Rosebud Sioux Tribe v. Trump

• Citation: 495 F.Supp.3d 968
• Decision Date: 16 October 2020
• Docket Number: 4:18-cv-00118-BMM
• Parties: ROSEBUD SIOUX TRIBE, et al., Plaintiffs, v. President Donald J. TRUMP, et al., Defendants, and TransCanada Keystone Pipeline, LP, a Delaware limited partnership, and TC Energy Corporation, a Canadian Public Company, Defendant-Intervenors.
• Court: U.S. District Court — District of Montana

495 F.Supp.3d 968

ROSEBUD SIOUX TRIBE, et al., Plaintiffs,

v. President Donald J. TRUMP, et al., Defendants,andTransCanada Keystone Pipeline, LP, a Delaware limited partnership, and TC Energy Corporation, a Canadian Public Company, Defendant-Intervenors.

4:18-cv-00118-BMM

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

Signed October 16, 2020

Daniel D. Belcourt, Belcourt Law, Missoula, MT, Daniel D. Lewerenz, Pro Hac Vice, Native American Rights Fund, Washington, DC, Matthew L. Campbell, Pro Hac Vice, Native American Rights Fund, Boulder, CO, Natalie A. Landreth, Pro Hac Vice, Wesley J. Furlong, Native American Rights Fund, Anchorage, AK, for Plaintiff Rosebud Sioux Tribe.

Daniel D. Belcourt, Belcourt Law, Missoula, MT, Daniel D. Lewerenz, Pro Hac Vice, Native American Rights Fund, Washington, DC, Matthew L. Campbell, Pro Hac Vice, Native American Rights Fund, Boulder, CO, Natalie A. Landreth, Pro Hac Vice, Wesley J. Furlong, Native American Rights Fund, Anchorage, AK, Ronni M. Flannery, Attorney at Law, Huson, MT, for Plaintiff Fort Belknap Indian Community.

Luther L. Hajek, U.S. Department of Justice, Denver, CO, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants United States Department of State, Michael R. Pompeo, David Hale, Donald J. Trump, David L. Bernhardt, United States Department of the Interior.

Joseph R. Guerra, Pro Hac Vice, Peter Christopher Whitfield, Pro Hac Vice, Peter R. Steenland, Pro Hac Vice, Sidley Austin LLP, Washington, DC, Jeffery J. Oven, Crowley Fleck PLLP, Billings, MT, Jeffrey M. Roth, Crowley Fleck PLLP, Missoula, MT, for Defendant TransCanada Keystone Pipeline LP.

Joseph R. Guerra, Pro Hac Vice, Peter Christopher Whitfield, Pro Hac Vice, Peter R. Steenland, Pro Hac Vice, Sidley Austin LLP, Washington, DC, Luther L. Hajek, U.S. Department of Justice, Denver, CO, Jeffery J. Oven, Crowley Fleck PLLP, Billings, MT, Jeffrey M. Roth, Crowley Fleck PLLP, Missoula, MT, for Defendant TC Energy Corporation.

ORDER

Brian Morris, Chief District Judge

INTRODUCTION

Rosebud Sioux Tribe ("Rosebud") and Fort Belknap Indian Community ("Fort Belknap") (collectively "Plaintiffs") brought this action against President Donald J. Trump and various government agencies and agents in their official capacities ("Federal Defendants"). Plaintiffs challenge President Trump's decision to issue a Presidential Permit in 2019 ("2019 Permit") to Defendant-Intervenors TransCanada Keystone Pipeline, LP and TC Energy Corporation (collectively, "TC Energy") to construct a cross-border segment of the oil pipeline known as Keystone XL ("Keystone").

BACKGROUND

Plaintiffs filed this action on September 10, 2018. (Doc. 1). Plaintiffs allege that Federal Defendants violated the 1851 Fort Laramie Treaty, the 1855 Lame Bull Treaty, the 1868 Treaty of Fort Laramie, the Foreign Commerce Clause of the United States Constitution, the Plaintiffs’ inherent tribal sovereign powers, and various federal statutes and regulations when President Trump issued the 2019 Permit. (Docs. 1, 58).

The Court described the factual history that gave rise to this case in detail in a December 2019 Order in a related case. See Indigenous Environmental Network v. Trump , 428 F.Supp.3d 296(D. Mont. Dec. 20, 2019). All Parties have filed motions since December 2019. TC Energy filed a Motion for Summary Judgment on January 24, 2020. (Doc. 96). Federal Defendants filed a Motion for Summary Judgment on February 25, 2020. (Doc. 108). Plaintiffs filed a Motion for Summary Judgment with respect to certain claims on February 25, 2020. (Doc. 113). Plaintiffs filed Motion for a Preliminary Injunction on March 2, 2020. (Doc. 119). And Plaintiffs filed a Motion for a Temporary Restraining Order on March 17, 2020. (Doc. 130).

This case presents novel and complex questions of constitutional law and statutory interpretation. The Court therefore sought supplemental briefing on certain issues. (Doc. 93). The Court held a motion hearing on April 16, 2020, to hear arguments on the supplemental briefing as well as motions pending at that time. This Order will resolve many of the pending motions before the Court and narrow the scope of the litigation. Certain issues will remain pending additional briefing.

ANALYSIS

I. Scope of the 2019 Presidential Permit

The 2019 Permit grants TC Energy permission "to construct, connect, operate, and maintain pipeline facilities at the international border of the United States and Canada ... for the import of oil from Canada to the United States." Authorizing TransCanada Keystone Pipeline, L.P., To Construct, Connect, Operate, and Maintain Pipeline Facilities at the International Boundary Between the United States and Canada, 84 Fed. Reg. 13,101, 13,101 (March 29, 2019). The Parties do not dispute that the 2019 Permit purportedly authorizes TC Energy to construct, connect, and maintain a 1.2-mile segment of pipeline that extends from the United States-Canada border up to and including the first mainline shut-off valve. (Doc. 95 at 2–4; Doc. 99 at 1–9; Doc. 101 at 1–4).

Plaintiffs assert that the 2019 Permit further authorizes TC Energy to construct and operate an additional 875 miles of pipeline in the United States. (Doc. 99 at 1–9). The Court sought additional briefing on "whether the permit authorizes only the 1.2-mile border facility" or "whether the permit authorizes the entire Keystone XL Pipeline project." (Doc. 93 at 1). Plaintiffs argued that the 2019 Permit purports to approve the "entire pipeline." (Doc. 99 at 2). Plaintiffs point to the plain text as well as the context of the pipeline permit application to justify their argument. Id. at 1–9. Plaintiffs finally contend that the "entire pipeline is one enterprise" and that "without the 2019 Permit" there would be no pipeline. Id. The Court disagrees with Plaintiffs’ interpretation.

The 2019 Permit by its plain language applies only to the 1.2 miles from the United States-Canada border, up to and including, the first mainline shut-off valve. The first paragraph of the 2019 Permit grants permission to "construct, connect, operate, and maintain pipeline facilities at the international border of the United States and Canada at Phillips County, Montana." 84 Fed. Reg. at 13,101 (emphasis added). The text of this initial permission, as well as the remainder of the permit, relates to authorization of pipeline facilities at the border. The 2019 Permit goes on to define "Border facilities" to include "those parts of the Facilities consisting of a 36-inch diameter pipeline extending from the international border between the United States and Canada ... to and including the first mainline shut-off valve in the United States located approximately 1.2 miles from the international border. " Id. (emphasis added). Each permit condition explicitly limits the "Border facilities" term only. See id. at 13,101 –03.

The 2019 Permit defines a broader "Facilities" term as the "portion in the United States of the international pipeline project associated with the permittee's application for a Presidential permit ... and any land, structures, installations, or equipment appurtenant thereto." Id. at 13,101. This broader term certainly encompasses the full Keystone project. The 2019 Permit uses the term "Facilities" only once -- to direct that the construction "of the Facilities (not including the route ) shall be, in all material respects and as consistent with applicable law," as described in TC Energy's 2012 Application and 2017 Application for a Presidential Permit. Id. at 13,101 –02 (emphasis added). This "Facilities" term purports to require TC Energy to comply with applicable laws throughout the Keystone project. It does not in itself authorize the full Keystone project.

The 2017 Application provides further evidence for this reading. TC Energy wrote in that application that it "requests a Presidential Permit" for "the specific border crossing facilities associated with the Proposed Keystone XL Project." The application describes "border crossing facilities" as the 1.2-mile segment that "extend[s] downstream from the United States border, in Phillips County, Montana up to and including the first pipeline isolation valve, located at Milepost 1.2." TransCanada Keystone Pipeline, L.P., Application for Presidential Permit for Keystone XL Pipeline Project, at 6 (Jan. 26, 2017).

Recent history and practice further support the Court's limited reading of the 2019 Permit. Past presidential permits for border-crossing pipelines applied to the project from the border crossing, up to and including, the first shut-off valves. Examples include the permits for the Cochin Pipeline (authorizing 14.5 miles) and the Magellan Pipeline (authorizing 600 feet). See Presidential Permit for Kinder Morgan Cochin Pipeline (Renville County, ND facilities), 78 Fed. Reg. 73,582 (Dec. 6, 2013) ; Presidential Permit for Magellan Pipeline Company, L.P., 80 Fed. Reg. 45,697 (July 31, 2015).

Older examples prove less clear in their terms, but they similarly indicate a focus on border facilities and do not exempt projects from applicable laws. See, e.g. , Authorizing the Murphy Oil Corp. to Connect, Operate and Maintain a Pipeline at the International Boundary Line Between the United States and Canada, 31 Fed. Reg. 6,204 (Apr. 21, 1966) (conditioning the "effectiveness of this permit to authorize connection of the U.S. facilities at the international boundary line with the facilities located in Canada" to the company's compliance with Canadian, federal, state, and local law).

The 2019 Permit, though limited in its scope, places important conditions on Keystone. It requires all Facilities to be built "consistent with applicable law," and that TC Energy acquire "any right-of-way grants or easements, permits, and other authorizations" necessary to build the Border facilities. 84 Fed. Reg. at 13,101 –02. The 2019 Permit grants no exemptions to laws governing public land use or that may require environmental analysis...