Natalie A. Landreth (pro hac vice)
Wesley James Furlong (MT Bar No. 42771409)
NATIVE AMERICAN RIGHTS FUND
745 West 4th Avenue, Suite 502
Anchorage, AK 99501
Ph. (907) 276-0680
Fax (907) 276-2466
landreth@narf.org
wfurlong@narf.org
Matthew L. Campbell (pro hac vice)
NATIVE AMERICAN RIGHTS FUND
1506 Broadway
Boulder, CO 80302
Tel. (303) 447-8760
Fax (303) 443-7776
campbell@narf.org
Counsel for all Plaintiffs
Additional Counsel Listed on Signature Page
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ROSEBUD SIOUX TRIBE et al.,

Case No. 4:18-cv-00118-BMM

Plaintiffs,
v.
DONALD J. TRUMP et al.,
Defendants.

MEMORANDUM IN SUPPORT
OF APPLICATION FOR
TEMPORARY RESTRAINING
ORDER

 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ ii
TABLE OF AUTHORITIES .................................................................................. iii
INTRODUCTION ................................................................................................... 1
STANDARD OF REVIEW ..................................................................................... 6
ARGUMENT ............................................................................................................ 8
I.

The Tribes Are Likely to Succeed on the Merits ...................................... 8

II.

The Tribes Will Suffer Irreparable Injury without a TRO .................... 11

III.

The Balance of Equities and Public Interest Tip Sharply in Favor of
the Tribes ...................................................................................................... 18

CONCLUSION ...................................................................................................... 21

ii

 TABLE OF AUTHORITIES
Cases
Alliance for the Wild Rockies v. Marten, 200 F. Supp. 3d 1110 (D. Mont.
2016) ........................................................................................................................ 20
Alliance for the Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017) .................... 7
Amoco Product Co. v. Village of Gambell, 480 U.S. 531 (1987) ................14, 18, 19
Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ............. 11
Churchill County. v. Norton, 276 F.3d 1060 (9th Cir. 2001) ............................... 10
Desertrain v. City of Los Angeles, 754 F.3d 1147 (9th Cir. 2014) .................... 9, 17
District of Columbia v. United States Department of Agriculture, 2020 WL
1236657 (D.D.C. Mar. 13, 2020) ........................................................................... 15
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) .......................... 18
GTAT Corp. v. Fero, No. CV 17-55-M-DWM, 2017 WL 7035655 (D. Mont.
May 3, 2017) ........................................................................................................... 18
Indigenous Environmental Network v. United States Department of State, 347 F.
Supp. 3d 561 (D. Mont. 2018) ..............................................................9, 10, 14, 22
Indigenous Environmental Network v. United States Department of State, 369 F.
Supp. 3d. 1045 (D. Mont. 2018) ....................................................................... 3, 20
Indigenous Environmental Network v. United States Department of State, CV-1729-GF-BMM, 2019 WL 652416 (D. Mont. Feb. 15, 2019) ..........................4, 5, 18
Indigenous Environmental Network v. Trump, No, CV-19-28-GF-BMM, 2019
WL 7421955 (D. Mont. Dec. 20, 2019) ................................................................. 22

iii

 League of Wilderness Defenders/Blue Mountains Biodiversity Project v.
Connaughton, 752 F.3d 755 (9th Cir. 2014) ..............................................18, 19, 20
Native Ecosystems Council v. Marten, No. CV 18-87-M-DLC, 2018 WL
3178145 (D. Mont. June 27, 2018) ...................................................................... 6, 7
Neighbors Against Bison Slaughter v. National Park Service, CV 19-128-BLGSPW, 2019 WL 6465093 (D. Mont. Dec. 2, 2019) ............................................... 20
Northern Arapaho Tribe v. LaCounte, 215 F. Supp. 3d 987 (D. Mont. 2016)....... 7
Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072 (S.D. Cal. 2008) 14
Quechan Tribe of Fort Yuma Indian Reservation v. United States Department of
Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010) ................................................... 14
Reno Air Racing Association v. McCord, 452 F.3d 1126 (9th Cir. 2006) .............. 7
Republic of Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) ...........................
Textile Unlimited, Inc. v. A. BMH & Co., 240 F.3d 781 (9th Cir. 2001) ............... 7
Tohono O'odham Nation v. Schwartz, 837 F. Supp. 1024 (D. Ariz. 1993) ......... 14
University of Texas v. Camenisch, 451 U.S. 390 (1981) .......................................... 7
Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7, 20 (2008) .............. 7
Other Materials
54 U.S.C. § 302706.................................................................................................. 13
54 U.S.C. § 306108.................................................................................................. 13
54 U.S.C. § 307103.................................................................................................. 13
40 C.F.R. § 1502.1 ..................................................................................................... 9

iv

 40 C.F.R. § 1508.8 ................................................................................................... 10
40 C.F.R. § 1508.27 ................................................................................................... 9
85 Fed. Reg. 5,232 (Jan 29, 2020) ............................................................................ 1

v

 INTRODUCTION
On January 14, 2020, TC Energy Corporation and TransCanada
Keystone Pipeline, P.L., (together, “TransCanada”) filed a status report
indicating that they intend to begin construction of the Keystone XL Pipeline
(“KXL”) in April 2020. (Dkt. 94). At the time, TransCanada lacked a critical
right-of-way and permit from the United States Bureau of Land
Management (“BLM”) that it needed to construct KXL across federal lands
in Montana. Without those authorizations, TransCanada could not begin
construction. Eight days later, on January 22, 2020, the BLM issued its record
of decision (“ROD”) granting TransCanada the necessary right-of-way and
permit to begin construction. See 85 Fed. Reg. 5,232 (Jan. 29, 2020). Plaintiffs
Rosebud Sioux Tribe (“Rosebud”) and Fort Belknap Indian Community
(“Fort Belknap”) (together, “the Tribes”) received no advance notice of the
BLM’s ROD. For the first time since the inception of this case, and indeed
since TransCanada first applied for a Presidential Permit in 2008,
TransCanada is now poised to begin construction immediately.
Just two days after the BLM issued its ROD, TransCanada moved for
summary judgment without having answered the Tribes’ First Amended
Complaint and without undertaking any discovery. (Dkt. 96). The Tribes
1

 initially requested a status conference to discuss a briefing schedule in light
of these facts and the fact that the Tribes intended to challenge the legality
of the ROD. (Dkt. 100). TransCanada agreed a status conference made sense.
(Dkt. 103). The Court, in an attempt to streamline the issues, set a summary
judgment briefing schedule and a hearing on the motions for March 25,
2020—seven days before TransCanada intended to begin construction. (Dkt.
104).
At the time, the Tribes believed that a temporary restraining order
(“TRO”) or a preliminary injunction was unnecessary, as the summary
judgment briefing schedule would have allowed the Court to decide the
pending motions and issue injunctive relief before TransCanada began
construction.

Circumstances

changed,

however,

when

the

Court

rescheduled the hearing for April 16, 2020 (Dkt. 106)—sixteen days into
TransCanada’s proposed construction season.
Accordingly, on March 2, 2020, the Tribes moved for a preliminary
injunction, requesting the Court enjoin all construction activities until it
could resolve the pending motions for summary judgment. (Dkt. 119). Due
to the immediate and extraordinary nature of their threatened harms and the
need to maintain the status quo, the Tribes waived their right to file a reply
2

 fourteen days after Defendants filed their opposition and requested that the
Court hold a hearing on their motion for preliminary injunction before April
1, 2020. (Dkt. 120, at 37). The Tribes believed that a preliminary injunction
could provide them with the temporary relief they sought while the Court
considered the pending summary judgment motions. Circumstances again
changed, however, when this Court set a hearing on the Tribes’ preliminary
injunction motion for April 16. (Dkt. 124).
The need for a TRO is now imperative, as nothing is preventing
TransCanada from beginning construction of KXL before the April 16
hearing and before the Court rules on the pending motions. Without a TRO,
TransCanada would be allowed to construct significant and critical portions
of KXL before a single one of the Tribes’ claims are resolved.
As the Tribes described in their Memorandum in Support of Motion
for Preliminary Injunction (Dkt. 120), they face immediate and irreparable
harms to their cultural and water resources, lands, and treaty rights from the
construction of KXL that warrant temporary injunctive relief. This Court has
repeatedly recognized that the construction of KXL threatens irreparable
harms and that injunctive relief is necessary to maintain the status quo as
challenges to the legality of KXL’s authorizations are litigated. See Indigenous
3

 Envtl. Network v. U.S. Dep’t of State (“IEN II”), 369 F. Supp. 3d. 1045, 1050-51
(D. Mont. 2018) (“These preconstruction activities raise the risk of []
‘bureaucratic momentum.’”); Indigenous Envtl. Network v. U.S. Dep’t of State
(“IEN III”), CV-17-29-GF-BMM, 2019 WL 652416, at *11 (D. Mont. Feb. 15,
2019) (“Plaintiffs have shown irreparable injury in the form of the actual
construction and operation of Keystone and potential ‘bureaucratic
momentum.’ The potential injuries to Plaintiffs would be further threatened
by the off-right-of-way activities that would occur in areas that had not been
surveyed for cultural resources.”).
While TransCanada had represented to the Court that it intends to
begin construction in April (Dkt. 94), it has already started preliminary work
along the route. On March 13, 2020, the Associated Press reported that
TransCanada “has started preliminary work along the route of the proposed
[KXL].” Matthew Brown, Canadian Firm Starts U.S. Prep Work for Keystone XL,
ASSOCIATED

PRESS

(Mar.

13,

2020),

available

at

https://apnews.com/524f9afedc686d733256adb357f2a374; id. (“TC Energy
spokeswoman Sara Rabern said the Calgary, Alberta-based company was
moving equipment this week and will begin mowing and felling trees in the
area along the pipeline’s 1,200-mile route within the next week or so. The
4

 work is planned in Montana, South Dakota and Nebraska, Rabern said.”);
accord Decl. of Gary Salsman (Dkt. 126-7) (documented TransCanada’s
preconstruction

activities).

TransCanada

is

moving

forward

with

construction on an accelerated timeline.
Indeed, on March 9, 2020, TransCanada requested the Tribes’ consent
to file its opposition to their motion for preliminary injunction two days later
than allowed under the rules. The Tribes responded that because the
immediacy of the harms they face from the construction of KXL and the need
to quickly resolve their motion, they could not agree to a two-day extension
unless TransCanada agreed to delay the start of construction by two days.
TransCanada never responded to the Tribes’ counter offer. The Tribes’
“irreparable injury from the actual construction and operation of [KXL],”
IEN III, 2019 WL 652416, at *11, is not speculative or hypothetical—it is
immediate and actualized.
The Tribes are keenly aware of the extraordinary nature of this
application and do not file it lightly. With the hearing on their motion for
preliminary injunction scheduled for April 16 and TransCanada’s intent to
immediately begin construction, the Tribes are left with no other option than
to seek a TRO in an effort to protect themselves, their rights, and their
5

 resources from immediate and irreparable injury. “[G]iven the short time
until the project is anticipated to commence, the irreparable injury
apprehended by the initiation of operations, and the need to address [the
Tribes’] claims, . . . a [TRO] is appropriate to maintain the status quo until
the Court can have a hearing on this matter.” Native Ecosystems Council v.
Marten, No. CV 18-87-M-DLC, 2018 WL 3178145, at *2 (D. Mont. June 27,
2018).
The Tribes are likely to succeed on the merits of their claims and have,
at least, raised serious questions going to their merits. The balance of the
equities weighs sharply in the Tribes’ favor, and a TRO is in the public
interest. As such, the Tribes respectfully request that the Court issue a TRO.
The border crossing is a focus of the Tribes’ First Amended Complaint and
allowing construction to commence before the resolution of the Tribes’
claims would allow the very “bureaucratic momentum” this Court has
previously cautioned against. Construction should not be permitted until
this Court makes a decision on the merits.
STANDARD OF REVIEW
“[T]he purpose of a [TRO] is to preserve the status quo until a hearing
may be held on the appropriateness of a preliminary injunction.” Id. at *1
6

 (citing Textile Unlimited, Inc. v. A. BMH & Co., 240 F.3d 781, 786 (9th Cir.
2001); Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006)).
“The standards for both a [TRO] and a preliminary injunction are the same.”
Id.
To obtain a TRO, a movant must establish that: (1) they likely will
succeed on the merits; (2) they will suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tip in their favor; and (4) that
an injunction serves the public interest. N. Arapaho Tribe v. LaCounte, 215 F.
Supp. 3d 987, 998 (D. Mont. 2016) (citing Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008)). This Circuit also employs the “sliding scale” standard,
in which a movant must only show that there are “serious questions going
to the merits” if the balance of hardships “tips sharply in the plaintiff’s
favor” and the other two factors are satisfied. All. for the Wild Rockies v. Pena,
865 F.3d 1211, 1217 (9th Cir. 2017) (citation omitted). “‘Serious questions
going to the merits’ are those that present a ‘fair ground for litigation and
thus for more deliberative investigation.’” Native Ecosystems, 2018 WL
3178145, at *2 (quoting Republic of Philippines v. Marcos, 862 F.2d 1355, 1362
(9th Cir. 1988)). A movant is “not required to prove his case in full” at the
TRO stage. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
7

 ARGUMENT
I.

The Tribes Are Likely to Succeed on the Merits.
The Tribes are likely to succeed on the merits of their claims and have,

at least, raised serious questions going to the merits of their claims. The
merits of the Tribes’ claims have been extensively briefed. The Tribes are
likely to succeed on the merits of their claims that the 2019 Permit is
unconstitutional. See Pls.’ Supp. Br. (Dkt. 99, at 18-49); Pls.’ Mem. in Support
of Mot. for Summ. J. (Dkt. 114, at 19-27); Pls.’ Mem. in Support of Mot. for
Prelim. Inj. (Dkt. 120, at 12-13). The Tribes are likely to succeed on the merits
of their mineral and right-of-way claim. See Pls.’ Mem. in Support of Mot.
for Summ. J. (Dkt. 114, at 21-28); Pls.’ Mem. in Support of Mot. for Prelim.
Inj. (Dkt. 120, at 14). The Tribes are likely to succeed on the merits of their
tribal jurisdiction claim. See Pls.’ Mem. in Support of Mot. for Summ. J. (Dkt.
114, at 28-33); Pls.’ Mem. in Support of Mot. for Prelim. Inj. (Dkt. 120, at 1416). The Tribes are likely to succeed on the merits of their treaty claims. See
Pls.’ Combined Resp. to Defs.’ Mots. to Dismiss (Dkt. 74, at 30-32); Pls.’
Opp’n to TransCanada’s Mot. for Summ. J. (Dkt. 111, at 11-12, 24-27); Pls.’
Mem. in Support of Mot. for Prelim. Inj. (Dkt. 120, at 16-24). The Tribes

8

 incorporate by reference the arguments made in these briefs as if set forth in
full herein.
Additionally, as will be detailed in their opposition to the United
States’ motion for summary judgment, the Tribes are likely to succeed on
their Administrative Procedure Act claims against the ROD because the
ROD allows a depredation and fails to take a “hard look” at the impacts KXL
will have on the Tribes.1 In particular, the ROD and corresponding
environmental impact statements (“EIS”) are arbitrary, capricious, an abuse
of discretion, and not in accordance with the law. An EIS must include a “full
and fair discussion” of the effects of a proposed action, including those on
the “affected region, the affected interests, and the locality.” 40 C.F.R. §§
1502.1, 1508.27(a); Indigenous Envtl. Network v. United States Dep't of State

When a plaintiff raises new claims “‘in their motion for summary judgment,
they should [be] allowed to incorporate it by amendment under Fed.R.Civ.P.
15(b).’” Desertrain v. City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014) (citation
omitted, brackets in original). “And ‘when issues are raised in opposition to
a motion to summary judgment that are outside the scope of the complaint,’”
the district court should “‘construe the matter raised as a request pursuant
to rule 15(b) of the Federal Rules of Civil Procedure to amend the
pleadings.’” Id. (citations, brackets omitted). The Tribes respectfully request
that these claims be incorporated by reference for the reasons outlined in
their forthcoming opposition.
1

9

 (“IEN I”), 347 F. Supp. 3d 561, 572 (D. Mont. 2018). NEPA’s “full and fair
discussion” requirement directs an agency to look at a project’s “direct” and
“indirect” effects. 40 C.F.R. § 1508.8(a)-(b). Indirect effects include those
“caused by the action and are later in time or farther removed in distance,
but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b); IEN I, 347 F. Supp.
3d at 575. The Court must ensure that the agency has taken a “hard look” at
the environmental consequences of its decision. IEN I, 347 F. Supp. 3d at 572
(quoting Churchill Cnty. v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)).
Interior failed to take a hard look at the direct and indirect effects of
KXL. The EISs and ROD failed to analyze a route that avoided the Tribes’
treaty lands, despite comments during both the 2014 and 2019 EIS that such
a route should be avoided. 2019 EIS at D-19; 2014 EIS, app. F at 9. The ROD
and EISs also incorrectly conclude that no federal lands are crossed outside
of Montana and that no Indian lands are crossed or even within one mile of
the Pipeline. See, e.g. 2020 ROD at 7; 2014 EIS, at PC-69, PC-125. This is clearly
belied by the information TransCanada has provided that shows KXL within
a couple hundred feet of Indian land. (Dkts. 97, at 13 (admitting that, at bare
minimum, the Pipeline is “adjacent to property owned by Rosebud” or the

10

 United States in trust); 98-6, at Ex. A (maps showing KXL would be within
roughly 200 feet of Indian land held in trust)).
Likewise, the ROD and the 2019 and 2014 EISs all fail to mention that
Rosebud mineral estates held in trust would be crossed, and there is no
analysis of the United States’ obligation pursuant to the treaties or its Indian
mineral regulations in this regard. The ROD and the 2019 and 2014 EISs fail
to mention that Fort Belknap and Rosebud have federally reserved water
rights to the Ogalalla Aquifer, Milk River, and White River, all of which will
be crossed by the Pipeline. Finally, the ROD and the 2019 and 2014 EISs fail
to take a hard look at the impact the man-camps will have on the Tribes,
particularly the Tribes ability to deal with the influx of the camps and the
new COVID-19 Pandemic and the impact the man-camps will have on the
Tribes’ women and children. Thus, the ROD approving KXL is arbitrary,
capricious, an abuse of discretion, and not in accordance with the law and
the Tribes are likely to succeed on these claims.
II.

The Tribes Will Suffer Irreparable Injury Without a TRO
“Irreparable harm is traditionally defined as harm for which there is

no adequate legal remedy, such as an award of damages.” Ariz. Dream Act
Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). The harms faced by the
11

 Tribes are immediate and irreparable. As set forth in their Memorandum in
Support of Motion for Preliminary Injunction, the Tribes face very real,
immediate, and irreparable threats to their cultural resources (Dkt. 120, at
25-27), water resources and rights (Dkt. 120, at 28-30), lands and mineral
resources and rights (Dkt. 120, at 27), and treaty rights, resources, and
sovereignty. (Dkt. 120, at 30-32). Injuries to these resources and rights cannot
be remedied by money. The Tribes incorporate by reference the arguments
made in that brief as if set forth in full herein.
Most immediate and certain, the Tribes’ cultural resources are in the
direct pathway of KXL’s construction easement and will be destroyed if a
TRO is not issued. According to GIS data compiled and maintained by the
State Department and its cultural resource contractor as part of the National
Historic Preservation Act (“NHPA”) programmatic agreement, there are at
least four “Previously Recorded” “Cultural Sites” located within KXL’s
right-of-way and construction corridor along the first 1.3 miles of its route.
Decl. of Wesley James Furlong ¶ 7. There is at least one cultural site located
within KXL’s right-of-way and construction corridor between mileposts 0.1
and 0.3, directly south of the United States-Canada border. Id. ¶ 8. Within
the route’s first three miles, KXL’s right-of-way and construction corridor
12

 crosses at least two parcels of BLM-administered lands, in which at least
eight cultural sites are located. Id. ¶ 9. Within the first fifty miles of the route,
there are at least eighty cultural sites within KXL’s right-of-way and
construction corridor. Id. ¶ 10.2 This accounts only for cultural sites that have
been previously identified by the State Department and the BLM.
As Fort Belknap Tribal Historic Preservation Officer Michael Black
Wolf stated in his declaration, the likelihood of additional, as-of-yet
unidentified, cultural sites, cultural resources, and historic properties,
including places of traditional religious and cultural significance, see 54
U.S.C. § 302706, located within the Pipeline’s right-of-way and construction
corridor is high. Because Defendants have failed to engage in adequate
consultation and identification efforts pursuant to Section 106 of the NHPA,
id. § 306108, (Dkt. 58 ¶¶ 410-20), the actual number of cultural sites and

Due to the sensitive and confidential nature of this information, federal law,
including Section 304 of the NHPA, 54 U.S.C. § 307103, prevent its public
disclosure. The information could be provided under seal or for in camera
review, if the Court requests. Defendants should have access to this
information because this information was collected and compiled as part of
the State Department’s Section 106 process.
2

13

 resource’s, and historic properties that could be affected by construction and
preconstruction activities is unknown. C.f. IEN I, 347 F. Supp. 3d at 580-81.
The destruction of cultural resources constitutes irreparable injury.
Accord Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of Interior,
755 F. Supp. 2d 1104, 1120 (S.D. Cal. 2010) (“Damage or destruction of any
of the [sites of cultural and religious significance] would constitute
irreparable harm in some degree.”); Quechan Indian Tribe v. United States, 535
F. Supp. 2d 1072, 1109 (S.D. Cal. 2008) (“The Court finds the various federal
statues aimed at protecting Indian cultural resources, located on both Indian
land and public land, demonstrates the government’s comprehensive
responsibility to protect those resources and[] thereby established a
fiduciary duty.”).
Additionally, injuries to the environment, “by [their] nature, can
seldom be adequately remedied by money damages as it is often permanent
or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of
Gambell, 480 U.S. 531, 545 (1987). And injury to the Tribes’ treaty rights,
resources, and sovereignty “cannot be remedied by any other relief other
than an injunction.” Tohono O'odham Nation v. Schwartz, 837 F. Supp. 1024,
1034 (D. Ariz. 1993).
14

 Furthermore, TransCanada intends to construct man-camps along the
Pipeline’s route in March and April 2020. As the Tribes have previously
discussed, these man-camps threaten irreparable injuries to the Tribes and
their members, particularly women and children. Additionally, in light of
the outbreak of SARS-CoV-2 and COVID-19, the transient nature of the
constructions workers constructing and living in these man-camps pose
serious and immediate public health and safety threats to the Tribes. See
Kayla Desroches, Tribes Declare Emergencies, Recommend Self Quarantine After
Off-Reservation Travel, YELLOWSTONE PUB. RADIO (March 15, 2020),
https://www.ypradio.org/post/tribes-declare-emergencies-recommendself-quarantine-after-reservation-travel#stream/0; c.f. District of Columbia v.
U.S. Dep’t of Agric., 2020 WL 1236657, at * n.26 (D.D.C. mar. 13, 2020) (citing,
inter alia, the coronavirus pandemic in issuing preliminary injunction
blocking changes to SNAP program).
The injuries faced by the Tribes are not abstract—they are happening
now. As the Associated Press has reported, TransCanada “has started
preliminary work along the route of the proposed [KXL].” Brown, supra;
accord TransCanada’s Status Report (Dkt. 94).

15

 The Tribes have informed the Court and Defendants of their intent to
file a Second Amended Complaint and challenge the BLM’s issuance of its
ROD, and indeed brief that issue in their opposition to the United States’
motion for summary judgment. The Tribes’ efforts to file a Second Amended
Complaint have been delayed by the current summary judgment briefing
and the need to seek preliminary and temporary injunctive relief. At oral
argument on Defendants’ motions to dismiss, TransCanada argued that
some of the Tribes’ claim were premature because they “will be addressed
in the ongoing analysis” for the BLM’s ROD. Tr. of Mot. Hr’g 21:4-5, Sept.
12, 2019. TransCanada then stated: “There are opportunities for the plaintiffs
at that point [when the BLM issues its ROD] to come back here, or
somewhere else, and argue that their interests have been affected by agency
action.” Id. at 21:16-18.
As outlined in their opposition to the United States’ motion for
summary judgment, the issuance of the ROD is arbitrary, capricious, and not
in accordance with the law because it falsely states KXL will not come within
one mile of Indian lands, fails to analyze the impact of KXL on the Tribes’
federally reserved water rights and resources, fails to take a hard look at the
impact the man-camps will have on the Tribes’ women and children, fails to
16

 acknowledge KXL crosses Rosebud mineral estates, and fails to analyze a
route that avoids the Tribes’ treaty lands. Given that the timeframe does not
allow for a motion to amend to be resolved before construction, the Tribes
are respectfully requesting that the Court “‘incorporate’” the Department of
Interior’s final agency action into the complaint “‘by amendment under
Fed.R.Civ.P. 15(b)[,]’” Desertrain, 754 F.3d at 1154 (citation omitted), and
“‘construe[] the matter raised [in summary judgment and here] as a request
pursuant to rule 15(b) of the Federal Rules of Civil Procedure to amend the
complaint.’” Id. (citation omitted).
Without a TRO, TransCanada will be allowed to begin, and most
certainly complete, construction of critical segments of KXL across the
United States-Canada border, purportedly authorized by the 2019 Permit,
and federal lands in Montana, authorized by the BLM’s ROD, before this
Court can decide the merits of the Tribes current claims and before the Tribes
can challenge the legality of the BLM’s ROD. TransCanada’s construction
and preconstruction activities threaten the Tribes’ ability to seek any judicial
relief of the injuries they allege in their First Amended Complaint or would
allege in a Second Amended Complaint. In effect, Defendants are again

17

 attempting to undermine the Separation of Powers and circumvent the
Judicial Branch in their effort to construct KXL.
Without a TRO, the Tribes will suffer “irreparable injury in the form of
the actual construction and operation of [KXL] and potential ‘bureaucratic
momentum.’” IEN III, 2019 WL 652416, at *11. The resources and rights
injured by the construction of KXL are irreplaceable and cannot be remedied
by money damages. This is the very definition of irreparable.
III.

The Balance of Equities and Public Interest Tip Sharply in Favor of
the Tribes.
Courts often consider the last two TRO factors together. See League of

Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752
F.3d 755, 766 (9th Cir. 2014); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,
1092 (9th Cir. 2014). “The balance aspect of a [TRO] requires courts to weigh
“the competing claims of injury and . . . consider the effect on each party of
the granting or withholding of the requested relief.” GTAT Corp. v. Fero, No.
CV 17-55-M-DWM, 2017 WL 7035655, at *4 (D. Mont. May 3, 2017) (quoting
Amoco, 480 U.S. at 542). Courts must also “pay particular regard for the
public consequences” when exercising their discretion to employ injunctive
relief. Winter, 555 U.S. at 24. When balancing the equities, courts should

18

 consider “only the portion of the harm that would occur while the
preliminary injunction is in place, and proportionally diminish total harms
to reflect only the time when a preliminary injunction would be in place.”
Wilderness Defenders, 752 F.3d at 765.
Balancing the equities for injunctions often involves harm to the
environment or historic property on one side and economic harm on the
other. When the environmental “injury is sufficiently likely, . . . the balance
of harms will usually favor the issuance of an injunction to protect the
environment.” Id. (quoting Amoco, 480 U.S. at 545). This is especially likely
when economic benefit is only delayed and not completely foregone. See id.
at 765-67. When courts find that the balance of the equities does not favor
issuing an injunction to remedy environmental or historic property
violations, it is generally because additional factors, other than economic
harm, weigh against granting preliminary relief.
As shown in their Memorandum in Support of Motion for Preliminary
Injunction (Dkt. 120, at 32-37), the balance of equities tips sharply in favor of
the Tribes and the public interest is furthered by a TRO. On one hand,
without a TRO, the Tribes will face the irreparable destruction of their
cultural resources, water resources and rights, land and mineral resources
19

 and rights, and treaty rights, resources, and sovereignty. One

the

other

hand, with a TRO, TransCanada faces only delay. The injuries to the Tribes
far outweigh any delay to TransCanada. Accord Neighbors Against Bison
Slaughter v. Nat’l Park Serv., CV 19-128-BLG-SPW, 2019 WL 6465093, at *5 (D.
Mont. Dec. 2, 2019) (“Balancing the loss of subsistence and cultural preservation
against the unlikely risks to the Plaintiffs or public at large, the Court finds
the balance of hardships and public interests tips heavily against Plaintiffs.”
(emphasis added)); All. for the Wild Rockies v. Marten, 200 F. Supp. 3d 1110,
1112 (D. Mont. 2016) (citing Wilderness Defenders, 752 F.3d at 765) (“The
balance of equities tips in favor of Alliance because it faces permanent
damage if logging activity were to proceed and the Forest Service faces only
delay.”). Furthermore, allowing construction to begin raises the risk of
“bureaucratic momentum” that would “skew the [Defendants’] future
analysis and decision making regarding the project” when the Tribes prevail
on their claims. IEN II, 369 F. Supp. 3d at 1051.
The public interest is served by ensuring that the federal government
upholds its treaty and statutory obligations and that the natural and cultural
resources threatened by KXL are protected. The public interest is also
furthered by preventing TransCanada from constructing man-camps that
20

 would be constructed by, and house, transient workers during the global
coronavirus pandemic. Tribes and rural communities are especially
vulnerable to the stresses responding to this pandemic have on their
healthcare system. Erik Ortz, Native American Tribes Brace for Coronavirus:
“It’s

Going

to

be

a

Test.’,

NBC

NEWS

(Mar.

15,

2020),

https://www.nbcnews.com/news/us-news/native-american-tribes-bracecoronavirus-it-s-going-be-test-n1156961 (“The potential spread of the
coronavirus on reservations is compounded by already existing disparities
affecting the Native American population, including barriers to accessible
health care, poor health, unemployment and generational poverty.”).
CONCLUSION
For the foregoing reasons, the Tribes respectfully request that this
Court issue a TRO until this Court can reach the merits of the Tribes’ claims.
TransCanada has already begun preconstruction activities. Without a TRO,
TransCanada’s construction and preconstruction activities will tip the scales
in their favor and significantly hinder the Tribes’ rights and ability to seek
effective and adequate judicial relief for the injuries they allege in their First
Amended Complaint. TransCanada is attempted to construct KXL before
this Court can rule on the merits of the Tribes’ claims—as well as the claims
21

 in Indigenous Environmental Network v. Trump, No. 4:19-cv-00028-BMM (D.
Mont.), and Norther Plains Resource Council v. U.S. Army Corps of Engineers,
No. 4:29-cv-00044-BMM (D. Mont.)—despite having lost its motion to
dismiss in this case (Dkt. 92) and in Indigenous Environmental Network v.
Trump, 2019 WL 7421955, and this Court’s holding that KXL’s previous
authorization was unlawful. IEN I, 347 F. Supp. 3d 561. It would be
manifestly unjust for TransCanada to be permitted to construct critical
segments of KXL before this Court can rule on the merits of the Tribes’—and
other litigants’—claims.
RESPECTFULLY SUBMITTED, this 17th day of March, 2020.
/s/ Wesley James Furlong
Natalie A. Landreth (pro hac vice)
Wesley James Furlong (MT Bar. No. 42771409)
NATIVE AMERICAN RIGHTS FUND
Matthew L. Campbell (pro hac vice)
NATIVE AMERICAN RIGHTS FUND
Daniel D. Lewerenz (pro hac vice)
NATIVE AMERICAN RIGHTS FUND
1514 P Street Northwest (rear), Suite D
Washington, D.C. 20005
Ph. (202) 785-4166
Fax (202) 822-0068
lewerenz@narf.org
Counsel for all Plaintiffs
22

 Daniel D. Belcourt (MT Bar No. 3914)
BELCOURT LAW P.C.
120 Woodworth Avenue
Missoula, MT 59801
Ph. (406) 265-0934
Fax (406) 926-1041
danbelcourt@aol.com
Ronnie M. Flannery (MT Bar No. 5890)
LAW OFFICE OF RONNIE M. FLANNERY
936 South 2nd Street West
Missoula, MT 59801
Tel. (907) 214-5700
rflannery@bresnan.net
Counsel for Fort Belknap Indian Community

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 CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing MEMORANDUM IN SUPPORT
OF APPLICATION FOR TEMPORARY RESTRAINING ORDER
complies with: (1) the type-volume limitation of Local Rule 7.1(d)(2) because
it contains 4,551 words, excluding the parts of the brief exempted by Local
Rule 7.1(d)(2); and (2) the typeface requirements of Local Rule 1.5(a) because
it has been prepared in a proportionally spaced typeface using Microsoft
Word 2016, in 14-point Times New Roman font.
/s/ Wesley James Furlong
Wesley James Furlong (MT Bar No. 42771409)
NATIVE AMERICAN RIGHTS FUND

24

 CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of March, 2020, I filed the above
MEMORANDUM IN SUPPORT OF APPLICATION FOR TEMPORARY
RESTRAINING ORDER with the Clerk of the Court for the United States
District Court for the District of Montana by using the CM/ECF system. I
certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the CM/ECF system.
/s/ Wesley James Furlong
Wesley James Furlong (MT Bar No. 42771409)
NATIVE AMERICAN RIGHTS FUND

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