Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, Civil Action No. 16-1534 (JEB).

249 F.Supp.3d 516

STANDING ROCK SIOUX TRIBE, et al., Plaintiffs,

v.U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action No. 16-1534 (JEB).

United States District Court, District of Columbia.

Signed April 7, 2017

Jan Hasselman, Stephanie Tsosie, Patti A. Goldman, Earthjustice Legal Defense Fund, Seattle, WA, Jeffrey S. Rasmussen, Jennifer S. Baker, Fredericks Peebles & Morgan LLP, Louisville, CO, Patricia Ann Marks, Fredericks Peebles & Morgan LLP, Michael L. Roy, Hobbs, Straus, Dean & Walker, LLP, Washington, DC, for Plaintiffs.

Matthew M. Marinelli, Reuben S. Schifman, Amarveer Singh Brar, Erica M. Zilioli, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

After the Standing Rock and Cheyenne River Sioux Tribes filed suit to challenge the U.S. Army Corps of Engineers' authorization of the construction of the Dakota Access Pipeline in federally regulated waters, the Corps prepared an administrative record for its July 2016 permitting decisions. Defendant–Intervenor Dakota Access LLC has now filed a Motion for a Protective Order in which it asks the Court to shield portions of eleven documents in that record from public disclosure based on its concern that terrorists or other individuals looking to damage the pipeline could use such information to inflict environmental injury. The Corps opposes the Motion in part, and the Tribes oppose it in full. As the Court concludes that Dakota Access has largely failed to meet its burden to show good cause for such an order, it will deny the Motion in the main, but grant it as to parts of five of the eleven documents.

I. Background

On November 10, 2016, the Corps lodged the administrative record for its July 25, 2016, decisions related to the permitting of the Dakota Access Pipeline (DAPL). See ECF No. 55. It initially withheld from its production 31 documents that Dakota Access had identified as containing confidential information warranting protection. See ECF No. 95 (Mot.) at 2 n.1; ECF No. 146 (Corps Opp.) at 2. Upon further consideration, Dakota Access narrowed its concern to eleven documents. See Mot. at 2 & n.1. It filed a Motion for a Protective Order on February 1, 2017, asking the Court to withhold portions of those documents from public disclosure.

The eleven documents at issue fall into three categories:

(1) a set of five documents entitled "Spill Model Discussion," prepared for five different pipeline locations (two in North Dakota and three in Illinois); (2) a set of five corresponding geographic response plans; and (3) a single prevention and response plan prepared by Dakota Access's Horizontal Directional Drilling contractor.

ECF No. 161 (Reply) at 3. Within those documents, Dakota Access asks the Court to protect "geographic information that specifically details pipeline infrastructure routes through private land" and "spill response information that specifically details pipeline features, capacity, flow rate, transportation, and related emergency response information, safeguards, and plans in certain sensitive locations along the [DAPL] route." Mot. at 2. Dakota Access believes that the information "pinpoints locations where intentional damage to an oil pipeline would generate the greatest harm, and ... reveals in great detail the manner in which the authorities would try to respond to that damage." Id. at 1. It therefore worries that "terrorists or others with ... malicious intent" will use the information to damage the pipeline in ways that maximize environmental harm. Id. at 3.

The Corps opposes redacting or otherwise withholding from public disclosure the five geographic-response plans and the HDD prevention-and-response plan, but consents to a limited set of redactions to the five spill-model discussions. See Corps Opp. at 1–2, 4. The Tribes oppose any withholding. See ECF No. 150–1 (Tribes Opp.) at 3. To be clear, all disputed documents have been provided in full to the Tribes' counsel so that they may be cited in the pending summary-judgment briefing. Id. at 4.

II. Analysis

Dakota Access offers three bases on which certain details in the eleven documents should be protected from public disclosure: (1) the information constitutes Sensitive Security Information; (2) the information constitutes Critical Infrastructure Information; and (3) the information should be withheld pursuant to Federal Rule of Civil Procedure 26(c). The Court addresses each in turn.

A. Sensitive Security Information

After the terrorist attacks of September 11, 2001, Congress created the Transportation Security Administration and entrusted it with the authority "to shield information from disclosure when it determined the release of that information would be ‘detrimental to the security of transportation.’ " Lacson v. Dep't of Homeland Sec., 726 F.3d 170, 172 (D.C. Cir. 2013) (quoting Pub. L. No. 107–296, § 1601(b), 116 Stat. 2135, 2312 (2002) (codified as amended at 49 U.S.C. § 114(r) )). TSA accordingly promulgated regulations regarding the protection of Sensitive Security Information. See 49 C.F.R. pt. 1520. Those regulations define SSI as "information obtained or developed in the conduct of security activities, including research and development, the disclosure of which TSA has determined would ... [b]e detrimental to the safety of transportation." Id.§ 1520.5(a). They also set forth categories of information that can constitute SSI, including "[a]ny security program or security contingency plan issued, established, required, received, or approved by [the Department of Transportation] or [the Department of Homeland Security]," and "[a]ny vulnerability assessment directed, created, held, funded, or approved by the DOT, DHS, or that will be provided to DOT or DHS in support of a Federal security program." Id.§ 1520.5(b)(1), (5).

According to Dakota Access, "Oil pipelines are a transportation activity and subject to [SSI] protection," and the information it asks the Court to redact implicates "security programs," "security contingency plans," "vulnerability assessments," or "information detailing or relating to DAPL security programs, security contingency plans, and/or vulnerability assessments." Mot. at 5–6. The Chief of TSA's SSI Program, however, who has the authority to make SSI determinations, see Lacson, 726 F.3d at 173 n.1, reviewed the eleven documents Dakota Access seeks to shield and determined that they "do not contain any SSI." ECF No. 146–2 (Letter from D. Blair, TSA, to E. Zilioli, DOJ, Feb. 27, 2017). This Court lacks the power to disturb that conclusion, as federal circuit courts have exclusive jurisdiction to review TSA's SSI determinations. See 49 U.S.C. § 46110(a), (c) ; Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., 928 F.Supp.2d 139, 146–47 (D.D.C. 2013). The Court therefore must reject Dakota Access's argument that the documents should be withheld on the ground that they contain SSI.

B. Critical Infrastructure Information

The Company next posits that "[c]ertain details in the documents also constitute Critical Infrastructure Information and should therefore be protected from public disclosure." Mot. at 7. The Court cannot agree.

Dakota Access relies on the Critical Infrastructures Protection Act of 2001, a statute enacted to protect physical and information infrastructures. Under that law, the term "critical infrastructure" means "systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters." 42 U.S.C. § 5195c(e). Because "DAPL is part of the national critical physical infrastructure" and the eleven documents contain information that, if made public, "might compromise and/or undermine DAPL security protections and procedures," Dakota Access asserts, permitting their public disclosure "would risk disrupting energy sector infrastructure in subversion of the Act's purpose." Mot. at 8.

That Act does not prohibit the public disclosure of infrastructure-related information, but the Critical Infrastructure Information Act of 2002 established the Protected Critical Infrastructure Information Program, which protects from disclosure infrastructure information a company voluntarily shares with a federal agency. See 6 U.S.C. § 133. Yet that Program is of no use to the Company. Written information receives protection under the Program when it is submitted with the following label: "This information is voluntarily submitted to the Federal government in expectation of protection from disclosure as provided by the provisions of the Critical Infrastructure Information Act of 2002." 6 C.F.R. § 29.5(a)(3)(i). Dakota Access never alleges that the eleven documents contain this required statement, nor does it contend that they were subsequently marked as Protected Critical Infrastructure Information by the relevant DHS official. Id.§ 29.2(g). The Court, consequently, cannot endorse this second asserted basis for the protective order.

C. Rule 26(c)

Although success may not obtain via statute, Dakota Access is not yet out of cards. It next turns to the Federal Rules of Civil Procedure. Where a movant can show "good cause," Rule 26(c)(1) permits courts to issue protective orders to guard against "annoyance, embarrassment, oppression, or undue burden or expense." As is relevant here, courts may use such orders to "requir[e] that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way." Fed. R. Civ. P. 26(c)(1)(G).

As a threshold matter, the Tribes note that application of Rule 26(c) to the present circumstances would be inapposite—no party is seeking the discovery of materials outside the administrative record; Dakota Access instead wishes to withhold from public disclosure materials already included...