Case 4:17-cv-00031-BMM Document 94 Filed 11/22/17 Page 1 of 4

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
NOV 22 2017
GREAT FALLS DIVISION

Clerk. u.s District Cour1
District Of Montana
Great Fells

NORTIIERN PLAINS RESOURCE
COUNCIL, et aL,

CV-17-31-GF-BMM

Plaintiffs,
vs.
THOMAS A SHANNON, JR., in his
Official Capacity as U.S. Under
Secretary of State, et aJ.,
ORDER

Defendants,
and
TRANS CANADA CORPORA nON,
et aL,
Intervenor-Defendants. I

Plaintiffs Northern Plains Resource Council, Bold Alliance, Center tor
Biological Diversity, Friends of the Earth, Natural Resources Defense Council,
Inc., and Sierra Club (collectively "Plaintiffs") bring this action against the United
States Department of State and various other governmental agencies and agents in
their official capacities ("Federal Defendants") (Doc. 58.) The Court allowed
TransCanada Keystone Pipeline, LP ("TransCanada") to intervene in this matter on
April 27, 2017. (Doc. 23.)

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 Case 4:17-cv-00031-BMM Document 94 Filed 11/22/17 Page 2 of 4

The Court consolidated this matter with Indigenous Environmental Network,
et al v. United States Department a/State, et at on October 4, 2017 (Doc. 75.) The
Court's resolution of Federal Defendants' and TransCanada's motions to dismiss
and supplemental motions to dismiss in that case govern here. (Doc. 99.) The
Court adopts that ruling and will address only Plaintiffs' additional claims here.
Plaintiffs allege that the Bureau of Land Management ("BLM") violated the
National Environmental Policy Act ("NEP A") by relying on the 2014 Final
Supplemental Environmental Impact Statement ("FSEIS") for its decision
regarding right-of-ways across BLM managed federal land for the Keystone XL
Pipeline. Plaintiffs additionally allege that the State Department failed to explain
and to justifY adequately its reversal of position on whether the Keystone XL
Pipeline serves the national interest and its reliance on an inadequate
environmental review.
DISCUSSION

Federal Defendants and TransCanada move to dismiss Plaintiffs' Complaint
pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil
Procedure. A challenge to a court's jurisdiction to hear a claim may be brought
either as a facial attack on the sufficiency of the pleadings, or as a factual attack
that contests the complaint's allegations. Leite v. Crane Co., 749 F.3d 1117, 1121

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 Case 4:17-cv-00031-BMM Document 94 Filed 11/22/17 Page 3 of 4

(9th Cir. 2014). Federal Defendants question whether Plaintiffs have presented a
cause of action. 'The Rule 12(b)(6) standard applies. Leite, 749 F.3d at 1121.
I.

NEP A Claim Against the BLM

Federal Defendants and TransCanada argue that the BLM has not made a
decision regarding the right-of-way. Federal Defendants and TransCanada further
argue that the NEPA claim should be dismissed for lack of final agency action. The
BLM may grant the right-of-way request at any time. The BLM further will base
their decision on the 2014 FSEIS.
As a result, the Court will hold Plaintiffs' claim against BLM in abeyance
until BLM issues a final decision. Abeyance will promote judicial economy.
Plaintiffs' BLM claim draws on the same body oflaw and facts regarding the
Keystone XL Pipeline as Plaintiffs' other claims against Federal Defendants. See

Hargerv. Us. Dep 'f ofLabor, 2007 WL 1430214 at *3-4 (E.D. Wash. 2007);
Sierra Club v. Us. Army Corps ofEng'rs, 64 F.Supp.3d 128, 137 (D.D.C. 2014).
II.

Reversal of Prior Decision

Under Secretary Thomas A. Shannon published a Record of Decision
("ROD") that confirmed that the State Department did not supplement its NEPA
analysis before determining that the Keystone XL Pipeline serves the national
interest and issuing the Presidential Permit. The ROD refers repeatedly to the same
2014 FSEIS upon which former Secretary of State John Kerry relied in rejecting

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the request for a Presidential Permit in 2015. (Doc. 42-6.) The Court believes that
this claim would be redressed by an order that would require Federal Defendants to
comply with the AP A and NEP A.
CONCLUSION
Accordingly, it is HEREBY ORDERED that Federal Defendants' Motion
to Dismiss (Doc. 42) and Supplemental Motion to Dismiss (Doc. 61) are DENIED.
It is FURTHER ORDERED that TransCanada's Motion to Dismiss (Doc.

43) and Supplemental Motion to Dismiss (Doc. 59) are DENIED.
DATED this 22nd day of November, 2017.

Brian Morris

United States District Court Judge

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