Sisseton-Wahpeton Oyate v. U.S. Dept. of State, Civ. 08-3023.

• Decision Date: 29 September 2009
• Docket Number: No. Civ. 08-3023.,Civ. 08-3023.
• Citation: 659 F.Supp.2d 1071,2009 DSD 12
• Parties: The SISSETON-WAHPETON OYATE; Rosebud Sioux Tribe; Santee Sioux Tribe of Nebraska; and Yankton Sioux Tribe, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE; Hillary Clinton, in her official capacity as Secretary of State; Reuben Jeffery III, in his official capacity as Under Secretary of State for Economic, Energy and Agricultural Affairs; Elizabeth Orlando, in her official capacity as NEPA Coordinator, Keystone EIS Project Manager, U.S. Department of State; and the United States of America, Defendants, TransCanada Keystone Pipeline, LP, Defendant-Intervenor.
• Court: U.S. District Court — District of South Dakota

659 F.Supp.2d 1071

2009 DSD 12

The SISSETON-WAHPETON OYATE; Rosebud Sioux Tribe; Santee Sioux Tribe of Nebraska; and Yankton Sioux Tribe, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE; Hillary Clinton, in her official capacity as Secretary of State; Reuben Jeffery III, in his official capacity as Under Secretary of State for Economic, Energy and Agricultural Affairs; Elizabeth Orlando, in her official capacity as NEPA Coordinator, Keystone EIS Project Manager, U.S. Department of State; and the United States of America, Defendants TransCanada Keystone Pipeline, LP, Defendant-Intervenor.

No. Civ. 08-3023.

United States District Court, D. South Dakota, Central Division.

September 29, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eric J. Antoine, Rosebud, SD, Mario Gonzalez, Rapid City, SD, for Plaintiffs.

Cheryl Schrempp Dupris, U.S. Attorney's Office Pierre Office, Pierre, SD, John C. Cruden, Keith J. Benes, Luther Langdon Hajek, Ty Bair, United States Department of Justice, Washington, DC, for Defendants.

James Coleman, Sidley Austin LLP, Washington, DC, James Ellis Moore, William G. Taylor, Jr., Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD, Peter R. Steenland, Sidley Austin LLP, Washington, DC, for Defendant-Intervenor.

MEMORANDUM OPINION AND ORDER

KORNMANN, District Judge.

[¶ 1.] Defendant, United States of America, has filed a motion to dismiss for lack of jurisdiction, pursuant to Fed. R.Civ.P. 12(b)(1) and, alternatively, for failure to state a claim, pursuant to Fed. R.Civ.P. 12(b)(6), Doc. 26. Defendant-Intervenor has also filed a motion to dismiss for the same reasons, Doc. 27.

FACTS

[¶ 2.] On April 30, 2004, President George W. Bush issued Executive Order 13337. This order details the procedures necessary for the issuance of permits for certain types of energy related facilities that cross international boundaries into the United States.¹ Among other things, Executive Order 13337 delegated the responsibility of receiving applications for the Presidential permits to the Secretary of State who was authorized to approve or deny permits based on "national interest." The Secretary of State, in turn, delegated the authority to the Under Secretary of State for Economic, Energy, and Agricultural Affairs.

[¶ 3.] If an official, who was required to be consulted under Executive Order 13337, disagreed with the Secretary's determination, the application would be forwarded to the President for consideration. The President retained the final authority to determine whether a permit should be issued.

[¶ 4.] On January 17, 2006, the Department of State ("Department") sent a letter to the Sisseton Whapeton Tribal Historical Preservation Office ("THPO") asking the office to coordinate a Section 106 government-to-government consultation regarding the proposed project.²

[¶ 5.] The Department received a preliminary report on the cultural resources aspect of the proposed pipeline from the South Dakota State Historical Preservation Office ("SHPO") on March 28, 2006. However, this report contained no comments from the plaintiffs.

[¶ 6.] On April 19, 2006, TransCanada Keystone Pipeline, LP ("Keystone") filed an application for a permit to construct, operate, and maintain a cross-border crude oil pipeline from a crude oil supply hub in Canada to oil refineries and oil distribution terminals in the United States. This proposed project fell within the scope of Executive Order 13337. The proposed pipeline was to be 30-34 inches in diameter and buried 48-60 inches below the surface of the ground. Additionally, was at maximum capacity, the pipeline is expected to transport approximately 591,000 barrels of oil per day.

[¶ 7.] In June, 2006, the Department wrote to the Sisseton-Whapeton THPO indicating that no cultural resources were located near the proposed pipeline based on the surveys that were conducted, but if the plaintiffs had concerns, they should contact the Department within 30 days.

[¶ 8.] Elizabeth Orlando, Project Coordinator for the Department, was the Department official who consulted with the plaintiffs pursuant to Section 106 of the National Historic Preservation Act of 1966 ("NHPA"). Orlando sent letters to each of the plaintiffs in August and September, 2006 requesting that they join the Department in "consultation" regarding the proposed project.

[¶ 9.] The Department issued a Notice of Intent ("Notice" or "NOI") on October 4, 2006. The Notice, which was published in the Federal Register, informed the public of the Department's intent to prepare an Environmental Impact Statement ("EIS") and to Conduct Public Scoping Meetings. See 71 Fed. Reg. 59,849-59,851. The notice also solicited public comments for consideration in establishing the scope and content of the environmental review process. Thirteen public scoping meetings were held regarding the proposed pipeline, including one in Clark, South Dakota, and one in Yankton, South Dakota.

[¶ 10.] Between December, 2006 and October, 2007, pursuant to § 106 of the NHPA, the Department and plaintiffs engaged in at least four meetings about the proposed pipeline, which included addressing the plaintiffs' environmental and archeological concerns. At these meetings, plaintiffs also requested a survey of 100% of the pipeline construction corridor for traditional cultural properties.³

[¶ 11.] On August 10, 2007, the Department issued a Draft Environmental Impact Statement ("DEIS"). A final Environmental Impact Statement ("FEIS") was issued on January 11, 2008. These statements were issued pursuant to the National Environmental Policy Act of 1969 ("NEPA").

[¶ 12.] On January 30, 2008, the Programmatic Agreement governing the project was signed. However, the plaintiffs refused to sign the agreement.⁴

[¶ 13.] On February 28, 2008, the Department issued a Record of Decision ("ROD") indicating its intention to issue a Presidential Permit to Keystone.

[¶ 14.] On March 11, 2008, the Presidential Permit was signed by the Department, which granted Keystone permission to bring the pipeline across the border of Canada into the United States.

[¶ 15.] On November 24, 2008, the plaintiffs filed this lawsuit.

DISCUSSION

I. STANDARD OF REVIEW

[¶ 1.] "Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by Congress pursuant thereto." Marine Equipment Management Co. v. United States, 4 F.3d 643, 646 (8th Cir. 1993) (citing Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501, reh'g denied 476 U.S. 1132, 106 S.Ct. 2003, 90 L.Ed.2d 682 (1986), (citing in turn Marbury v. Madison, 5 U.S.(1 Cranch) 137, 2 L.Ed. 60 (1803))). "The threshold inquiry in every federal case is whether the court has jurisdiction," and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction of jurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 26-27 (8th Cir.1964), and Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir.1987).

[¶ 2.] A motion to dismiss for lack of subject matter jurisdiction challenges the court's power to hear the case. Mortensen v. First Fed. Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). Jurisdictional issues are for the court to decide and the court has broad power to decide its own right to hear a case. Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Because jurisdiction is a threshold question, judicial economy demands that the issue be decided at the onset. Osborn, at 729.

[¶ 3.] Where, as here, the defendants move for dismissal under Rule 12(b)(1), Fed.R.Civ.P., as well as on other grounds, "the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1350, p. 548 (1969). cf. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction). "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993).

[¶ 4.] "The district court has the authority to consider matters outside the pleadings on a motion challenging subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)." Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 470 (8th Cir.1993). See also Osborn, 918 F.2d at 729, fn. 4 (citing Land v. Dollar, 330 U.S. 731, 735 & fn. 4, 67 S.Ct. 1009, 1011 & fn. 4, 91 L.Ed. 1209 (1947), and Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir.1980)). Such consideration does not convert a motion to dismiss into a motion for summary judgment. Deuser v. Vecera, 139 F.3d 1190, 1191 fn. 3 (8th Cir.1998). Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 470 (8th Cir.1993). Plaintiffs have the burden of establishing that jurisdiction exists. It is not the responsibility of defendants to prove otherwise. Titus, 4 F.3d at 593 fn. 1.

[¶ 5.] The Eighth Circuit, in Osborn, delineated the standard of review for motions to dismiss under Fed.R.Civ.P. 12(b)(1):

[H]ere the trial court may proceed as it never could under 12(b)(6) or Fed. R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiffs allegations, and the...