Keystone XL Pipeline

Attorney: Natalie A. Landreth, Matthew L. Campbell, Wesley James Furlong, Dan Lewerenz

The Rosebud Sioux Tribe (Sicangu Lakota Oyate) and the Fort Belknap Indian Community (Assiniboine (Nakoda) and Gros Ventre (Aaniiih) Tribes) in coordination with their counsel, the Native American Rights Fund, on September 10, 2018, sued the Trump Administration for numerous violations of the law in the Keystone XL pipeline permitting process. The Tribes are asking the court to rescind the illegal issuance of the Keystone XL pipeline presidential permit.

Case Updates

September 26, 2018:

TransCanada has begun construction of the Keystone XL pipeline near the Rosebud Reservation, just a week after the Rosebud Sioux Tribe (Sicangu Lakota Oyate) and the Fort Belknap Indian Community (Assiniboine (Nakoda) and Gros Ventre (Aaniiih) Tribes) sued the Trump Administration for its illegal approval of the pipeline.

Bulldozers were seen this week grading the land in Tripp County, South Dakota, adjacent to Rosebud lands. Construction has begun despite the fact that there are three lawsuits currently going on. The one filed by Rosebud Sioux last week cites the fact that the Trump Administration has not undertaken any analysis of: trust obligations, the potential impact on tribal hunting and fishing rights, the potential impacts on the Rosebud Sioux Tribe’s unique water system, the potential impact of spills on tribal citizens, or the potential impact on cultural sites in the path of the pipeline. This is in violation of federal law.
Screenshot of first page of Bordeaux Letter, Click to download PDF
“The United States is allowing TransCanada to begin construction even though there has been no review of our treaty rights, hunting and fishing rights, or the impacts to our people, our water, or our environment,” President Rodney M. Bordeaux of the Rosebud Sioux Tribe. “We will fight to ensure that federal law is followed.”

Read the full letter from President Bordeaux: 

The Rosebud Sioux Tribe and the Fort Belknap Indian Community intend to move ahead with their claims against the United States and to demand that the United States honor its legal obligations.

 

September 10, 2018:

The Rosebud Sioux Tribe (Sicangu Lakota Oyate) and the Fort Belknap Indian Community (Assiniboine (Nakoda) and Gros Ventre (Aaniiih) Tribes) in coordination with their counsel, the Native American Rights Fund, on September 10, 2018, sued the Trump Administration in the U.S. District Court for the District of Montana, Great Falls Division, for numerous violations of the law in the Keystone XL pipeline permitting process. The Tribes are asking the court to declare the review process in violation of the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA) and to rescind the illegal issuance of the Keystone XL pipeline presidential permit.

On March 23, 2017, the U.S. Department of State granted TransCanada’s permit application and issued it a presidential permit to construct and operate the Keystone XL Pipeline. This decision reversed two previous administrative decisions and was done without any public comment or environmental analysis. The permitting process was completed only 56 days after TransCanada submitted its application for the third time. The State Department provided no explanation in the 2017 decision for its contradictory factual finding; instead, it simply disregarded its previous factual findings and replaced them with a new one. Stop KXL buttonThe reversal came as no surprise. According to a 2015 personal public financial disclosure report filed with the Federal Election Commission, then-candidate Trump held between $250,000 and $500,000 worth of stock in TransCanada Pipelines, Ltd. NARF Staff Attorney Natalie Landreth explains, “President Trump permitted the Keystone XL pipeline because he wanted to. It was a political step, having nothing to do with what the law actually requires. NARF is honored to represent the Rosebud Sioux and Fort Belknap Tribes to fully enforce the laws and fight this illegal pipeline.”

Cowgirl walking horse at sunrise.

Woman and horse at Ft. Belknap. Photo by Todd Klassy. *

Snaking its way from Alberta to Nebraska, the pipeline would cross the United States-Canada border in Philips County, Montana, directly adjacent to Blaine County and the Fort Belknap Indian Reservation. The pipeline would cross less than 100 miles from the headquarters of the Fort Belknap Indian Reservation and run directly through sacred and historic sites as well as the ancestral lands of the Gros Ventre and Assiniboine Tribes. In South Dakota, the pipeline would cross through Tripp County, just miles from the boundaries of the Rosebud Indian Reservation and within yards of Rosebud’s trust lands and tribal members’ allotments. These lands are well within the area of impact for even a small rupture and spill. There are countless historical, cultural, and religious sites in the planned path of the pipeline that are at risk of destruction, both by the pipeline’s construction and by the threat of inevitable ruptures and spills if the pipeline becomes operational. Additionally, the Rosebud Sioux Tribe operates its own water delivery system, which is part of the Mni Wiconi Rural Water Supply Project. The pipeline would cross the two sources of water for the Mni Wiconi Project.

Despite all of these facts, throughout the permitting process, there was no analysis of trust obligations, no analysis of treaty rights, no analysis of the potential impact on hunting and fishing rights, no analysis of potential impacts on the Rosebud Sioux Tribe’s unique water system, no analysis of the potential impact of spills on tribal citizens, and no analysis of the potential impact on cultural sites in the path of the pipeline, which is in violation of the NEPA and the NHPA.

November 2017:

President William Kindle of the Rosebud Sioux Tribe (Sicangu Lakota Oyate) promised continued vigilance in light of the Nebraska Public Service Commission’s decision today to permit TransCanada Corp.’s proposed Keystone XL pipeline to cross that state’s lands. The Rosebud Sioux Tribe has retained the Native American Rights Fund (NARF) to represent its interests with regard to the Keystone XL pipeline.

The pipeline’s proposed route crosses through traditional Lakota homelands and treaty territories, and will affect not only the Rosebud Sioux Tribe, but also Native Nations in Montana, South Dakota, and Nebraska.  It also endangers the Ogallala Aquifer, which supplies water for Native and non-Native users’ residential and agricultural needs on the High Plains in eight states.

“The land, water, tribal sovereignty, and governmental services were not ‘given’ to us in those treaties,” President Kindle said. “They were bargained for with the blood of our ancestors. We will not dishonor our relatives and unnecessarily endanger our health, safety, and wellbeing. The Rosebud Sioux Tribe will take any and all necessary steps, up to and including litigation, to protect our people, our land and water, and our cultural and historic resources.”

“As we have seen, spills from such projects can be catastrophic,” said NARF Staff Attorney Matt Campbell.  “The Rosebud Sioux Tribe—just like South Dakota, Nebraska, and Montana—has a duty to protect the health and welfare

of its citizens. NARF will help the Tribe make sure it has considered all of its options for ensuring the safety of the Tribe’s citizens, territory, and resources.”

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“This is their land, their water,” said NARF Staff Attorney Natalie Landreth. “They have laws protecting their water and those laws must be respected.  Keystone XL will need permission from the Rosebud Sioux Tribe, so this is not over.”

See the open letter from President Kindle for more information on the Rosebud Sioux Tribe’s position.

A History of the Keystone Pipeline

The Keystone XL (KXL) Pipeline is the proposed Phase 4 of the Keystone Pipeline system, which already is online with a capacity to carry more than 500,000 barrels per day. The XL stands for “export limited.” If completed, KXL would add another 510,000 barrels of capacity.

Phase 1 of the Keystone Pipeline was permitted in March 2008.  Phase 2 and 3 did not require Presidential Permits and were built over several years starting in 2010.  Because it crosses the U.S.-Canada border, Phase 4 does require a Presidential Permit; however, it has been met with opposition since its initial proposal.  A timeline of the Keystone Pipeline project is below.

1851, 1855, 1868

Tribes and the United States government sign Treaties of Fort Laramie establishing respective territories.

2005

February: TransCanada Corporation proposes the Keystone Pipeline project.

2007

September: Canada’s National Energy Board approves the Canadian section.

2008

January: ConocoPhillips acquires a 50% stake in the project.

March: The U.S. Department of State issues a Presidential Permit authorizing Keystone facilities at the U.S.-Canada border.

September: TransCanada and ConocoPhillips file an application for the Keystone XL Phase 4 extension.

2009

Pipeline representatives start visiting landowners potentially affected by Keystone XL. Opposition emerges in Nebraska.

June: TransCanada announces it will buy ConocoPhillips’ stake in Keystone.

2010

March: Canada’s National Energy Board approves the Canadian section of the Keystone XL.

June: Phase 1 of the Keystone Pipeline goes online. It runs from Hardisty, Alberta, to Patoka, Illinois.

June-July: Increased opposition to Keystone XL includes legislators and scientists speaking out against the project; the Environmental Protection Agency questions the need for the pipeline extension.

July: The State Department extends its review of Keystone, saying they need more time for review before a final environmental impact assessment can be released.

2011

February : The Keystone-Cushing Phase 2 of the pipeline goes online. It connects Steele City, Nebraska, to Cushing, Oklahoma.

August: The State Department releases its final environmental assessment that the pipeline would have a limited environmental impact.

August-September: Keystone XL protesters organize two weeks of civil disobedience at the White House. Police arrest approximately one thousand people.

December: U.S. legislators pass a bill with a provision saying President Barack Obama must make a decision on the pipeline’s future in the next 60 days.

2012

January: Obama rejects the Keystone Pipeline, saying the December bill did not allow enough time to review the new route. Obama says TransCanada is free to submit another application.

February: TransCanada announces it will build Phase 3 of the Keystone Pipeline as a separate project that is not subject to presidential permission, since it does not cross an international border.

April: TransCanada submits a new route to officials in Nebraska for approval.

May: TransCanada files a new application with the State Department for the northern part of Keystone XL.

2013

January: Nebraska Gov. Dave Heineman approves the proposed route for Keystone XL, sending the project back to the State Department for review. Pipeline opponents file a lawsuit against the Nebraska government claiming the state law used to review the new route is unconstitutional.

2014

January: The Cushing MarketLink Phase 3a pipeline goes online. It connects Cushing, Oklahoma, to Port Arthur, Texas. Phase 3b is added later, connecting the pipeline from Port Arthur to Houston, Texas.

February: A Nebraska judge rules that the law that allowed the governor to approve Keystone XL over the objections of landowners was unconstitutional. Nebraska appeals.

April: The State Department suspends the regulatory process indefinitely, citing uncertainty about the court case in Nebraska.

November: TransCanada says the costs of Keystone XL have grown to US$8 billion from US$5.4 billion. Elections turn control of the U.S. Congress over to Republicans, who pledge to move forward on Keystone XL.

2015

January: The Nebraska Supreme Court narrowly strikes down the lower-court decision, ruling that the governor’s actions were constitutional. The U.S. Senate approves a bill to build Keystone XL.

February: Obama vetoes the bill.

November: The Obama administration rejects TransCanada’s application to build the Keystone XL pipeline.

2016

November: Trump elected president.

2017

January: Trump signs a presidential memorandum inviting TransCanada to resubmit their application for a Presidential Permit and directing the Secretary of State, Department of the Interior, and Department of the Army to fast-track the decision. He also signs an order requiring pipelines in the United States to be built with U.S. steel.

March: The Trump White House exempts the Keystone Pipeline from the requirement to use U.S. steel.

2018

September: The Rosebud Sioux Tribe and the Fort Belknap Indian Community, in coordination with their counsel, the Native American Rights Fund, on September 10, 2018, sued the Trump Administration in the U.S. District Court for the District of MT for numerous violations of the law in the Keystone XL pipeline permitting process.

*Photos by Todd Klassy. To see more Montana Native American photos, go to www.toddklassy.com.

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