Montana Free Press: Tribal lawsuit adds to Keystone XL hurdles as feds await Supreme Court consideration

Wednesday, July 1, 2020  

The Fort Peck Assiniboine and Sioux Tribes of northeast Montana have filed the latest lawsuit against the federal government opposing construction of the Keystone XL oil pipeline. At the same time, the Trump administration awaits a decision by the U.S. Supreme Court on whether to hear a separate case currently blocking construction crucial to the pipeline’s completion.

The Fort Peck Tribes have long stood against the pipeline. The Tribal Executive Board passed a resolution in 2015 opposing construction, state lawmakers from the reservation attempted to kill or reroute the pipeline in Montana’s 2019 legislative session, and tribal members have protested the Canadian project for years.

The completed pipeline would run 1,200 miles between the Alberta oil sands in Canada to a pipeline hub in Nebraska. Along the way, the pipeline is planned to cross the Missouri River a quarter-mile upriver of the Fort Peck Indian Reservation’s border.

In 2018, Fort Peck Tribal Chairman Floyd Azure announced he wanted the tribes to join a lawsuit against Keystone XL after reading a risk assessment filed by pipeline company TransCanada (now rebranded as TC Energy) for a U.S. Army Corps of Engineers permit to cross the Missouri River. Despite years of advocacy, the risk assessment failed to mention the reservation, the tribes, or the $300 million water network just downriver of the proposed crossing, which has provided the tribes with drinking water since the reservation’s aquifer was destroyed by 20th century oil development.

Azure could not be reached for comment by press time, but said in 2018 that the risk assessment was not “worth the paper it’s written on.”

The tribes did not ultimately join that lawsuit, which succeeded in winning a halt to construction in 2018. President Trump later outmaneuvered the ruling with executive orders to restart construction in 2019, leading to new lawsuits from old and new plaintiffs, one of which halted Keystone XL’s construction across bodies of water in April.

The Fort Peck Tribes brought their own lawsuit on May 29 to federal court in Great Falls, centered on the same threats to the reservation’s drinking water that Azure voiced in 2018.

The lawsuit claims the latest environmental assessment of Keystone XL, filed in 2019, still fails to address the tribes’ concerns, just as previous assessments in 2011 and 2014 failed. Filed against the U.S. Department of the Interior, Bureau of Land Management, and U.S. Army Corps of Engineers, the lawsuit alleges the defendants violated the National Environmental Policy Act, the Administrative Procedures Act, and the U.S. government’s trust responsibilities to the tribes.

The lawsuit echoes a 2018 Montana Free Press investigation that found the environmental assessment of a potential oil spill on the Missouri River did not include the threat posed to the intake valve of the Assiniboine and Sioux Rural Water Supply System (ASRWSS) simply because it was outside the arbitrary geographic scope of the assessment.

“Thus, they do not consider the impacts of a spill on the Reservation environment, land, and resources further downriver,” the lawsuit reads.

The lawsuit also draws on a 1908 U.S. Supreme Court decision relating to the Fort Belknap Indian Community of Montana (party to yet another separate lawsuit opposing Keystone XL) known as the Winters Doctrine. The decision affirmed that Fort Belknap is entitled to water from the federal government for irrigation purposes according to the 1888 Sweetgrass Hills Treaty, which established the reservation, as the reservation lands were “practically valueless” without irrigation.

The Fort Peck Indian Reservation was established by the same treaty, and the plaintiffs argue that the Fort Peck Irrigation Project, created by Congress five months after the Fort Belknap ruling, as well as the ASRWSS, must be protected by the federal government under the Winters Doctrine from the threat of Keystone XL spilling into the Missouri River.

In failing to address that and other issues, the tribes claim, the federal government violated environmental laws, its own regulations, and the government’s responsibility to the tribes. The tribes request the court vacate Corps of Engineers and BLM permits, halting construction.

While construction of Keystone XL is ongoing, TC Energy cannot build across bodies of water due to an injunction levied by Montana federal district court judge Brian Morris, courtesy of a 2019 lawsuit filed by a group of environmental organizations. The 9th Circuit Court of Appeals affirmed Morris’ ruling in May, and On June 16 the Solicitor General for the United States petitioned the U.S. Supreme Court to take up the case.

Morris’ ruling has proved to be a lightning rod for the pipeline industry, as the U.S. Army Corps permit he vacated to stop Keystone XL water construction, known as Nationwide Permit 12, has been key to fast-tracking pipeline construction since 2012. 

The American Petroleum Institute, American Gas Association, Association of Oil Pipe Lines and other industry groups have intervened in the case on behalf of the federal defendants. So has the state of Montana, at the behest of Attorney General Tim Fox, though Gov. Steve Bullock has said he now finds the environmental assessment deficient, contrary to his past support for Keystone XL’s construction.

“The district court had no warrant to set aside NWP 12 with respect to Keystone XL, let alone for the construction of all new oil and gas pipelines anywhere in the country,” argued Solicitor General Noel Francisco in his petition to the Supreme Court.

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Hunter Pauli is a Seattle-born, Missoula-based freelance investigative reporter and graduate of the University of Montana School of Journalism. You can follow him on Twitter @paulimeth.

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This story originally appeared on Montana Free Press on June 26, 2020. It is published under a Creative Commons license.

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