Case 1:16-cv-01534-JEB Document 92 Filed 02/01/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STANDING ROCK SIOUX TRIBE,
Plaintiff,
and
CHEYENNE RIVER SIOUX TRIBE,
Plaintiff–Intervenor,
Case Number: 16-cv-1534 (JEB)

v.
UNITED STATES ARMY CORPS OF
ENGINEERS,
Defendant–Cross Defendant,
and
DAKOTA ACCESS, LLC,
Defendant–Intervenor–Cross Claimant.

DAKOTA ACCESS, LLC’S MOTION FOR A PROTECTIVE ORDER
Defendant-Intervenor and Cross-Claimant, Dakota Access LLC (“Dakota Access”)
respectfully moves this Court to enter a Protective Order in the above-captioned litigation (the
“Litigation”) to protect confidential portions of the Administrative Record. The motion seeks to
prevent broad public dissemination of sensitive information that (i) pinpoints locations where
intentional damage to an oil pipeline would generate the greatest harm, and (ii) reveals in great
detail the manner in which the authorities would try to respond to that damage. Anyone who
harbors a malicious intent to damage the pipeline could use such information to wreak the
greatest possible harm from those unlawful acts. Protection of these details would not hinder any

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party litigating this case, nor do any countervailing interests outweigh the benefits of keeping
these limited details from being released.
BACKGROUND
On November 10, 2016, Defendant and Cross-Defendant, the United States Army Corps
of Engineers (the “Corps”) filed a certified index of the Administrative Record (ECF No. 55-2)
in the Litigation. The Corps has provided the Administrative Record to Plaintiff, the Standing
Rock Sioux Tribe (“SRST”), Plaintiff–Intervenor, the Cheyenne River Sioux Tribe (“CRST”),
and Dakota Access.
Dakota Access has identified 11 documents (attached with proposed redactions as
Exhibit A) that contain confidential information warranting protection under various individual
sources of authority, including 49 U.S.C. § 114(r), 49 C.F.R. § 1520.5, 42 U.S.C. § 5195c, and
Fed. R. Civ. P. 26(c). The 11 documents were provided to all parties on a confidential
attorneys’-eyes-only basis, with the understanding that information from the documents would
not be disclosed until the parties could come to an agreement on how to treat the documents. 1
The parties have since conferred regarding the documents. They disagree about two
different but related categories of information: (1) geographic information that specifically
details pipeline infrastructure routes through private land (“Geographic Information”), and
(2) 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 Dakota Access Pipeline (“DAPL”) route (“Spill Response

1

A total of 31 documents were originally at issue. Dakota Access has narrowed its request to
11 documents that contain information needing protection. Those 11 documents are found at
the following pages of the Administrative Record: 12398–418; 12419–39; 12440–61;
12462–76; 12477–93; 12494–511; 67857–94; 74092–110; 74713–29; 74733–46; & 74747–
60.
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Information”). 2 For example, AR 12398–418 shows differences in spill volumes based on the
location of a rupture. AR 12406. These volumes are based on a so-called “guillotine” pipeline
break, which means a full-diameter cut of the pipeline. AR 12404 & 12414. Any rupture of a
particular pipeline segment is exceedingly unlikely. In fact, historical data for pipelines
generally shows that for a given pipeline segment the predicted occurrence interval for a release
is between once every 392 years and once every 3,451,544 years, with a likely total volume for
any release of 4 barrels or less. AR 12395–97 (St. Louis district). Moreover, the documents
explain that guillotine breaks simply do not occur accidentally in larger-diameter pipelines such
as DAPL. AR 12414. Thus, the information at issue could only be useful, if at all, to terrorists
or others with the malicious intent to damage the pipeline in a way that maximizes harm to the
environment. 3
Dakota Access has no objection to the release of these documents if these details are
redacted in any public version. Under Dakota Access’s proposal, SRST and CRST would be
free to include these protected details in sealed versions of their pleadings. SRST and CRST
nonetheless insist on being able to release the documents without redaction. Unable to reach an
agreement, Dakota Access respectfully requests that this Court protect the confidential
information contained in the documents. Specifically, Dakota Access asks this Court to enter a

2

Dakota Access provides these brief descriptions in this Motion in order to maintain the
confidential nature of the information it seeks to protect. In the submission of these
documents under seal as Exhibit A, proposed redactions are noted in red boxes for the
Court’s in camera review.

3

The risk modeling in this and other documents is also based on factors that simply are not
present with DAPL. For example, the models assume a pipeline lying directly on the ground
or directly on the surface of the water—locations where the greatest harm could occur. E.g.,
AR 12410. The Dakota Access pipeline is being built below ground and well beneath the
bottom of any body of water that it passes beneath. Thus, the risks—including that of a
guillotine break—are greatly overstated by these models. Id.
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Protective Order prohibiting the public dissemination of the documents in unredacted form and
prohibiting the dissemination of the redacted information that they contain.
ARGUMENT
Under Rule 26(c), “[t]he court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ.
P. 26(c). Rule 26(c) specifically protects “trade secret or other confidential research,
development, or commercial information” and allows the Court to dictate the manner—if any—
in which protected information is disclosed. Id. The Supreme Court has explained that Rule 26
“confers broad discretion on the trial court to decide when a protective order is appropriate and
what degree of protection is required.” Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143
F. Supp. 2d 7, 14 (D.D.C. 2001) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
(1984)). Here, a Protective Order preventing the public release of the unredacted documents is
appropriate because the documents contain information that could be used by terrorists or others
intending to cause harm. And since Dakota Access only seeks to prevent the public
dissemination of the unredacted documents—as opposed to the Parties’ access to the
documents—a Protective Order will in no way affect the Parties’ abilities to conduct this
Litigation.
I.

Federal Law Recognizes the Need to Treat Information for Projects Such as This
One with Special Care.
A.

Oil Pipelines Like This One Trigger the Need to Protect Sensitive Security
Information.

Certain details found in the 11 documents should be protected from public disclosure for
the same reason courts do not allow disclosure of Sensitive Security Information (“SSI”). As
defined by statute and regulation, SSI includes (but is not limited to) “information obtained or
developed in the conduct of security activities, including research and development, the
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disclosure of which the Secretary of DOT has determined would . . . [b]e detrimental to
transportation safety.” 49 C.F.R. § 15.5(a); see also 49 U.S.C. § 40119(b)(1). Oil pipelines are a
transportation activity and subject to this protection. The regulations regarding SSI provide a
long but not exhaustive list of different categories of “information, and records containing such
information, [that] constitute SSI.” 49 C.F.R. § 15.5(b). This list includes:
•

“Security programs and contingency plans. Any security program 4 or security
contingency plan 5 issued, established, required, received, or approved by DOT or DHS”;
and

•

“Vulnerability assessments. Any vulnerability assessment 6 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. §§ 15.5(b)(1), (5).

4

“Security program means a program or plan and any amendments developed for the security
of the following, including any comments, instructions, or implementing guidance: (1) An
airport, aircraft, or aviation cargo operation; (2) A maritime facility, vessel, or port area; or
(3) A transportation-related automated system or network for information processing,
control, and communications.” 49 C.F.R. § 15.3. In turn, “[m]aritime facility means any
facility as defined in 33 CFR part 101.” Id. 33 CFR part 101 defines facility as “any
structure or facility of any kind located in, on, under, or adjacent to any waters subject to the
jurisdiction of the U.S. and used, operated, or maintained by a public or private entity,
including any contiguous or adjoining property under common ownership or operation.”
33 C.F.R. § 101.105. Since DAPL crosses waters subject to the jurisdiction of the United
States (U.S.), the portions where it crosses those waters are considered maritime facilities for
the purposes of SSI regulations. Thus, security programs regarding DAPL’s jurisdictional
crossings are protectable SSI.

5

“Security contingency plan means a plan detailing response procedures to address a
transportation security incident, threat assessment, or specific threat against transportation,
including details of preparation, response, mitigation, recovery, and reconstitution
procedures, continuity of government, continuity of transportation operations, and crisis
management.” 49 C.F.R. § 15.3.

6

“Vulnerability assessment means any review, audit, or other examination of the security of a
transportation infrastructure asset; airport; maritime facility, port area, vessel, aircraft, train,
commercial motor vehicle, or pipeline, or a transportation-related automated system or
network, to determine its vulnerability to unlawful interference, whether during the
conception, planning, design, construction, operation, or decommissioning phase. A
vulnerability assessment may include proposed, recommended, or directed actions or
countermeasures to address security concerns.” 49 C.F.R. § 15.3 (emphasis added).
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Certain of the documents—geographic response plans, spill models, and related
emergency operations and maintenance documents—contain Spill Response Information. That
Spill Response Information was developed for purposes of meeting and exceeding the
requirements and regulations of the Pipeline and Hazardous Materials Safety Administration
(“PHMSA”), a DOT agency. See, e.g., 49 C.F.R. § 194 Subpart B (requirements regarding
Facility Response Plans); 49 C.F.R. § 194.105 (requiring pipeline companies to determine the
impacts of a hypothetical worst-case release in each of its emergency response zones). Indeed,
these documents merit additional protection because they contain information that could assist
potential terrorist activity in circumventing pipeline security and response procedures designed
to protect public health and the environment. See, e.g., United States v. Moussaoui, CRIM.01455-A, 2002 WL 1311736, at *1 (E.D. Va. June 11, 2002) (protecting the disclosure of
documents in the criminal context under parallel aviation SSI provisions). The documents
containing Geographic Information likewise contain information which would assist potential
terrorists in selecting targets, i.e., potentially vulnerable route locations.
The Corps has represented that it does not believe the information at issue meets the
definition of SSI. It believes that information already redacted by other agencies is enough.
Dakota Access disagrees. The following categories are implicated: (1) security programs,
(2) security contingency plans, (3) vulnerability assessments, or (4) information detailing or
related to DAPL security programs, security contingency plans, and/or vulnerability assessments.
See 49 C.F.R. §§ 15.5(a)–(b). While SSI regulations contain specific restrictions on the
disclosure of SSI, 49 C.F.R. § 15.9, courts regularly issue orders protecting the public disclosure
of these same types of information. See, e.g., Robinson v. Napolitano, 689 F.3d 888, 889 (8th
Cir. 2012) (finding that the Transportation Security Administration’s determination that

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documents regarding the agency’s screening procedures and security training materials were SSI
was not arbitrary and capricious). This Court need not resolve the disagreement over
applicability of the SSI label, because it can see by reviewing the proposed redactions that
Dakota Access is seeking to protect details that would pose a threat to the public for the same
reasons SSI is protected from public release. Among other things, these documents contain
details on how authorities would respond to a release of oil if, for example, someone wanted to
do harm to the pipeline. A person with ill intent should not be able to plan his unlawful actions
based on how authorities will respond to those actions. The risk of terrorist actions aimed at the
oil industry should not be taken lightly. See Exhibit B, Blake Sobczak, Rail executives feared
terrorists would disrupt “virtual pipeline,” E&E NEWS (Jan. 24, 2017),
http://www.eenews.net/energywire/2017/01/24/stories/1060048837 (describing concerns in
recent years that foreign terrorists and environmental extremists might make use of detailed
routing information to target rail shipments of oil). Given the intense amount of public attention
this pipeline has received, and the unlawful activity already experienced, there is a greater than
typical risk that this information would be misused to harm the public.
B.

Oil Pipelines Like This One Trigger the Need to Protect Critical
Infrastructure Information.

Certain details in the documents also constitute Critical Infrastructure Information (“CII”)
and should therefore be protected from public disclosure. In the Critical Infrastructures
Protection Act (the “Act”), Congress made several findings and articulated national policies to
protect critical infrastructure, which is defined as “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

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or safety, or any combination of those matters.” 42 U.S.C. § 5195c(e). The Act specifically
established national policy, stating in part:
(1) that any physical or virtual disruption of the operation of the critical
infrastructures of the United States be rare, brief, geographically limited in effect,
manageable, and minimally detrimental to the economy, human and government
services, and national security of the United States;
(2) that actions necessary to achieve the policy stated in paragraph (1) be carried
out in a public-private partnership involving corporate and non-governmental
organizations; and
(3) to have in place a comprehensive and effective program to ensure the continuity
of essential Federal Government functions under all circumstances.
Id. § 5195c(c).
Under the Act, DAPL is part of the national critical physical infrastructure. See id.
§ 5195c(b)(2) (“Private business, government, and the national security apparatus increasingly
depend on an interdependent network of critical physical and information infrastructures,
including telecommunications, energy, financial services, water, and transportation sectors.”
(emphasis added)). And as discussed above, the documents contain details that, if publicly
released, might compromise and/or undermine DAPL security protections and procedures.
Allowing the public disclosure of unredacted documents would risk disrupting energy sector
infrastructure in subversion of the Act’s purpose. This Court should therefore use the broad
discretion afforded by Rule 26 to protect such details from public disclosure in conformance with
the Act and national policy. See Amfac Resorts, 143 F. Supp. 2d at 14.
II.

Regardless of SSI or CII Classification, Rule 26(c) Supports a Protective Order.
The D.C. Circuit employs a balancing test in applying Rule 26(c):
The decision to limit or deny discovery by means of a Rule 26 protective order rests
on a balancing of various factors: the requester’s need for the information from this
particular source, its relevance to the litigation at hand, the burden of producing the
sought-after material; and the harm which disclosure would cause to the party
seeking to protect the information.
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Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 517 (D.C. Cir. 1996) (citations
omitted). Here, the balancing test clearly disfavors the public release of the Geographic
Information and Spill Response Information: (1) SRST and CRST already have access to the
that information and can use any part of it to litigate the claims in this case, (2) the details subject
to the proposed protective order have no relevance to the Litigation in any event, and (3) there
are real risks of harm if the information at issue is publicly released.
A.

There Is No Need for SRST and CRST to Publicly Release the Documents in
Unredacted Form.

The first factor to consider is whether SRST and CRST have a need to publicly release
the documents in unredacted form. Burka, 87 F.3d at 517. They do not. The attorneys for both
SRST and CRST already have access to the documents, including the details that Dakota Access
proposes to redact. Dakota Access has offered Plaintiffs the option of a public release of the
documents with only the sensitive details redacted. Dakota Access has further agreed to allow
use of unredacted documents by designated individuals within, and associated with, SRST and
CRST subject to a Protective Order. If, for some reason, Plaintiffs need to rely on the precise
location of certain pipeline features, they will be free to include them in any argument they make
to the Court, and they will be able to share those details with experts assisting them. 7
Dakota Access has also sought through the meet-and-confer process to limit its motion to
items in need of protection. For example, after the January 30 status conference Plaintiffs asked

7

Plaintiffs have noted during the meet-and-confer process that some maps, schematics and
other items at issue can be found in documents that are publicly available, including in the
district court record in some instances. But an item that poses no particular danger while
standing alone may nonetheless be valuable to wrongdoers when available to them in
conjunction with other information, such as details on how a spill response will be conducted
at that location. With a protective order in place, Plaintiffs could still use the public version
of a map, schematic, or other information in a public filing.
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Dakota Access for the opportunity to review updated proposed redactions before the filing of this
motion. Plaintiffs followed up later that day by expressing general concerns over the type of
information to be protected. Dakota Access asked Plaintiffs to identify particular information
that it objected to including within the protective order. See Exhibit C (emails between Jan
Hasselman and David Debold). The purpose of that request was to allow information to be
released to the extent possible without giving persons who might want to damage the pipeline the
tools to maximize intended harm. Dakota Access remained open to publication of spill-related
data, including that for the area near Lake Oahe, if revealed in a manner that prevents persons
with malicious intent from being able to figure out where and how it would be best to strike.
Apart from providing some examples of items already in the record and agreeing to redact
telephone numbers contained in response plans, Plaintiffs declined to work with Dakota Access
on a different method for redacting that would satisfy Dakota Access’s safety objective. Id.
B.

The Details that Would Be Subject to a Protective Order Are Irrelevant to
the Litigation.

The next factor to consider is the relevance of the information to the litigation at hand.
Burka, 87 F.3d at 517. The Court can see for itself by examining the proposed redactions that
none of those details is relevant to the issues in the Litigation. In fact, Plaintiffs could make
whatever argument they wish about risks peculiar to a location without including in a public
filing specific details allowing wrongdoers to pinpoint that location. And, as noted above, the
Court would have that detail anyway.
C.

Public Disclosure of the Documents Would Cause Harm.

The final factor to consider is the harm if unredacted documents are publicly disclosed.
Burka, 87 F.3d at 517. If the documents are disclosed in unredacted form, persons with the
malicious intent to damage the pipeline will be better able to maximize the harm that they hope
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to inflict. These details include such things as differences in response times or flow rates of oil
dependent upon the location at which a wrongdoer tries to damage the pipeline. They also
include details on how a response to such actions would be carried out. A person seeking to
maximize harm from his intentional attack on the pipeline would find great value in knowing
how to disrupt plans for responding to that attack. The Court should not allow this Litigation to
create that opportunity.
CONCLUSION
The public disclosure of unredacted versions of the documents will create unnecessary
risks to the public at large. For the reasons stated above, the Court should issue a Protective
Order prohibiting the public release of the documents in unredacted form and the public release
of the redacted information that the documents contain.

Dated: February 1, 2017

Kimberly H. Caine
William J. Leone (Pro Hac Vice granted)
Robert D. Comer (Pro Hac Vice granted)
Norton Rose Fulbright US LLP
799 9th St. NW, Suite 1000
Washington, D.C. 20001-4501
(202) 662-0200

/s/ William S. Scherman
William S. Scherman
David Debold
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
(202) 530-9557 (fax)
wscherman@gibsondunn.com

Counsel for Defendant–Intervenor–Cross Claimant Dakota Access, LLC

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CERTIFICATE OF SERVICE
I hereby certify that on this 1st day of February, 2017, I electronically filed the foregoing
document with the Clerk of the Court for the U.S. District Court for the District of Columbia
using the CM/ECF system. Service was accomplished by the CM/ECF system on the following
counsel:
Patti A. Goldman
Jan E. Hasselman
Earthjustice
705 Second Avenue, Suite 203
Seattle, WA 98104
(206) 343-7340
pgoldman@earthjustice.org
jhasselman@earthjustice.org
Counsel for Plaintiff Standing Rock Sioux Tribe
Nicole E. Ducheneaux,
Fredericks Peebles & Morgan, LLP
3610 North 163rd Plaza
Omaha, NE 68116
(402) 333-4053
nducheneaux@ndnlaw.com
Conly J. Schulte
Fredericks Peebles & Morgan, LLP
1900 Plaza Drive
Louisville, CO 80027
(303) 673-9600
cshulte@ndnlaw.com
Counsel for Plaintiff–Intervenor Cheyenne River Sioux Tribe

 Case 1:16-cv-01534-JEB Document 92 Filed 02/01/17 Page 13 of 13

Matthew M. Marinelli
Erica M. Zilioli
U.S. Dep’t of Justice
Environment & Natural Resources Division
P.O. Box 7415
Washington, D.C. 20044
(202) 514-2000
Matthew.Marinelli@usdoj.gov
Erica.zilioli@usdoj.gov
Counsel for Defendant–Cross Defendant U.S. Army Corps of Engineers
/s/ William S. Scherman
William S. Scherman
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
(202) 530-9557 (fax)
wscherman@gibsondunn.com
Counsel for Defendant–Intervenor–Cross Claimant
Dakota Access, LLC