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Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 1 of 31
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Plaintiffs,
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`STANDING ROCK SIOUX TRIBE, et al.,
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` and
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`CHEYENNE RIVER SIOUX TRIBE, et al.,
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`Plaintiff-Intervenors,
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`
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`v.
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`Civil Action No. 16-1534 (JEB)
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`U.S. ARMY CORPS OF ENGINEERS,
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`Defendant,
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` and
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`DAKOTA ACCESS, LLC,
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`Defendant-Intervenor.
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`MEMORANDUM OPINION
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`Just like the Dakota Access Pipeline, which meanders over hill and dale before carrying
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`its crude oil underneath Lake Oahe — a large reservoir on the Missouri River between North and
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`South Dakota — the current litigation has wound its way through myriad twists and turns. Last
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`year, in a hard-earned victory for the American Indian Tribe Plaintiffs whose reservations lie
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`nearby, this Court found that Defendant U.S. Army Corps of Engineers had violated federal law
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`by failing to produce an Environmental Impact Statement before granting Defendant-Intervenor
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`Dakota Access, LLP an easement to run the pipeline under Lake Oahe. The Court subsequently
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`vacated that easement and ordered the pipeline emptied of oil until the Corps could complete the
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`federally mandated EIS.
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`Wasting no time, both Dakota Access and the Government promptly appealed to the D.C.
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`Circuit. In a partial win for the Tribes, the Court of Appeals affirmed the two central elements of
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`this Court’s rulings — specifically, that the Corps should have prepared an EIS and that the
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`easement was properly vacated in the interim. The Circuit thus confirmed that the pipeline was,
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`in legal speak, an unlawful encroachment on federal land.
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`It was there, however, that the Tribes ran out of luck. Prior to the cessation of any oil
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`flow, the Circuit stayed and eventually reversed the aspect of this Court’s order shutting down
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`the pipeline, reasoning that it had not made the necessary findings for what was essentially
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`injunctive relief. In other words, although vacatur of the easement rendered the pipeline an
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`encroachment on federal property, vacatur could not itself bring about the stoppage of oil. For
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`that to occur, the Court of Appeals clarified, this Court needed to conduct an additional, distinct
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`inquiry, a component of which requires the Tribes to demonstrate that — among other things —
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`they will likely suffer irreparable harm in the absence of an order closing the pipeline.
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`As a result, for all of the headlines and controversy that this litigation has spawned, its
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`tangible consequences for the pipeline itself have been few. Even though this Court vacated the
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`easement for DAPL to cross beneath Lake Oahe, and even though the D.C. Circuit affirmed such
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`vacatur, the pipeline has maintained operations as if none of these developments had occurred.
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`Those seeking an explanation for the persistence of this surprising state of affairs over the past
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`ten-odd months need look no further than the Defendant in this case: the Corps.
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`Ever since this Court’s vacatur order in July 2020, and across two presidential
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`administrations, the Corps has conspicuously declined to adopt a conclusive position regarding
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`the pipeline’s continued operation, despite repeated prodding from this Court and the Court of
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`Appeals to do so. On the one hand, the agency has refrained from exercising its enforcement
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 3 of 31
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`powers to halt Dakota Access’s use of the pipeline, notwithstanding its status as an unlawful
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`encroachment. At the same time, however, neither has the Corps affirmatively authorized the
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`pipeline’s occupation of the area underneath Lake Oahe per the process contemplated in its
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`internal procedures. Its chosen course has instead been — and continues to be — one of
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`inaction. Such indecision, it is important to note, does not stem from a lack of time. Nor from a
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`lack of attention. Whatever the reason, the practical consequences of the Corps’ stasis on this
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`question of heightened political controversy are manifest: the continued flow of oil through a
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`pipeline that lacks the necessary federal authorization to cross a key waterway of agricultural,
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`industrial, and religious importance to several Indian Tribes.
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`Those Tribes thus find themselves forced to return to this Court to seek what they have so
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`far been unable to obtain from the Government: an order halting pipeline operations until the
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`Corps completes its new EIS. Before the Court may grant them such relief, however, binding
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`caselaw requires that the Tribes make an evidentiary showing far beyond anything the Corps
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`needs to itself shut down DAPL. As previously mentioned, they must demonstrate a likelihood
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`of irreparable injury from the action they seek to enjoin — to wit, the pipeline’s operation. For
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`the reasons articulated in this Opinion, Plaintiffs have not cleared that daunting hurdle.
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`The Court acknowledges the Tribes’ plight, as well as their understandable frustration
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`with a political process in which they all too often seem to come up just short. If they are to win
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`their desired relief, however, it must come from that process, as judges may travel only as far as
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`the law takes them and no further. Here, the law is clear, and it instructs that the Court deny
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`Plaintiffs’ request for an injunction.
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`3
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 4 of 31
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`I.
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`Background
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`The Court has recounted the factual and procedural history underlying this litigation on
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`numerous occasions since it commenced in the summer of 2016. Eleven Opinions later, the
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`Court need relate only information necessary to set the stage for the present Motion; it refers
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`readers hungry for more to its prior writings. See, e.g., Standing Rock Sioux Tribe v. U.S. Army
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`Corps of Eng’rs (Standing Rock III), 255 F. Supp. 3d 101, 114–16 (D.D.C. 2017); Standing
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`Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock VII), 471 F. Supp. 3d 71, 77–78
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`(D.D.C. 2020).
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`A. Pre-Vacatur
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`This case began as an effort by several Tribes to halt the construction — and eventually
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`the operation — of DAPL. The pipeline carries crude oil from North Dakota to Illinois along a
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`1,200-mile path, a small segment of which runs deep beneath Lake Oahe. Standing Rock Sioux
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`Tribe v. U.S. Army Corps of Eng’rs (Standing Rock VI), 440 F. Supp. 3d 1, 9 (D.D.C. 2020).
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`An artificial reservoir created in 1958 following a congressional taking of land from the Standing
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`Rock Sioux Tribe and the Cheyenne River Sioux Tribe, the “lake” supplies the Tribes with
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`drinking water and supports myriad other critical functions. Id. at 9–10.
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`Given that no permit is generally required for oil pipelines traversing private land, the
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`legal dispute here has largely fixated on that relatively small segment buried under Lake Oahe.
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`After an initial pair of failed bids to enjoin the pipeline’s construction and operation under two
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`federal statutes irrelevant to the present Motion, the Tribes finally pinned their hopes on the
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`National Environmental Policy Act. Id. at 10–11. Under NEPA, agencies must “consider every
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`significant aspect of the environmental impact of a proposed action,” Balt. Gas & Elec. Co. v.
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`NRDC, 462 U.S. 87, 97 (1983) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 5 of 31
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`519, 553 (1978)), so as to “inform the public that it has indeed considered environmental
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`concerns in its decisionmaking process.” Id. (citing Weinberger v. Catholic Action of Haw., 454
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`U.S. 139, 143 (1981)). Agencies must draft an Environmental Assessment, see 40 C.F.R.
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`§ 1501.4(b), that “[b]riefly provide[s] sufficient evidence and analysis for determining whether
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`to prepare an environmental impact statement [EIS] or a finding of no significant impact
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`[FONSI].” Id. § 1508.9(a). “If any ‘significant environmental impacts might result from the
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`proposed agency action[,] then an EIS must be prepared before agency action is taken.” Grand
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`Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717
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`F.2d 1409, 1415 (D.C. Cir. 1983)); see also 42 U.S.C. § 4332(2)(C). In order to determine
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`whether an action may have “significant” environmental impacts, an agency must consider —
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`among other criteria — “[t]he degree to which the effects on the quality of the human
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`environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4).
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`In its EA, the Corps concluded that no EIS was necessary before issuing Dakota Access a
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`couple of necessary authorizations — a permit for DAPL’s placement at Lake Oahe under the
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`Rivers and Harbors Act, 33 U.S.C. § 408, and an easement to cross beneath the lake under the
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`Mineral Leasing Act, 30 U.S.C. § 185 — on July 25, 2016, and February 8, 2017, respectively.
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`Standing Rock VI, 440 F. Supp. 3d at 10; Standing Rock III, 255 F. Supp. 3d at 114, 116; ECF
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`No. 183-9 (Section 408 Decision Package) at ECF pp. 3–4, 6–7; ECF No. 172-11 (Easement).
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`The Tribes argued that the Corps’ failure to require an EIS before granting those approvals
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`violated NEPA. Standing Rock VI, 440 F. Supp. 3d at 11. Following a 2017 decision in which
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`this Court remanded the matter to the agency for additional evaluation, see Standing Rock III,
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`255 F. Supp. 3d at 112, the Court in March 2020 finally agreed that the Corps should have
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`prepared an EIS before conferring the easement. Standing Rock VI, 440 F. Supp. 3d at 8, 17
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 6 of 31
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`(finding “unresolved scientific controversy” that confirmed “necessity of an EIS”). It thus
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`granted summary judgment to Plaintiffs and remanded for the agency to complete one. Id. at 26.
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`Such NEPA violation established, the question then became what to do about the
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`easement during the time necessary to prepare an EIS. This Court provided the answer on July
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`6, 2020, when it vacated such easement and ordered that the pipeline be emptied of oil during the
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`remand process. Standing Rock VII, 471 F. Supp. 3d at 88; see also id. at 79 (noting that vacatur
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`is “the ‘standard remedy’ in this Circuit for an ‘action promulgated in violation of NEPA’”)
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`(quoting Humane Soc’y of U.S. v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007)). Although it
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`acknowledged that “at least some immediate harm to the North Dakota oil industry should be
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`expected from a DAPL shutdown,” the Court determined that the “seriousness of the Corps’
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`NEPA error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its
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`economic risk knowingly, and the potential harm each day the pipeline operates” collectively
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`outweighed such negative economic effects. Id. at 84, 88. The legal effect of vacating the
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`easement was to render the pipeline an “encroachment” on federal land. Id. at 87; see also ECF
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`No. 562-4 (8/17/20 Ltr. from Corps to Dakota Access) at ECF p. 2 (explaining that, following
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`Court’s remedy order, “the portion of the pipeline subject to the vacated easement is no longer
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`considered by the Corps as an active easement, and its status has been changed to an
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`encroachment on the Corps-managed federal land at Lake Oahe”). As for vacatur’s practical
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`effect, the Court “require[d] the oil to stop flowing and the pipeline to be emptied within 30
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`days.” Standing Rock VII, 471 F. Supp. 3d at 88.
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`B. Post-Vacatur
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`Displeased with that outcome, Dakota Access and the Corps promptly noticed their
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`appeals. See ECF Nos. 548, 557. Their recourse to the court upstairs soon bore fruit — at least
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 7 of 31
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`in part. On August 5, 2020, a D.C. Circuit motions panel denied Defendants’ bid to stay this
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`Court’s decisions that the Corps erred in not preparing an EIS and that the MLA easement should
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`be vacated pending the statement’s completion. Standing Rock Sioux Tribe v. U.S. Army Corps
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`of Eng’rs (Standing Rock VIII), 2020 WL 4548123, at *1 (D.C. Cir. Aug. 5, 2020). The panel,
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`however, placed on hold the aspect of this Court’s order shutting down the pipeline and
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`emptying it of oil, reasoning that the Court “did not make the findings necessary for” such
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`injunctive relief in NEPA cases. Id. (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S.
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`139, 158 (2010)). The Circuit also noted, “We expect [Government] appellants to clarify their
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`positions before the district court as to whether the Corps intends to allow the continued
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`operation of the pipeline notwithstanding vacatur of the easement and for the district court to
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`consider additional relief if necessary.” Id.
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`Such “clari[t]y,” id., did not obtain. As merits briefing continued in the Court of
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`Appeals, the parties returned to this Court where the Corps, in light of the Circuit’s having stayed
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`the stoppage of oil flow, took its first stab at “detailing the options it is considering on vacatur.”
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`8/10/20 Min. Order. Acknowledging that the pipeline now constituted an encroachment, the
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`agency explained that its “general policy is to require removal of encroachments and restoration
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`of the premises.” ECF No. 562 (8/31/20 Status Rep.) at 3 (internal quotation marks and citation
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`omitted). That outcome was not inevitable, though, as another option available to the Corps —
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`called an “outgrant” — would authorize Dakota Access to use the government-controlled
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`property as it did prior to vacatur, thus effectively issuing it another easement. Id. at 4–5. As the
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`agency admitted, however, that process was subject to the strictures of NEPA, the very statute
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`under which this Court had ordered the preparation of an EIS before any such easement could be
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`granted. Id. at 5–6; Standing Rock VI, 440 F. Supp. 3d at 8.
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 8 of 31
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`The Corps additionally maintained — without citing any authority — that it was under no
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`obligation “to take any particular action to cure an encroachment within a specified time period”
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`or even “to ultimately cure the encroachment at all.” 8/31/20 Status Rep. at 4. It estimated that
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`it would make an “initial decision” as to a potential enforcement action against the pipeline by
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`early October 2020, though it emphasized that it retained the “enforcement discretion to adapt its
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`enforcement recommendations based on new information” at any time. Id. at 9. In the
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`meantime, the agency would engage in multi-level “coordination . . . to ascertain whether the
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`Pipeline’s unauthorized use presents risk to the Corps’ project and to find the best way . . . to
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`resolve the situation of unauthorized use of the property interest.” Id. at 6; see also ECF No. 564
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`(9/8/20 Joint Status Rep.) at 2 (Corps reiterating that it “is proceeding with its encroachment
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`review process”). It also expressed its desire to discuss “potential additional safety measures”
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`with both Dakota Access and the Tribes. See 8/31/20 Status Rep. at 7–9.
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`Having thus received minimal concrete assistance from the Corps, the Court acceded to
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`the Tribes’ request for a briefing schedule on the propriety of an injunction to halt the flow of oil
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`(as contemplated by the D.C. Circuit’s August stay order). See ECF No. 567 (9/11/20 Order) at
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`1–2; 9/17/20 Min. Order (setting briefing schedule). The Court noted its expectation that such
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`briefing would focus on the issue of irreparable harm, one of the four requirements for
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`permanent injunctive relief. See 9/11/20 Order at 2. The Tribes soon filed the present Motion,
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`see ECF No. 569 (Pl. Mot.), which the Corps and Dakota Access opposed. See ECF Nos. 573
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`(Corps Opp.), 577 (DA Opp.). October, meanwhile, came and went without any word from the
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`Corps regarding its promised “initial decision” as to a potential enforcement action. See 8/31/20
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`Status Rep. at 9.
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 9 of 31
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`On January 26, 2021 — shortly after the district-court briefing on Plaintiffs’ injunctive-
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`relief request became ripe, see ECF No. 586 (Pl. Reply) — the D.C. Circuit issued its merits-
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`panel opinion in the pending appeal of this Court’s summary-judgment and vacatur orders. In a
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`detailed and comprehensive ruling, that court followed the roadmap previewed by the motions
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`panel and affirmed this Court’s top-line conclusions that: 1) the Corps’ decision not to prepare an
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`EIS violated NEPA, and 2) the easement should be vacated pending such statement’s
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`completion. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock IX), 985
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`F.3d 1032, 1039 (D.C. Cir. 2021). The Circuit subsequently denied Dakota Access’s request for
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`en banc review of these holdings on April 23, 2021, and the court’s mandate issued shortly
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`thereafter. See Order, No. 20-5197 (D.C. Cir. Apr. 23, 2021); Mandate (D.C. Cir. May 19,
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`2021).
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`The Circuit also reversed this Court’s order shutting down the pipeline. Standing Rock
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`IX, 985 F.3d at 1053–54. This time, the Court of Appeals elaborated on why vacatur of the
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`easement was not itself sufficient to bring about a stoppage of oil flow. Unlike a challenge to an
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`agency-issued construction or operating permit, vacatur of which would “naturally impl[y] an
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`end” to such construction or operation, the present litigation involves an easement merely
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`“authorizing the pipeline to cross federal lands.” Id. at 1054. “With or without oil flowing,”
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`accordingly, “the pipeline will remain an encroachment, leaving the precise consequences of
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`vacatur uncertain.” Id. That posture, the Circuit emphasized, rendered this case “quite unusual”;
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`it could not identify a single other instance “in which the sole issue before a court was whether
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`an easement already in use (rather than a construction or operating permit) must be vacated on
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`NEPA grounds.” Id. At any rate, the panel made clear that this Court “could not order the
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 10 of 31
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`pipeline to be shut down without . . . making the findings necessary for injunctive relief” under
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`the traditional four-factor test. Id. (citing Monsanto, 561 U.S. at 158).
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`The Circuit closed in the same fashion as its August 2020 stay order: with an overt prod
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`of the Corps. While noting that “how and on what terms the Corps will enforce its property
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`rights is, absent a properly issued injunction, a matter for the Corps to consider in the first
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`instance,” the Court of Appeals emphasized that it “would expect [the agency] to decide
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`promptly. To do otherwise would be to issue a de facto outgrant without engaging in the NEPA
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`analysis that the Corps concedes such an action requires.” Id.
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`With the Circuit’s opinion and attendant guidance in hand, this Court promptly scheduled
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`a status hearing for the purpose of discussing its impact on Plaintiffs’ bid for injunctive relief, as
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`well as “how the Corps expects to proceed given the vacating of the easement.” 1/27/21 Min.
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`Order. Two days before that hearing, the Corps — fresh off a change of administration in
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`January 2021 — sought a two-month continuance for the purpose of “brief[ing] new officials
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`regarding this case.” ECF No. 587 at 1. No party opposed the request, which the Court granted.
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`Id. at 2; 2/9/21 Min. Order.
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`When the long-awaited hearing finally arrived on April 9, 2021, however, the Corps —
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`despite the instruction from both the Court of Appeals and this Court, as well as its own
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`continuance request — had surprisingly little to say about the pipeline’s encroachment status.
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`Indeed, far from issuing the contemplated “prompt[]” determination as to how it would “enforce
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`its property rights,” Standing Rock IX, 985 F.3d at 1054, the Corps’ decision appeared to be that
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`it would make no decision at all. According to Government counsel, “[T]he Corps is in a [sic]
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`essentially continuous process of evaluating the status of the encroachment and what steps are
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`best to take.” ECF No. 602 (4/9/21 Tr.) at 10:23–25. While the agency would “continue[]
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 11 of 31
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`monitor[ing]” the pipeline and could “take an enforcement action at any time,” it had “no . . .
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`enforcement action to announce” at present nor any “timeline” for such potential action moving
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`forward. Id. at 8:5–6, 8:12–14, 9:3–5, 11:7–8. At one point, the Corps seemed to acknowledge
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`the possibility that it might not even decide how to enforce its property rights prior to completion
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`of the judicially mandated EIS (currently estimated for March 2022). Id. at 8:19–20; ECF No.
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`601 (5/3/21 Status Rep.) at 1. In light of that report, both Plaintiffs and the Government agreed
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`that the proper course was for the Court to resolve the fully briefed injunction motion. See
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`4/9/21 Tr. at 13:10–12, 15:9–14.
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`Following receipt of short supplemental filings from both Dakota Access and the Tribes,
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`see ECF Nos. 593 (Dakota Access Surreply), 597 (Pl. Surreply Resp.), the Court ordered the
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`Corps to clarify its position on whether an injunction should issue. See 4/26/21 Min. Order. The
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`agency’s response was less than decisive. While the Corps appeared to tepidly reiterate its prior
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`opposition to the Tribes’ injunctive-relief bid, its submission also contained some hedging:
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`As to whether an injunction should issue, the EIS process in which
`the Corps is currently engaged examines many factors including
`some that may be relevant to the permanent injunction standard. It
`is possible that in the EIS process the Corps would find new
`information, but to date the Corps is not aware of information that
`would cause it to evaluate the injunction factors differently than in
`its previous filing.
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`5/3/21 Status Rep. at 2 (citing Corps Opp.). With this long procedural history in tow, the Court
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`is finally prepared to rule on the Tribes’ request for an injunction.
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`II.
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`Analysis
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`The Court begins with an overview of the permanent-injunction factors, devoting
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`particular attention to the requirement that a plaintiff suffer irreparable injury. It then applies
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`that requirement to the circumstances of this case. Because the Court concludes that Plaintiffs
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`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 12 of 31
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`have not established irreparable harm, it has no need to address the other factors or Defendants’
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`additional arguments for why injunctive relief is improper.
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`Before diving in, the Court briefly disposes of a threshold argument made by the Tribes
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`— specifically, that it should “clarify that pipeline operations must be suspended pursuant to its
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`vacatur order even without an injunction.” Pl. Mot. at 3 (emphasis added). This misses the
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`mark. The D.C. Circuit held precisely to the contrary in its January 2021 opinion reversing this
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`Court’s shutdown order. See Standing Rock IX, 985 F.3d at 1054 (“[W]e nonetheless conclude
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`that [the district court] could not order the pipeline to be shut down without, as required by
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`Monsanto, making the findings necessary for injunctive relief.”); id. at 1053–54 (explaining why
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`vacatur of easement was itself insufficient to stop oil flow). That ruling postdated Plaintiffs’
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`briefing on the present Motion. Because it is now clear that the Tribes’ shutdown request “seeks
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`more than mere vacatur,” the Court must find the permanent-injunction criteria fulfilled before
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`issuing such relief. Ctr. for Biological Diversity v. Ross, 480 F. Supp. 3d 236, 250 (D.D.C.
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`2020).
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`A. Irreparable Harm
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`A permanent injunction “is a drastic and extraordinary remedy.” Monsanto, 561 U.S. at
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`165. It “should not be granted as a matter of course,” id., and it “does not follow from success
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`on the merits.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008). Rather, it “should
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`issue only if the traditional four-factor test is satisfied.” Monsanto, 561 U.S. at 157. In order to
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`pass that test, a plaintiff must convince the Court:
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`(1) that it has suffered an irreparable injury; (2) that remedies
`available at law, such as monetary damages, are inadequate to
`compensate for that injury; (3) that, considering the balance of
`hardships between the plaintiff and defendant, a remedy in equity is
`warranted; and (4) that the public interest would not be disserved by
`a permanent injunction.
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`Id. at 156–57 (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006)) (applying
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`four factors when plaintiff sought permanent injunction to remedy NEPA violation). While the
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`irreparable-harm requirement is recited in the past tense, it is clear that future harm may qualify.
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`Id. at 162 (determining that respondents did not adequately show “that they will suffer
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`irreparable injury” if agency were “allowed to proceed”).
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`The Supreme Court “has repeatedly held that the basis for injunctive relief in the federal
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`courts has always been irreparable injury and the inadequacy of legal remedies.” Weinberger v.
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`Romero-Barcelo, 456 U.S. 305, 312 (1982); see also Chaplaincy of Full Gospel Churches v.
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`England, 454 F.3d 290, 297 (D.C. Cir. 2006) (same). “A movant’s failure to show any
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`irreparable harm is therefore grounds for refusing to issue” injunctive relief. Chaplaincy of Full
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`Gospel Churches, 454 F.3d at 297; see also CityFed Fin. Corp. v. Off. of Thrift Supervision, 58
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`F.3d 738, 747 (D.C. Cir. 1995) (“Because [plaintiff] has made no showing of irreparable injury
`
`here, that alone is sufficient for us to conclude that the district court did not abuse its discretion
`
`by rejecting [plaintiff’s] request.”); Sierra Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9,
`
`38 (D.D.C. 2013) (“Plaintiffs must demonstrate that they will suffer irreparable harm absent an
`
`injunction in order to be eligible for injunctive relief.”). “Indeed, if a court concludes that a
`
`movant has not demonstrated irreparable harm, it need not even consider the remaining factors.”
`
`Dallas Safari Club v. Bernhardt, 453 F. Supp. 3d 391, 398 (D.D.C. 2020) (citing CityFed Fin.
`
`Corp., 58 F.3d at 747); see also Colo. Wild Horse v. Jewell, 130 F. Supp. 3d 205, 218 (D.D.C.
`
`2015).
`
`The D.C. Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full
`
`Gospel Churches, 454 F.3d at 297. “[T]he injury must be both certain and great; it must be
`
`actual and not theoretical.” Id. (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
`
`
`
`13
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`

`

`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 14 of 31
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`
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`1985)). Of critical importance is a demonstration that the “injury complained of is of such
`
`imminence that there is a clear and present need for equitable relief to prevent irreparable harm.”
`
`Id. (quoting Wis. Gas., 758 F.2d at 674) (cleaned up); see also Wis. Gas, 758 F.2d at 674
`
`(“Injunctive relief will not be granted against something merely feared as liable to occur at some
`
`indefinite time . . . .”) (citation and internal quotation marks omitted). Notwithstanding some
`
`Circuit language using a “certainty” standard, all agree here that a plaintiff seeking permanent
`
`injunctive relief must at least “demonstrate that irreparable injury is likely in the absence of an
`
`injunction.” Winter, 555 U.S. at 22; see Pl. Reply at 13; DA Opp. at 9–10; Corps Opp. at 5–6;
`
`see also Winter, 555 U.S. at 32–33 (noting that analysis of preliminary-injunction requirements
`
`applies to permanent injunctions); Monsanto, 561 U.S. at 162; Ctr. for Biological Diversity, 480
`
`F. Supp. 3d at 251 (acknowledging lack of clarity regarding whether future irreparable harm
`
`must be “certain” or merely “likely” to occur). A mere “possibility” of future harm is
`
`insufficient. Winter, 555 U.S. at 21–22; see also 11A Charles Alan Wright & Arthur R. Miller,
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`Fed. Prac. and Proc. § 2942 (3d ed.) (“There must be more than a mere possibility or fear that the
`
`injury will occur.”).
`
`A plaintiff attempting to establish irreparable harm thus faces a “considerable burden,”
`
`Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015)
`
`(citation omitted), and a “very high bar.” Coal. for Common Sense in Gov’t Procurement v.
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`United States, 576 F. Supp. 2d 162, 168 (D.D.C. 2008). In order to clear it, the movant must
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`“substantiate [its] claim that irreparable injury is ‘likely’ to occur.” Wis. Gas, 758 F.2d at 674.
`
`“Bare allegations” to that effect “are of no value”; a court, rather, requires affirmative “proof” of
`
`likelihood and imminence. Id. Additionally, “the movant must show that the alleged harm will
`
`directly result from the action which [it] seeks to enjoin.” Id.
`
`
`
`14
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`

`

`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 15 of 31
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`
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`B. Application
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`The Tribes posit three different kinds of injuries, each of which they claim independently
`
`qualifies as imminent irreparable harm and entitles them to permanent injunctive relief. The
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`Court will spend most of its time on the first of these before disposing of the last two with
`
`greater dispatch.
`
`1. Threat of Damaging Oil Spill
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`Plaintiffs’ principal claim of irreparable injury derives from the threat of an oil spill
`
`underneath Lake Oahe. See Pl. Mot. at 9–14; Pl. Reply at 13–16. That reservoir, as previously
`
`mentioned, provides the Tribes with water for drinking, industry, and sacred practices. In order
`
`for them to realize any harm from a pipeline leak, however, a series of contingent events must
`
`occur: 1) a spill under Lake Oahe; 2) of sufficiently large size; 3) the oil from which rises 92 feet
`
`from the pipeline to the bottom of the lake; and 4) which cannot be sufficiently mitigated or
`
`contained either before or upon entering the lake. See DA Opp. at 11. Simply itemizing that
`
`causal chain suggests the fundamental problem with Plaintiffs’ irreparable-harm argument: they
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`have not established, as they must, that any of the chain’s individual components — let alone the
`
`feared end result — is “likely,” as opposed to merely “possibl[e].” Winter, 555 U.S. at 22.
`
`Without such showing, of course, they cannot demonstrate the probability of a damaging DAPL
`
`spill at Lake Oahe sufficient to warrant injunctive relief.
`
`Start with the threat of a spill itself. Throughout this long-running litigation, the Court
`
`has repeatedly determined that such risk is low. See Standing Rock Sioux Tribe v. U.S. Army
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`Corps of Eng’rs (Standing Rock IV), 282 F. Supp. 3d 91, 101, 105 (D.D.C. 2017) (referencing
`
`“low” likelihood and “minimal risk” of oil spill under Lake Oahe); Standing Rock VI, 440 F.
`
`Supp. 3d at 29 (similar); Standing Rock VII, 471 F. Supp. 3d at 85 (similar). Indeed, in 2017,
`
`
`
`15
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`

`

`Case 1:16-cv-01534-JEB Document 607 Filed 05/21/21 Page 16 of 31
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`
`
`
`this Court rebuffed Standing Rock’s challenge to the Corps’ assessment that the risk of a spill
`
`under Lake Oahe is “very low,” “unlikely,” or “negligible,” finding that the agency had taken a
`
`“hard look” at the issue and sufficiently “support[ed] its conclusion that such a risk was low.”
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`Standing Rock III, 255 F. Supp. 3d at 125–27, 149; see also ECF No. 172-1 (Final EA) at 48, 87,
`
`92 (“[T]he risk of an inadvertent release in, or reaching, Lake Oahe . . . is extremely low.”).
`
`Even Plaintiffs seem to acknowledge that a spill at Lake Oahe is of “lower probability.” Pl. Mot.
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`at 11.
`
`The Court need not rehash all the evidence giving rise to those prior determinations. See,
`
`e.g., Standing Rock III, 255 F. Supp. 3d at 125–27; DA Opp. at 14–15. It bears noting, though,
`
`that reportable-incident data from the Pipeline and Hazardous Materials Safety Administration
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`(PHMSA) reflect but a single, 1.7-barrel leak between 2010 and 2020 on any crude-oil pipeline
`
`installed using horizontal directional drilling technology, the very method in place at DAPL’s
`
`Lake Oahe crossing. See ECF No. 593-4 (Supplemental Declaration of John F. Godfrey), ¶ 16.
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`Dakota Access deployed HDD in order to bury the pipeline far beneath the bottom of Lake Oahe,
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`thus mitigating — among other things — the

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