Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 1 of 42

MARK STEGER SMITH
Assistant U.S. Attorney
U.S. Attorney’s Office
2601 Second Avenue North, Suite 3200
Billings, MT 59101
Ph: (406) 247-4667; Fax: (406) 657-6058
mark.smith3@usdoj.gov
LAWRENCE J. VANDYKE
Deputy Assistant Attorney General
MARISSA A. PIROPATO (MA BAR 65160)
LUTHER L. HAJEK (CO Bar 44303)
United States Department of Justice
Environment and Natural Resources Division
999 18th St., South Terrace, Suite 370
Denver, CO 80202
Ph: (303) 844-1376; Fax: (303) 844-1350
marissa.piropato@usdoj.gov
luke.hajek@usdoj.gov
Attorneys for Federal Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
INDIGENOUS ENVIRONMENTAL
NETWORK, et al.,
Plaintiffs,
v.
PRESIDENT DONALD J. TRUMP, et
al.,
Defendants.

CV 19-28-GF-BMM
DEFENDANTS’ OPPOSITION
TO PLAINTIFFS’ MOTION FOR
A PRELIMINARY INJUNCTION

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 2 of 42

TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1 
BACKGROUND .......................................................................................................3 
I. 

The Issuance of Presidential Permits ....................................................3 

II. 

The 2017 Presidential Permit for the Keystone XL Pipeline and
the Ensuing Litigation ...........................................................................4 

III. 

The President’s Issuance of the Presidential Permit for the
Keystone XL Pipeline in March 2019 ...................................................5 

IV. 

New Complaint......................................................................................6 

STANDARD FOR OBTAINING A PRELIMINARY INJUNCTION ....................7 
ARGUMENT .............................................................................................................8 
I. 

Plaintiffs Are Not Likely to Succeed on the Merits of Their
Claims. ...................................................................................................8 
A. 

Plaintiffs Have Failed to Demonstrate Standing. .......................8 

B. 

Plaintiffs Fail to Raise a Viable Constitutional Challenge
to the Permit. .............................................................................13 
1. 

The Issuance of Presidential Permits is Within the
Scope of Executive Power. .............................................13 
a. 

The President has broad executive powers. .........15 

b. 

For over a century, Congress has never
disputed the Executive’s assertion of
authority over cross-border permits .....................17 

c.  

A Long Line of Precedent Confirms the
Executive’s Power to Issue the Permit .................18 

2. 

Plaintiffs’ Property Clause Claim Lacks Merit ..............19 

3. 

The Commerce Clause Neither Prohibits nor
Conflicts with the Permit ................................................20 
i

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 3 of 42

4. 

The Commerce Clause Neither Prohibits nor
Conflicts with the Permit ................................................21 

II. 

Plaintiffs Have Failed to Demonstrate Irreparable Harm from the
Issuance of the Permit. ........................................................................25 

III. 

The Balance of the Harms and the Public Interest Weigh Against
an Injunction. .......................................................................................30 

CONCLUSION ........................................................................................................31 

ii

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 4 of 42

TABLE OF AUTHORITIES
Cases 
Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) ...................................................................................... 16, 17
Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531 (1987) ...................................................................................... 28, 29
Chai v. Carroll,
48 F.3d 1331 (4th Cir. 1995) ................................................................................23
Chapman v. Pier 1 Imps. (U.S.) Inc.,
631 F.3d 939 (9th Cir. 2011) ................................................................................12
Cheyenne Tribe v. Hodel,
851 F.2d 1152 (9th Cir. 1988) ..............................................................................29
Chicago & S. Air Lines, Inc. v. Waterman S. S. Corp.,
333 U.S. 103 (1948) ...................................................................................... 15, 25
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .................................................................................. 9, 10, 11
Colorado Wild, Inc. v. U.S. Forest Service,
523 F. Supp. 2d 1213 (D. Colo. 2007) .................................................................30
Coons v. Lew,
762 F.3d 891 (9th Cir. 2014) ................................................................................10
Dalton v. Specter,
511 U.S. 462 (1994) .............................................................................................25
Dames & Moore v. Regan,
453 U.S. 654 (1981) .............................................................................................15
Drakes Bay Oyster Co. v. Jewell,
747 F.3d 1073 (9th Cir. 2014) ..............................................................................30
Facchiano Constr. Co. v. U.S. Dep’t of Labor,
987 F.2d 206 (3d Cir. 1993) .................................................................................23
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .............................................................................................24

iii

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 5 of 42

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) ...................................................................................... 22, 23
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) ...............................................................................................9
Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the Navy,
383 F.3d 1082 (9th Cir. 2004) ................................................................. 24, 30, 31
Haig v. Agee,
453 U.S. 280 (1981) .............................................................................................17
High Sierra Hikers Ass’n v. Blackwell,
390 F.3d 630 (9th Cir. 2004) ................................................................................27
Indep. Meat Packers Ass’n v. Butz,
526 F.2d 228 (8th Cir. 1975) ................................................................................23
Kansas v Colorado,
206 U.S. 46 (1907) .................................................................................. 19, 20, 21
Kaplan v. Corcoran,
545 F.2d 1073 (1976) ...........................................................................................17
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) .............................................................................................10
Manhattan-Bronx Postal Union v. Gronouski,
350 F.2d 451 (D.C. Cir. 1965) .............................................................................22
Massachusetts v. Watt,
716 F.2d 946 (1st Cir. 1983) ................................................................................29
Mazurek v. Armstrong,
520 U.S. 968 (1997) ...............................................................................................7
Michigan v. Thomas,
805 F.2d 176 (6th Cir. 1986) ................................................................................23
Missouri ex rel. Koster v. Harris,
847 F.3d 646 (9th Cir. 2017) ................................................................................11
Muckleshoot Tribe v. Lummi Indian Tribe,
141 F.3d 1355 (9th Cir. 1998) ..............................................................................10
Munaf v. Geren,
553 U.S. 674 (2008) ...............................................................................................7
iv

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 6 of 42

Newdow v. Bush,
391 F. Supp. 2d 95 (D.D.C. 2005) .......................................................................12
Pit River Tribe v. U.S. Forest Service,
615 F.3d 1069 (9th Cir. 2010) ..............................................................................28
Save Our Sonoran, Inc. v. Flowers,
408 F.3d 1113 (9th Cir. 2005) ..............................................................................28
Sierra Club v. Clinton,
689 F. Supp. 2d 1147 (D. Minn. 2010) ................................................................18
Sierra Club v. Marsh,
872 F.2d 497 (1st Cir. 1989) ................................................................................30
Sisseton-Wahpeton Oyate v. U.S. Dep’t of State,
659 F. Supp. 2d 1071 (D.S.D. 2009) ....................................................................18
Springer v. Philippine Island,
277 U.S. 189 (1928) .............................................................................................15
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ........................................................................................ 9, 10
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) ............................................................................12
the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) ......................................................................... 8, 31
U.S. Dep’t of State,
347 F. Supp. 3d 561 (D. Mont. 2018) ....................................................................5
U.S. Dep’t of State,
369 F. Supp. 3d 1045 (D. Mont. 2018) ..................................................................5
U.S. Dep’t of State,
No. 18-36068, 2019 WL 2542756 (9th Cir. June 6, 2019) ....................................6
U.S. Dep’t of State,
No. CV-17-29-GF-BMM, 2017 WL 5632435 (D. Mont. Nov. 22, 2017) .............5
U.S. Dep’t of State,
No. CV-17-29-GF-BMM, 2019 WL 652416 (D. Mont. Feb. 15, 2019)..............30
U.S. Dep't of State,
658 F. Supp. 2d 105 (D.D.C. 2009) .............................................................. 16, 19
v

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 7 of 42

United States v. Curtiss–Wright Export Corp.,
299 U.S. 304 (1936) ...................................................................................... 15, 16
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ...................................................................... 7, 8, 11, 25, 27, 29
Wireless Telegraphy – Int’l Agreement,
24 Op. Att’y Gen. 100 (1902) ................................................................................3
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .................................................................... 13, 14, 15, 16, 18
Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) .........................................................................................14
Constitutions
U.S. Const. art. II .....................................................................................................22
Statutes 
National Environmental Policy Act,
42 U.S.C. § 4332 ..................................................................................................24
Regulations 
40 C.F.R. § 1508.12 .................................................................................................24
Executive Orders
Exec Order No. 11,423,
33 Fed. Reg. 11,741 (Aug. 16, 1968) .....................................................................4
Exec. Order No. 10096,
15 Fed. Reg 389 (Jan. 23,1950)............................................................................17
Exec. Order No. 13,337,
69 Fed. Reg. 25,299 (Apr. 30, 2004) ......................................... 4, 6, 21, 22, 23, 25
Exec. Order No. 13,687,
80 Fed. Reg. 819 (Jan. 6, 2015)............................................................................23
Federal Register
84 Fed. Reg. 13,101, 13101 (Mar. 29, 2019) .............................................................5
Opinions of the Attorney General
Cuba – Cables, 22,
Op. Att’y Gen. 514 (1899) .....................................................................................4
vi

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 8 of 42

Gas Pipeline, 38,
Op. Att’y Gen. 163 (1935) .....................................................................................3
Foreign Cables,
22 Op. Att’y Gen. 13 (1898) ................................................................................21
Niagara River, 30,
Op. Att’y Gen. 217 (1913) .....................................................................................3
Other Authorities
President Ulysses Grant’s Seventh Annual Message to Congress, reprinted in
Papers Relating to the Foreign Relations of the United States, Vol. 1, 44th
Cong. 1st Sess., H.R. Doc. No. 1, Pt. 1 (Dec. 6, 1875)…………………………3
Hackworth, Digest of International Law, Vol. IV, § 350 (1942)…………………..3

vii

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 9 of 42

INTRODUCTION
On March 29, 2019, the President of the United States personally issued a
Permit allowing the Keystone XL Pipeline to cross the border from Canada into the
United States. Within a week, Plaintiffs challenged it. But they waited over a
month after the Ninth Circuit vacated this Court’s earlier preliminary injunction to
bring this motion for a new one. This new motion seeking extraordinary relief on
an exigent basis against the President seeks such relief based on action that is very
different than what was at issue in the Plaintiffs’ prior motion for injunctive relief
against the State Department. Plaintiffs’ motion should be denied because the
President’s authority to issue a border-crossing permit is well-established, as
evidenced by multiple Presidents’ exercise of such authority over a lengthy span of
nearly 150 years. Most fundamentally, Plaintiffs cannot plausibly argue any injury
(let alone irreparable injury) from the issuance of a border-crossing Permit, which
authorizes only facilities at the border of the United States—facilities that cannot
be built until additional government permits are secured. In sum, Plaintiffs’ new
motion fails for three reasons.
First, Plaintiffs have failed to demonstrate standing to challenge the Permit
authorizing the construction of border facilities. Instead, Plaintiffs allege harms
that would occur along the 875-mile pipeline route after TC Energy obtains all
necessary federal authorizations and the pipeline has been constructed. Such
1

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 10 of 42

alleged harms are insufficient to show standing because the Permit does not
authorize the construction of the entire pipeline. Rather, it authorizes the
construction of facilities in a 1.2-mile segment at the border of the United States.
And even for that small segment of the pipeline, because most of it is on U.S.
Bureau of Land Management (“BLM”) land, approval of a right-of-way permit by
BLM is still required before the facilities can be built in the 1.2-mile segment.
Plaintiffs thus cannot show any injury resulting from the border-crossing Permit.
Second, Plaintiffs are not likely to succeed on the merits of their
constitutional claims against the Permit because those claims are baseless. Ever
since President Grant authorized the landing of a telegraph cable on the shores of
the United States in 1875, Presidents have authorized border crossings for a variety
of facilities. For some types of border crossings, Congress has enacted its own
requirements, but it has never done so for oil pipelines. Nor has it ever questioned
the President’s authority to approve a border crossing. Thus, the purported conflict
with Congress’s authority that Plaintiffs allege simply does not exist. Likewise,
there is no conflict with BLM’s authority because the construction of facilities at
the border is contingent upon BLM issuing a right-of-way to cross federal public
land in the border area.
Finally, Plaintiffs fail to demonstrate irreparable harm caused by the border
crossing. They seek an injunction for pipeline-related activities along the pipeline
2

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 11 of 42

route, but those activities are far from the border segment and were not authorized
by the Permit.
The preliminary injunction should be denied.
BACKGROUND
I.

The Issuance of Presidential Permits
The authority previously delegated to the Secretary of State to issue permits

for various border-crossing facilities, including pipelines, derives wholly from the
President’s independent constitutional authority over foreign affairs and his
authority over national security. For well over a century, Presidents have exercised
that inherent authority to authorize border crossing facilities without any
Congressional action. See Hackworth, Digest of International Law, Vol. IV,
§ 350, at 247-56 (1942) (ECF No. 23-1); President Ulysses Grant’s Seventh
Annual Message to Congress, reprinted in Papers Relating to the Foreign Relations
of the United States, Vol. 1, 44th Cong. 1st Sess., H.R. Doc. No. 1, Pt. 1 (Dec. 6,
1875) (ECF No. 23-2); see also, e.g., Granting of License for the Constr. of a Gas
Pipeline, 38 Op. Att’y Gen. 163 (1935); Diversion of Water from Niagara River,
30 Op. Att’y Gen. 217 (1913); Wireless Telegraphy – Int’l Agreement, 24 Op.
Att’y Gen. 100 (1902); Cuba – Cables, 22 Op. Att’y Gen. 514 (1899). Long
before they delegated their permitting authority to executive branch officials,
Presidents personally signed and issued permits for border crossing facilities
3

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 12 of 42

themselves. See Whiteman, Digest of International Law, Vol. 9, at 917-21 (1968)
(ECF No. 23-3). This practice continued through the 1960s.
In 1968, President Lyndon B. Johnson delegated the President’s inherent
constitutional authority to issue permits for certain types of border crossing
facilities, including oil pipelines, to the Secretary of State. See Exec Order No.
11,423 § 1(a), 33 Fed. Reg. 11,741 (Aug. 16, 1968). In 2004, President George W.
Bush revised the process for issuing presidential permits for cross-border pipelines
for oil or other fuels. Exec. Order No. 13,337 § 1(a), 69 Fed. Reg. 25,299 (Apr. 30,
2004).
Recently, President Trump withdrew the delegation to agency heads to
approve the construction, operation, and maintenance of infrastructure projects,
including pipeline facilities, at the international border. See Exec. Order No.
13,867 §§ 1, 2(k), 84 Fed. Reg. 15,491 (Apr. 10, 2019).
II.

The 2017 Presidential Permit for the Keystone XL Pipeline and the
Ensuing Litigation
In March 2017, acting under the Constitutional authority of the President

then-delegated to the Secretary of State in Executive Order 13,337, the UnderSecretary of State for Political Affairs issued the 2017 Permit, authorizing the
construction and operation of pipeline facilities at the United States border with
Canada. Defendants moved to dismiss challenges to the permit in this Court on the
basis that the issuance of the 2017 Permit was a Presidential action and therefore
4

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 13 of 42

not reviewable under the Administrative Procedure Act (“APA”). The Court
denied the motion, finding that the issuance of the permit was agency action, not
Presidential action. See IEN v. U.S. Dep’t of State, No. CV-17-29-GF-BMM, 2017
WL 5632435, at *6 (D. Mont. Nov. 22, 2017).
Subsequently, the Court granted summary judgment to Plaintiffs on some of
their claims, vacated the Under Secretary’s decision to issue the 2017 Permit, and
enjoined the government and TC Energy (previously known as TransCanada) from
taking any actions in furtherance of the construction of the pipeline. See IEN v.
U.S. Dep’t of State, 347 F. Supp. 3d 561, 590-91 (D. Mont. 2018) (ECF No. 218).
The Court later clarified its injunction order to allow TC Energy to undertake
certain work in preparation for the construction of the pipeline, but it allowed only
activities that would not cause environmental impacts. See Suppl. Order
Regarding Permanent Inj., IEN v. U.S. Dep’t of State, 369 F. Supp. 3d 1045, 105253 (D. Mont. 2018).
III.

The President’s Issuance of the Presidential Permit for the Keystone XL
Pipeline in March 2019
On March 29, 2019, the President himself issued a new permit expressly

superseding and revoking the permit issued by the Under Secretary in 2017. See
Memorandum, Authorizing TransCanada Keystone Pipeline, L.P., To Construct,
Operate, and Maintain Pipeline Facilities at the International Boundary Between
the United States and Canada, 84 Fed. Reg. 13,101, (Mar. 29, 2019) (“Permit”).
5

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 14 of 42

The President issued the Permit pursuant to the “authority vested in [the President]
as President of the United States of America.” Id. The President issued the permit
“notwithstanding Executive Order 13337 of April 30, 2004 . . . and the Presidential
Memorandum of January 24, 2017.” Id. The Permit authorizes the construction
and operation of pipeline facilities in an approximately 1.2-mile segment from the
Canadian border to the first mainline shutoff valve in the United States. Id. The
Permit specifically requires that the approved “Facilities” be built “consistent with
applicable law,” id. art. 1(2), and that TransCanada is required to acquire “any
right-of-way grants or easements, permits, and other authorizations” necessary to
build the border-crossing facility, id. art. 6(1).
In light of the new Permit, on June 6, 2019, the Ninth Circuit granted the
Defendants’ and TC Energy’s motions and vacated the district court’s judgments,
dissolved the injunction, and remanded with instructions to dismiss the cases as
moot. See IEN v. U.S. Dep’t of State, No. 18-36068, 2019 WL 2542756 (9th Cir.
June 6, 2019).
IV.

New Complaint
One week after the President issued the Permit, Plaintiffs Indigenous

Environmental Network and North Coast Rivers Alliance filed this new suit
challenging the Permit. Implicitly conceding that the President is not subject to the
statutory requirements raised in their prior lawsuit, Plaintiffs do not attempt to
6

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 15 of 42

directly raise those claims anew. Instead, their new Complaint1 raises two
constitutional claims, alleging that the President’s issuance of the Permit infringes
on Congress’s authority pursuant to the Property Clause and Commerce Clause of
the United States Constitution. See Compl. ¶¶ 53-58, 60-66. Plaintiffs also name
the State Department, BLM, U.S. Army Corps of Engineers, and U.S. Fish and
Wildlife Service as Defendants, but do not specifically allege any legal violations
by those agencies. See Compl. ¶ 11.
STANDARD FOR OBTAINING A PRELIMINARY INJUNCTION
A preliminary injunction is “an extraordinary and drastic remedy” that
“should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). To obtain a
preliminary injunction, a plaintiff must demonstrate four elements: (1) a likelihood
of success on the merits, (2) a likelihood of irreparable harm in the absence of an
injunction, (3) that the balance of equities tips in its favor, and (4) that the
injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). A party must demonstrate a “‘likelihood of success on the
merits’” in order to obtain a preliminary injunction. Munaf v. Geren, 553 U.S. 674,
690 (2008). Furthermore, a party seeking preliminary injunctive relief must
“demonstrate that irreparable injury is likely in the absence of an injunction.”

1

On July 18, 2019, Plaintiffs filed a First Amended Complaint, ECF No. 37.
7

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 16 of 42

Winter, 555 U.S. at 22 (rejecting a “possibility” of irreparable harm standard). The
Ninth Circuit has held that, notwithstanding the Winter decision, a preliminary
injunction may issue if the plaintiffs can show “that serious questions going to the
merits were raised and the balance of hardships tips sharply in the plaintiff’s
favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir.
2011).2
ARGUMENT
I.

Plaintiffs Are Not Likely to Succeed on the Merits of Their Claims.
A.

Plaintiffs Have Failed to Demonstrate Standing.

Plaintiffs cannot establish a likelihood of success because they lack standing.
None of Plaintiffs’ alleged injuries relate to the 1.2-mile segment of the pipeline at
the border, which is all that the President’s border-crossing Permit authorized. The
allegations of harm due to the construction of the pipeline as a whole are not
caused by the President’s action, and any such harms are not imminent in light of
the multiple federal approvals, as well as state approvals, that remain before the
pipeline can be constructed. Their alleged injuries are also not redressable because
enjoining the President would violate the separation of powers doctrine.

2

Given the Supreme Court’s rulings in Winter and Munaf, Defendants do not
believe that the “serious questions” test remains viable. They reserve all rights to
contest any application of that test here, including by seeking en banc review in the
Ninth Circuit.
8

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 17 of 42

To demonstrate standing to sue, a plaintiff must show: (1) “an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). “‘[T]hreatened
injury must be certainly impending to constitute injury in fact,’” and “‘[a]llegations
of possible future injury are not sufficient.’” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 409 (2013) (citation omitted); see also Summers v. Earth Island Inst.,
555 U.S. 488, 495 (2009).
Plaintiffs fail to demonstrate any injury caused by the authorization of
border facilities. Instead, they allege injuries to their members that they believe
will result—not from the border-crossing Permit itself—but from the construction
and operation of other parts of the pipeline, should those parts receive the required
authorizations. See Mem. of P. & A. in Supp. of Pls.’ Mot. for Prelim. Inj. 29-34,
ECF No. 27-2 (“Pls.’ Mem.”); Decl. of Joy Braun ¶¶ 5-7, ECF No. 27-4
(describing potential future injuries from the future construction and operation of
workers’ camps along the pipeline route); Decl. of Tom B. Goldtooth ¶¶ 10-19,
ECF No. 27-10 (alleging future potential injury from construction and operation of
the pipeline); Decl. of Elizabeth Lone Eagle ¶¶ 10-11, ECF No. 27-15 (“Lone
9

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 18 of 42

Eagle Decl.”) (describing harm to “future generations” from future potential oil
spill). Such “[a]llegations of possible future injury are not sufficient” to establish
standing. Clapper, 568 U.S. at 409; see also Coons v. Lew, 762 F.3d 891, 898 (9th
Cir. 2014).
Plaintiffs do not even attempt to show that there is any concrete and
particularized injury from the border-crossing Permit. Rather, Plaintiffs
unequivocally state that the complained-of activities will occur near their
members’ reservations, which this Court can take judicial notice of are not located
the small and discrete area subject to the Permit. See, e.g., Lone Eagle Decl. ¶ 6;
Decl. of LaVae High Elk Red Horse ¶ 5, ECF No. 27-19; see also Muckleshoot
Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1358 n.4 (9th Cir. 1998) (court may
take judicial notice of undisputed geographical facts). It also is not enough that
Plaintiffs’ members reside somewhere in the states along the “proposed route of
the Project,” or that they may use resources impacted somewhere by the 875-mile
long pipeline. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 887-89 (1990)
(“bare allegation of injury” that plaintiff used land “in the vicinity” of the action
failed to show standing) (citation omitted). They must allege a concrete and
particularized harm for the area covered by the Permit—the just over one-mile
stretch at the border between the United States and Canada. Summers v. Earth
Island Inst., 555 U.S. at 495.
10

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 19 of 42

Moreover, TC Energy cannot construct facilities at the border until it
receives a right-of-way from BLM authorizing activity on public land in the border
area. See Permit art. 6(1) (requiring TC Energy to acquire “any right-of-way
grants or easements, permits, and other authorizations” necessary to build the
border-crossing facility); see also Decl. of Diane Friez ¶ 10 (“Friez Decl.”) (BLM
has “not authorized any surface-disturbing activities on federal lands”).
And even if injury alleged to occur from portions of the pipeline far from the
border area was relevant to this border-crossing Permit, such injury is not
“certainly impending.” Clapper, 568 U.S. at 409. Plaintiffs allege that the
Project—in the future, after later approvals of other parts of the pipeline—might
impair their enjoyment of the lands adjacent to the 875-mile pipeline route. Pls.’
Mem. at 32-33. But TC Energy cannot construct and operate the “balance of the
Project,” id. at 21, until applicable federal agencies have completed their
environmental review and permitting processes regarding certain aspects of the
pipeline, including BLM’s approval of a right-of-way allowing TC Energy to use
federal lands for the construction and operation of the pipeline. See, e.g., Missouri
ex rel. Koster v. Harris, 847 F.3d 646, 654 (9th Cir. 2017) (noting that the
Supreme Court has been “reluctant to endorse standing theories that require
guesswork as to how independent decisionmakers will exercise their judgment”)
(citing and quoting Clapper, 568 U.S. at 413). Under these circumstances,
11

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 20 of 42

Plaintiffs cannot plausibly allege an imminent injury in fact. Chapman v. Pier 1
Imps. (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011).
Plaintiffs’ claims against the President also are not redressable because it
would violate the separation of powers for a court to enjoin the President. See,
e.g., Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir. 1996) (noting that an
injunction against the President would present separation of powers problems, and
that “similar considerations regarding a court’s power to issue relief against the
President himself apply to [the plaintiff’s] request for a declaratory judgment”);
Newdow v. Bush, 391 F. Supp. 2d 95, 106-07 (D.D.C. 2005) (dismissing suit to
enjoin President because court was “without the authority” to enter declaratory or
injunctive relief against the President).
Here, Plaintiffs seek a declaration that the President’s actions are unlawful.
Pls.’ Mem. at 11; see also Compl., Prayer for Relief, ¶¶ 1-3. In so doing, Plaintiffs
ask the Court to render ineffective the President’s exercise of his foreign affairs
and Commander-in-Chief powers. Plaintiffs’ request thus raises precisely the
separation of powers concerns that animated courts to insulate the President from
equitable relief. See Swan, 100 F.3d at 976.
Accordingly, Plaintiffs fail to show a likelihood of success on the merits
because they lack standing.

12

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 21 of 42

B.

Plaintiffs Fail to Raise a Viable Constitutional Challenge to the
Permit.

Plaintiffs also fail to demonstrate likelihood of success because their two
constitutional claims ignore longstanding historical practice and precedent on the
scope of Executive Power. It is well established that the President’s Article II
power encompasses the authority to control border crossings into the United States.
For close to 150 years, Presidents have exercised authority over a wide range of
physical connections between the United States and foreign countries pursuant to
their powers as Chief Executives over foreign affairs and Commanders in Chief.
Plaintiffs’ constitutional claims also fail because neither the Property Clause nor
the Commerce Clause explicitly constrain presidential authority in the manner
advanced by Plaintiffs. If they did, Presidents would not have acted otherwise for
more than a century with Congress’s acquiescence.
1.

The Issuance of Presidential Permits is Within the Scope of
Executive Power.

A long line of cases confirms that the President possesses inherent
constitutional authority to approve cross-border permits—an authority that
Congress has never challenged, in connection with Keystone XL or otherwise.
Justice Jackson’s three-part test from his concurrence in Youngstown Sheet & Tube
Co. v. Sawyer, provides the general framework for assessing a challenge to the
exercise of presidential power. 343 U.S. 579, 635-38 (1952) (Jackson, J.

13

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 22 of 42

concurring). See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015). First,
“[w]hen the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635.
Second, “[w]hen the President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own independent powers, but there is
a zone of twilight in which he and Congress may have concurrent authority, or in
which its distribution is uncertain.” Id. at 637. In this area, “congressional inertia,
indifference or quiescence may sometimes, at least as a practical matter, enable, if
not invite, measures on independent presidential responsibility.” Id. And, “any
actual test of power is likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law.” Id. Third,
“[w]hen the President takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress over the
matter,” and the Court can sustain his actions “only by disabling the Congress from
acting upon the subject.” Id. at 637-38.
The Supreme Court has cautioned that while the Youngstown categories
provide a useful analytical framework for evaluating executive action, “it is
doubtless the case that executive action in any particular instance falls, not neatly
14

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 23 of 42

in one of three pigeonholes, but rather at some point along a spectrum running
from explicit congressional authorization to explicit congressional prohibition.”
Dames & Moore v. Regan, 453 U.S. 654, 669 (1981); see also id. (“‘[t]he great
ordinances of the Constitution do not establish and divide fields of black and
white’”) (quoting Springer v. Philippine Island, 277 U.S. 189, 209 (1928)
(Holmes, J., dissenting)).
Along this spectrum, this case falls safely within the first or second
Youngstown categories for several reasons: (a) the President was acting pursuant
to his independent constitutional authority; (b) Congress has long accepted the
presidential authority over border crossing facilities; and (c) a long line of judicial
precedent affirms the President’s powers.
a.

The President has broad executive powers.

The President’s authority to issue the Permit is rooted in his powers over
foreign affairs and as Commander-in-Chief. The President possesses inherent
constitutional responsibility for foreign affairs. See, e.g., Chicago & S. Air Lines,
Inc. v. Waterman S. S. Corp., 333 U.S. 103, 109 (1948) (“The President . . .
possesses in his own right certain powers conferred by the Constitution on him as
Commander–in–Chief and as the Nation’s organ in foreign affairs”); Youngstown,
343 U.S. at 635–636, n. 2 (Jackson, J., concurring) (the President can “act in
external affairs without congressional authority”) (citing United States v. Curtiss–
15

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 24 of 42

Wright Export Corp., 299 U.S. 304 (1936); Am. Ins. Ass’n v. Garamendi, 539 U.S.
396, 414 (2003) (“historical gloss on the ‘executive Power’ vested in Article II of
the Constitution has recognized the President's ‘vast share of responsibility for the
conduct of our foreign relations’”) (quoting Youngstown, 343 U.S. at 610-11
(Frankfurter, J., concurring). Thus, the President’s power in the field of
international relations “does not require as a basis for its exercise an act of
Congress.” Curtiss–Wright Export Corp., 299 U.S. at 320; Youngstown, 343 U.S.
at 635-36, n. 2 (the President can “act in external affairs without congressional
authority”).
The President’s long-recognized authority to permit international border
crossings flows naturally from his inherent foreign affairs powers. Formal
opinions by the Attorney General for more than one hundred years have
recognized the President’s independent permitting authority at the international
border. See supra, Background section I. And “there is no statute that curtails or
otherwise governs the President’s discretion to issue presidential permits.” Nat.
Res. Def. Council, Inc. v. U.S. Dep't of State, 658 F. Supp. 2d 105, 112 (D.D.C.
2009); see also id. at 109 (“Defendants have amply documented the long history of
Presidents exercising their inherent foreign affairs power to issue cross-border
permits, even in the absence of any congressional authorization.”).

16

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 25 of 42

b. 

For over a century, Congress has never disputed the
Executive’s assertion of authority over cross-border
permits

Congress has acquiesced to this long-standing practice by not legislating in
this area. In the nearly one and a half centuries of executive exercise of authority
over a wide range of cross-border facilities, Congress has never questioned or
sought to cabin the President’s authority. Instead, it has either explicitly affirmed
the Executive’s authority over specific types of border crossing facilities or has
remained silent and thereby accepted that authority. Kaplan v. Corcoran, 545 F.2d
1073, 1077 (1976) (“Since the promulgation of Executive Order 10096 on January
23, 1950, there has been Congressional acquiescence in the order by the failure of
Congress to modify or disapprove it.”). As the Supreme Court has said, “[g]iven
the President’s independent authority ‘in the areas of foreign policy and national
security, . . . congressional silence is not to be equated with congressional
disapproval.’” Garamendi, 539 U.S. at 429 (quoting Haig v. Agee, 453 U.S. 280,
291 (1981)).
The President’s claim of authority over border crossing facilities thus falls
within the first Youngstown category, where the President has acted pursuant to his
own independent powers and with the express or implied authorization of
Congress. Even if Congress had regulated border-crossing permits, the most that
could be said is that the President’s border crossing authority would fall within the
17

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 26 of 42

second Youngstown “zone of twilight” category, where the concurrent and
unspecified distribution of powers between the Executive and Congress has been
ratified in favor of the President’s exercise through longstanding practice and
congressional acquiescence. See Youngstown, 343 U.S. at 635, 637. Plaintiffs’
claim the President lacked authority to issue the border crossing Permit challenged
in this case cannot be taken seriously.
c.

A long line of judicial precedent confirms the
Executive’s power to issue the Permit.

Courts have universally recognized the President’s powers to issue crossborder permits. In Sierra Club v. Clinton, plaintiffs challenged a pipeline border
crossing permit and the district court concluded that it is “well recognized” that
“the President’s authority to issue” border crossing permits “comes by way of his
constitutional authority over foreign affairs and authority as Commander in Chief.”
689 F. Supp. 2d 1147, 1162–63 (D. Minn. 2010). The court also emphasized that
“Congress has not attempted to exercise any exclusive authority over the
permitting process” despite the many permits issued by past Presidents—that
“inaction suggests that Congress has accepted the authority of the President to
issue cross-border permits.” Id. at 1163. The Sierra Club decision followed two
district court decisions likewise affirming the President’s authority to issue crossborder permit in connection with the Keystone Pipeline, a separate pipeline built in
2010. Sisseton-Wahpeton Oyate v. U.S. Dep’t of State, 659 F. Supp. 2d 1071, 1078
18

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 27 of 42

(D.S.D. 2009) (noting that, even if the permit were set aside, “the President would
still be free to issue the permit again under his inherent Constitutional authority to
conduct foreign policy on behalf of the nation”); Natural Res. Def. Council, 658 F.
Supp. 2d at 109 (same).
2.

Plaintiffs’ Property Clause Claim Lacks Merit.

Plaintiffs argue that the President lacks authority to issue the Permit because
the Property Clause of the Constitution vests only Congress with the power to
regulate and dispose of federal lands, and the Permit authorizes construction of
pipeline facilities on land that Congress has directed BLM to manage. Pls.’ Mem.
at 20-22. This claim fails for at least two reasons.
First, Plaintiffs’ argument that the President “lacked the power to authorize
the balance of the Project,” Pls.’ Mem. at 21, elides what the permit actually
authorizes: an international border crossing. The executive action challenged in
this case is a cross-border permit, not a right-of-way on domestic lands or other
agency authorization to allow the proposed pipeline to cross federal lands. And the
Property Clause does not somehow nullify the President’s well-established foreign
affairs power. Kansas v. Colorado, 206 U.S. 46, 89 (1907) (addressing Article IV
Section 3: “Primarily . . . it is a grant of power to the United States of control over
its property”).

19

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 28 of 42

Second, if Plaintiffs’ argument is that only BLM exercises authority over
federal lands sited at the border crossing and that the Permit improperly supersedes
or otherwise overrides BLM’s permitting process, that is a claim at once both
inaccurate and premature. The Permit is explicit that it does not supplant other
necessary authorizations, noting that “[t]he permittee is responsible for acquiring
any right-of-way grants or easements, permits, and other authorizations as may
become necessary or appropriate.” Permit, art. 6(1). The Permit thus does not
relieve TC Energy of the duty to acquire “right-of-way grants or easements,
permits and other authorizations” required by law. See id. TC Energy still needs
to obtain the requisite authorizations from BLM for the parts of the pipeline that
traverse federal lands, including a right-of-way over the federally owned land
within the 1.2-mile stretch covered by the border crossing Permit. And before it
authorizes any activities on federal lands, BLM would have to assure itself that the
authorization complies with the National Environmental Policy Act (“NEPA”), the
National Historic Preservation Act, the Endangered Species Act, and other
applicable statutes. Pls.’ Mem. at 22. Plaintiffs have no legal or factual basis for
contending that the Permit improperly displaces BLM’s regulatory authority or
otherwise violates any relevant land management statutes.
3.

The Commerce Clause Neither Prohibits nor Conflicts with
the Permit.

To the extent Plaintiffs contend that the President’s authorization of a border
20

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 29 of 42

crossing itself infringes on Congress’s authority under the Commerce Clause, Pls.’
Mem. at 27, this is incorrect because, as discussed above, the President does not
need legislation to exercise his foreign affairs power. Plaintiffs seem to assume
that Presidents did not previously secure border crossings. Id. This is historically
inaccurate. The President first authorized border crossings because foreign
countries and entities were undertaking cross-border projects without securing
permission from the United States. The President’s exercise of independent
authority, in the absence of Congressional action, is not only allowed but required
to protect our territorial integrity. Foreign Cables, 22 Op. Att’y Gen. 13, 13 (1898)
(“The preservation of our territorial integrity and the protection of our foreign
interest is entrusted, in the first instance, to the President.”).
Plaintiffs also claim a conflict between the President’s border-crossing
Permit and Congress’s exercise of its Commerce Clause powers to regulate river
crossings. Pls.’ Mem. at 22-23. But just as with their Property Clause arguments,
Plaintiffs incorrectly assume that the Permit somehow eliminates TC Energy’s
obligation to comply with all of the laws cited by Plaintiffs that regulate rivercrossings. See id. at 23. The plain text of the Permit itself says just the opposite.
See Permit, art. 6(1).
4.

Executive Order 13,337 Cannot Bind the President.

Plaintiffs also contend that the President lacks authority to issue the Permit
21

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 30 of 42

because it violated Executive Order 13,337. Here, President Trump expressly
stated that he was issuing this Permit “notwithstanding Executive Order 13,337 of
April 30, 2004.” Permit at 1. Plaintiffs’ arguments about Executive Order 13,337
therefore must be predicated on the notion that once a President issues an
Executive Order delegating the President’s inherent constitutional authority to an
agency, that Executive Order binds successive Presidents in their exercise of their
constitutional powers. But any such notion is clearly wrong. Executive orders
cannot bind future Presidents.
An executive order cannot constrain the President because it can be
“withdrawn [by the President] at any time for any or no reason.” ManhattanBronx Postal Union v. Gronouski, 350 F.2d 451, 456 (D.C. Cir. 1965). The
President’s broad authority to revisit, reverse, and undo prior decisions of the
Executive Branch is inherent in the powers of the office vested by the Constitution.
U.S. Const. art. II, § 1, cl. 1; id., § 3 (the President “shall take Care that the Laws
be faithfully executed”). The President’s authority to undo or modify prior
Executive decisions is intrinsic in the executive power because the President is
politically accountable for executing the laws. Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 513 (2010). “Without such power” to
modify or undo past decisions of the Executive Branch, “the President could not be
held fully accountable for discharging his own responsibilities; the buck would
22

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 31 of 42

stop somewhere else.” Id. at 514.
Against this legal backdrop, Plaintiffs’ attempt to enforce the requirements
of Executive Order 13,337 against President Trump is futile. Executive Order
13,337 expressly states that it
is not intended to, and does not create any right, benefit, or trust
responsibility, substantive or procedural, enforceable at law or in
equity by any party against the United States, its departments,
agencies, instrumentalities, or entities, its officers or employees, or
any other person.
Exec. Order No. 13,337 § 6. In addition, the executive order was issued solely
pursuant to the President’s inherent constitutional authority—not statutory
authority—and therefore the requirements of the executive order cannot be
enforced in a private lawsuit. See Indep. Meat Packers Ass’n v. Butz, 526 F.2d
228, 336 (8th Cir. 1975); see also Chai v. Carroll, 48 F.3d 1331, 1338-40 (4th Cir.
1995); Facchiano Constr. Co. v. U.S. Dep’t of Labor, 987 F.2d 206, 210 (3d Cir.
1993); Michigan v. Thomas, 805 F.2d 176, 187 (6th Cir. 1986).
Likewise, Plaintiffs’ arguments about the potential retroactive effect of
Executive Order 13,687, which revoked Executive Order 13,337, are a red herring.
The President did not rely on the later-issued Executive Order 13,687 in issuing the
Permit, nor was he required to. Pursuant to his inherent constitutional authority,
the President has the authority to issue a permit entirely on his own, as he did here.
Because Executive Order 13,337 only binds the Secretary of State, a
23

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 32 of 42

presidential permit issued by the President is not required to contain a “national
interest” determination. Pls.’ Mem. at 24-25.3 That does not mean, however, that
TC Energy will proceed without federal agency regulation and oversight to ensure
compliance with various environmental and other statutes that Congress has made
applicable to agency action. The Permit is an authorization to cross the
international border; it does not exempt TC Energy or federal agencies from
complying with federal statutes relevant to other segments of or aspects of the 875mile-long pipeline. Indeed, the Permit is explicit that the permittee must acquire
all necessary authorizations. Permit, art. 6(1). Accordingly, Plaintiffs’ argument
that the Permit allows the President—and, by extension, TC Energy—to sidestep
judicial review, Pls.’ Mem. at 27, is unfounded.
Nor can Plaintiffs leverage the APA to require the President to provide a
“reasoned explanation” for “his abrupt reversal of former Secretary of State John
Kerry’s” denial of a border crossing permit. Compl. ¶ 62. The APA requires that
federal agencies provide a reasoned explanation when they reverse position, FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), but the President is not a

3

Nor would NEPA apply here. NEPA applies to “agencies of the Federal
Government,” 42 U.S.C. §§ 4332, 4333, and NEPA’s regulations define the term
“Federal agency” to exclude “the President.” 40 C.F.R. § 1508.12; see also
Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the Navy, 383 F.3d 1082,
1088 (9th Cir. 2004) (“NEPA’s procedural requirements do not apply to
presidential action”).
24

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 33 of 42

federal agency and, as discussed above, the APA does not apply to his actions.
Rather, the Executive’s policy choices are “beyond the competence of the courts to
adjudicate.” Dalton v. Specter, 511 U.S. 462, 475-76 (1994); cf id. at 476 (“How
the President chooses to exercise the discretion Congress has granted him is not a
matter for our review.”). Presidents routinely reverse the policies of their
predecessors without having to provide a “reasoned explanation.” “[T]he very
nature of executive decisions as to foreign policy is political, not judicial. . . . They
are decisions of a kind for which the Judiciary has neither aptitude, facilities nor
responsibility and have long been held to belong in the domain of political power
not subject to judicial intrusion or inquiry.” Chicago & S. Air Lines, 333 U.S. at
111.
Plaintiffs’ attempts to enforce EO 13,337 against the President are without
merit and do not establish a likelihood of success.
II.

Plaintiffs Have Failed to Demonstrate Irreparable Harm from the
Issuance of the Permit.
Plaintiffs’ request for preliminary injunctive relief fails for a second reason:

they cannot demonstrate imminent, irreparable harm. Winter, 555 U.S. at 22.
Indeed, they do not even try to demonstrate any harm from the border crossing
itself. Instead, all of their alleged harm results from “the balance of the 875-milelong … Project,” Am. Compl. ¶ 10, which, Plaintiffs’ assumption notwithstanding,
is simply not “authorized” or otherwise controlled by the President’s border25

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 34 of 42

crossing Permit. Allegations of injury caused by activities that are not subject to
the Permit or either are not yet authorized by the relevant federal agencies, or are
outside of the authority of those agencies, cannot serve as a basis to enjoin some
other independent presidential action for which no injury has been alleged.
Plaintiffs cannot demonstrate irreparable injury due to the issuance of the
border-crossing Permit because the Permit, by itself, does not authorize any
construction (even at the border), and none of Plaintiffs’ alleged harms relate to the
border crossing. The Permit authorizes the construction and operation of pipeline
facilities in an approximately 1.2-mile segment from the Canadian border to the
first mainline shutoff valve in the United States. Permit at 1-2. Plaintiffs allege no
irreparable harm from construction activities in the 1.2-mile segment at the border
and therefore have failed to demonstrate irreparable harm caused by the President’s
approval of facilities in that area.
Further, the Permit expressly requires that the approved “Facilities” be built
“consistent with applicable law,” id. art. 1(2), and that TransCanada is required to
acquire “any right-of-way grants or easements, permits, and other authorizations”
necessary to build the border-crossing facility, id. art. 6(1). Most of the border
segment is on BLM land, and therefore any construction in the border segment is
subject to BLM’s pending decision regarding a right-of-way. See Friez Decl. ¶ 7.
BLM is still in the process of considering TC Energy’s right-of-way application
26

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 35 of 42

and does not plan to make a decision until after the ongoing environmental review
is completed. Id. ¶ 10. Further, TC Energy cannot undertake any surfacedisturbing activities, including clearing or mowing, on BLM land prior to BLM’s
approval of a right-of-way. Id. Accordingly, any construction at the border is not
imminent, and Plaintiffs therefore cannot demonstrate imminent irreparable harm
from construction in the border area.
To the extent that Plaintiffs are claiming that the Permit approves
construction of the pipeline along the entirety of its route, they are simply
mistaken. See Pls.’ Mem. at 30 (arguing that “allowing TC Energy to proceed with
construction of the Project would allow it to gain unstoppable momentum”); see
also id. at 32-33 (alleging harms to environmental and cultural resources along the
pipeline route due to construction and potential oil spills). There is no factual basis
for the assertion that the actions authorized by this permit will result in
environmental harms along the future route of the pipeline. The Permit authorizes
only the construction of border facilities. See Permit art. 1(1).
Plaintiffs also argue that they will be irreparably harmed due to the failure of
federal agencies to conduct environmental analyses. See Pls.’ Mem. at 30-31
(citing High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir. 2004)).
Procedural harms alone are insufficient to demonstrate irreparable harm; instead,
an injunction may issue only if “environmental injury is sufficiently likely.” High
27

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 36 of 42

Sierra Hikers, 390 F.3d at 642 (citing Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 45 (1987)). In any event, the allegation that the relevant federal agencies
have failed, or will fail, to comply with NEPA is entirely unfounded. BLM’s
NEPA process relating to TC Energy’s application for a right-of-way to cross
federal lands is still ongoing. See Friez Decl. ¶ 10. Plaintiffs will have ample
opportunity to participate in that NEPA process, and the court must “presume that
[the agency] will follow the law.” Pit River Tribe v. U.S. Forest Service, 615 F.3d
1069, 1082 (9th Cir. 2010). Moreover, there was no requirement for the President
to go through a NEPA process before issuing the Permit. See note 3, supra.
Plaintiffs also seek to enjoin various activities that the Permit does not
authorize and that are outside of the authority of the applicable federal agencies
whose actions relating to the pipeline remain pending. This request too should be
denied because Plaintiffs have offered no basis for any injunction against pipelinerelated activities that are outside of the control of the federal government.
First, the Court cannot enjoin activities that are not subject to the Permit and
are outside of the authority of the relevant federal agencies. See Save Our
Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1123 (9th Cir. 2005) (“The authority to
enjoin development extends only so far as the Corps’ permitting authority.”). To
the extent Plaintiffs claim that an injunction should issue based on the actions of

28

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 37 of 42

the federal agencies, they fail to offer any basis for any NEPA violation on the part
of those agencies.
Second, Plaintiffs cannot rely on a “bureaucratic momentum” theory to
enjoin activities that are outside of federal control. As an initial matter, the
bureaucratic momentum theory should not survive the Supreme Court’s rulings in
Village of Gambell and Winter. In Massachusetts v. Watt, 716 F.2d 946 (1st Cir.
1983), the court enjoined a lease sale reasoning that if the lease sale proceeded, it
would engender a “bureaucratic commitment” to the sale, which itself constituted
irreparable harm. Id. at 952-53. The Supreme Court, however, has refuted the
notion that harm to the environment may be presumed. See Village of Gambell,
480 U.S. at 544-46 (reversing the preliminary injunction of an offshore oil and gas
lease sale); see also Winter, 555 U.S. at 22 (emphasizing that a plaintiff “must
demonstrate a likelihood of irreparable injury—not just a possibility—in order to
obtain preliminary relief”). Thus, the bureaucratic momentum theory cannot be
squared with the fundamental requirement to show imminent irreparable harm in
order to obtain an injunction.4
But even if the bureaucratic momentum theory had any continuing validity,
it does not apply to the Permit. The theory presumes that if an agency reaches a

4

The Ninth Circuit has also been skeptical of the bureaucratic momentum theory.
See, e.g., N. Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1157 (9th Cir. 1988)
(refusing to vacate oil and gas leases based on a bureaucratic momentum theory).
29

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 38 of 42

decision prior to a NEPA process and the requisite environmental analysis, it will
be less likely to change it later. See Sierra Club v. Marsh, 872 F.2d 497, 500 (1st
Cir. 1989). This theory has no application here because NEPA does not even
apply to the President. See Ground Zero Ctr., 383 F.3d at 1088.
In the first IEN case, the Court enjoined the construction of worker camps
and other activities on private land on the basis of a bureaucratic momentum
theory. See IEN v. U.S. Dep’t of State, No. CV-17-29-GF-BMM, 2019 WL
652416, at *10 (D. Mont. Feb. 15, 2019). But the Court did so on the basis that the
State Department’s 2014 Supplemental Environmental Impact Statement (“SEIS”)
analyzed the impacts of worker camps. See id. That analysis has no bearing now
because the President issued the Permit on his own, he was not required to comply
with NEPA, and the Permit does not rely on the SEIS in any event. Moreover, the
construction of worker camps in various places along the pipeline route are not
authorized or governed by the Permit. Likewise, Colorado Wild, Inc. v. U.S.
Forest Service, 523 F. Supp. 2d 1213 (D. Colo. 2007), does not apply because, in
that case, the court found a violation of NEPA. See id. at 1219-20, 1224-30.
III.

The Balance of the Harms and the Public Interest Weigh Against an
Injunction.
The balance of the harms and the public interest weigh against an injunction.

“When the Government is a party, these . . . two factors merge.” Drakes Bay
Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). Plaintiffs claim that the
30

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 39 of 42

public interest will be served based on the interest in avoiding irreparable harm to
the environment. Pls.’ Mem. at 34 (citing Cottrell, 632 F. 3d at 1138). But
Cottrell, like the other cases Plaintiffs cite, was a NEPA case against a federal
agency. See 632 F.3d at 1138. There is no public interest in enjoining a
presidential action on the basis of an alleged NEPA violation because NEPA does
not apply to the President. See Ground Zero Center, 383 F.3d at 1088.
Moreover, the public interest in environmental review would not be served
by an injunction because an environmental review relating to required approvals
for the pipeline is ongoing. An injunction will only serve to enmesh the parties
once more in unnecessary and premature litigation over actions that have not yet
been approved. The public interest would be best served by allowing the
environmental review to continue.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that Plaintiffs’
motion for a preliminary injunction be denied.
Respectfully submitted this 24th day of July, 2019,
LAWRENCE J. VANDYKE
Deputy Assistant Attorney General

/s/ Luther L. Hajek________________
MARISSA A. PIROPATO
LUTHER L. HAJEK (CO Bar 44303)
United States Department of Justice
31

 Case 4:19-cv-00028-BMM Document 43 Filed 07/24/19 Page 40 of 42

Environment and Natural Resources Division
999 18th St., South Terrace, Suite 370
Denver, CO 80202
Ph: (303) 844-1376; Fax: (303) 844-1350
marissa.piropato@usdoj.gov
luke.hajek@usdoj.gov
Attorneys for Federal Defendants

32