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«IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STANDING ROCK SIOUX TRIBE Case No. P.O. Box D Building No. 1., North Standing Rock ...»

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Case 1:16-cv-01534 Document 1 Filed 07/27/16 Page 1 of 48

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE

Case No.

P.O. Box D

Building No. 1., North Standing Rock Avenue

COMPLAINT FOR DECLARATORY

Fort Yates, ND 58538,

AND INJUNCTIVE RELIEF

Plaintiff, v.

U.S. ARMY CORPS OF ENGINEERS

441 G Street NW Washington, DC 20314-1000, Defendant.

INTRODUCTION

1. This is a complaint for declaratory and injunctive relief. The Standing Rock Sioux Tribe (“Tribe”) brings this action in connection with federal actions relating to the Dakota Access Pipeline (“DAPL”), a 1,168-mile-long crude oil pipeline running from North Dakota to Illinois. The Tribe, a federally recognized American Indian Tribe with a reservation in North Dakota and South Dakota, brings this case because defendant U.S. Army Corps of Engineers (“Corps”) has taken actions in violation of multiple federal statutes that authorize the pipeline’s construction and operation. The construction and operation of the pipeline, as authorized by the Earthjustice 705 Second Ave., Suite 203 1 Seattle, WA 98104 (206) 343-7340 Case 1:16-cv-01534 Document 1 Filed 07/27/16 Page 2 of 48 Corps, threatens the Tribe’s environmental and economic well-being, and would damage and destroy sites of great historic, religious, and cultural significance to the Tribe.

2. This complaint involves two kinds of claims. First, the Tribe brings an as-applied challenge to Nationwide Permit 12 (“NWP 12”), issued by the Corps in 2012 pursuant to the federal Clean Water Act (“CWA”) and Rivers and Harbors Act (“RHA”). DAPL crosses hundreds if not thousands of federally regulated rivers, streams, and wetlands along its route.

The discharge of any fill material in such waters is prohibited absent authorization from the Corps. Federal authorization under these statutes, in turn, triggers requirements under the National Historic Preservation Act (“NHPA”), intended to protect sites of historic and cultural significance to Tribes like Standing Rock. In issuing NWP 12, however, the Corps authorized discharges into federal waters without ensuring compliance with the NHPA. In essence, in enacting NWP 12, the Corps pre-authorized construction of DAPL in allbut a handful places requiring federal authorization without any oversight from the Corps. In so doing, the Corps abdicated its statutory responsibility to ensure that such undertakings do not harm historically and culturally significant sites.

3. Second, on July 25, 2016, the Corps issued multiple federal authorizations needed to construct the pipeline in certain designated areas along the pipeline route. One such authorization allows DAPL to construct the pipeline underneath Lake Oahe, approximately half a mile upstream of the Tribe’s reservation. Others authorize the DAPL to discharge into waters of the United States at multiple locations in the Tribe’s ancestral lands. The Tribe brings this challenge because these authorizations were made in violation of the CWA and its governing regulations and without compliance with NHPA, and the National Environmental Policy Act (“NEPA”).

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4. The Tribe seeks a declaration that the Corps violated the NHPA in issuing NWP 12, and an injunction preventing the Corps from using NWP 12 as applied to DAPL and directing the Corps to ensure full compliance with § 106 at all sites involving discharges into waters of the United States. The Tribe further seeks a declaration that the July 25, 2016 authorizations were made in violation of the CWA, NEPA, and NHPA, and an order vacating all existing authorizations and verifications pending full compliance with the CWA, NEPA, and NHPA.

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5. This case states a claim under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“APA”), which authorizes a federal court to find unlawful and set aside any final agency action that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706. Jurisdiction arises under 28 U.S.C. § 1362 (“district courts shall have original jurisdiction all civil actions, brought by any Indian Tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States”); § 2201 (declaratory relief); § 2202 (injunctive relief).

6. Venue in this district is appropriate under 28 U.S.C. § 1391(e) because it is the district in which the defendant resides and in which “a substantial part of the events or omissions giving rise to the claim occurred.”

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7. The Standing Rock Sioux Tribe is a federally-recognized Indian tribe with a governing body recognized by the Secretary of the Interior. The Tribe is a successor to the Great Sioux Nation, a party to the two Treaties of Fort Laramie in 1851 and 1868. In those Treaties, the Sioux ceded a large portion of their aboriginal territory in the northern Great Plains, but

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reserved land rights “set apart for the absolute and undisturbed use and occupation” of the Indians.

8. The reservation established in the 1851 Treaty of Fort Laramie included extensive lands that would be crossed by the proposed pipeline. The Tribe has a strong historical and cultural connection to such land. Despite the promises made in the two Fort Laramie treaties, in 1877 and again in 1889, Congress betrayed the treaty parties by passing statutes that took major portions of this land away from the Sioux. In 1889, Congress stripped large portions of the Great Sioux Reservation that had been promised to the Tribe forever, leaving nine much smaller Sioux reservations, including Standing Rock. In the modern area, the Tribe suffered yet another loss of lands, this time in connection with the same Oahe dam and Reservoir. In 1958, the Corps took 56,000 acres of bottomlands on the Standing Rock reservation for the Oahe project without the Tribe’s consent or agreement.

9. Since time immemorial, the Tribe’s ancestors lived on the landscape to be crossed by the DAPL. The pipeline crosses areas of great historical and cultural significance to the Tribe, the potential damage or destruction of which greatly injures the Tribe and its members.

The pipeline also crosses waters of utmost cultural, spiritual, ecological, and economic significance to the Tribe and its members. The Tribe and its members have been, are being, and unless the relief sought herein is granted, harmed by the Corps’ failure to comply with environmental and historic preservation laws.

10. The U.S. Army Corps of Engineers is an agency of the United States government, and a division of the U.S. Army, part of the U.S. Department of Defense. It is charged with regulating any dredging and filling of the waters of the United States under § 404 of the CWA and § 10 of the RHA.

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11. By filing this action, the Tribe does not waive its sovereign immunity and does not consent to suit as to any claim, demand, offset, or cause of action of the United States, its agencies, officers, agents, or any other person or entity in this or any other court.

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12. Congress enacted the CWA in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the CWA prohibits the discharge of any pollutant, including dredged spoil or other fill material, into waters of the United States unless authorized by a permit. Id., § 1311(a). Unless statutorily exempt, all discharges of dredged or fill material into waters of the United States must be authorized under a permit issued by the Corps. Id., §§ 1344(a)–(e).

13. The Corps is authorized to issue two types of permits under § 404: individual permits and general permits. Id. The Corps issues individual permits under § 404(a) on a caseby-case basis. Id., § 1344(a). Such permits are issued after a review involving, among other things, site specific documentation and analysis, public notice and opportunity for a hearing, public interest analysis, and formal determination. 33 C.F.R. § 322.3; Parts 323, 325.

14. The CWA also authorizes the Corps to issue “general” permits on a state, regional or nationwide basis. 33 U.S.C. § 1344(e). Such general permits may be issued for any category of similar activities that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” Id. “No general permit … shall be for a period of more than five years after the date of its issuance.” 33 U.S.C. § 1344(e)(2). The purpose of this approach to permitting is to “regulate with little, if any, delay or paperwork certain activities that have minimal impacts.” 33 C.F.R. § 330.1(b).

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15. The Corps issued the current set of 48 nationwide permits (“NWPs”) in February of 2012. 77 Fed. Reg. 10184 (Feb. 21, 2012). The 2012 NWPs in “most cases” authorize discharge into regulated waters without any further process involving the Corps. In effect, the NWP pre-authorizes certain categories of discharge, without any additional approval from, or even notification to, the Corps. 33 C.F.R. § 330.1(e)(1). In other instances, discharges cannot occur until the proponent of the action files a “pre-construction notification” (“PCN”) to the Corps, and receives verification that the proposed action is consistent with the terms of the NWP.

Id. § 330.6(a). The specifics of whether or not a PCN is required are spelled out in each individual NWP as well as a series of “general conditions” accompanying the NWP. 77 Fed.

Reg. at 10282 (listing 31 general conditions).

II. THE RIVERS AND HARBORS ACT

16. The Rivers and Harbors Act of 1899 is the nation’s oldest environmental law.

The statute prohibits a number of activities that impair ports, channels and other navigable waters. Unlike the CWA, which applies in all waters of the United States, the RHA applies only in “navigable” waters, defined as waters subject to the ebb and flow of the tides, or waters that are “presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4.

17. Section 10 of the RHA, 33 U.S.C. § 403, among other things, makes it unlawful “to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of” any navigable water without a permit from the Corps. Like § 404 permits, § 10 permits may be issued as individual permits or pursuant to the NWP program and are generally subject to many of the same regulations.

18. Tunneling under a navigable water requires a section 10 permit from the Corps, even without any discharge into navigable waters. 33 C.F.R. § 322.3(a) (“For purposes of a

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section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capacity of the waterbody.”).

19. A separate provision of the RHA, known as “Section 408,” makes it unlawful to “build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States” without a permit from the Corps. 33 U.S.C. § 408. Unlike Section 10 permits, § 408 permits cannot be issued pursuant to the NWP program but are only issued as individual permits. Prior to issuance of a § 408 permit, the Corps must determine whether the use or occupation will be injurious to the public interest or impair the usefulness of the project.

III. THE NATIONAL HISTORIC PRESERVATION ACT

20. Section 106 of the National Historic Preservation Act (“NHPA”) requires that, prior to issuance of a federal permit or license, federal agencies shall take into consideration the effects of that “undertaking” on historic properties. 54 U.S.C. § 306108. Agencies “must complete the section 106 process prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” 36 C.F.R. § 800.1.

21. The NHPA defines undertaking as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including— (1) those carried out by or on behalf of the Federal agency; (2) those carried out with Federal financial assistance; (3) those requiring a Federal permit, license, or approval; and (4) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” 54 U.S.C. § 300320; 36 C.F.R. § 800.16(y).

22. Early in the NHPA process, an agency must determine the area of potential effects (“APE”) of a federal undertaking. 36 C.F.R. § 800.4(1)(1). The APE is defined by regulation to

–  –  –

include the area “within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties…. The [APE] is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Id.

§ 800.16(d).



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