United States District Court, D. Montana, Great Falls Division
INDIGENOUS ENVIRONMENTAL NETWORK and NORTH COAST RIVER ALLIANCE, and NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs,
UNITED STATES DEPARTMENT OF STATE, et al., Defendants and TRANSCANADA KEYSTONE PIPELINE and TRANSCANADA CORPORATION, Defendant-Intervenors.
SUPPLEMENTAL ORDER REGARDING MOTION TO STAY
MORRIS UNITED STATES DISTRICT COURT JUDGE
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.)
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 on November 15,
2018. (Doc. 212.)
moved 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 sought
clarification of the Court's Orders to ensure certain
preliminary project activities would not be enjoined. (Doc.
215.) The Court granted in part TransCanada's motion to
amend. (Doc. 232.) The Court determined that TransCanada
could conduct activities as defined in Paragraphs 16-17 of
the Ramsay Declaration. (Doc. 216-1 at 6-7.) The Court
allowed TransCanada to conduct cultural, biological, civil
and other surveys, and to maintain security at project sites,
as set forth in Paragraph 18 of the Ramsay Declaration.
Id. at 7. All remaining preconstruction activities
outlined in Paragraph 18 remained enjoined in accordance with
the Court's Summary Judgment Order until the Department
has complied with its NEPA and APA obligations and the
Department has issued a new ROD. (Doc. 211.)
filed a Notice of Appeal on December 21, 2018. (Doc. 233.)
TransCanada also filed a Motion to Stay the permanent
injunction pending its appeal (Doc. 234.) TransCanada asks
the Court to allow three off-right-of-way activities to
continue (hereafter “off-right-of-way
activities”): (1) preparation of off-right-way pipe
storage and contractor yards; (2) transportation, receipt,
and offloading of pipe at off-right-of-way storage yards; and
(3) preparation of sites for off-right-of-way construction
camps. TransCanada argues that each of these activities will
involve only private action, will impact only private land,
and will fall beyond the scope of any NEPA analysis.
TransCanada further argues that it will suffer irreparable
harm absent a stay of the off-right-of-way activities.
Id. at 2. Finally, TransCanada argues that the
off-right-of-way activities serve the public interest and
will not substantially injure Plaintiffs.
United States Supreme Court has set forth a four-factor test
for granting a stay pending appeal: “(1) whether the
stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies.” Nken v. Holder, 556 U.S. 418,
434 (2009). A party requesting a stay pending appeal bears
the burden of showing that the circumstances justify an
exercise of the court's discretion. Lair v.
Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012).
Court held a hearing on TransCanada's Motion to Stay on
January 14, 2019. (Doc. 249.) TransCanada discussed further
details regarding the importance of continuing the
off-right-of-way activities pending the Department's NEPA
review and TransCanada's appeal. TransCanada clarified
that it was asking to continue only the three
off-right-of-way activities. TransCanada does not contest the
Court's decision to enjoin mowing and patrolling the
right-of-way to discourage migratory bird nesting.
emphasized that the off-right-of-way activities occur solely
on private land. TransCanada either owns or leases this
private land from private parties. Further, TransCanada
asserted that none of the off-right-of-way activities would
be subject to the NEPA review process. TransCanada submitted
an updated Status Report. (Doc. 246.) The updated Status
Report demonstrates that the off-right-of-way activities will
not cross or be in proximity to water bodies, will not
involve removal of trees, and will not involve the
application of pesticides or herbicides. (Doc. 246-1 at 9.)
Further, TransCanada asserts that the proposed
off-right-of-way activities will occur in areas that already
have been surveyed for the presence of protected species and
cultural resources. Id. at 9-10. Finally,
TransCanada alleges that it has obtained all state and local
permits needed to perform the activities. Id. The
Court makes the following determinations in light of the new
information presented at the hearing.
TransCanada's Likelihood of Success on the Merits of Its
asserts five arguments in support of its likelihood of
success on appeal. Plaintiffs oppose each argument. The Court
will address each of TransCanada's arguments in turn.
The Department's Decision to issue the Permit
first argues that the Department's issuance of the
cross-border permit should not be subject to review under
NEPA or the APA. (Doc. 235 at 11.) TransCanada argues that
the Department acted pursuant to an express delegation of the
President's inherent authority over foreign affairs.
Id. TransCanada argues that the Department's
issuance of the permit constituted a presidential action,
rather than an agency action. TransCanada asserts that
judicial review would be inapplicable under these
Court considered two factors in determining whether issuance
of the permit constituted presidential action: 1) whether the
President carried out the final action himself and the manner
in which he did so; and 2) whether Congress has curtailed in
any way the President's authority to direct the
“agency” in making policy judgments. Natural
Res. Def. Council v. U.S. Dep't of State, 658
F.Supp.2d 105, 111 (D.C. Cir. 2009).
President waived any right in his Memorandum to review the
Department's decision under Executive Order 13337. The
Department's obligation to study the environmental
impacts of its decision fundamentally does not stem from the
foreign relations power. The Department's own NEPA
regulations recognize that the issuance of a Presidential
Permit represents a “major Departmental action”
subject to Congress's mandates in NEPA. 22 C.F.R.
§§ 161.7, 161.7(c)(1). The Department prepared, on
its own initiative, an SEIS and published a corresponding
ROD/NID in this case. (Doc. 61 at 6.)
Department took final agency action when it published the
ROD/NID for Keystone and issued the accompanying Presidential
Permit. The Ninth Circuit has determined that “once an
EIS's analysis has been solidified in a ROD, the agency
has taken final agency action, reviewable under [APA section]
706(2)(A).” Or. Nat. Desert Ass'n v. Bureau of
Land Mgmt., 625 F.3d 1092, 1118-19 (9th Cir. 2010);
Laub v. U.S. Dep't of Interior, 342 F.3d 1080,
1088 (9th Cir. 2003). The publication of the ROD/NID led to
the Department's issuance of the accompanying
Presidential Permit. TransCanada would not be likely to
succeed on appeal under this argument.
next alleges that NEPA and APA limit the Court's
authority to the border-crossing area, rather than the length
of the entire project. The Court rejected this argument in
its Order on Partial Summary Judgment. (Doc. 202.) The Permit
states that Keystone “must be constructed and operated
as described in the 2012 and 2017 permit applications.”
Notice of Issuance of a Presidential Permit, 82 Fed. Reg.
16467-02 (Apr. 4, 2017). The Department was required to
“analyze all of the environmental consequences of [the]
project.” Save Our Sonoran, Inc., 408 F.3d at
1118. The Court possessed authority to enjoin the entire
strong presumption exists that Congress intends judicial
review of administrative action. ASSE Int'l v.
Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015). Two narrow
exceptions apply: (1) when Congress expressly bars review by
statute, or (2) where an agency action is “committed to
agency discretion by law.” Id. TransCanada
argues that the APA does not apply because a national
interest determination remains committed to agency discretion
and stands exempt from judicial review. (Doc. 235 at 17.)
commits agency action to agency discretion in those rare
instances where Congress draws statutes in such broad terms
that no law exists to apply in a given case. 5 U.S.C. §
701(a)(2). Congress's decision to draft a statute in such
broad terms leaves the court “with no meaningful
standard against which to judge the agency's exercise of
discretion.” Id. Courts must consider
“the language of the statute” and whether
judicial review would endanger “the general purposes of
the statute.” Cnty. Of Esmeralda v. Dep't of
Energy, 925 F.2d 1216, 1218 (9th Cir. 1991).
has provided a meaningful standard in the form of NEPA
against which to judge the Department's conduct. Congress
enacted NEPA to “protect the environment by requiring
that federal agencies carefully weigh environmental
considerations and consider potential alternatives to the
proposed action before the government launches any major
federal action.” Barnes v. U.S. Dep't of
Transp., 655 F.3d 1124, 1131 (9th Cir. 2011).
NEPA, as enacted by Congress, its regulations, and any
judicial opinions that address similar NEPA claims, have
developed these standards more fully. 42 U.S.C.A. §
4332(2)(C); Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971).
next asserts that no circumstances presented in the
administrative record warranted NEPA supplementation.
TransCanada argues that nothing in the administrative record
required the Department to supplement its NEPA analysis with
regard to the following areas: the Mainline Alternative Route
(“MAR”); oil markets; greenhouse gas emissions;
cultural resources; and oil spills.
argues that no circumstances regarding the change in the
route through Nebraska required the Department to provide a
supplement to the SEIS with regard to the MAR. TransCanada
contends that the Department had completed its
decision-making process before the State of Nebraska had