Indigenous Envtl. Network & N. Coast River Alliance v. U.S. Dep't of State

• Decision Date: 07 December 2018
• Docket Number: CV-17-29-GF-BMM,CV-17-31-GF-BMM
• Citation: 369 F.Supp.3d 1045
• Parties: INDIGENOUS ENVIRONMENTAL NETWORK and North Coast River Alliance, and Northern Plains Resource Council, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants, and TransCanada Keystone Pipeline and TransCanada Corporation, Defendant-Intervenors.
• Court: U.S. District Court — District of Montana

369 F.Supp.3d 1045

INDIGENOUS ENVIRONMENTAL NETWORK and North Coast River Alliance, and Northern Plains Resource Council, et al., Plaintiffs,

v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants,andTransCanada Keystone Pipeline and TransCanada Corporation, Defendant-Intervenors.

CV-17-29-GF-BMM

CV-17-31-GF-BMM

United States District Court, D. Montana, Great Falls Division.

Signed December 7, 2018

Douglas P. Hayes, Pro Hac Vice, Eric E. Huber, Pro Hac Vice, Environmental Law Program, Boulder, CO, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Jaclyn H. Prange, Pro Hac Vice, Cecilia D. Segal, Pro Hac Vice, San Francisco, CA, Selena Kyle, Pro Hac Vice, Chicago, IL, Amy R. Atwood, Pro Hac Vice, Portland, OR, Jared Michael Margolis, Pro Hac Vice, Eugene, OR, for Plaintiffs.

Luther L. Hajek, Bridget K. McNeil, U.S. Department of Justice, Denver, CO, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants.

Jeffery J. Oven, Mark L. Stermitz, Crowley Fleck PLLP, Billings, MT, Jeffrey M. Roth, Crowley Fleck PLLP, Missoula, MT, Lauren C. Freeman, Pro Hac Vice, Sidley Austin LLP, New York, NY, Peter R. Steenland, Pro Hac Vice, Sidley Austin LLP, Peter Christopher Whitfield, Pro Hac Vice, Washington, DC, for Defendant-Intervenors.

Stephen C. Volker, Pro Hac Vice, Alexis E. Krieg, Pro Hac Vice, Stephanie L. Clarke, Pro Hac Vice, Jamey M.B. Volker, Pro Hac Vice, Law Offices of Stephan C. Volker, Berkeley, CA, James A Patten, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, MT, for the Indigenous Environmental Network and North Coast Rivers Alliance.

SUPPLEMENTAL ORDER REGARDING PERMANENT INJUNCTION

Brian Morris, United States District Court Judge

Plaintiffs Indigenous Environmental Network and Northern Plains Resource Council (collectively "Plaintiffs") moved for summary judgment in this matter. (Docs. 139 & 145.) The United States Department of State ("Department") and TransCanada (collectively "Defendants") filed cross motions for summary judgment. (Docs. 170 & 172.)

The Court granted Plaintiffs' motions in part, and Defendants' motions in part, in the Court's Order on Plaintiffs' and Defendants' Motions for Summary Judgment ("Summary Judgment Order"). (Doc. 211.) The Court vacated the Department's Record of Decision ("ROD") issued on March 23, 2017. The Court granted Plaintiffs' request for injunctive relief and remanded the matter to the Department for further consideration consistent with the Summary Judgment Order. Id. The Court entered Final Judgment was November 15, 2018. (Doc. 212.)

TransCanada moves the Court pursuant to Rule 59(e) and Rule 60(b) to amend the Court's Summary Judgment Order, and Final Judgment. (Docs. 211 & 212.) TransCanada seeks clarification of the Court's Orders to ensure certain preliminary project activities will not be enjoined. (Doc. 215.) Further, TransCanada asks the Court to evaluate the four factors required for issuance of a permanent injunction and narrowly tailor relief to address Plaintiffs' purported injury. Id. at 10. Plaintiffs oppose TransCanada's Motion. (Doc. 229.)

The Court held a status conference on November 28, 2018. (Doc. 222.) TransCanada set forth the activities that it seeks to continue in Paragraphs 16-18 of its expert declaration (hereafter "Ramsay Declaration"). (Doc. 216-1). The Court determined that Defendants could move forward with activities set forth in Paragraphs 16-17 of the Ramsay Declaration. (Doc. 216-1.) The Court withheld ruling on the motion with regard to Paragraph 18 of the Ramsay Declaration until after Plaintiffs had submitted their responses to the motion. (Doc. 222.)

Plaintiffs filed their responses to the motion on December 5, 2018. Plaintiff Northern Plains Resource Council does not oppose conducting cultural, biological, civil and other surveys. Plaintiff Northern Plains Resource Council opposes the remainder of activities set forth in Paragraph 18 of the Ramsay Declaration. (Doc. 229 at 10-11.) Plaintiff Indigenous Environmental Network also does not oppose conducting cultural, biological, civil and other surveys. Plaintiff Indigenous Environmental Network further does not oppose maintain security at project sites. Plaintiff Indigenous Environmental Network opposes the remainder of activities set forth in Paragraph 18 of the Ramsay Declaration. (Doc. 229 at 8-9.)

LEGAL STANDARD

Rule 59(e) allows a party to "alter or amend a judgment" by filing a motion within 28 days after entry of judgment. A court may alter or amend the judgment to address newly discovered evidence, correct clear error, prevent manifest injustice, or account for an intervening change in controlling law. Zimmerman v. City of Oakland , 255 F.3d 734, 740 (9th Cir. 2001). District courts possess broad discretion to evaluate Rule 59(e) motions. McDowell v. Calderon , 197 F.3d 1253, 1256 (9th Cir. 1999). Further, Rule 60(b) allows a party to seek relief from final judgment for any reason justifying relief.

DISCUSSION

The Court's Summary Judgment Order enjoined Defendants from "engaging in any activity in furtherance of the construction or operation of Keystone and associated facilities until the Department has completed a supplement to the 2014 SEIS that complies with the requirements of NEPA and the APA." (Doc. 211 at 54.) TransCanada requests that the Court amend the judgment to clarify that TransCanada may engage in preliminary project activities. TransCanada claims that the Court improperly issued a broad permanent injunction without analyzing the four requisite factors under Monsanto Co. v. Geerston Seed Farms , 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). TransCanada asserts that the language of the Court's Summary Judgment Order could be construed as enjoining certain preparatory activities and that the Court should tailor relief to address Plaintiffs' purported injury. (Doc. 216 at 10.)

TransCanada asks that the Court exclude preparatory activities defined in Paragraph 18 of the Ramsay Declaration. (Doc. 216-1.) Paragraph 18 sets forth activities including the following: cultural, biological, civil and other surveys; preparation of off-right-of-way pipe storage and contractor yards; transportation, receipt and off-loading of pipe at off-right-of-way storage yards; preparation of sites for off-right-of-way worker camps; and mowing and patrolling areas of the right-of-way to discourage migratory bird nesting. The activities also include maintaining security at project sites to ensure public safety and maintaining environmental protections. Id. at 6-7. Plaintiffs do not argue that cultural, biological, civil and other surveys should be enjoined. Plaintiff Indigenous Environmental Network further does not contest maintain security at project sites. Plaintiffs argue the remainder of the proposed activities (hereafter "preconstruction activities") set forth in Paragraph 18 should be enjoined.

Before a permanent injunction may issue, a plaintiff must demonstrate that "(1) 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." Monsanto , 561 U.S. at 156-57, 130 S.Ct. 2743.

I. Irreparable Injury

Defendants assert that allowing the preconstruction activities set forth in Paragraph 18 will not cause irreparable harm to Plaintiffs. Plaintiffs argue that irreparable harm will occur in the form of environmental harm, and a "biased NEPA process." (Doc. 229 at 19.) Plaintiffs argue that allowing the Paragraph 18 preconstruction activities to proceed would perpetuate "bureaucratic momentum" that would discourage other federal agencies from rejecting the project or altering its route to account for revised environmental review. Id. at 19-20.

The district court in Colorado Wild Inc. v. U.S. Forest Serv. , 523 F.Supp.2d 1213 (D. Colo. 2007), discussed the "biased NEPA process" theory. A private company applied to the Forest Service for rights-of-way across Forest Service land for access to the company's privately-owned land. Id. at 1217. The Forest Service determined that the proposal required the preparation of an EIS. Id. The Forest Service selected one of the alternatives that allowed construction activity on Forest Service roads. Id. at 1218.

The district court issued a temporary restraining order that prevented the Forest Service from authorizing construction on the roads or related activities. Id. at 1219. The district court later granted a preliminary injunction to halt the construction activity. The district court reasoned that the injury threatened did not involve merely ground-breaking disturbance. The district court recognized also the risk that the "bureaucratic momentum" created by the activities would bias the agencies NEPA analysis. Id. at 1220. This concern prompted the district court to curtail any further construction. Id.

The Fourth Circuit also analyzed the proper scope of an injunction related to an EIS in Nat'l Audubon Soc'y v. Dept. of Navy , 422 F.3d 174 (4th Cir. 2005). The Fourth Circuit agreed that the Department of Navy ("Navy") had had failed to comply with NEPA in its decision to construct a landing field in North Carolina. Id. at 180-81. The Fourth Circuit continued its review, however, to include an analysis of the scope of the injunction ordered by the district court. The district court had issued a sweeping injunction that prohibited the Navy "from taking any further activity associated with the planning, development, or construction" of an air field without first complying with its obligations under NEPA. Id. at 202.

The Navy asserted five areas of activities that should not have been enjoined. Navy first sought to conduct a site-specific wildlife assessment. Id. at 204. The studies would take over a year to complete and admittedly would go beyond...