Tribes Sue Interior for Approving Keystone XL Pipeline Route (1)

Nov. 18, 2020, 7:05 PM; Updated: Nov. 18, 2020, 8:08 PM

Tribes in Montana and South Dakota sued the Interior Department Tuesday for clearing a path for the Keystone XL pipeline across their ancestral lands, ignoring the tribes’ jurisdiction.

The Rosebud Sioux Tribe in South Dakota and the Fort Belknap Indian Community in Montana are in the proposed path of the pipeline. TransCanada, also known as TC Energy Corp., has yet to obtain Rosebud’s consent to build the pipeline across its territory, as required by an 1868 treaty, according to the complaint filed in the U.S. District Court for the District of Montana.

The Bureau of Land Management “has also not fully analyzed the impact the Pipeline will have on the Tribes’ territories, and in particular the Tribes’ water resources and lands held in trust,” the complaint said.

The tribes claim the federal government’s environmental impact reports make false conclusions about the lands the proposed pipeline crosses. The tribes are also concerned about an influx of pipeline workers and the potential for them to spread the coronavirus, according to the complaint.

“Throughout the process there have consistently been comments that the United States should avoid, or at least evaluate a route that avoids, tribal treaty lands,” the tribes said. “No such route has been analyzed.”

The Bureau of Land Management granted TransCanada a right-of-way and temporary use permit in January to cross federal lands in Montana.

Environmental advocacy groups previously filed a complaint in the same court, claiming the bureau approved Keystone XL’s route across 44 miles of federal lands in Montana without complying with environmental laws.

The proposed pipeline would carry crude oil from tar sands in Alberta, Canada, to the Gulf Coast.

Cause of Action: National Environmental Policy Act; Administrative Procedures Act; 1851 Fort Laramie Treaty; 1855 Lame Bull Treaty; 1868 Fort Laramie Treaty.

Relief: Declaration that the Interior Department violated NEPA, APA, and treaties; injunction blocking the permit; legal costs and fees.

Response: “The BLM stands by the extensive environmental analysis that informed our decision to grant a right-of-way (ROW) for the federal lands involved in this project,” said Richard Packer, a spokesman for the bureau. “Our decision meets the requirements of all applicable laws, including NEPA, the Mineral Leasing Act, and the Endangered Species Act. This project will provide important jobs and opportunities to local communities and ensure reliable and affordable energy supplies are safely transported to power our nation’s economy.”

Attorneys: The Native American Rights Fund represents the tribes.

The case is Rosebud Sioux Tribe v. Dep’t of Interior, D. Mont., No. 4:20-cv-00109, 11/17/20.

(Updated with response from the Bureau of Land Management.)

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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