Introduction: The Dakota Access Pipeline (DAPL) project has become the focal point for Native American complaints concerning the manner in which federal agencies comply with their responsibilities to engage in tribal consultation on projects in and around Indian country requiring federal approvals, permits, or licenses. The rejection by the United States District Court for the District of Columbia of an application for preliminary injunction of DAPL construction appears to demonstrate, however, that the federal agency at the heart of the DAPL controversy, the U.S. Army Corps of Engineers (Corps), engaged in efforts to consult with the Standing Rock Sioux Tribe, only to be ignored or rebuffed on multiple occasions. Nonetheless, the federal government, acting through the United States Departments of Interior, Justice, and the Army, has announced an initiative to revisit its consultation obligations under a wide range of statutes, regulations, executive orders, and policy statements. Currently, those consultation obligations arise under the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), the Native American Graves Protection and Repatriation Act (NAGPRA), the Archeological Resources Protection Act, executive orders, and agency and department policy statements. The obligation to consult recognizes that most tribes' reservations do not encompass those tribes' aboriginal homelands and traditional hunting and fishing grounds.

DAPL and the Standing Rock Preliminary Injunction Litigation: DAPL seeks to move crude oil from North Dakota to facilities in Illinois, a roughly 1,200-mile route that traverses primarily private lands and does not cross any present-day Indian reservations. Little federal permitting is required in light of the selected route, chosen to follow existing utility corridors and pipelines and to avoid previously identified cultural and historic sites. Importantly, however, DAPL crosses federally regulated waters of the United States under the Corps' jurisdiction 204 times, each of which the Corps evaluated individually.

The multiple water crossings triggered the Corps' jurisdiction under Section 404 of the Clean Water Act (CWA). In turn, Section 404 obligations required the Corps to analyze whether the crossings fell within one of the Corps' Nationwide Permit regulatory schemes, Nationwide Permit 12 (NWP 12), which authorizes pipeline crossings of regulated waters where the activity will disturb no more than a half-acre of waters of the United States. Under NWP 12, a project developer must provide the Corps with a pre-construction notification (PCN) if the proposed water crossing "may have the potential to cause effects to any historic properties," including properties of cultural or religious importance to an Indian tribe or nation.

Despite efforts to avoid them, the pipeline route still implicated a number of historic and cultural properties along the route. Particularly relevant to the ongoing controversy, according to Judge Boasberg's opinion on the preliminary injunction application, "[o]ne place of particular significance to the [Standing Rock Sioux Tribe (Standing Rock or Tribe)] lies at the traditional confluence of the Missouri and Cannonball Rivers."1 Therefore, the Corps was obligated to consult with affected tribes in accordance with its consultation obligations and NHPA Section 106, even if the areas are outside existing reservation boundaries.

Generally, NHPA Section 106 requires that federal agencies determine whether a project requiring a federal license, permit, or approval has the potential to impact sites that are listed or eligible for listing on the National Register of Historic Places. If so, additional consultation is required to assess potential adverse impacts, determine whether there are measures available to avoid, minimize, or mitigate the impacts, and seek to resolve the impacts by agreement of the "consulting parties," which ordinarily include the federal agencies, a State Historic Preservation Officer (for off-Reservation projects), Native American groups with a cultural affiliation with the lands affected, and the project proponent.2

As a consequence, NWP 12 General Condition 21 required the Corps to consult with interested tribes and determine that the water crossings will not actually impact any identified historic properties. The Corps, following efforts by DAPL to communicate with stakeholders (including Standing Rock and other tribes), took up its consultation responsibilities. According to Judge Boasberg, the Corps and DAPL were able to address and resolve concerns and objections of tribes who participated actively in the consultation process.3 Despite the Corps' repeated and good faith efforts to consult with Standing Rock, however, consultation was limited due to the Tribe's actions.4 Yet, when Standing Rock did engage in consultation on a limited basis, its concerns were addressed.5

In support of its application for preliminary injunction, Standing Rock advanced three main arguments as to why the court should halt construction. First, the Tribe argued the Corps violated the NHPA by failing to pursue Section 106 consultation obligation (a) at the time it issued NWP 12, and (b) as related to its approvals for DAPL water crossings. The court concluded that the Corps did engage in NHPA consultation prior to promulgating NWP 12, and the Corps' consultation efforts included efforts to discuss proposed NWP 12 with Standing Rock, but the Tribe "ignored" the Corps' invitations to consult.6 Moreover, Judge Boasberg noted that NWP 12 includes a consultation requirement "‘for activities that have the potential to cause effects to historic properties' prior to those activities' proceeding under the general permit."7

Second, the court considered Standing Rock's argument that where the Corps did conduct a Section 106 review, the geographic scope of the analysis was too narrow and should have included the entire pipeline route. The Corps had considered all of the proposed water crossings for DAPL, and made its own determinations whether those crossings had the potential to impact historic properties, using extensive cultural resource survey data assembled by licensed archaeologists. From that review, the Corps concluded that 204 jurisdictional water crossings triggered more detailed review and NHPA Section 106 consultation.8 According to the Advisory Council on Historic Preservation's NHPA Section 106 implementing regulations, consultations should be "appropriate to the scale of the undertaking and the scope of the federal involvement."9 The court observed that "the Corps' involvement [here] was limited. It never had the ability, after all, to regulate the entire construction of a pipeline,"10 and rejected claims that the Corps should have conducted tribal consultation in regard to historic properties at sites remote from a water crossing.

With respect to the crossings requiring PCN and cultural resources analysis, Standing Rock argued that the Corps was required to consult on the impact on cultural resources along the entire pipeline route because the NHPA defines a potential impact as including the indirect effects of the permitted activity on historic properties.11 The court rejected this contention, citing Corps regulations providing that the scope of the Corps' NHPA obligation requires analysis of only "the federally regulated waterways—the direct effect of the undertaking—and in uplands around the federal regulated waterways—the indirect effect of the undertaking . . . ."12 The court observed that at least three U.S. Courts of Appeals, the D.C. Circuit, the Eighth Circuit, and the Tenth Circuit, have adopted comparable reasoning in the NEPA context, another "stop, look and listen" statutory scheme.13

Third, Standing Rock asserted that the Corps failed to adequately consult with the Tribe even as to areas within the narrow geographic scope of the Corp's regulatory authority. Referring to a lengthy chronological review of the Corps' efforts to consult described in the opinion, the court concluded that the "it appears that the Corps exceeded its NHPA obligations at many of the PCN sites" and observed that the "Tribe largely refused to engage in consultations."14

The district court concluded that the Tribe had not shown that it was likely to succeed on the merits of its claims that the Corps violated the NHPA. The court ruled that injunctive relief was not justified on the record before the court. The case is now pending on appeal in the U.S. Court of Appeals for the District of Columbia.15

The United States' Tribal Consultation Policy Announcement: Government-to-Government Discussions Between Native Nations and the Federal Government: On September 9, 2016, the same day Judge Boasberg issued his Standing Rock opinion, the Departments of the Army, Justice, and Interior issued a "Joint Statement" regarding the litigation and the district court's decision and analysis.16 (So, who says the federal government cannot act quickly?) The Joint Statement indicated an intention to take the following two steps. First, despite the district court opinion, the Department of the Army "will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act or other federal laws." This action, following issuance of Corps approvals and substantial Dakota Access reliance upon them, raises the specter that the agency may say "never mind" after authorizing a project to proceed, leaving not just Dakota Access, but the regulated community in general, in a state of uncertainty as to whether or when they may safely proceed to build their permitted infrastructure.

Second, the Joint Statement stated the Departments would initiate a "serious discussion on whether there should be nationwide reform with respect to considering tribes' views on these types of infrastructure projects." The Departments have invited tribes to government-to-government consultation sessions to consider potential improvements to the federal government's consultation obligations "to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights." As suggested above, we believe this review, depending on how it proceeds, has the potential to benefit tribal interests and other stakeholders. Clarity and specificity in statutes, regulations, and policy documents providing a balanced, efficient process would help agency officials understand their obligations and would provide certainty to tribes, project proponents, states and their historic preservation officers, and other interested groups. We support the government-to-government consultation, and trust that the views of all stakeholders will be included as the discussions proceed.

Since September 9, the departments scheduled several consultations or listening sessions during which tribal leaders are invited to provide input concerning their experiences with tribal consultation and their ideas about how to improve the process. The departments prepared a "Framing Paper" to help focus the listening sessions.17 The Framing Paper seeks to focus the listening sessions, to gather input on how to ensure meaningful tribal input to infrastructure-related projects triggering federal review, and "to protect Tribal lands, resources, and treaty rights." Further, the Framing Paper seeks input on:

Where and when does the current framework present barriers to meaningful consultation? What changes to the current framework would promote these goals? This category of questions includes potential change to regulations, policies, and procedures, as well as statutory changes that would increase timely and meaningful consultation.

We hope that these listening sessions will lead to recognition that effective consultation ultimately must include important stakeholders in infrastructure and other projects, such as the project proponent for an easy example. In our experience, project proponents recognize the importance of, and benefits from, consultation with stakeholders, including Native American tribes who have a cultural affinity with particular lands.

We note that one motivation behind the federal government's initiative to review its consultation obligations may arise from the relatively limited geographic scope of the Corps' consultation obligation in comparison to how other federal agencies seek to comply with NHPA Section 106 consultation obligations.18 As the new initiative to reconsider tribal consultation obligations is ongoing as we go to print, however, we reserve further comment. That said, we observe that the myriad federal government consultation obligations have created a great deal of consternation in the regulated communities whose projects are subject to federal-tribal and broader consultation obligations. Those obligations are not well defined and consequently create uncertainty for everyone. For example, agency officials and project proponents alike often struggle with exactly how much consultation is enough to comply with the "reasonable and good faith" obligation to identify historic properties required by NHPA Section 106 implementing regulations. Thus, there may be potential benefits for all in a refinement of those federal consultation obligations.19

Secretarial Order No. 3342: Opportunities for Cooperative and Collaborative Partnerships with Native American Groups: On October 21, 2016, U.S. Department of the Interior (DOI) Secretary Sally Jewell issued Order No. 3342, titled "Identifying Opportunities for Cooperative and Collaborative Partnerships with Federally Recognized Indian tribes in the Management of Federal Lands and Resources" (Order).20 The Order identifies a number of existing collaborative partnerships between federal agencies and various tribes, and "encourage[s]" cooperative management agreements between DOI land and resource managers and tribes. The Order distinguishes these arrangements from "co-management," which the Order defines as "situations where there is a specific legal basis that requires delegation of some aspect of Federal decision-making or that makes co-management otherwise legally necessary."21 In other words, the Order promotes voluntary cooperation or collaboration. As a practical matter and in large measure, the Order appears to acknowledge existing practices and simply announces that DOI is open to more of these arrangements in the future. Time will tell what impact this Order may have on public land management planning and practices.

Implications and Why We Care: While we retain reservations about the Agencies' decision to reconsider the judicially supported Dakota Access decision, the focus on high quality and meaningful tribal consultation provides an opportunity for the federal government, working with all stakeholders, to improve these processes, promote greater understanding between tribes, federal agencies, project proponents, states and others, and provide certainty and reduced risk for all concerned.