Jeffery J. Oven
Jeffrey M. Roth
CROWLEY FLECK PLLP
490 North 31st Street, Ste. 500
Billings, MT 59103-2529
Telephone: 406-252-3441
Email: joven@crowleyfleck.com
jroth@jcrowleyfleck.com

Peter R. Steenland, Jr.
Peter R. Whitfield
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
Telephone: 202-736-8000
Email: psteenland@sidley.com
pwhitfield@sidley.com

Counsel for TransCanada Keystone Pipeline, LP and TC Energy Corporation
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

ROSEBUD SIOUX TRIBE, et al.,

CV 18-118-GF-BMM

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

DEFENDANTS TC ENERGY
CORPORATION AND
TRANSCANADA KEYSTONE
PIPELINE, LP’S OPPOSITION TO
PLAINTIFFS’ APPLICATION FOR
TEMPORARY RESTRAINING
ORDER

 TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION .....................................................................................................1
STATEMENT OF FACTS ........................................................................................4
ARGUMENT .............................................................................................................7
I.

PLAINTIFFS’ LAST-MINUTE REQUEST FOR A TRO BASED ON A
CLAIM NOT RAISED IN THE COMPLAINT IS WHOLLY IMPROPER
.........................................................................................................................8

II.

PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS ......12

III.

PLAINTIFFS HAVE FAILED TO SHOW THAT THEY ARE LIKELY TO
SUFFER IRREPARABLE HARM ...............................................................18

IV.

THE BALANCE OF HARDSHIPS WEIGHS AGAINST AN
INJUNCTION................................................................................................25

CONCLUSION ........................................................................................................26

i

 TABLE OF AUTHORITIES
Cases

Page(s)

Alaska Survival v. STB,
704 F.3d 615 (9th Cir. 2012) ..............................................................................25
Apache Survival Coal. v. United States,
21 F.3d 895 (9th Cir. 1994) ................................................................................23
Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912 (9th Cir. 2001) ................................................................................ 9
Califano v. Yamasaki,
442 U.S. 682 (1979) ............................................................................................18
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ..............................................................................................23
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,
789 F.3d 1075 (9th Cir. 2015) ............................................................................19
Desertrain v. City of Los Angeles,
754 F.3d 1147 (9th Cir. 2014) ......................................................................10, 11
Garcia v. Google, Inc.,
786 F.3d 733 (9th Cir. 2015) ..........................................................................7, 18
Grand Canyon Tr. v. Williams,
No. 13-cv-8045, 2015 WL 3385456 (D. Ariz. May 26, 2015)...........................23
Marsh v. Or. Nat. Res. Council,
490 U.S. 360 (1989) ............................................................................................13
Metro. Edison Co. v. People Against Nuclear Energy,
460 U.S. 766 (1983) ............................................................................................17
Montana Wilderness Ass’n v. Connell,
725 F.3d 988 (9th Cir. 2013) ..............................................................................21
Oakland Tribune, Inc. v. Chronicle Publ’g Co.,
762 F.2d 1374 (9th Cir. 1985) .............................................................................. 7

ii

 Pit River Tribe v. U.S. Forest Serv.,
615 F.3d 1069 (9th Cir. 2010) ............................................................................24
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ......................................................................................12, 13
Sierra Club, Inc. v. Bostick,
787 F.3d 1043 (10th Cir. 2015) ..........................................................................15
WildEarth Guardians v. Provencio,
923 F.3d 655 (9th Cir. 2019) ..............................................................................22
Winter v. NRDC,
555 U.S. 7 (2008) ..................................................................................8, 9, 10, 20
Statutes
25 U.S.C. § 396 ..................................................................................................15, 16
42 U.S.C. § 4332 ......................................................................................................12
Other Authorities
36 C.F.R. § 800.16 ...................................................................................................20
Presidential Permit of March 29, 2019,
84 Fed. Reg. 13,101 (Apr. 3, 2019) ................................................................8, 18

iii

 INTRODUCTION
TransCanada Keystone Pipeline, LP and TC Energy Corporation (“TC
Energy”) opposes Plaintiffs’ untimely, procedurally improper, and meritless
motion for a temporary restraining order (TRO). Plaintiffs’ latest request for
injunctive relief—filed before briefing on its pending motion for a preliminary
injunction is even completed—rests on dire claims that construction of the
Keystone XL Pipeline (“Keystone XL”) will result in the imminent destruction of
cultural resources in the 1.2-mile border crossing segment. Yet Plaintiffs’ prior
actions—and prior inaction—completely belie those claims, which are inaccurate
in all events. No cultural resources will be destroyed during construction of the
Keystone XL border-crossing segment.
Over two months ago, on January 14, 2020, TC Energy gave notice that, if it
obtained the necessary permissions from the Bureau of Land Management (BLM),
it would begin building Keystone XL’s 1.2 border segment in April 2020, and
would commence related pre-construction activities in March. Dkt. 94. BLM
issued the necessary authorization on January 22nd. 1 Two days after that, TC
Energy moved for summary judgment on all of Plaintiffs’ claims. Dkt. 97.

1

U.S. Dep’t of the Interior, Bureau of Land Mgmt, Record of Decision, Keystone
XL Pipeline Project Decision to Grant Right-of-way and Temporary Use Permit on
Federally-Administered Land (Jan. 22, 2020), https://eplanning.blm.gov/epl-frontoffice/projects/nepa/1503435/20011555/250015801/Keystone_ROD_Signed.pdf
(granting right-of-way).

 If, as Plaintiffs now claim, BLM’s decision was unlawful and would lead, in
just two months, to the destruction of cultural resources in the border segment, they
should have promptly moved to amend their complaint to challenge BLM’s
actions, and just as promptly moved for a preliminary injunction to block TC
Energy’s clearly stated construction (and pre-construction) plans. Plaintiffs stated
in a January 24 status report that they would move to amend their complaint in
light of BLM’s decision, but they have failed to do so. Dkt. 100 at 3.
Instead, they sought and received an extension of time, until February 25,
2020, see Dkt. 107, to respond to TC Energy’s summary judgment motion, and
cross-moved for partial summary judgment on that same day. Dkt. 114. Through
those filings, Plaintiffs indicated that, except for an asserted need for discovery
concerning certain claims, the case could properly be resolved, and their right to
injunctive relief determined, on the basis of the claims in their first amended
complaint.
Plaintiffs waited until March 2nd to move for a preliminary injunction. Dkt.
119. In those filings, Plaintiffs did not argue that BLM’s recent decision was
unlawful, much less ask the Court to treat their preliminary injunction motion as a
de facto amendment of their complaint. See Dkt. 120. And while Plaintiffs
included generalized claims about harms to cultural and historical resources, they
did not claim that construction would cause harms to specific resources that they

2

 claimed to have identified within the 1.2-mile border segment. It was not until the
day after TC Energy filed its opposition to the preliminary injunction motion that
Plaintiffs unexpectedly (and on very short notice) filed a TRO and claimed, for the
first time, that construction would destroy specific cultural resources within the
border segment and that BLM’s actions were unlawful.
This sand-bagging is plainly improper. Plaintiffs could have amended their
complaint weeks ago, and should not be allowed to do so through a last-minute and
successive request for injunctive relief. And their legal claims are meritless in all
events. Indeed, they failed to exhaust many of the challenges they now seek to
assert.
Equally problematic, Plaintiffs’ new legal claims and factual assertions bear
all the hallmarks of being pretexts. Plaintiffs complain about the adequacy of
surveys of their historic and cultural resources, but they declined to participate in
those surveys or meet with federal officials about them (even though TC Energy
offered to underwrite those activities). In litigation over whether they would be
injured by a Presidential Permit that simply authorizes construction within the
border segment, Plaintiffs made general references to harms to cultural and
historical resources, but did not tie their asserted Article III injury to any claim that
specific cultural and historical resources within that segment would be destroyed.
Nor did they make such claims two weeks ago, in a motion asserting that they will

3

 suffer irreparable harm. These new claims are made by their lawyers, not by any
tribal official. And they are wrong.
For all of these reasons, set forth in greater detail below, the Court should
deny Plaintiffs’ motion for a TRO.
STATEMENT OF FACTS
Because the basic facts about Keystone XL are described in detail in TC
Energy’s summary judgment briefs and in the opposition to the motion for
preliminary injunction, TC Energy will not repeat them again here. But in light of
Plaintiffs’ erroneous claims about the inadequacy of the survey process and the
supposed imminent harm to cultural resources, we provide this discussion of the
State Department’s extensive efforts to consult with the tribes and the efforts taken
to protect cultural and historic properties in order to correct the record.
When TC Energy first applied for a Presidential Permit in 2008, the State
Department (“State”) decided to follow the process set forth in section 106 of the
National Historic Preservation Act (“NHPA”) by consulting with Indian tribes,
state historic preservation officers (“SHPOs”), and local governments about the
pipeline’s effect on historic and cultural properties. As part of that process, State,
SHPOs from Montana, South Dakota and Nebraska, numerous other state and
federal agencies, and TC Energy signed a Programmatic Agreement (“PA”) that
establishes a process for identifying historic properties that might be affected by

4

 construction of Keystone XL, and for taking steps to avoid or mitigate any adverse
effects when feasible. See 2014 FSEIS, Appendix E (Programmatic Agreement);
id. at Attachment G.
When TC Energy reapplied for a permit in 2012, State contacted tribes with
interest in the cultural resources potentially affected by Keystone XL. See 2014
FSEIS at ES-26 & PA Attachment I. “In addition to communication by phone,
email, and letter, high-level Department officials travelled to areas near the
proposed Project route to hold four face-to-face consultations, to which all Indian
tribes were invited and whose participation was funded by Keystone ….” 2014
FSEIS at ES-26. Neither Rosebud nor Fort Belknap availed themselves of this
opportunity. PA Attachment I. State invited tribes to conduct cultural studies (at
TC Energy’s expense), but Plaintiffs did not accept the invitation. PA Attachment
G (Table 3); see also PA, E2 (documenting numerous efforts at consultation with
Plaintiffs prior to the 2014 FSEIS).
State renewed the tribal consultation process in August 2018. It met with
the Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation to provide an
update on the cultural resources investigation for Keystone XL. 2019 Final SEIS at
A-1. State scheduled a similar meeting with the Fort Belknap in Montana on
August 15, 2018, but “at the last moment the tribe cancelled the meeting with no
explanation and shortly thereafter ceased communicating with the Department.” Id.

5

 State also set up an online cultural resources portal to enable the tribes to
more easily review documents concerning the cultural surveys. Id. at D-17. “In
March 2019, a Geographic Information System (GIS) was added to the portal
enabling users to see the location of all recorded cultural resources in relation to
the Project pipeline right-of-way, access roads, substations, etc.” Id.
Based on information obtained from the consultation process, State
conducted another cultural resources inventory along the first 77 miles of the
pipeline corridor in Montana, and invited tribes to participate in the field work. Id.
Again, Plaintiffs declined the invitation. Id. The new survey in Montana was not
the only new survey. “In 2018 and 2019, surveys were conducted in all three states
for all parcels with landowner permission.” 2019 Final SEIS at 3.9-6; id. at 3.9-7
(Table 3.9-2); id. at 4-70.
As a result, the entire route has been surveyed in Montana and South
Dakota. Id. at 3.9-8 (Table 3.9-3); see also id. at 3.9-14-3.9-15 (Table 3.9-6). The
2019 Final SEIS contains tables of the cultural properties within the Keystone XL
construction footprint or adjacent to the Project in Montana that are eligible, or
potentially eligible, for listing in the National Register of Historic Properties, and
the steps taken to prevent or mitigate impact to them. 2019 Final SEIS at 4-71-4-75

6

 (Table 4.9-2, Table 4.9-3). 2 The vast majority will not be affected, id. and “[n]o
historic properties will be affected by the Project in South Dakota,” id. at 4-72.
ARGUMENT
A preliminary injunction is an “extraordinary remedy never awarded as of
right.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (quoting Winter v.
NRDC, 555 U.S. 7, 24 (2008)). Plaintiffs must therefore show: (1) a likelihood of
success on the merits, (2) a likelihood of irreparable harm absent preliminary
relief, (3) that the balance of equities favors that relief, and (4) that an injunction is
in the public interest. Id. The first factor is the most important; absent a showing
of likelihood of success on the merits, the Court “need not consider the remaining
three [Winter elements].” Id. In addition, a delay in seeking relief undercuts a
claim of irreparable harm and justifies the denial of a preliminary injunction. Id.;
see also Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th
Cir. 1985). Those principles apply a fortiori here, where TC Energy is entitled to
summary judgment on all claims raised in Plaintiffs’ complaint, and Plaintiffs are
trying to raise a new claim that they could have brought before but chose not to.

2

Work is ongoing to determine whether cultural properties identified in the recent
Montana surveys are eligible for placement on the National Register. If so, State
will follow the Programmatic Agreement and impose measures to prevent or
mitigate impact. 2019 Final SEIS at 3.9-14-3.9-15 (Table 3.9-6); id. at 4-70.
7

 I.

PLAINTIFFS’ LAST-MINUTE REQUEST FOR A TRO BASED ON A
CLAIM NOT RAISED IN THE COMPLAINT IS WHOLLY
IMPROPER
As noted above, Plaintiffs stated as early as January 24 that they would

move to amend their complaint in light of the BLM’s decision, Dkt. 100, but never
did so. Instead, they engaged in full briefing on summary judgment and, except for
an asserted need for discovery on certain of their claims, indicated that the case
could properly be resolved, and their right to injunctive relief determined, on the
basis of the claims in their first amended complaint. Indeed, Plaintiffs moved for a
preliminary injunction on March 2nd, and their motion was based on the summary
judgment briefing. Plaintiffs claimed that they were likely to succeed on the merits
of each claim in the First Amended Complaint and cited their summary judgment
briefs to support that claim. Dkt. 120 at 5-6 (constitutional claim), id. at 7 (mineral
claim and tribal jurisdiction claim); id. at 9 (treaty claims). Plaintiffs further
claimed that a preliminary injunction was needed to preserve the status quo
“between April 1” (when pipeline construction was scheduled to begin) “and the
Court’s ruling on summary judgment.” Id. at 2.
Plaintiffs made no claim that construction would cause harms to identified
cultural resources in the 1.2-mile border segment itself. To the contrary, one
declarant referred to historical and cultural resources within the entire path of the
project, without referring to the border segment. See Dkt. 120-1. The other

8

 declarant referred to cultural and historical “features” he saw in 2018 on what he
assumed was BLM land in Valley County, Montana, Dkt. 120-2, ¶¶ 8-14; the
border segment, however, is in Phillips County. See Presidential Permit of March
29, 2019, 84 Fed. Reg. 13,101, 13,101 (Apr. 3, 2019).
TC Energy and the Federal Defendants filed oppositions to the motion for
preliminary injunction on March 16, 2020, which was the date responses were due
under the local rules. Instead of responding a week later with a reply brief in
support of the motion for preliminary injunction as Plaintiffs said they would, see
Dkt. 120 at 30, Plaintiffs unexpectedly changed course and filed a motion for
temporary restraining order the very next day. Dkt. 131. What is even more
surprising is that the TRO motion is based largely on the assertion that Plaintiffs
are likely to succeed on an Administrative Procedure Act (“APA”) challenge to
BLM’s grant of a right-of-way for Keystone XL—a decision that BLM announced
in a Record of Decision (“ROD”) nearly two months ago that was not challenged
in the First Amended Complaint and thus had not been a subject of any of the
summary judgment briefing. Id. at 9-11.
This gambit is wholly improper. Plaintiffs could not have raised this new
argument in a reply brief in support of their motion for a preliminary injunction,
because “issues which are not specifically and distinctly argued … in a party’s
opening brief are waived.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d

9

 912, 919 (9th Cir. 2001). Plaintiffs should not be permitted to circumvent that rule
by filing a new motion for injunctive relief—and especially not here, where the
new argument relates to a claim that is not even alleged in the complaint.
Plaintiffs claim that they should be permitted to raise the new APA claim in
the TRO motion because “the timeframe does not allow for a motion to amend [the
complaint] to be resolved before construction.” Dkt. 131 at 17. If that is so,
Plaintiffs have only themselves to blame. BLM issued its decision on January 22,
before TC Energy filed its motion for summary judgment, before Plaintiffs filed
their opposition brief or their own cross-motion for summary judgment, and before
Plaintiffs filed their motion for preliminary injunction. Id. at 1-2. Plaintiffs’ claim
that their “efforts to file a Second Amended Complaint have been delayed by” the
briefing on all those motions rings hollow. Id. at 16. The new APA claim in the
instant motion is that the ROD is arbitrary and capricious because it “allows a
depredation and fails to take a ‘hard look’ at the impacts KXL will have on the
Tribes.” Id. at 9. Under notice pleading, that claim could be described in a few
paragraphs of a proposed second amended complaint that could have been drafted
in far less time than it took to draft the 22-page brief in support of the TRO motion.
In all events, Plaintiffs make no attempt to explain why they did not raise the
APA claim in their brief in opposition to TC Energy’s motion for summary
judgment and their brief in support of their own cross-motion for summary

10

 judgment as occurred in the case they cite, Desertrain v. City of Los Angeles, 754
F.3d 1147 (9th Cir. 2014). Plaintiffs in that case were allowed to amend their
complaint with a new claim that they raised “both in their motion for summary
judgment and in their opposition to Defendants’ motion for summary judgment”
and after giving Defendants advance notice of their intent to raise the issue in the
summary judgment briefing. Id. at 1154. Here, in contrast, Plaintiffs waited to
raise the new APA claim with no advance notice to Defendants, and did so in a
TRO motion with an abbreviated briefing schedule and in a subsequently filed
brief in opposition to the Federal Defendants’ motion for summary judgment—a
motion that TC Energy is not even party to. As a result, TC Energy does not have
an opportunity to fully litigate the new APA claim as it did the claims in the First
Amended Complaint. That makes this case entirely unlike Desertrain, where there
was no prejudice to defendants because “[b]oth parties fully argued the [new] issue
in their respective summary judgment briefings.” Id. at 1155. TC Energy submits
that it would be both improper and highly inequitable to enjoin construction of a
project that the company has spent 12 years and over $3 billion developing, based
on a brand new argument that was raised in a procedurally improper manner and
that TC Energy had only 48 hours to address.

11

 II.

PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS
For the reasons stated in TC Energy’s brief in opposition to Plaintiffs’

motion for preliminary injunction, and the briefs in support of its motion for
summary judgment, Plaintiffs have no likelihood of success on the merits of any of
the claims raised in their First Amended Complaint. Instead, TC Energy is entitled
to summary judgment because: (1) the President’s issuance of the 2019 Permit did
not violate the Commerce Clause; (2) construction of the pipeline is not
unauthorized “mining” or a trespass on Rosebud’s interest in reserved mineral
estates in several parcels on land in South Dakota; (3) TC Energy does not need to
obtain a right-of-way from the Bureau of Indian Affairs (“BIA”) because Keystone
XL does not cross Indian land; (4) Plaintiffs lack jurisdiction over the pipeline; and
(5) issuance of the 2019 Permit does not violate any treaty rights. Dkt. 97, Dkt.
126, Dkt. 134, Dkt. 136.
Because Plaintiffs rested on their previous briefing on these claims, Dkt. 120
at 8, TC Energy will do the same and focus here on the new APA claim. As
discussed above, this claim is not properly before the Court. But even if it were,
Plaintiffs are not likely to succeed on such a claim.
Plaintiffs’ new claim is that BLM “failed to take a hard look at the direct and
indirect effects of KXL” on the tribes, in violation of the APA and the National
Environmental Policy Act (“NEPA”). Dkt. 131 at 10. NEPA imposes “a set of

12

 ‘action-forcing’ procedures” that require agencies to take “a ‘hard look’ at
environmental consequences” of their proposed actions, Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989). Specifically, and as relevant
here, NEPA requires agencies to prepare an EIS for each “major Federal action
significantly affecting the quality of the human environment.” 42 U.S.C. §
4332(2)(C). Although preparation of an EIS may “affect the agency’s substantive
decision, it is now well settled that NEPA itself does not mandate particular results,
but simply prescribes the necessary process.” Robertson, 490 U.S. at 350. This
means that “[i]f the adverse environmental effects of the proposed action are
adequately identified and evaluated, the agency is not constrained by NEPA from
deciding that other values outweigh the environmental costs.” Id. (Forest Service
could have “decided that the benefits to be derived from downhill skiing at Sandy
Butte justified the issuance of a special use permit, notwithstanding the loss of 15
percent, 50 percent, or even 100 percent of the mule deer herd”).
Because judicial review of an agency’s compliance with NEPA is governed
by the APA, a reviewing court must uphold the agency’s decision so long as it
“conducted a reasoned evaluation of the relevant information and reached a
decision that, although perhaps disputable, was not ‘arbitrary or capricious.’”
Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 385 (1989). That standard is easily
met here. The BLM ROD relied on the 2014 Supplemental Environmental Impact

13

 Statement (“SEIS”) and the 2019 Final SEIS, see Dkt. 138-1 at 1, and Plaintiffs
cannot show that this reliance is arbitrary and capricious.
Plaintiffs first claim that the “EISs and ROD failed to analyze a route that
avoided the Tribes’ treaty lands.” Dkt. 131 at 10. They are mistaken. The 2019
Final SEIS expressly acknowledge that some comments “stated the pipeline should
be rerouted to avoid impacts to tribal treaty lands and tribal way of life.” 2019
Final SEIS at D-19. It said that the “preferred route analyzed within this SEIS
avoids tribal lands and tribal trust lands.” Id. at D-22; see also id. at D-23 (map
showing pipeline route going near, but not on, tribal land); see also 2014 FSEIS at
PC-125 (“the proposed Project route itself does not cross any tribal lands”). It
noted that TC Energy is required to adhere to numerous “resource protection
measures” to “minimize the potential for adverse effects” on nearby tribes, and
concluded that “[s]hifting of the pipeline route would be unlikely to eliminate all
potential impact to tribes in the event of an accidental release.” 2019 Final SEIS at
D-22-D-23.
Plaintiffs challenge the conclusion that Keystone XL avoids tribal land, but
they cite no evidence in the administrative record of either SEIS that refutes that
conclusion. Indeed, the evidence in the summary judgment record makes clear that
Keystone XL does avoid tribal land. See, e.g., Dkt. 98-3; Dkt. 98-6; Dkt. 126-2;
Dkt. 126-3; Dkt. 126-4; Dkt. 136-1; Dkt. 139-2.

14

 Plaintiffs next complain that “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.” Dkt. 131 at 11. But, again, they do not cite any
contrary evidence in the administrative record (which has not even been compiled
and filed with the Court because it is not relevant to any of the claims in the First
Amended Complaint). The reason is simple: Plaintiffs did not make the point in
their comments to the agency. That is fatal to Plaintiffs’ claim. “Parties challenging
an agency’s compliance with NEPA must ordinarily raise relevant objections
during the comment period,” unless the flaw in the agency’s proposed
environmental assessment is “so obvious that there is no need for a commenter to
point them out.” Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 1048-49 (10th Cir.
2015) (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765 (2004)). The
existence of the tribes’ reserved mineral interests is not obvious, and neither is the
relevance of the Indian Mineral Leasing Act. That statute authorizes leases of
Indian land “for mining purposes,” 25 U.S.C. § 396, and construction of a pipeline
is not a form of “mining.” See Dkt. 97 at 23-25, Dkt. 134 at 14-19.
Plaintiffs also claim that 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

15

 Pipeline.” Dkt. 131 at 11. That claim ignores Section 3.8.2.4 of the 2019 Final
SEIS, which specifically addresses treaty lands and tribal water rights and
acknowledges that tribes “have ‘reserved’ rights in all waters that arise on, border,
traverse, or underlie their reservations.” 2019 Final SEIS at 3.8-10 (discussing the
“Winters Doctrine”). That section admits that the Supreme Court in 1908 held that
Fort Belknap has such rights in the Milk River, which at that time was being
“diverted upstream by farmers,” leaving an “insufficient water supply to support
irrigation for agriculture on the reservation.” Id.; see also id. at D-39 (same).
Plaintiffs cite no evidence in the administrative record that Keystone XL will affect
a similar diversion of water from the Milk River, and they provide no authority to
substantiate their claim to “federally reserved water rights” in the Ogalalla Aquifer
or White River. Dkt. 131 at 11; see also Dkt. 135 at 23-24 (¶ 43); Dkt. 140 at 1920 (¶ 43).
Plaintiffs also ignore that neither tribe’s reservation is “located adjacent to
waterways within the 40-river-mile downstream area included in the [region of
impact] for the proposed Project.” 2019 Final SEIS 5-57. And in the unlikely event
that a spill were to “contaminate[] water supplies used for industrial, municipal or
irrigation purposes, TC Energy has committed to provide an alternate water supply
for any users of wells or irrigation intakes where water quality is affected by a
spill.” Id. at 5-58. TC Energy would also be liable “for all costs associated with

16

 cleanup and restoration, including damages to natural resources for the loss of
subsistence use of these natural resources.” Id. at 5-21. In short, Plaintiffs cannot
establish that the EIS failed adequately to consider the effect of Keystone XL on
their water resources.
Finally, Plaintiffs complain that the ROD and the 2019 and 2014 EISs fail to
take a hard look at the impact of the worker camps, particularly the possibility that
construction workers will harm Indian women and children or bring COVID-19 to
members of the tribe. Dkt. 131 at 11. No concerns about COVID-19 were raised in
the comment periods in either 2014 or 2019, and State has no duty to supplement
the EIS to address this issue because COVID-19 is not an adverse environmental
effect of construction of Keystone XL. “NEPA was designed to promote human
welfare by alerting governmental actors to the effect of their proposed actions on
the physical environment.” Metro. Edison Co. v. People Against Nuclear Energy,
460 U.S. 766, 772 (1983). “NEPA does not require the agency to assess every
impact or effect of its proposed action, but only the impact or effect on the
environment.” Id.
NEPA likewise does not require that an EIS assess the impact of criminal
activity the tribes fear could be committed by construction workers who reside in
the worker camps. Cf. id. at 776 (NEPA does not “require agencies to evaluate the
risk of crime from the operation of a jail or other public facility in their

17

 neighborhood”). Nevertheless, the 2019 Final SEIS does address the tribes’
concerns about the worker camps. It explains that there is a Camp Code of Conduct
for construction workers that addresses “disruptive or abusive behavior, alcohol
use, and criminal/illegal activities.” 2019 Final SEIS at D-36. Anyone who violates
the rules will be fired. Id. And although it is “out of scope of this project,” the 2019
Final SEIS also notes that the Department of Justice is taking steps to address “the
unique problem of violence toward Native Americans,” and the President has
signed an executive order creating an interagency task force to address the crisis of
missing women and girls in American Indian communities. Id.
III.

PLAINTIFFS HAVE FAILED TO SHOW THAT THEY ARE LIKELY
TO SUFFER IRREPARABLE HARM
Because Plaintiffs’ claims are meritless, the Court need not consider the

remaining preliminary injunction factors. Google, 786 F.3d at 740. In all events,
Plaintiffs have failed to establish that they are likely to suffer irreparable injury.
First, most of the harms Plaintiffs allege cannot support the temporary
restraining order they seek. The proper “scope of injunctive relief is dictated by the
extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702
(1979). Plaintiffs have made no effort to tailor their requested injunction to the
legal violations they allege. For example, the 2019 Permit only allows TC Energy
to “construct, connect, operate, and maintain pipeline facilities at the international
border of the United States and Canada at Phillips County, Montana.” 84 Fed. Reg.
18

 at 13,101 (emphasis added); see also Dkt. 97 at 11-12; Dkt. 95 at 2-6. Thus, even if
issuance of the 2019 Permit was unlawful—and it plainly was not—the Court
cannot enjoin activities outside the border segment, as any harms resulting from
those activities are not attributable to the alleged violation.
The same is true for Plaintiffs’ new challenge to the BLM ROD. It grants a
right-of-way and temporary-use permit “to cross 44.4 miles of federal land
managed by BLM and 1.88 miles of federal land managed by the U.S. Army Corps
of Engineers (USACE) in Montana, in connection with the larger, proposed
Keystone XL pipeline project.” Dkt. 138-1 at 1. Thus even if the ROD were
arbitrary and capricious (and it is not), the Court cannot enjoin activities on private
or state land over which BLM has no control.
Similarly, Plaintiffs’ mining and tribal jurisdiction claims are based on
allegations that construction of the pipeline will constitute mining or a trespass on
Rosebud’s interest in the minerals underlying just a few parcels of land in South
Dakota. Even if those claims have merit—and they do not—the Court cannot
enjoin activities outside those parcels.
Second, and in all events, Plaintiffs’ new “showing” of irreparable harm in
the TRO motion consists primarily of unsubstantiated assertions that construction
could damage cultural resources and speculation that construction workers living
in the worker camps will harm women and children or spread COVID-19 to

19

 Plaintiffs’ members. That is not remotely sufficient. Construction outside the 1.2mile border segment will not begin for months, see infra pp. 21-22 & n.4, and
irreparable harm cannot be presumed. Cottonwood Envtl. Law Ctr. v. U.S. Forest
Serv., 789 F.3d 1075, 1090-91 (9th Cir. 2015). To obtain the extraordinary remedy
of a preliminary injunction, Plaintiffs must prove that they are “likely to suffer
irreparable harm before a decision on the merits can be rendered.” Winter, 555
U.S. at 22 (citation omitted). They have not remotely met that burden.
1. Cultural Resources
Plaintiffs are wrong to claim that “the Tribes’ cultural resources are in the
direct pathway of KXL’s construction easement and will be destroyed if the TRO
is not issued.” Dkt. 131 at 12. The only pipeline segment scheduled for
construction in April is the 1.2-mile segment between the U.S./Canada border and
the first shutoff valve in Montana. Dkt. 94 at 5. That construction will cause no
irreparable harm to cultural resources because there are none in the pipeline rightof-way or “area of potential effect” for that border segment.3 Two of the
“Previously Recorded” cultural sites that Plaintiffs’ counsel saw in the internet
portal established for the tribes and SHPOs that consult with State about the

3

“Area of potential effect” is a regulatory term under the National Historic
Preservation Act (NHPA) that refers to the area in which pipeline construction
could potentially affect historic properties, including traditional cultural properties
of tribes. See 2019 Final SEIS, at 3.9-1-3.9-8; 36 C.F.R. § 800.16(d).

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 surveys were identified in “Class I” or “Level I” surveys based on a review of
literature or documentation from surveys and archeological exploration done prior
to the development of Keystone XL. Declaration of Erin Salisbury ¶ 9 (Exhibit 1).
However, new, “Class III” or “Level III” surveys were done in 2008 and again in
2019 in connection with the development of Keystone XL. Id. A Class III survey is
a pedestrian survey conducted by professionally trained archaeologists who
inventory the area that could be impacted by a project. Id. ¶ 8. Because it is done
on the ground, a Class III survey is the most accurate way to confirm the accuracy
of the Class I/Level I data and determine precisely what cultural resources or
historic properties are present. See generally Montana Wilderness Ass’n v. Connell,
725 F.3d 988, 1005-06 (9th Cir. 2013). The Class III surveys done in 2008 and
2019 did not find either of the sites from the Class I survey cited by Plaintiffs’
counsel. Salisbury Decl. ¶ 9. The remaining sites that Plaintiffs’ counsel saw in the
1.2-mile border segment are outside the pipeline-right-of-way and area of potential
effect. Id. ¶¶ 10-11.
There is also no threat of immediate irreparable harm to cultural resources
outside the 1.2-mile border segment. Construction of other segments of the
pipeline in Montana and South Dakota is not scheduled to begin until August,
which leaves ample time for a ruling on the pending summary judgment motions.

21

 Dkt. 94 at 3.4 Moreover, Plaintiffs’ allegations of harm to cultural sites beyond the
border segment are misleading because they omit the critical fact that State is
taking action to address all of the cultural resources and historic properties
identified in the declaration of submitted by Plaintiffs’ counsel. As described in TC
Energy’s opposition to Plaintiffs’ motion for summary judgment, State has
engaged (or is engaging) in consultations about these sites with the tribes and the
Montana SHPO pursuant to the NHPA and the PA; and TC Energy is taking steps
to avoid or mitigate harm to them. 2019 Final SEIS at 4-71 (Table 4.9-2); id at 3.914 (Table 3.9-6). In addition, construction will be “monitored by tribal
representatives for consistency with Section 106 of the NHPA in areas of tribal
concern.” 2014 FSEIS at 3.11-44 (discussing Tribal Monitoring Plan).
Under these circumstances, any harm that may occur is not legally
cognizable. A court cannot issue an injunction merely because “cultural resources
might be harmed.” WildEarth Guardians v. Provencio, 923 F.3d 655, 679 (9th Cir.
2019). The obligations imposed by NEPA and the NHPA are “procedural in
nature,” requiring a permitting agency to “conduct[] the required prefield work,
consult[] with the appropriate entities, and reach[] a determination consistent with
the evidence before it.” Id.

4

Construction is scheduled to begin in June 2020 on one segment in Nebraska
where no worker camps are required, Dkt. 94 at 2-3, but that will not harm
Plaintiffs, whose reservations and tribal lands are in Montana and South Dakota.
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 Plaintiffs’ further claim that there are likely to be “additional, as-of-yet
unidentified, cultural sites, cultural resources, and historic properties,” because
State failed to “engage in adequate consultation and identification efforts pursuant
to Section 106 of the NHPA,” is unsubstantiated and false. See Dkt. 131 at 13
(citing allegations their complaint). As described above and in TC Energy’s
opposition to the motion for preliminary injunction, Plaintiffs rebuffed many of
State’s attempts at consultation and declined the invitation to conduct their own
traditional cultural property surveys at Keystone’s expense. See supra pp. 4-7; Dkt.
126 at 5-8. “Equity is not served” when a “Tribe refuses to consult” with an agency
about protecting its “interests and then seeks an injunction to protect those same
interests on the ground that the [agency] has failed to consult.” Grand Canyon Tr.
v. Williams, No. 13-cv-8045, 2015 WL 3385456, at *6 (D. Ariz. May 26, 2015)
(denying motion for injunction); see also Apache Survival Coal. v. United States,
21 F.3d 895, 907 (9th Cir. 1994) (denying claim when the “Tribe ignored the very
process that its members now contend was inadequate”).
2. Worker Camps
Plaintiffs claim that tribal members face imminent harm from criminal acts
by workers at the temporary camps, Dkt. 131 at 15, is equally unfounded. It takes
four to five months to construct a worker camp, see Dkt. 126-7 at ¶ 9, so there will
not be workers in the camps for months. When the camps are operational, workers

23

 must follow the Camp Code of Conduct. See supra p. 18. And a court cannot enter
an injunction based on speculation that the plaintiff could be the victim of a crime.
See City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983).
3. Bureaucratic Momentum
Finally, there is no merit to Plaintiffs’ bureaucratic momentum argument.
The Court previously accepted this argument after determining that State’s
environmental analysis of Keystone XL was legally deficient. No such findings
have been made here, however, and Plaintiffs have not demonstrated any
likelihood of success on their new (and improper) challenges to BLM’s decision.
Indeed, given the last-minute nature of Plaintiffs’ new challenge, only a
particularly strong showing of likely success would justify a decision to enjoin a
project that has been the subject of extensive environmental review, including a
supplemental review ordered by this Court. And, absent such a showing (which
Plaintiffs have not remotely made), there is no basis for concluding that yet another
supplemental review must be performed, and construction must be enjoined to
prevent any “skewing” of that further review.
In all events, the assumption that construction outside the border segment or
the federal land covered by the BLM right-of-way would skew a future assessment
conflicts with the Court’s duty to “presume that agencies will follow the law,” Pit
River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1082 (9th Cir. 2010). It is also

24

 foreclosed by the Ninth Circuit’s decision in the prior appeal. There, the Northern
Plains Plaintiffs argued that this Court’s injunction should remain in place to
prevent construction “outside of the BLM and Corps jurisdictional areas,” because
it would “skew[] those agencies’ decision-making.” N. Plains Opp’n to Mots. to
Dismiss at 36, IEN v. U.S. Dep’t of State, No. 18-36068 (9th Cir. Apr. 23, 2019),
Dkt. 49-1. The Ninth Circuit necessarily disagreed when it granted the motion to
dismiss and dissolved the injunction.
IV.

THE BALANCE OF HARDSHIPS WEIGHS AGAINST AN
INJUNCTION
TC Energy has spent over a decade and approximately $3.14 billion to

develop the Project. Declaration of Gary Salsman ¶ 11 (Dkt. 126-7). Plaintiffs
blithely assert that an injunction would cause TC Energy “only delay.” Dkt. 120 at
27-28. That delay will impose substantial economic costs on the company, will
threaten hundreds of jobs and significant tax revenue, and could delay the
operational date of a service that shippers have already contracted to use. This
counsels strongly against an injunction. See Alaska Survival v. STB, 704 F.3d 615,
616 (9th Cir. 2012) (“[f]urther delay of this project will prevent the award of
construction contracts, postpone the hiring of construction employees, and
significantly increase costs).
TC Energy needs to construct worker camps and pipe yards several months
before construction of the pipeline itself. Dkt. 126-7 ¶¶ 7, 12. If it cannot do so,
25

 completion of the Project could be delayed past the planned in-service date, and
the company could lose earnings of approximately $1.2 billion. Id. ¶ 13. The
increased workforce and extended construction season entailed in trying to
maintain that in-service date following a delay could impose incremental costs of
approximately $200 million, with uncertain prospects of success. Id. ¶ 12.
A delay in construction and completion of the Project would also harm third
parties. It would threaten hundreds of jobs and significant tax revenue. Id. ¶ 13; see
also 2019 Final SEIS at 4-63, 4-65 (describing beneficial impacts to economic base
and tax revenue). It would deprive TC Energy’s customers of a service they have
contracted to use. Dkt. 126-7 ¶ 16. And it would harm the public interest by
delaying a Project that State found would promote the nation’s energy security and
bilateral relations with Canada.
CONCLUSION
For the foregoing reasons, TC Energy requests that the Court deny
Plaintiffs’ motion for a temporary restraining order.
March 20, 2020

Respectfully Submitted,

CROWLEY FLECK PLLP

SIDLEY AUSTIN LLP

/s/ Jeffery J. Oven
Jeffery J. Oven
Jeffrey M. Roth
490 North 31st Street, Ste. 500
Billings, MT 59103-2529

/s/ Peter R. Steenland, Jr.
Peter R. Steenland, Jr.
Peter C. Whitfield
1501 K Street, N.W.
Washington, DC 20005
26

 Telephone: 406-252-3441
Email: joven@crowleyfleck.com
jroth@jcrowleyfleck.com

Telephone: 202-736-8000
Email: psteenland@sidley.com
pwhitfield@sidley.com

Counsel for TransCanada Keystone Pipeline, LP and TC Energy Corporation

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 CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1(d)(2)(E), I certify that this brief contains 6,294
words, excluding the caption, the certificates of service and compliance, and the
tables of contents and authorities.
/s/ Jeffery J. Oven

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 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served today via the Court’s
CM/ECF system on all counsel of record.
/s/ Jeffery J. Oven

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