`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`GREAT FALLS DIVISION
`
`
`INDIGENOUS ENVIRONMENTAL
`NETWORK and NORTH COAST RIVERS
`ALLIANCE,
`
`
`Plaintiffs,
`
`
`vs.
`
`PRESIDENT DONALD J. TRUMP, et al.,
`
`
`and
`
`TRANSCANADA KEYSTONE
`PIPELINE, LP, a Delaware limited
`partnership, and TC ENERGY
`CORPORATION, a Canadian Public
`Company,
`
`
`
`
`
`
`
`
`4:19-cv-00028-BMM
`
`SECOND ORDER
`ON MOOTNESS
`
`
`
`
`
`
`
`
`
`Defendants,
`
`Defendant-Intervenors.
`
`
`
`
`
`
`
`Indigenous Environmental Network (“IEN”) and North Coast Rivers
`
`Alliance (“NCRA”) (collectively, “Plaintiffs”) brought this action against President
`
`Donald J. Trump and various government agencies and agents in their official
`
`capacities (“Federal Defendants”). Plaintiffs allege that President Trump violated
`
`the Property Clause of the U.S. Constitution, the Commerce Clause of the U.S.
`
`
`
`Case 4:19-cv-00028-BMM Document 173 Filed 07/30/21 Page 2 of 4
`
`Constitution, and Executive Order 13,337 when he issued a Presidential Permit in
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`2019 (“2019 Permit”) to Defendant-Intervenors TransCanada Keystone Pipeline,
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`LP and TC Energy Corporation (collectively, “TC Energy”) to construct a cross-
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`border segment of the Keystone XL oil pipeline (“Keystone”).
`
`President Joseph R. Biden signed an Executive Order on January 20, 2021 to
`
`revoke the 2019 Permit. See Protecting Public Health and the Environment and
`
`Restoring Science To Tackle the Climate Crisis, Exec. Order 13,990, 86 Fed. Reg.
`
`7,037, 7,041 (Jan. 25, 2021). President Biden’s revocation noted that the 2019
`
`Permit included an express condition that the President could revoke that permit at
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`“the President’s sole discretion.” Id.
`
`The Court sought briefing on whether President Biden’s revocation rendered
`
`the above-captioned case moot. (Doc. 162). The Court subsequently issued an
`
`Order on Mootness on May 28, 2021. (Doc. 166). The Court determined in part
`
`that:
`
`The case presents a live controversy because the Court can provide
`relief to Plaintiffs by ordering the removal of the constructed border
`segment. . . . This case does not involve mere text in the Federal
`Register. Rather, it involves a physical pipeline that today sits under the
`ground at the U.S.-Canada border. The Court can provide Plaintiffs
`with requested injunctive relief by ordering TC Energy to remove that
`pipeline from the ground.
`
`
`(Doc. 166 at 9–10). The Court further determined that even if the Court could not
`
`provide such injunctive relief, that the case met an exception to mootness.
`
`
`
`2
`
`
`
`Case 4:19-cv-00028-BMM Document 173 Filed 07/30/21 Page 3 of 4
`
`“Specifically, President Biden’s revocation represents the voluntary cessation of
`
`unlawful activity. It remains unclear whether President Biden or a future president
`
`simply could issue unilaterally another permit to TC Energy.” (Doc. 166).
`
`TC Energy announced that it “definitively terminated” Keystone on June 9,
`
`2021. (Doc. 167 at 3). TC Energy has since filed a Motion to Dismiss. (Doc. 169).
`
`TC Energy again argues that the case proves moot in light of this new
`
`announcement. (Doc. 170). Plaintiffs argue that the case remains live. (Doc. 172).
`
`Nothing in TC Energy’s announcement alters the status of this case as the
`
`Court assessed in its Order on Mootness. (Doc. 166). The case presents a live
`
`controversy for substantially the same reason it did before. (Doc. 166 at 7–10, 14).
`
`Even if the case failed to present a live controversy, it meets a mootness exception.
`
`(Doc. 166 at 10–13). The 2019 Permit presents a live controversy to the Court.
`
`The Court will issue an order on the parties’ pending motions for summary
`
`judgment in due course. Federal Defendants and TC Energy shall continue to
`
`apprise the Court on any changes, expansions, or alterations to the existing pipeline
`
`infrastructure from the 1.2-mile border crossing segment during the pendency of
`
`this matter.
`
`ORDER
`
`Accordingly, IT IS ORDERED that TC Energy’s Motion to Dismiss (Doc.
`
`169) is DENIED.
`
`
`
`3
`
`
`
`Case 4:19-cv-00028-BMM Document 173 Filed 07/30/21 Page 4 of 4
`
`
`
`Dated the 30th day of July, 2021.
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`4
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