UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STANDING ROCK SIOUX TRIBE,

Plaintiff,

and

CHEYENNE RIVER SIOUX TRIBE,

Plaintiff-Intervenor,

v. Civil Action No. 16-1534 (JEB) (and Consolidated Case Nos. 16-267 and 16-1769) U.S. ARMY CORPS OF ENGINEERS,

Defendant,

and

DAKOTA ACCESS, LLC,

Defendant-Intervenor and Cross- Claimant.

MEMORANDUM OPINON AND ORDER

In this long-running battle between American Indian Tribes and the U.S. Army Corps of

Engineers over the Dakota Access Pipeline, the parties have engaged in an extensive motions

practice, requiring the Court to issue myriad substantive Opinions. Now, as the litigants focus on

the Corps’ remand efforts, one Tribe – the Oglala Sioux – asks to rewind the clock and amend its

Complaint to return to an issue long since decided. As such amendment is both prejudicial to

1 Defendants and futile, inasmuch as the Court has already addressed it, the Motion to Amend will

be denied.

I. Background

Although the parties have briefed a congeries of complex issues throughout this

litigation, the one relevant to this Motion is the allegation by a number of Tribes that the Corps

violated the National Environmental Policy Act in early 2017 when it withdrew its notice of

intent (NOI) to prepare an environmental-impact statement (EIS) and issued an easement to

Dakota Access to build its pipeline under Lake Oahe on the Missouri River. See Standing Rock

Sioux Tribe v. U.S. Army Corps of Engineers,

(D.D.C. 2017). This

was one subject (of many) that the Court addressed in its summary-judgment Opinion, issued in

June 2017, in which it held that the Corps’ reversal of field on this point was not arbitrary and

capricious.

. In that Opinion, the Court granted Defendants summary judgment in part,

finding that the Government had substantially complied with NEPA, but remanding certain

matters unrelated to the NOI for the Corps to reconsider.

.

The remand is now complete, and the Court has set a briefing schedule relating to the

administrative record on remand and will then proceed to entertain another round of summary-

judgment briefing, this time about the remand issues. It permitted all Plaintiffs an opportunity to

seek to supplement or amend their Complaints relating to remand. Many have done so, which

the Court has permitted, see Minute Order of Jan. 3, 2019, as the supplementation relates solely

to the remand process. The Oglala Sioux alone have also sought to augment a claim unrelated to

remand. The Tribe asks for permission to add only one sentence of additional allegations. More

specifically, it wishes to allege that the Corps’ decision to withdraw the NOI and issue the

easement was made without reviewing thousands of submissions in response to the NOI. See

2 ECF No. 376 (Motion to Amend) at 3. The Corps and Defendant-Intervenor Dakota Access

resist, arguing that this ship has long since sailed.

II. Legal Standard

A plaintiff may amend her complaint once as a matter of course within 21 days of serving

it or within 21 days of being served a responsive pleading. See Fed. R. Civ. P. 15(a)(1).

Otherwise, she must seek consent from the defendant or leave from the court. See Fed. R. Civ.

P. 15(a)(2). “The court should freely give leave when justice so requires.”

In deciding

whether to grant leave to file an amended complaint, the court may consider “undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, futility of amendment, etc.” Foman v. Davis,

(1962). In this

Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.”

Firestone v. Firestone,

(D.C. Cir. 1996). Furthermore, under Rule 15, “the

non-movant generally carries the burden in persuading the court to deny leave to amend.”

Nwachukwu v. Karl,

(D.D.C. 2004).

It is clear, however, that amendment should not be permitted if it would be futile. In

other words, if the proposed amendment would render the complaint deficient, the court need not

grant leave. See In re Interbank Funding Corp. Sec. Litig.,

(D.C. Cir. 2010)

(“[A] district court may properly deny a motion to amend if the amended pleading would not

survive a motion to dismiss.”); James Madison Ltd. v. Ludwig,

(D.C. Cir.

1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.”).

3 III. Analysis

In contesting Plaintiff’s Motion to Amend, Defendants argue that the proposed

amendment here is both prejudicial and futile. As to the former, Defendants correctly point out

first that this is no simple litigation. The docket’s heft bears this out. Three cases have been

consolidated involving multiple Tribes, numerous individuals, and many amici. Parties have

intervened on both Plaintiffs’ and Defendants’ side. The Court has issued numerous lengthy

Opinions, including expedited ones on preliminary-injunction motions. Through it all, the Court

has endeavored to manage the litigation in a way that permits all parties to be heard and that

devotes significant time and attention to the claims and defenses raised. The current Motion

seeks to derail and substantially delay that train. See Thorp v. Dist. of Columbia,

, 514 (D.D.C. 2018) (“Such prejudice is particularly pronounced because Plaintiff’s Motion

arrives at a critical juncture of [the] case . . . [where] the issues in this case . . . [have] been

narrowed by the Court’s prior Opinion . . . [and] the parties’ cross-motions for summary

judgment are now ripe.”) (internal quotation marks and citations omitted).

Although the principal Plaintiffs – the Standing Rock Sioux Tribe and the Cheyenne

River Sioux Tribe – filed their suits in July and August 2016, the Oglala Sioux waited to file

their initial Complaint until February 2017. See No. 17-267, ECF No. 1. The Tribe has also

now waited almost two years to seek amendment, even though the litigation has been proceeding

through different stages. In so doing, it offers no explanation whatsoever for such delay. This

delay alone is sufficient grounds to deny the Motion.

Once the Court granted summary judgment to the Corps on most claims while remanding

others, moreover, it fully expected that only the remanded claims would remain to be decided.

While the Oglala Sioux argue that the Court permitted amendment following remand, this was

4 simply for Plaintiffs to refine any claims relating to remand, not to return to the starting blocks.

To permit one Plaintiff among many to reset the litigation would prejudice at least Dakota

Access, which has long had to balance its obligations regarding the operation of the pipeline with

the demands of this litigation. To require it and the Government to relitigate issues already

decided at an earlier stage would impose substantial expense and concomitant uncertainty.

In addition, the Tribe has already raised the points it seeks to include in an Amended

Complaint, thus showing the futility of amendment now. In previously setting forth NEPA

claims, the Tribe alleged in its initial Complaint that “[t]he Corps’ decision to withdraw the NOI

for the EIS before the end of the public comment period and without holding a scoping session

violated NEPA.” Id., ¶ 88. In its summary-judgment briefing on the NEPA allegations,

furthermore, the parties directly contested the propriety of the Corps’ issuance of the NOI. The

Oglala Sioux, appearing as amicus for Standing Rock’s motion for summary judgment,

specifically asserted that “[t]he withdrawal of the NOI is arbitrary and capricious because it does

not take into account the comments of the [Oglala Sioux] and its expert . . . , or other numerous

comments received by the Corps subsequent to the EA.” ECF No. 138 (Oglala Sioux Amicus

Brief) at 20. Cheyenne River, similarly, contended that the Corps did not consider “more than

200,000 comments filed in response to the EIS Notice.” ECF No. 131 (Cheyenne River MSJ) at

5 n.3. This Court nonetheless determined that the withdrawal of the NOI and the issuance of the

easement was not arbitrary and capricious. Standing Rock Sioux Tribe,

.

While its earlier Opinion may not have specifically addressed the comments issue the Tribe

seeks to include now, that question was subsumed in the NEPA claim regarding the issuance of

the easement. The Tribe’s desire to offer slightly different arguments would not change the

result.

5 The Court, accordingly, ORDERS that the Oglala Sioux’s Motion to Amend is DENIED.

IT IS SO ORDERED.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: January 10, 2019

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