south bank of the

Cannonball River. Charles J. Kappler, Indian Affairs: Laws and Treaties, Vol. I, p. 884.

152. Article 2 of the Act of February 28, 1877 included a navigational easement from the Sioux

Nation to the United States. 19 Stat. 254. Article 2 affirms that the Missouri River was

owned by the Sioux Nation. Id.

153. The Act of February 28, 1877 was never ratified by three-fourths of the adult male

population of the Sioux Nation, and therefore was a unilateral taking by the United States.

United States v. Sioux Nation, 448 U.S. 371, 384 (1980).

154. The Cheyenne River Sioux Indian Reservation was recognized in Section 4 of the Act of

March 2, 1889, and includes the lands and waters legally described as:

That the following tract of land, being a part of the said Great Reservation of the Sioux Nation, in the Territory of Dakota, is hereby set apart for a permanent reservation for the Indians receiving rations and annuities at the Cheyenne River Agency, in the said Territory of Dakota, namely: Beginning at a point in the center of the main channel of the Missouri River, ten miles north of the mouth of the Moreau River, said point being the southeastern corner of the Standing Rock Reservation; thence down said center of the main channel of the Missouri River, including also entirely within said reservation all islands, if any, in said river, to a point opposite the mouth of the Cheyenne River; thence west to said Cheyenne River, and up the same to its intersection with the one hundred and second meridian of longitude; thence north along said meridian to its intersection with a line due west from a point in the Missouri River ten miles north of the mouth of the Moreau River; thence due east to the place of beginning.

25 Stat. 888.


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155. Section 24 of the Act of March 2, 1889 required the consent of three-fourths of the adult

male population of the Sioux Nation and a proclamation by the President of the United

States for it to become law. 25 Stat. 888.

156. The effective date of the Act of March 2, 1889 was the date the President of the United

States issued a proclamation, as required under Section 24 of the Act, on February 10,

1890. 25 Stat. 888; 26 Stat. 1554.

157. Section 19 of the Act of March 2, 1889, 25 Stat. 888 reserved and continued in full force

and effect all provisions of the Treaty of Fort Laramie of 1868 not in conflict with the

provisions of the Act, specifically stating:

That all the provisions of the said treaty with the different bands of the Sioux Nation of Indians concluded April twenty-ninth, eighteen hundred and sixty-eight, and the agreement with the same approved February twenty-eighth, eighteen hundred and seventy-seven, not in conflict with the provisions and requirements of this act, are hereby continued in force according to their tenor and limitation, anything in this act to the contrary notwithstanding.

158. Section 28 of the Act of March 2, 1889 required the consent of three quarters of the adult

male population of the Sioux nation prior to enactment. Specifically, the Act stated:

That this act shall take effect, only, upon the acceptance thereof and consent thereto by the different bands of the Sioux Nation of Indians, in manner and form prescribed by the twelfth article of the treaty between the United States and said Sioux Indians concluded April twenty-ninth, eighteen hundred and sixty-eighth, which said acceptance and consent, shall be made known by proclamation by the President of the United States, upon satisfactory proof presented to him, that the same has been obtained in the manner and form required, by said twelfth article of said treaty; which proof shall be presented to him within one year from the passage of this act; and upon failure of such proof and proclamation this act becomes of no effect and null and void.

25 Stat. 888.

159. The Act of September 3, 1954 provided compensation to the Cheyenne River Sioux Tribe

for inundation of 104, 492 acres of the Cheyenne River Sioux Reservation by the Army


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Corps of Engineers resulting from the construction of the Oahe Dam. Pub. L. 83-776, 68

Stat. 1191 (“Oahe Taking Act”).

160. The Act of September 3, 1954 specifically reserved to the Tribe and its members the

following:

a. Hunting and fishing rights in and on the shoreline and in and on the reservoir, 68

Stat. 1193, Section X;

b. Mineral rights within the taking area to the eastern boundary of the Cheyenne River

Sioux Reservation, 68 Stat. 1192 , Section VI;

c. Rights to graze animals down to the low water mark of the reservoir, 68 Stat. 1193,

Section X;

d. Continued free access to the shoreline of the reservoir and to the reservoir, 68 Stat.

1193, Section X.

161. The rights of the Cheyenne River Sioux Tribe and its members to hunt, fish, graze

livestock, access the reservoir, and extract minerals in the taken area are all subject to

regulation by the United States Army Corps of Engineers. Act of September 3, 1954,

Section VI & X, 68 Stat. 1192-93.

162. The Cheyenne River Sioux Tribe has the right to regulate hunting and fishing by all persons

on lands above the exclusive flood pool plain on the Cheyenne River Sioux Reservation

just as if they were lands held in trust by the United States Department of Interior for the

benefit of the Tribe. The Water Resources Development Act of 1999 (“WRDA”) included

an Act that transferred all lands taken by the Corps under the Oahe Taking Act of 1954

within the Tribe’s reservation boundaries lying above the exclusive flood pool of Lake

Pahe, and all recreation areas to the Secretary of Interior in perpetuity for the Tribe, and


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restored Tribal jurisdiction over all persons on such lands to the “water’s edge.” Title VI

of the WATER RESOURCES DEVELOPMENT ACT OF 1999: CHEYENNE RIVER

SIOUX TRIBE, LOWER BRULE SIOUX TRIBE, AND STATE OF SOUTH DAKOTA

TERESSTRIAL WILDLIFE HABITAT RESTORATION ACT, Pub. L. 106-53, 113 Stat.

269, 395, § 606(f)(2)(B)(i).

163. While Congress transferred some lands within the lands taken by the Army Corps of

Engineers for construction of Lake Oahe that are outside of the boundaries of Indian

Reservations to the State of South Dakota under the Water Resources Development Act of

1999, such transfers were subject to the restriction that nothing in the Act “diminishes or

affects” …”any water right of an Indian tribe” or “any treaty right that is in effect on the

date of enactment of this Act.” Pub. L. 106-53, 113 Stat. 269, Section 607(a)(1) & (3).

A. Corps’ Failure to Consider the Tribe’s Treaty Rights and Trust Resources.

164. The Corps stated that it did not consider any treaty rights when it issued a Draft EA finding

no significant impact. Final EA, App. J at 17 (“treaty rights is beyond the scope of the

EA”) AR071774 at Comment 15(2)-8.

165. The EA did not analyze any impacts to the water intakes of the Cheyenne River Sioux

Tribe or any treaty protected or trust resources of the Tribe in the EA. AR 71220 – 84368.

The concerns of CRST that were submitted to the Corps were not included in the scoping

comments and responses listed in Appendix J to the EA. AR071774.


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V. The MLA Easement Decision 166. The Mineral Leasing Act (MLA) does not permit the Corps to approve an easement across

Lake Oahe if that easement is “inconsistent with the purposes of the reservation.” 30

U.S.C. § 185(b)(1).

167. The Corps is required to abide by all the provisions of the Mineral Leasing Act, including

the requirements that any easement include the provisions set forth in 30 U.S.C. §

185(h)(2).

168. Agencies must have regulations, or must include stipulations within each easement that

“protect the interests of individuals living in the general area of the right-of-way or permit

who rely on the fish, wildlife, and biotic resources of the area for subsistence purposes.”

30 U.S.C. § 185(h)(2)(D).

169. The Corps’ decision to issue an easement under the MLA was separate from its decision to

issue a Section 408 permit. AR 64275 (Email from Colonel Henderson to Brig. Gen.

Robert Crear dated April 29, 2016 setting forth “The second risk [apart from the permitting

process] is the ability to get the easement through [the Army Corps] and Congress.

170. Dakota Access was aware that the 408 permit was separate from the real estate easement

as early as April 20, 2016. AR 64278 (Mahmoud email to Brig. Gen. Crear that Dakota

Access needed “Lake Oahe 408 and real estate release.”); AR 5732 (May 11, 2016, Melissa

Hoerner email to Monica Howard stating “Remember that this Consent [referring to

easement for water crossing] is separate and distinct from the ‘Section 408’ permit.”).

171. On May 12, 2016, Dakota Access provided to the Army Corps of Engineers the signed

“Department Of The Army Consent To Cross U.S. Government Easement At Carlyle Lake

Fayette County, Illinois.” AR 13752-13759. That Easement specifically provides that the


44

grant of the Easement is separate from the “Section 408” permitting process. AR 13754,

¶ 6.

172. The Corps MLA Easement required Congressional notification under Corps Policies. AR

67472 (July 19, 2016, Martha Chieply email to Corps colleagues that the Lake Oahe

crossing requires Congressional notification).

173. And undated “Fact Sheet” from the Army Corps of Engineers identifies an “Outstanding

Issue” on the Dakota Access Pipeline project, stating that for “pipelines under the authority

of the Mineral Leasing Act . . . Congressional notification is required of the intent to issue

an easement. The time required for that notification and response is unknown at this time.”

AR 66748.

174. On July 19, 2016, Gary Lenz with the Army Corps of Engineers informed his colleagues

that the 408 permits for Dakota Access should issue on July 20, 2016. AR 67473.

175. On July 25, 2016, Larry Janis with the Army Corps of Engineers informed Joseph

Mahmoud with Energy Transfer Partners that,

I wanted to let you know that earlier today the Section 408 permission for the two Missouri River crossings (Lake Oahe and Lake Sakakawea) was signed by Colonel Henderson and delivered to our Real Estate division. The 408 package included the signed FONSI. As mentioned previously, you cannot begin work at either the Lake Oahe Crossing or the Lake Sakakawea flowage easement properties until an easement or consent to easement, respectively are signed by our chief of Real Estate. The easement for the Lake Oahe crossing also requires Congressional notification. Mr. Rick Noel, Chief of Civil Branch, Real Estate Division will be your point of contact for this part of the process.

AR 71215.


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176. On August 2, 2016, the Department of the Army Real Estate Contracting Officer Rick Noel

issued the “Department of the Army Corps Of Engineers Omaha District Consent To

Easement Structures” for the Dakota Access crossing at Lake Sakakawea. (ECF 66-3.)

177. Dakota Access’s legal counsel informed the Court that drilling under Lake Oahe could not

occur prior to the issuance of an easement. Ducheneaux Decl., Ex. 2 at ¶ 4, Attachment C,

(August 24, 2016 Hearing Transcript at 41:14-15).

178. On August 24, 2016, Army Corps of Engineers legal counsel Matthew Marinelli confirmed

to the Court that the easement had not yet been sent to Congress. ECF No. 105,

Ducheneaux Decl. Ex. 2, at ¶ 4, Attachment D, (August 24, 2016 Hearing Transcript at

40:8-10).

179. Army Corps of Engineers legal counsel Micheal Thorp informed this Court that the

easement was not granted on July 25, 2016. Ducheneaux Decl. Ex. 2, at ¶ 5, Attachment

E, (September 16, 2016 Hearing Transcript at 7:15-18; 8:12-15).

180. On September 9, 2016, the Department of Justice, the Department of the Army and the

Department of the Interior issued a joint press release stating that the Army will not allow

construction at the Lake Oahe crossing “until it can determine whether it needs to

reconsider any of its previous decisions regarding the Lake Oahe site.” ECF No. 42-1.

181. On November 14, 2016, the Army Corp of Engineers issued a Memorandum entitled

“Statement Regarding The Dakota Access Pipeline,” in which the Corps stated that

“additional discussion and analysis” on the issue of the Lake Oahe crossing had to occur

before an easement would issue. ECF No. 56-1.


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182. On December 4, 2016, the Corps issued a “Memorandum For Commander, U.S. Army

Corps of Engineers, SUBJECT: Proposed Dakota Access Pipeline Crossing at Lake Oahe,

North Dakota” (“December 4, 2016 Memo”). ECF No. 65-1.

183. In the December 4, 2016 Memo, the Army Corp of Engineers formally determined that it

needed further consideration of the Lake Oahe crossing pursuant to the National

Environmental Policy Act. Specifically, the December 4, 2016 Memo required a more

robust consideration and analysis of 1) alternative locations for the pipeline including but

not limited to the crossing north of Bismarck; 2) detailed discussion of potential risks of an

oil spill, and potential impacts on Lake Oahe and the Tribe’s treaty rights and water intakes;

and 3) additional information on the Tribe’s treaty rights. ECF No. 65-1 at ¶ 13, p. 4.

184. The December 4, 2016 Memo also encouraged the Corps to disclose previously withheld

documents for review and analysis by the Tribes and their experts, including the Lake Oahe

Spill Model Discussion Report, the Lake Oahe HDD Risk Analysis Report, and the DAPL

Route Consideration and Environmental Justice Considerations Memorandum. ECF No.

65-1 at ¶ 14, p. 4.

185. The December 4, 2016 Memo concluded that the more robust analysis required was best

accomplished through an Environmental Impact Statement process. ECF No. 65-1 at ¶ 12,

p. 4.

186. On January 18, 2017, the Army Corps filed in the Federal Register its “Notice of Intent To

Prepare an Environmental Impact Statement In Connection With Dakota Access, LLC’s

Request for an Easement To Cross Lake Oahe, North Dakota.” (“EIS Notice”). 82 Fed.

Reg. 5543-44 (Jan. 18, 2017).


47

187. The EIS Notice invited interested parties to provide information to the Army Corp relevant

to “issues, concerns and reasonable alternatives” to the placement of the pipeline at Lake

Oahe. It provided that comments would be accepted until February 20, 2017. 82 Fed. Reg.

5544.

188. On January 24, 2017, President Trump issued “Presidential Memorandum Regarding

Construction of The Dakota Access Pipeline.” (“Trump Memo”). ECF No. 89-1.

189. The Trump Memo directed the Corp to “review and approve in an expedited manner, to

the extent permitted by law” the easement for the DAPL to cross Lake Oahe. ECF No. 89-

1.

190. On January 31, 2017, the Corps issued its Memorandum entitled “Subject: Presidential

Memorandum- Construction Dakota Access Pipeline.” ECF No. 91-1.

191. On February 6, 2017, the Corps informed that Court that the January 31st memorandum did

not mean a final decision on the easement had been granted and the Corps would make its

decision “once a full review and analysis is completed.” ECF No. 91.

192. On February 7, 2017, the Army Corps filed in this Court a Notice of Termination of its EIS

Notice. ECF No. 95-3. The only justification given in the Notice of Termination of the

EIS Notice is the Trump Memo. Id.

193. On February 7, 2017, the Army Corps filed in this Court a February 3, 2017 “Memorandum

For Record, Subject: Compliance with Presidential Memo (January 24, 2017)” that sets

forth, in part, “in light of the fact that the Army has already prepared an EA/FONSI . . . I

have determined that there is no cause for completing any additional environmental

analysis.” ECF No. 95-2 at Heading No. 4, p. 3.


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194. On February 8, 2017, the Army Corps granted the easement for Dakota Access to cross

Lake Oahe. ECF No. 96.

195. 30 U.S.C. § 185 requires the Corps to consider and make determinations on questions not

answered by an EA required under NEPA. In particular, the Corps is required under 30

U.S.C. § 185(b) to determine that the easement “would not be inconsistent with the

purposes of the reservation.” 30 U.S.C. § 185(b).

196. On February 3, 2017 the Army Corps issued a Memorandum “SUBJECT: Dakota Access

Pipeline; USACE Technical and Legal Review for the Department of the Army”

(“February 3, 2017 Memo”). ECF No. 114-1.

197. The February 3, 2017 Memorandum was not publicly disclosed until the counsel for the

Corps filed it with this Court on February 13, 2016 as an Exhibit to its Response to the

Tribe’s Motion for a Temporary Restraining Order. ECF No. 95.

198. The February 3, 2017 Memorandum contains no discussion regarding: (1) the Cheyenne

River Sioux Tribe’s rights to consultation, or that any government-to-government

consultation occurred with the Tribe; (2) the Cheyenne River Sioux Tribe’s treaty rights

and trust resources and whether the Corps considered the impact on such rights; and (3)

the Cheyenne River Sioux Tribe’s January 19th submissions to the Corps as part of the EIS

and government consultation process. ECF No. 114-1.

199. The February 3 memo concludes that “The Corps has determined that the [July 25, 2016]

EA and FONSI, completed in July 2016, also satisfy the NEPA requirements for evaluating

the easement required for the DAPL to cross Corps-managed federal lands at Lake Oahe.”

February 3 memo at Section C.; ECF No. 114-1 at 10.


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198. In the Easement, the Term is listed as thirty years, but the easement also states it is a

“PERMANENT EASEMENT.” ECF 96-1. Cf. p. 1, ¶ 1 to p. 15 (describing Easement in

Title and in last sentence as a “Permanent Easement.”

199. The Mineral Leasing Act permits the United States to grant Easements for a period not to

exceed 30 years. 30 U.S.C. § 185(n).

200. Any regulation or stipulation imposing liability without fault shall include a maximum

limitation on damages commensurate with the foreseeable risks or hazards presented. Any

liability for damage or injury in excess of this amount shall be determined by ordinary rules

of negligence.

201. The MLA Easement issued only provides for 10 million in strict liability, with no

justification for limiting damages to this amount.

202. 30 U.S.C. § 185(x)(6) requires the Corps to include a “stipulation imposing liability

without fault shall include a maximum limitation on damages commensurate with the

foreseeable risks or hazards presented.”

203. The MLA Easement limits strict liability to the United States for ten million dollars, with

no reasoning for the limit, and waives strict liability for any act of “force majeure.” ECF

No. 96-1 at 7, ¶ 12(b).

204. 30 U.S.C. § 185(x)(1) requires the Corps to include a stipulation

specifying the extent to which holders of rights-of-way and permits under this chapter shall be liable to the United States for damage or injury incurred by the United States in connection with the right-of-way or permit. Where the right-of-way or permit involves lands which are under the exclusive jurisdiction of the Federal Government, the Secretary or agency head shall promulgate regulations specifying the extent to which holders shall be liable to third parties for injuries incurred in connection with the right-of-way or permit.


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205. The MLA easement issued by the Corps provides for no strict liability to any third parties

including Tribes, and provides no liability on affiliates or subsidiaries of Dakota Access,

LLC. ECF No. 96-1 at 7, ¶ 12(c).

Dated: February 22, 2017

CHEYENNE RIVER SIOUX TRIBE, Intervenor-Plaintiff, By: /s/ Nicole E. Ducheneaux

Nicole E. Ducheneaux Fredericks Peebles & Morgan LLP 3610 North 163rd Plaza Omaha, NE 68116 Telephone: (402) 333-4053 Facsimile: (402) 333-4761 Email: [email protected] Conly J. Schulte FREDERICKS PEEBLES & MORGAN LLP 1900 Plaza Drive Louisville, CO 80027 Telephone: (303) 673-9600 Facsimile: (303) 673-9839 Email: [email protected]


mailto:[email protected]

mailto:[email protected]

51

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of February, 2017, a copy of the foregoing

was filed electronically with the Clerk of the Court. The electronic filing prompted automatic

service of the filing to all counsel of record in this case who have obtained CM/ECF passwords.

/s/ Nicole E. Ducheneaux


in the united states district court for the district of … · 2017-02-23 · mahmoud, vice...

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