in the united states district court for the district of ... · 131-2 at 46-47. messineo decl.,...

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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 – Cross- Defendant. and DAKOTA ACCESS, LLC, Intervenor-Defendant – Cross-Claimant.

Case No. 1:16-cv-1534-JEB INTERVENOR-PLAINTIFF’S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD AND ALTERNATIVE MOTION TO CONSIDER DOCUMENTS OUTSIDE THE ADMINISTRATIVE RECORD

Intervenor-Plaintiff Cheyenne River Sioux Tribe (“Tribe”), a federally-recognized Indian

Tribe, respectfully moves this Court to supplement the Administrative Record with the following

documents:

1) Corps of Engineers’ Project Information Report on Cheyenne River Sioux Tribe

Cap Point Water Intake dated April 19, 2005. ECF 131-2 at 1-45. Declaration of

Joseph Messineo (“Messineo Decl.”), Exhibit A.

2) Corps of Engineers’ Cap Point Water Intake Budget Spreadsheet from Ted

Streckfuss, Corps of Engineers Project Manager, dated December 4, 2007. ECF

131-2 at 46-47. Messineo Decl., Exhibit B.

Case 1:16-cv-01534-JEB Document 220 Filed 05/04/17 of 29

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3) Cheyenne River Sioux Tribe’s Preliminary Informational Paper Concerning Dakota

Access LLC’s Request for an Easement to Cross Lake Oahe with attached expert

reports dated January 18, 2017 and hand delivered on January 19, 2017 is attached

hereto as Exhibit C. ECF 131-5. The hand-delivery signed receipt is set forth on

the last page of this document. It was signed for by Moira Kelley for delivery to

Gib Owen. Messineo Decl., Exhibit C.

4) January 18, 2017 letter from Chairman Harold Frazier to Assistant Secretary of the

Army for the Office of Civil Works, Jo-Ellen Darcy, requesting Cooperating

Agency status. ECF 131-5 at 103-105. Messineo Decl., Exhibit D.

5) Email chain communications between Rollie Wilson and Gib Owens regarding the

Tribe’s submission of Preliminary Comments with expert reports to the Corps.

Declaration of Rollie Wilson (“Wilson Decl.”), Exhibit A.

6) February 3, 2017 letter from Colonel Henderson, Corps Omaha District to

Chairman Harold Frazier. ECF 131-4 at 75-77. Messineo Decl., Exhibit E.

For the reasons set forth in the accompanying Memorandum of Law in Support of the

Motion, supplementation of the Administrative Record is proper. All of the documents were

delivered to decision makers in this case prior to February 3, 2017. The Cap Point Water Intake

documents were in the possession of the decision makers and were known to several decision

makers in this case including Joel Ames, Tribal Liaison, and Ted Streckfuss, Chief Engineer for

the Omaha District of the Corps of Engineers.

In the alternative, if the Court does not grant this Motion to Supplement the Record, the

Tribe requests that the Court grant a Motion to Consider Records Outside of the Administrative

Record for the reasons set forth in the Memorandum of Law in Support of the Motion.


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Finally, the Tribe respectfully moves this Court to consider the following extra-record

materials that are highly relevant to this case, and necessary for effective judicial review of the

agency’s action for the reasons set forth in the accompanying Memorandum of Law:

1) Steve Martin Declaration filed under Seal on February 22, 2017. ECF 132, Exhibit

1.

2) Hakan Bekar Declaration filed under Seal and dated February 22, 2017. ECF 132,

Exhibit 2.

3) Cap Point Water Intake Location Map filed and dated February 22, 2017. ECF

131-2 at 9-10. Messineo Decl., Exhibit F.

4) Cheyenne River Sioux Tribe Water System Project Costs filed on February 22,

2017. ECF 131-2 at 49-49. Messineo Decl., Exhibit G.

5) Intake Diversion Dam Modification, Lower Yellowstone Project Supplemental EA

Appendix H – Indian Trust Assets. ECF 208-1, Exhibit A. Messineo Decl., Exhibit

H.

6) Transcript of the Hearing on H.R. 5372 before the Subcommittee on Indian Affairs

of the Senate Committee on Interior and Insular Affairs, May 10, 1950. ECF 208-

1, Exhibit B. Messineo Decl., Exhibit I.

7) Transcript of Joint Hearing on S. 695 before the Subcommittee on Indian Affairs

of the Senate Committee on Interior and Insular Affairs and the Subcommittee on

Indian Affairs of the House Committee on Interior and Insular Affairs, May 20,

1954. ECF 208-1, Exhibit C. Messineo Decl., Exhibit J.

8) Transcript of the Joint Hearing on H.R. 2233 and S. 695 before the Senate

Committee on Interior and Insular Affairs and the Subcommittee on Indian Affairs


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of the House Committee on Interior and Insular Affairs, May 19, 1954. ECF 208-

1, Exhibit D. Messineo Decl., Exhibit K.

Pursuant to LCvR 7(m), the Tribe has met and conferred with counsel for the Corps and

Dakota Access. As of filing, the Corps has objected to this Motion generally. It may agree to

some of the documents, most notably the legislative history at numbers 6, 7 and 8 of the second

set of documents set forth above. Dakota Access takes no position on this motion until it can

review it.

The Corps filed the Administrative Record concerning its February 8, 2017 decision to

grant an easement to Dakota Access, LLC (“Dakota Access”) pursuant to 25 U.S.C. § 185 on

March 21, 2017 (“Easement Record”). ECF 181. The timing of the instant Motion is appropriate

as the Tribe properly withheld filing until it had concluded discussions with the Corps concerning

whether the agency would voluntarily supplement the Administrative Record to include the subject

documents. On April 12, 2017, the Corps notified the Tribe that it planned to supplement the

Administrative Record and that it wanted confirmation the ENVY Report that was part of the

Tribe’s January 19, 2017 submission to the Assistant Secretary of the Army Office of Civil Works

was actually delivered to the Corps. ECF 208-1, Exhibit E. Messineo Decl., Exhibit L. The Tribe

advised that the ENVY report had been hand delivered to the Pentagon on January 19, 2017

pursuant to instructions contained in the Corps’ Notice of Intent to conduct an EIS on the easement,

and the instructions provided in emails with the Corps Office of the Assistant Secretary of the

army Office of Civil Works. Id. See also, Wilson Decl., Exhibit A. Also on April 12, 2017, the

Tribe provided the Corps with an initial list of documents that should be included in the

supplement, including the five of six documents at issue in this Motion. Messineo Decl., Exhibit

M. The Corps did not respond substantively to the Tribe’s request until April 25, 2017, when it


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stated without explanation that it did not intend to include any of the documents in its planned

supplementation without explanation. Messineo Decl., Exhibit N. After the Tribe inquired further

on April 27, 2017, the Corps explained by email on May 2, 2017 that it would exclude the

requested documents as the documents “were not before the decision maker.” Id. Messineo Decl.,

Exhibit O. The Corps has not yet filed its planned supplementation of the Administrative Record.

WHEREFORE the Tribe prays this Court grant the relief requested herein.

Dated: May 4, 2017

CHEYENNE RIVER SIOUX TRIBE, Intervenor-Plaintiff, By: /s/ Nicole E. Ducheneaux

Nicole E. Ducheneaux, Pro Hac Vice 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]


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 – Cross- Defendant. and DAKOTA ACCESS, LLC, Intervenor-Defendant – Cross-Claimant.

Case No. 1:16-cv-1534-JEB (and Consolidated Case Nos. 16-cv-1796 and 17-cv-267) INTERVENOR-PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD AND ALTERNATIVE MOTION TO CONSIDER DOCUMENTS OUTSIDE THE ADMINISTRATIVE RECORD


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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION ................................................................................................................... 1

II. ARGUMENT ....................................................................................................................... 9

A. The Motion to Supplement the Record Should Be Granted............................................. 9

B. Reference to Extra-Record Materials in this Case Is Appropriate ................................. 13

III. CONCLUSION .................................................................................................................. 20

CERTIFICATE OF SERVICE ..................................................................................................... 21


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TABLE OF AUTHORITIES

Cases *Amfac Resorts, L.L.C. v. U. S. Dep’t. of Interior, 143 F.Supp.2d 7 (D. D.C. 2001) ............ 10, 14 Davis v. Pension Benefit. Guar. Corp., 815 F.Supp.2d 283 (D. D.C. 2011) ................................ 14 Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) .................................................. 14 *IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ........................................................... 14, 17 James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996).................................... 13 Oceana v. Evans, 384 F.Supp.2d 203 (D. D.C. 2005) .................................................................. 14 *Pac. Shores Subdivision, Cal Water Dist. v. U.S. Army Corps of Eng’rs,

448 F.Supp.2d 1 (D. D.C. 2006) ........................................................................................... 9, 14 United Student Aid Funds, Inc. v. Devos, No. 15-CV-01137, 2017 WL 728044

(D. D.C. Feb. 23, 2017) ...................................................................................................... 18, 19 Statutes 25 U.S.C. § 185 ............................................................................................................................... 3 30 U.S.C. § 185 ............................................................................................................................. 13 Rules Local Rule 7(h)(1)......................................................................................................................... 13


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I. INTRODUCTION

Intervenor-Plaintiff Cheyenne River Sioux Tribe (“Tribe”), a federally-recognized Indian

Tribe, respectfully moves this Court to supplement the Administrative Record with the following

documents:

1) Corps of Engineers’ Project Information Report on Cheyenne River Sioux Tribe

Cap Point Water Intake dated April 19, 2005. ECF 131-2 at 1-45. Declaration of

Joseph Messineo (“Messineo Decl.”), Exhibit A.

2) Corps of Engineers’ Cap Point Water Intake Budget Spreadsheet from Ted

Streckfuss, Corps of Engineers Project Manager, dated December 4, 2007. ECF

131-2 at 46-47. Messineo Decl., Exhibit B.

3) The Cheyenne River Sioux Tribe’s Preliminary Informational Paper Concerning

Dakota Access LLC’s Request for an Easement to Cross Lake Oahe with attached

expert reports dated January 18, 2017 and hand delivered on January 19, 2017 is

attached hereto as Exhibit C. ECF 131-5. The hand-delivery signed receipt is set

forth on the last page of this document. It was signed for by Moira Kelley for

delivery to Gib Owen. Messineo Decl., Exhibit C.

4) January 18, 2017 letter from Chairman Harold Frazier to Assistant Secretary of the

Army for the Office of Civil Works, Jo-Ellen Darcy, requesting Cooperating

Agency status. ECF 131-5 at 103-105. Messineo Decl., Exhibit D.

5) Email chain communications between Rollie Wilson and Gib Owens regarding the

Tribe’s submission of Preliminary Comments with expert reports to the Corps.

Declaration of Rollie Wilson (“Wilson Decl.”), Exhibit A.


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6) February 3, 2017 letter from Colonel Henderson, Corps Omaha District to

Chairman Harold Frazier. ECF 131-4 at 75-77. Messineo Decl., Exhibit E.

In the alternative, if the Court does not grant the Motion to Supplement the Record, the

Tribe requests that the Court grant a Motion to consider records outside of the Administrative

Record and consider these six (6) documents for the reasons set forth herein.

Finally, the Tribe respectfully moves this Court to consider the following extra-record

materials that are highly relevant to this case, and necessary for effective judicial review of the

agency’s action for the reasons set forth herein:

1) Steve Martin Declaration filed under Seal on February 22, 2017. ECF 132, Exhibit

1.

2) Hakan Bekar Declaration filed under Seal and dated February 22, 2017. ECF 132,

Exhibit 2.

3) Cap Point Water Intake Location Map filed and dated February 22, 2017. ECF

131-2 at 9-10. Messineo Decl., Exhibit F.

4) Cheyenne River Sioux Tribe Water System Project Costs filed on February 22,

2017. ECF 131-2 at 49-49. Messineo Decl., Exhibit G.

5) Intake Diversion Dam Modification, Lower Yellowstone Project Supplemental EA

Appendix H – Indian Trust Assets. ECF 208-1, Exhibit A. Messineo Decl., Exhibit

H.

6) Transcript of the Hearing on H.R. 5372 before the Subcommittee on Indian Affairs

of the Senate Committee on Interior and Insular Affairs, May 10, 1950. ECF 208-

1, Exhibit B. Messineo Decl., Exhibit I.


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7) Transcript of Joint Hearing on S. 695 before the Subcommittee on Indian Affairs

of the Senate Committee on Interior and Insular Affairs and the Subcommittee on

Indian Affairs of the House Committee on Interior and Insular Affairs, May 20,

1954. ECF 208-1, Exhibit C. Messineo Decl., Exhibit J.

8) Transcript of the Joint Hearing on H.R. 2233 and S. 695 before the Senate

Committee on Interior and Insular Affairs and the Subcommittee on Indian Affairs

of the House Committee on Interior and Insular Affairs, May 19, 1954. ECF 208-

1, Exhibit D. Messineo Decl., Exhibit K.

The Corps filed the Administrative Record concerning its February 8, 2017 decision to

grant an easement to Dakota Access, LLC (“Dakota Access”) pursuant to 25 U.S.C. § 185 on

March 21, 2017 (“Easement Record”).1 ECF 181. The Corps submitted the Easement Record in

two installments: The first installment included general documents comprising 8,224 pages.

USACE_ESMT000001-008244. The second, separately bates stamped, installment included

public comments received through February 15, 2017 on the website of the Corps of Engineers in

response to the Corps’ Notice of Intent to conduct an environmental impact study (“EIS”) on the

easement including 29,051 email files. Pub_Cmt 000001-029051.

In the midst of the Tribe’s review of the Record, on April 12, 2017, the Corps notified the

Tribe that it planned to supplement the Easement Record and that it wanted confirmation the

ENVY Report that was part of the Tribe’s January 19, 2017 submission to the Assistant Secretary

of the Army Office of Civil Works was actually delivered to the Corps. ECF 208-1, Exhibit E.

1 Pursuant to LCvR 7(m), the Tribe has met and conferred with counsel for the Corps and Dakota Access. As of filing, the Corps has objected to this Motion generally. It may agree to some of the documents, most notably the legislative history at numbers 6, 7 and 8 of the second set of documents set forth above. Dakota Access takes no position on this motion until it can review it.


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Messineo Decl., Exhibit L. The Tribe advised that the ENVY report had been hand delivered to

the Pentagon on January 18, 2017 pursuant to instructions contained in the Corps’ Notice of Intent

to conduct an EIS on the easement, and the instructions provided in emails with the Corps Office

of the Assistant Secretary of the Army Office of Civil Works. Id. See also, Wilson Decl., Exhibit

A. Also on April 12, 2017, the Tribe contacted the Corps in a separate correspondence to request

five of the six documents listed be included in the Corps’ planned supplementation of the record.

Messineo Decl., Exhibit M. The Corps notified Plaintiff by email on April 25, 2017 that it did not

intend to include any of the documents in its planned supplementation without explanation.

Messineo Decl., Exhibit N. The Corps stated by email on May 2, 2017 that the documents “were

not before the decision maker.” Messineo Decl., Exhibit O. The Corps has not yet filed its

supplemental Administrative Record in this matter.

On November 14, 2016, the Corps expressly directed the Tribe to communicate with the

Office of the Assistant Secretary of the Army for the Office of Civil Works with regard to the

Corps’ decision to grant or not grant the subject easement. ESMT000999; Messineo Decl., Exhibit

P. The Tribe followed this direction and filed a letter expressing concerns with that office on

December 6, 2016. ESMT000563-000564; Messineo Decl., Exhibit Q. Assistant Secretary Darcy

responded by letter on December 9, 2017 and stated in the letter, “We will keep the lines of

communication open and provide for direct interaction with Corps leadership whenever possible.”

ESMT000543; Messineo Decl., Exhibit R. Communications with the Office of the Assistant

Secretary from the Oglala Sioux Tribe and the Standing Rock Sioux Tribe that provided additional

information relevant to the easement decision were all included in the Easement Record. See,

ESMT 000611-000649; Messineo Decl., Exhibit S (December 3, 2016 Oglala Sioux Tribe Expert

Report and Letter expressing concerns); ESMT000466; Messineo Decl., Exhibit T (January 19,


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2017 letter from Assistant Secretary Darcy to Chairman of Standing Rock Sioux Tribe (“SRST”)

on tribal concerns); ESMT 000474-000499; Messineo Decl., Exhibit U (January 6, 2017 email

from Oglala Sioux Tribe to Assistant Secretary Darcy and others expressing tribal concerns and

requesting consultation); ESMT000532; Messineo Decl., Exhibit V (January 4, 2017 email from

Chairman Archambault, SRST, to Assistant Secretary of the Army Darcy on the EIS process). In

addition, the Tribe’s January 18, 2017 letter requesting to be a Cooperating Agency and its January

19, 2017 comments letter and accompanying reports were referenced in letters sent to Robert

Speer, Acting Secretary of the Army on January 27, 2017 (ESMT 000432-000454; Messineo

Decl., Exhibit W) and in the Tribe’s February 1, 2017 letter to Colonel Henderson of the Omaha

District, both of which were included in the Easement Record. ESMT 000362-000364; Messineo

Decl., Exhibit X.

The Corps’ Notice of Intent to prepare an EIS issued on January 18, 2017, that is included

in the Administrative Record, directed all parties to hand deliver, mail, or email their comments to

Mr. Gib Owen in the Office of the Assistant Secretary of the Army, Office of Civil Works.2

ESMT000467; Messineo Decl., Exhibit Y. The Tribe unquestionably complied with the Corps’

directions in delivering the documents and received confirmation of delivery. Wilson Decl.,

Exhibit A. Further, the Tribe confirmed the process for hand delivery of documents in a series of

emails the day the documents were delivered. Wilson Decl., Exhibit A. The Administrative

Record contains numerous communications about the EIS process, and with tribes on their

concerns. See, e.g., ESMT000470; Messineo Decl., Exhibit Z (January 17, 2017 email from

2 The Notice of Intent states: “You may mail or hand deliver written comments to Mr. Gib Owen, Office of the Assistant Secretary of the Army for Civil Works, 108 Army Pentagon, Washington, DC 200310-0108.. Advance arrangements will need to be made to hand deliver comments. . . . Comments may also be submitted via email to Mr. Gib Owen at [email protected].” ESMT 000467.



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Lowry Crooks to Jo-Ellen Darcy, Moira Kelley and Gib Owen among other Corps’ personnel on

EIS publication); ESMT000532; Messineo Decl., Exhibit V (January 5, 2017 email from Chairman

Archambault, SRST to Assistant Secretary of the Army Darcy on the EIS process); ESMT 000537;

Messineo Decl., Exhibit AA (December 15, 2016 notes from conference call with Great Plains

Tribal Chairman’s Association discussing EIS process and specifically noting the request by tribes

for direction on “how to place information in the administrative record.”).

When the Corps lodged the Administrative Record with this Court on March 21, 2017, it

included transmission to all parties of a copy of all “Public Comments” it received in response to

the Notice of Intent to Prepare an EIS. Pub_Cmt 000001-0029051. These “Public Comments”

include comments from members of the public (non-parties to this litigation) transmitted via email

pursuant the instructions set forth in the Corps’ Notice of Intent, but not the Tribe’s comments

transmitted via hand delivery pursuant to the instructions set forth in the Corps’ Notice of Intent.

Messineo Decl. Ex. C (last page); Messineo Decl Ex. Y; Wilson Decl. Ex. A. Remarkably, the

only documents that appear to have been excluded from the Easement Record of the tens of

thousands of pages of communications between the tribes and the public and the Corps’ Office of

the Assistant Secretary and the Corps’ Omaha District Commander and tribes are three

communications between the Cheyenne River Sioux Tribe and the Corps of Engineers at issue

here. They include the Tribe’s January 18, 2017 and January 19, 2017 letters addressed to the

Office of the Assistant Secretary for the Office of Civil Works, and the February 1, 2017 letter

from Colonel Henderson to the Tribe discussing the Dakota Access Camp closure and describing

the area as “ecologically sensitive.” ECF131-4; Messineo Decl., Exhibit E at 75-77; ECF 131-5;

Messineo Decl., Exhibits C & D. The January 18, 2017 letter and the January 18, 2017 preliminary


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comments were hand delivered to the Office of Civil Works on January 19, 2017 and signed for

by Moira Kelley. Messineo Decl., Exhibit D; ECF 131-5 at 234.

The Corps provides no explanation of how these documents are not before the decision

makers for the Corps, when they were filed as directed by the Corps in its Notice of Intent, were

filed with the offices they were directed to be filed with, and the Easement Record contains

comments from non-parties delivered by email as directed by the Corps in its Notice of Intent as

well as similar communications with the very same offices filed by other Plaintiffs in this litigation

including the Standing Rock Sioux Tribe and Oglala Sioux Tribe. At a minimum, if the Corps did

not consider these documents through its own negligence or error, then the documents should be

reviewed by this Court as extra-record documents for the reasons set forth in Section II.B. of this

Memorandum.

With respect to two Cap Point Water Intake documents, the Easement Record includes

documents in the possession of the Corps of Engineers describing the Standing Rock Sioux Tribe

Water Intake from June 17, 2003 and April 14, 2009. ESMT004150-004214, Messineo Decl.,

Exhibit BB; ESMT004024-004045, Messineo Decl., Exhibit CC. The Cap Point Water Intake

Project documents the Tribe has requested to include in the Easement Record were in the

possession of the Corps Omaha District Office and Office of Civil Works because both of these

divisions were involved in the creation of the Project Information Report and the Budget summary

the Tribe seeks to include in the Record, and the Cap Point Water Intake Project was constructed

by the Corps Omaha District Office. Messineo Decl., Exhibit A; ECF 131-2 at 1-47. Both Joel

Ames and Ted Streckfuss, in addition to the Office of the Assistant Secretary for Civil Works and

the Omaha District Commander’s Office, received correspondence on the Cap Point Water Intake

Project, and met with the Tribe repeatedly on the Cap Point Water Intake Project. Messineo Decl.,


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Exhibit A; ECF 131-2 at 42-49. Joel Ames has filed a Declaration in this matter with the Court,

and his participation in the entire decision making process is evident throughout the Administrative

Record. ECF 21-17. See, e.g. AR 0004383, Messineo Decl., Exhibit DD; AR066734, Messineo

Decl., Exhibit EE. Further, the entire Omaha District is well aware of the Cheyenne River Sioux

Cap Point Water Intake, as it is one of only three domestic water supply intakes on Lake Oahe,

and is specifically discussed in the Master Manual. Master Water Control Manual, Table E-3,

Section E-01.1.1.5, ECF 131-1 at 168-169. The individual assigned to the Cap Point Water Intake

who created the budget sheet the Tribe seeks to file and who managed the water intake project

while it was being constructed was Ted Streckfuss, who is currently the Omaha District Deputy

Engineer for Project Management and is the Chief of Programs and Project Management Division

as well. ECF 131-2 at 47; See also, TED H. STRECKFUSS,

http://www.nwo.usace.army.mil/Media/Bio-Article-View/Article/487938/ted-h-streckfuss (last

visited May 3, 2017). Further, the Corps’ Comments on the EA indicate the Corps provided water

intake locations and information to Dakota Access, and the Corps has incorporated them into the

spill risk assessment. AR0072266-0072267, Comment 6400959 and Response 2-0, Messineo

Decl., Exhibit FF.

Each of the eight (8) extra-record documents the Tribe seeks to have considered by the

Court and the six (6) documents subject to the Motion to Supplement, are material, and in fact

essential, to a full and fair review of the primary issues before the Court, namely: 1) whether the

mitigation measures in the easement actually fully mitigate the risks of an oil spill or, instead,

failed to consider important aspects of the problem with respect to the Tribe’s Cap Point Water

Intake, including impacts to the Tribe and communities served by the Cap Point Water Intake; 2)

whether the Corps failed to consider important aspects of the risk of oil spill and impact of oil spill


http://www.nwo.usace.army.mil/Media/Bio-Article-View/Article/487938/ted-h-streckfuss

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on the authorized purposes of the Lake Oahe project in the EA and easement decisions; 3) whether

the Corps failed to consult with the Tribe on impacts to its trust resources, including water supply,

in granting the easement and issuing the Section 408 permit; and 4) whether the Corps’ assertion

in this case that it has no fiduciary duty to protect trust resources is arbitrary and capricious based

on its prior statements and the legislative history of the laws governing the Tribe’s treaty and trust

resources. Four of the extra-record documents are dated after the Corps made its determination on

the easement on February 8, 2017, three of the documents are legislative history of the Oahe

Taking Act relevant to the Corps fiduciary obligations, and one is background material providing

the Corps’ prior positions taken on its fiduciary obligations in relation to trust resources. If the

Court does not grant the Motion to Supplement the Record, the six additional documents to be

included are dated before the Easement decision was made on February 8, 2017. For the reasons

set forth herein in Section II.B., consideration of all fourteen documents by the Court is appropriate

in this case.

II. ARGUMENT A. The Motion to Supplement the Record Should Be Granted

Supplementation of the Administrative Record is appropriate where the moving party

identifies “reasonable, non-speculative grounds for its belief that the documents were considered

by the agency and not included in the record.” Pac. Shores Subdivision, Cal. Water Dist. v. U.S.

Army Corps of Eng’rs, 448 F.Supp.2d 1, 6 (D. D.C. 2006). The Pacific Shores opinion explains

that a moving party should, “describe when the documents were presented to the agency, to whom,

and under what context.” Id. at 7. “[A] complete administrative record should include all materials

that, ‘might have influenced the agency’s decision,’ and not merely those on which the agency

relied in its final decision.” Amfac Resorts, L.L.C. v. U. S. Dep’t. of Interior, 143 F.Supp.2d 7, 12


10

(D.D.C. 2001) (internal citations omitted). If an agency decision is based upon the work of

subordinates, those materials should also be included in the administrative record. Id. In this case,

the January 18, 2017 letter requesting cooperating agency status and January 19, 2017 preliminary

comments and expert reports from the Tribe to the Corps’ Office of the Assistant Secretary for

Civil Works were delivered as instructed by the Corps of Engineers in the letter from Assistant

Secretary of the Army for the Office of Civil Works Darcy on November 14, 2016, confirming

letter on December 9, 2016, and the Notice of Intent to Issue an EIS. ESMT000999, Messineo

Decl., Exhibit P; ESMT000543, Messineo Decl., Exhibit R; ESMT000467, Messineo Decl.,

Exhibit Y. The expert reports were properly addressed to Gib Owen and hand delivered to Moira

Kelley with the Office of the Assistant Secretary of the Army, Office of Civil Works on January

19, 2017, who signed for the documents. ECF 131-5 at 234, Wilson Decl., Exhibit A; Messineo

Decl., Exhibit D. Gib Owen was the official within that office delegated responsibility to receive

Tribal comments and concerns. ESMT000467, Messineo Decl., Exhibit Y. The Tribe moreover

made specific arrangements with the Gib Owen to accept the comments, and Gib Owen

acknowledged receipt the following day. Wilson Decl., Exhibit A. In a series of emails, the Tribe

sought to arrange face-to-face consultation with the Office of the Assistant Secretary of the Army

to discuss the concerns and the documents files. Wilson Decl., Exhibit A. When the Corps’ Office

of the Assistant Secretary for Civil Works failed to follow up on the Tribe’s requests to meet over

the concerns and the two Tribal documents filed, the Tribe sent letters to the Acting Secretary of

the Army on January 27, 2017 and the Omaha District Commander on February 1, 2017—both of

which are part of the Administrative Record. ESMT 000362-000421, Messineo Decl., Exhibit X;

ESMT 000432-000436, Messineo Decl., Exhibit W.


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Further, the comments, expert reports, letters, and emails filed by other tribes with the

Office of the Assistant Secretary Office of Civil Works through January 19, 2017 were all included

in the Easement Record. See, e.g., ESMT000466, Messineo Decl., Exhibit T; ESMT 000474-

000499, Messineo Decl., Exhibit U; ESMT000532, Messineo Decl., Exhibit V. And outrageously,

comments from members of the public and non-parties to this litigation that were delivered via

email as instructed by the Notice of Intent, but not the Tribe’s hand-delivered comments as also

per instructions in the Notice of Intent, were included in the Easement Record. See Pub_Cmt

000001-0029051. Internal emails between Corps’ decision makers about the EIS process were

included in the Administrative Record and included emails within the Office of the Assistant

Secretary of the Army officials, most notably Gib Owen and Moira Kelley, a mere two days before

the Tribe hand delivered its two letters to the Office of the Assistant Secretary of the Army, Office

of Civil Works. ESMT000470, Messineo Decl., Exhibit Z. An email from Chairman Archambault

to Assistant Secretary Darcy dated January 5, 2017 and Assistant Secretary Darcy’s response to

the Chairman on January 19, 2017 are both part of the Administrative Record. ESMT000466,

Messineo Decl., Exhibit T; ESMT000532, Messineo Decl., Exhibit V. The Oglala Sioux Tribe’s

concerns emailed to the same office on January 6, 2017 are also part of the Administrative Record.

ESMT 000474-000499, Messineo Decl., Exhibit U; ESMT000466, Messineo Decl., Exhibit T. On

January 30, 2017, Corps’ officials responding to the Tribe’s request to be consulted prior to an

easement decision responded that the, “attached letter is properly coordinated up the chain of

command to Acting Secretary Speer and all other necessary parties including PTDO Assistant

Secretary of the Army (Civil Works) Mr. Douglas Lamont, and USACE Commander Lt. General

Todd T. Semonite, Chief of Engineers.” ESMT000420, Messineo Decl., Exhibit GG. This email


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confirms that the Office of Civil Works was still within the Chain of Command on the decision

making for the easement.

Given that all other communications filed with this office in the same timeframe were

included in the Easement Record, it simply defies logic that the documents filed by the Cheyenne

River Sioux Tribe with this same office, in the same time period, were not “before the decision

makers.” Messineo Decl., Exhibit O.

With respect to the February 3, 2017 letter from Omaha District Commander Colonel

Henderson to the Cheyenne River Sioux Tribe, Colonel Henderson is indisputably one of the

decision makers in this case. He signed the Section 408 Permit FONSI. AR0071182, Messineo

Decl., Exhibit HH. He met with the Standing Rock Sioux Tribe and directed the preparation of

some of the additional analysis on the easement decision. ESMT000368-000369, Messineo Decl.,

Exhibit II. The Tribe’s February 1, 2017 letter to Omaha District Commander Colonel Henderson

is included in the Easement Record, but not his February 3, 2017 letter to the Tribal Chairman.

ESMT000362, Messineo Decl., Exhibit W. Further, correspondence between the Corps and the

tribes regarding the Dakota Access prayer camps and Dakota Access project were included in the

Easement Record, with the exception of the February 3, 2017 letter. See, e.g., ESMT000953,

Messineo Decl., Exhibit JJ (November 25, 2016 letter from Tribe to Colonel Henderson on closure

of prayer camps); ESMT000563, Messineo Decl., Exhibit Q; ESMT000543, Messineo Decl.,

Exhibit R. The February 3, 2017 letter from Colonel Henderson to the Tribal Chairman contains

relevant, important statements from the decision maker on the Section 408 Permit and easement,

particularly statements concluding that the area just south of the Dakota Access Project is a “fragile

ecosystem” and that contaminated sediment runoff poses a “high risk of environmental impacts to

the waters of the Cannonball River.” Id., ECF 131-4 at 76-77. Further, it demonstrates that this


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decision maker ignored the Tribe’s consultation request of February 1, 2017, which was delivered

by Federal Express on February 2, 2017, and proceeded to continue to make decisions related to

the Dakota Access project without consulting with the Tribe or responding to tribal requests to

consult. ESMT000362, Messineo Decl., Exhibit W. It also demonstrates that the Corps failed to

consult with the Tribe because the Tribe requested reconsideration of the closure decision that is

the subject of the February 3, 2017 letter on November 25, 2016 by letter, and that November letter

is included in the Easement Record. ESMT000953, Messineo Decl., Exhibit JJ. Most importantly,

the February 3, 2017 letter was written by a decision maker in this case.

As the D.C. Circuit has explained, supplementation of the record is appropriate where an

agency has deliberately or negligently excluded documents that may have been adverse to its

decision. James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citing

Kent County v. EPA, 963 F.2d 391, 395-96 (D.C. Cir. 1992). Each of the six documents subject

to this Motion were in the actual possession of the Corps in the offices that were responsible for

decision making in this case. Each of the six documents are adverse to the Corps’ easement and

Section 408 permit decisions in this case. For this reason alone, supplementation of the

Administrative Record is appropriate.

B. Reference to Extra-Record Materials in this Case Is Appropriate

The Corps asserts this Court should not review documents outside the Administrative

Record cited by the Tribe. ECF 183 at 15, n. 8. Importantly, the Easement Record concerning the

30 U.S.C. § 185, Mineral Leasing Act decision was not filed until after the Tribe filed its Motion

for Summary Judgment. Every document cited by the Tribe in its Statement of Undisputed

Material Fact (“SUMF”) is now part of the Administrative Record, except for public information

regarding the Cheyenne River Sioux Tribe (SUMF ¶¶ 1-3), the size of the Cheyenne River Sioux


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Reservation (SUMF ¶ 5), and its location (SUMF ¶ 6); publicly available statutes and regulations

cited by both parties relevant to this case. (SUMF ¶¶ 24-31, ¶¶ 33-41, ¶ 138, ¶ 140, ¶ 151, ¶¶ 159-

163, ¶ 166, ¶¶ 199-205), and the documents that are the subject of this Motion.

While Local Rule 7(h)(1) generally provides that matters outside of the administrative

record are not considered by the court in cases brought under the Administrative Procedures Act

(“APA”), there are numerous exceptions to this rule. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d

275, 284-85 (D.C. Cir. 1981); Amfac Resorts, 143 F.Supp.2d at 11; see also IMS, P.C. v. Alvarez,

129 F.3d 618, 624 (D.C. Cir. 1997). These exceptions exist in APA cases, where a court’s review

of the facts must be “searching and careful” to ensure the agency action is “based on consideration

of the relevant factors.” Envtl. Def. Fund, Inc., 657 F.2d at 283. The exceptions applicable in this

case are: (1) there is such a failure of the agency to explain its action as to frustrate effective

judicial review; (2) when additional information is necessary to determine if the agency considered

all the relevant factors; and (3) where there is a strong showing of improper behavior or bad faith

by the agency. Amfac Resorts, 143 F.Supp.2d at 11. All three of these exceptions apply here.

This Court has explained that, “a court may need extra-record review to evaluate whether

an agency’s analysis of potential environmental impacts of a proposed action was arbitrary and

capricious.” Pac Shores Subdivision, 448 F.Supp.2d at 9. Review of extra-record documents is

warranted where such documents are necessary to examine an agency’s reasoning or methodology.

Oceana v. Evans, 384 F.Supp.2d 203, 217-218 (D. D.C. 2005). As the court explained in Davis v.

Pension Benefit. Guar. Corp, in complex cases that turn on complex scientific questions, extra-

record review is proper for the Court to have a method to “gauge the reliability of the agency’s

methodology.” 815 F.Supp.2d 283, 291 (D. D.C. 2011).


15

In the instant case, the Declarations of Steve Martin and Hakan Bekar, and the Tribe’s

January 19, 2017 comments including the Tribe’s expert reports, respond to the Corps’ assertion

that twenty of the additional conditions placed on the easement granted on February 8, 2017

eliminate and fully mitigate the risks and impacts of an oil spill. ECF 183 at 27. Without their

inclusion, because the Corps did not publish its easement conditions until February 8, 2017 when

it issued the easement, the Court would have no method by which to evaluate the Corps’ assertion

the 36 easement conditions mitigate all impacts and risks. Further, the specific documents on the

Cap Point Water Intake, including the Tribe’s Water System costs, the map showing the intake

location, and the Project Impact Report and Water Intake Budget (both the subject of the Motion

to Supplement), are necessary for the Court to evaluate whether the Corps’ assertion that its

mitigation measure including “shutting down certain intakes and utilizing others or different

drinking water sources or bottled water” actually mitigated the impact of an oil spill on the water

intakes and the communities served by them. AR0071262-0071263, Messineo Decl., Exhibit KK

(Environmental Assessment); see also ECF 183 at 28, n. 10 (asserting analysis of impacts on the

Standing Rock water intake applies to the Cheyenne River Water Intake); ECF 183 at 32, n. 12

(asserting 36 easement conditions mitigate the risk fully).

The Corps has offered no legally justifiable explanation for pulling the EIS notice or

excluding from the Record correspondence from the Tribe occurring in this process, yet included

in the Easement Record all communications from other tribes about this process and about their

concerns with the easement, and the impacts of an oil spill on tribal interests and rights. See, infra,

at Section I, page 3-4. The Court must have sufficient information in front of it to fully consider

whether the Corps’ methodology of excluding examination of the impacts of oil spill on the Cap

Point Water Intake, and whether its failure to assess the actual impacts of an oil spill on water


16

quality, wildlife, aquatic resources, and recreation resulted in an arbitrary and capricious decision.

Examination of the Bekar and Martin declarations and the Tribe’s expert reports filed on January

19, 2017 is necessary to examine whether the assessment of oil spill risk and the mitigating effect

of the easement conditions were arbitrary and capricious because they were wholly inadequate to

support the conclusions about risks and impacts reached by the Corps.

Examination of all of the materials is also necessary for the Court the assess whether the

Corps actually engaged in tribal consultation with the Cheyenne River Sioux Tribe as it claims, or

in fact, it ignored the Tribe’s concerns and evidence of impacts on the Tribe and violated its

consultation obligations as the Tribe claims. As fully set forth in Section II.A., the Corps directed

the Tribe to file its expert reports, concerns, and evidence related to the decision on whether to

grant an easement with the Office of Assistant Secretary Office of Civil Works. The Corps

directed the Tribe to submit the additional information it asked for in its November 14, 2016 letter

through the EIS Scoping process. ECF 131-4 at ¶ 17, ¶ 19 (Declaration of Harold Frazier

documenting Lowry Crooks informed the Tribe at a Great Plains Tribal Chairman’s Association

Meeting on December 9, 2107 requested by the Tribe that it would provide more information on

the next steps for tribes to submit concerns in late December). It informed the Tribe in a December

9, 2016 meeting that process would start by the end of December 2016. Id. The Tribe sent its

information to the Corps the day after the Corps issued the scoping notice–on January 19, 2017.

ECF 131-5.

The Tribe’s water intake information and the Tribe’s expert reports and communications

with the Corps are properly considered by the Court in assessing whether the Corps failed to

examine all of the relevant factors, failed to explain adequately its grounds for decision, and

engaged in improper behavior in withholding both the bases for its determination that the risk to


17

water intakes could be mitigated by providing bottled drinking water, and that the risk was low by

withholding the Facility Response Plans and the Oil Spill modeling. All of these factors, under

Alvarez make consideration of evidence of the actual impact on the Tribe and the risks of an oil

spill proper. Alvarez, 129 F.3d at 624; see also SRST Reply Brief, ECF 195 at 10. Further, the

documents demonstrate that, whether through negligence or bad faith, the Corps failed to actually

consider the impacts to the Cheyenne River Sioux Tribe by ignoring the Tribe’s absolute

dependence on its water intake as the sole available source of water for the entire Reservation and

ignoring the Tribe’s expert reports filed on January 19, 2017 when it knew the Tribe was wholly

and solely dependent on its one water intake because the Corps built the Cap Point Water Intake

and officials involved in that project were also involved in the Project. The documents also

demonstrate that the Corps had access to the Tribe’s expert reports, but chose to ignore them, while

subsequently and at the same time, considering documents filed in the same time by other tribes.

Information on the Tribe’s water intake in the Corps’ own 2005 Project Impact Report

demonstrate that the Corps knew the Tribe has no alternative water supply, and that it would cost

over 19 million dollars just to provide bottled water. ECF 131-2 at 19-20. Yet, the Corps endorsed

an EA that concludes adequate mitigation for water supply would be evaluated after the pipeline

is operational, and that “shutting down certain intakes and utilizing others or different drinking

water sources or bottled water will be evaluated as part of this process.” AR0071262-63, ECF

172-1 at 45-46; Messineo Decl., Exhibit KK. This demonstrates that the Corps failed to evaluate

an important aspect of the problem, and acted improperly in concluding that bottled water or

switching to other intakes mitigated the risk from an oil spill. Remarkably, the Corps includes in

the Easement Record information on the Standing Rock Sioux Tribe water intake it prepared in

2003. ESMT 004150–004214, Messineo Decl., Exhibit BB; ESMT004025-004045, Messineo


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Decl. CC. Yet, it excludes this same information it prepared on the Cheyenne River Sioux Tribe’s

water intake in 2005. The inclusion of one tribe and exclusion of another tribe’s information in

the Record is evidence of either bad faith or how arbitrary and capricious the Corps’ decision was.

The expert reports submitted on January 19, 2017 and the Declarations submitted under

seal on February 22, 2017 demonstrate important aspects of both risk of oil spill and impacts on

Lake Oahe that the Corps failed to consider, and failed to mitigate, and for that reason are properly

considered by the Court. Nothing in the Easement Record documents that the Corps or Dakota

Access assessed how an oil spill would impact the Tribe’s trust resources and water supplies.

AR0071262-0071263; AR0071267, Messineo Decl., Exhibit KK.

The Corps never responded to the Tribe’s numerous requests for access to the documents

that the Corps failed to disclose, including Appendix J to the EA, the Environmental Justice

Considerations Memorandum, the Spill Modeling, and the Facility Response Plan, until well after

July 25, 2016. ECF 65-1 at ¶ 14; ECF 131-4 at 6-8 (¶¶ 15-19, ¶ 22); ECF 131-4 at 10, 18-19. This

effectively precluded the Tribe from disputing Dakota Access’ assertions that the risk of oil spill

was low, and the impacts would be mitigated. All the Tribe had access to prior to December 2016

was the EA itself. To permit the Defendants to exclude the Tribe’s expert reports and information

on its Cap Point Water Intake now, particularly when the Corps itself asked for this information to

be submitted in its November 14, 2016 letter to the Tribe and its subsequent EIS Scoping Notice

issued on January 18, 2017, would unfairly allow the Defendants to hide the true risks and impacts.

Finally, review of this information is permitted where the Record is deficient of sufficient

information for the Court to determine what industry standard is, and what degree of deference is

due as a result thereof. As this Court found in United Student Aid Funds, Inc. v. Devos,

the overall lack of industry-focused evidence in the administrative record constitutes a ‘gross procedural deficiency’ that precludes effective review of


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Plaintiff's APA claims and thus warrants admission of extra-record evidence. . . . The 15 extra-record declarations that Plaintiff offers are relevant because the procedural validity of DOE’s action ‘remains in serious question’ even after submission of the administrative record.

United Student Aid Funds, Inc. v. Devos, No. 15-CV-01137, 2017 WL 728044, at *4 (D. D.C. Feb.

23, 2017) (internal citations omitted). Because the Corps’ decision relies exclusively on

documents drafted and submitted by Dakota Access, the Tribe’s expert reports (submitted to the

Corps as directed by the Corps before the granting of the easement), should be part of the Easement

Record, and should be reviewed to determine whether the Corps failed to consider important

aspects of the risk and actual impacts of oil spill in this case, and to determine whether the Corps

failed to consult with the Tribe on the impacts to its trust and treaty resources.3

The legislative history of the Oahe Taking Act set forth in Exhibits I, J and K attached to

the Declaration of Joseph Messineo filed contemporaneously herewith, and the Corps’ prior

positions on its fiduciary obligations to protect trust resources set forth in Exhibit H attached to

the Declaration of Joseph Messineo filed contemporaneously herewith, are properly before the

Court in this case, because these materials are essential to a determination of what the Corps’ duties

are with respect to tribal trust resources, and are essential to the Court’s review of whether the

Corps’ actions in determining it has no fiduciary obligations to protect the Tribe’s trust resources

in this case was arbitrary and capricious and not in accordance with the law. These are offered as

legal authority, not as facts, however, to the extent that the Court will consider them to be necessary

to the record to be considered, it is true that they are also essential to determining whether the

Corps failed to consider the heightened obligations it holds as trustee with respect to the Tribe’s

3 Without explanation, the Corps added the expert reports of every single tribe submitting such reports in December 2016 and January 2017 to the Easement Record, except for the reports of the Cheyenne River Sioux Tribe. ESMT 000611-000649, Messineo Decl., Exhibit S; ESMT 000474-000499, Messineo Decl., Exhibit U; ESMT000532, Messineo Decl., Exhibit V.


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specific rights guaranteed by statute under the Oahe Taking Act. In addition, the Corps’ own prior

position taken on its obligations to protect trust resources in the Intake Diversion Dam

Modification, Lower Yellowstone Project Supplemental EA Appendix H, is also offered as legal

authority, but further demonstrates bad faith on the part of the Corps in this case in an inexplicable

reversal of position on what its obligations are to safeguard trust assets. ECF 208-1, Exhibit A.

Messineo Decl., Exhibit H.

III. CONCLUSION For the reasons set forth herein, the Tribe respectfully requests that this Court grant its

Motion to Supplement the Record with the six documents listed and grant the Motion to Consider

Extra-Record Materials for the four additional documents. If the Court does not grant the Motion

to Supplement the Record, the Tribe respectfully requests that this Court alternatively grant a

motion to consider those six documents as extra-record materials.

Dated: May 4, 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]




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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 4th day of May 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 ... · 131-2 at 46-47. messineo decl.,...

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