Rosebud Sioux Tribe v. Trump

• Decision Date: 20 December 2019
• Docket Number: CV-18-118-GF-BMM
• Citation: 428 F.Supp.3d 282
• Parties: ROSEBUD SIOUX TRIBE, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants, and TC Energy Corporation, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Montana

428 F.Supp.3d 282

ROSEBUD SIOUX TRIBE, et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants,andTC Energy Corporation, et al., Defendant-Intervenors.

CV-18-118-GF-BMM

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

Signed December 20, 2019

Daniel D. Belcourt, Belcourt Law, David A. Bell, Bell Law Firm PLLC, 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 Plaintiffs.

Luther L. Hajek, U.S. Department of Justice, Denver, CO, Peter R. Steenland, Pro Hac Vice, Peter Christopher Whitfield, 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 Defendants.

ORDER

Brian Morris, United States District Court Judge

Rosebud Sioux Tribe ("Rosebud") and Fort Belknap Indian Community ("Fort Belknap") (collectively "the Tribes") bring this action against President Donald J. Trump and various governmental agencies and agents in their official capacities ("Agency Defendants") (President Trump and Agency Defendants collectively "Federal Defendants"). 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 Tribes' inherent sovereign powers, and various federal statutes and regulations when President Trump issued a Presidential Permit in 2019 ("2019 Permit") to defendant-intervenors TransCanada Keystone Pipeline, LP and TC Energy Corporation (collectively "TC Energy") related to the oil pipeline known at Keystone XL ("Keystone"). (Doc. 58 at 105-118.) The parties dispute the scope of the permit. Federal Defendants and TC Energy move to dismiss Plaintiffs' claims. (Docs. 64 & 66.)

BACKGROUND

This Court in Indigenous Environmental Network v. Trump discussed in lengthy detail the factual background that gave rise to both that litigation and this litigation. Indigenous Environmental Network v. Trump , No. CV-19-28-GF-BMM, 428 F.Supp.3d 296 (D. Mont. Dec. 20, 2019) (hereinafter " IEN December 2019 Order "); see Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States, Exec. Order 13867, 84 Fed. Reg. 15491 (April 10, 2019) (hereinafter, "2019 Executive Order"); Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States, Exec. Order No. 13337, 69 Fed. Reg. 25299 (April 30, 2004) (hereinafter, "2004 Executive Order"); Providing for the Performance of Certain Functions Heretofore Performed by the President with Respect to Certain Facilities Constructed and Maintained on the Borders of the United States, Exec. Order 11423, 33 Fed. Reg. 11741 (Aug. 20, 1968) (hereinafter, "1968 Executive Order"). The Court directs the parties to its IEN December 2019 Order for a more complete factual background. IEN December 2019 Order , No. CV-19-28-GF-BMM. The Court offers a brief refresher on this factual background below.

The 1968 Executive Order and the 2004 Executive Order provided that the President, acting through the Secretary of State, could issue a cross-border pipeline permit after requesting the views of various federal agencies and departments and finding that issuance of the permit would "serve the national interest." 33 Fed. Reg. at 11741; 69 Fed. Reg. at 25300. The 2019 Executive Order revokes the 1968 Executive Order and the 2004 Executive Order. 84 Fed. Reg. at 15492. The 2019 Executive Order provides that permitting decisions "shall be made solely by the President." Id. The 2019 Executive Order instructs the Secretary of State to collect information that "the President may deem necessary" and then advise the President regarding whether issuance of the permit would "serve the foreign policy interests of the United States." Id. The 2019 Executive Order does not require the President to consult with federal agencies and departments and it does not require the Secretary of State to determine whether issuance of the permit would serve the national interest. Id. at 15491-93.

TC Energy first applied for a permit to build Keystone in 2008 ("2008 Application"). Indigenous Envtl. Network v. U.S. Dep't of State , No. CV-17-29-GF-BMM, 2017 WL 5632435, at *1 (D. Mont. Nov. 22, 2017) (hereinafter " IEN November 2017 Order "). The State Department recognized that its consideration of TC Energy's 2008 Permit required a detailed environmental analysis and prepared an environmental impact statement ("EIS"). See Notice of Intent to Prepare an EIS, 74 Fed. Reg. 5019-02 (Jan. 28, 2009). Congress passed the Temporary Payroll Tax Cut Continuation Act ("TPTCCA"). Pub. L. No. 112-78, 125 Stat. 1280 (December 23, 2011). The TPTCCA directed the President, acting through the State Department, to render a final decision on TC Energy's 2008 Application within sixty days. Id. The State Department denied the 2008 Application in early 2012. IEN November 2017 Order , 2017 WL 5632435, at *2.

TC Energy applied for another permit to build Keystone in 2012 ("2012 Application"). IEN November 2017 Order , 2017 WL 5632435, at *2. The Secretary of State denied the 2012 Application after determining that issuing TC Energy a permit to build Keystone would not serve the national interest as required by the 2004 Executive Order. Id.

President Trump issued a memorandum on January 24, 2017, in which he invited TC Energy to reapply for a permit to build Keystone. Construction of the Keystone XL Pipeline, 82 Fed. Reg. 8663 (Jan. 24, 2017). TC Energy filed a renewed application to the State Department on January 26, 2017 ("2017 Application"). IEN November 2017 Order , 2017 WL 5632435, at *2. Under Secretary of State Thomas A. Shannon published a Record of Decision ("ROD") and a National Interest Determination ("NID") on March 23, 2017. IEN November 2017 Order , 2017 WL 5632435, at *1. The State Department issued an accompanying Presidential Permit on April 4, 2017 ("2017 Permit"). See Notice of Issuance of a Presidential Permit to TransCanada Keystone Pipeline, L.P., 82 Fed. Reg. 16467-02 (Apr. 4, 2017).

The Court eventually vacated the State Department's ROD and NID. Indigenous Envtl. Network v. U.S. Dep't of State , 347 F. Supp. 3d 561, 591 (D. Mont. 2018). The Court remanded the matter to the State Department for further consideration. Id. The parties appealed the Court's decisions to the United States Court of Appeals for the Ninth Circuit. TransCanada Notice of Appeal, Indigenous Envtl. Network v. U.S. Dep't of State , 347 F. Supp. 3d 561, 591 (D. Mont. 2018) (No. CV-17-29-GF-BMM); Indigenous Environmental Network Notice of Appeal, Indigenous Envtl. Network v. U.S. Dep't of State , 347 F. Supp. 3d 561 (D. Mont. 2018) (No. CV-17-29-GF-BMM); United States Notice of Appeal, Indigenous Envtl. Network v. U.S. Dep't of State , 347 F. Supp. 3d 561 (D. Mont. 2018) (No. CV-17-29-GF-BMM).

President Trump subsequently issued the 2019 Permit on March 29, 2019. 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. 13101 (March 29, 2019). The President issued the 2019 Permit pursuant to the "authority vested in [him] as President of the United States of America." Id. at 13101. The 2019 Permit grants TC Energy permission, subject to certain conditions, "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." The 2019 Permit expressly supersedes and revokes the 2017 Permit. Id. The 2019 Permit grants TC Energy permission to construct the cross-border pipeline facilities "notwithstanding" the 2004 Executive Order. Id.

President Trump's issuance of the 2019 Permit resulted in the Ninth Circuit dismissing the appeal regarding the 2017 Permit and remanding the action to the Court with instructions to vacate the injunction and dismiss the matter as moot. See Indigenous Envtl. Network v. U.S. Dep't of State , 2019 WL 2542756, at *1 (9th Cir. June 6, 2019). The Ninth Circuit never addressed the merits of any claims raised by the parties on appeal.

President Trump issued the 2019 Executive Order a few weeks after he issued the 2019 Permit. 84 Fed. Reg. at 15491. The 2019 Executive Order provides the President with complete authority to approve or deny cross-border pipeline permits. Id. at 15492. In this regard, the 2019 Executive Order clarifies that applicants do not need State Department or agency permission to obtain a cross-border pipeline permit. Id.

The Tribes brought this action to challenge the 2017 Permit and the 2019 Permit. (Doc. 58.) The Tribes have conceded that their Eighth through Eleventh Claims for relief (Doc. 58 at 118-124), which challenged the 2017 Permit, are now moot. (Doc. 74 at 15.) The Tribes consent to the Court's dismissal of those claims. ( Id. )

The Tribes challenge the 2019 Permit on numerous grounds. The Tribes allege that President Trump's issuance of the 2019 Permit violates the 1851 Fort Laramie Treaty, the 1855 Lame Bull Treaty, the 1868 Treaty of Fort Laramie (collectively "the Treaties"), the Foreign Commerce Clause of the United States Constitution, the Tribes' inherent sovereign powers, and various federal statutes and regulations. (Id. at 105-118.) The Tribes seek the following relief:

• The Tribes seek a declaration that Federal Defendants violated the 1851 Treaty of Fort Laramie and the 1855 Lame Bull Treaty. (Id. at 125.) Stemming from those violations, the Tribes seek a declaration that TC Energy must

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