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Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 1 of 78
`
`JAMES A. PATTEN
`PATTEN, PETERMAN,
`BEKKEDAHL & GREEN,
`PLLC
`Suite 300, The Fratt Building
`2817 Second Avenue North
`Billings, MT 59101-2041
`Telephone: (406) 252-8500
`Facsimile: (406) 294-9500
`email: apatten@ppbglaw.com
`
`STEPHAN C. VOLKER (Pro hac vice
`pending)
`ALEXIS E. KRIEG (Pro hac vice pending)
`STEPHANIE L. CLARKE (Pro hac vice
`pending)
`JAMEY M.B. VOLKER (Pro hac vice
`pending)
`LAW OFFICES OF STEPHAN C. VOLKER
`1633 University Avenue
`Berkeley, California 94703-1424
`Telephone: (510) 496-0600
`Facsimile:
`(510) 845-1255
`email:
`svolker@volkerlaw.com
`akrieg@volkerlaw.com
`sclarke@volkerlaw.com
`jvolker@volkerlaw.com
`
`Attorneys for Plaintiffs
`INDIGENOUS ENVIRONMENTAL NETWORK
`and NORTH COAST RIVERS ALLIANCE
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`GREAT FALLS DIVISION
`
`INDIGENOUS ENVIRONMENTAL
`NETWORK and NORTH COAST RIVERS
`ALLIANCE,
`
`Plaintiffs,
`
`vs.
`
`Civ. No.
`
`COMPLAINT FOR
`DECLARATORY,
`INJUNCTIVE, AND
`MANDAMUS RELIEF
`
`UNITED STATES BUREAU OF LAND
`MANAGEMENT; DAVID BERNHARDT,
`in his official capacity as U.S. Secretary of
`the Interior; JOHN MEHLHOFF, in his
`official capacity as Montana/Dakotas State
`Director for the Bureau of Land
`
`

`

`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 2 of 78
`
`Management; UNITED STATES ARMY
`CORPS OF ENGINEERS; LT. GENERAL
`TODD T. SEMONITE, Commanding
`General and Chief of Engineers; UNITED
`STATES DEPARTMENT OF STATE;
`MICHAEL R. POMPEO, in his official
`capacity as U.S. Secretary of State;
`UNITED STATES FISH AND WILDLIFE
`SERVICE, a federal agency; AURELIA
`SKIPWITH, in her official capacity as
`Director of the U.S. Fish and Wildlife
`Service; and DONALD J. TRUMP, in his
`official capacity as PRESIDENT OF THE
`UNITED STATES,
`
`Defendants
`
`Plaintiffs Indigenous Environmental Network (“IEN”) and North Coast
`
`Rivers Alliance (“NCRA”) bring this action to challenge, in chronological order:
`
`(1) Defendant UNITED STATES ARMY CORPS OF ENGINEERS’ (“the
`
`CORPS’”) adoption of a final Decision Document and Finding of No Significant
`
`Impact (“FONSI”) on January 6, 2017 approving reissuance of Nationwide Permit
`
`(“NWP”) 12 under section 404(e) of the Clean Water Act (33 U.S.C. section 1251
`
`et seq. (“CWA”)), 33 U.S.C. section 1344(e), and allowing the Keystone XL
`
`Pipeline Project (“Keystone” or “Project”) proposed by TRANSCANADA
`
`KEYSTONE PIPELINE LP and TC ENERGY CORPORATION (collectively,
`
`“TRANSCANADA”), in violation of the National Environmental Policy Act, 42
`
`U.S.C. section 4321 et seq. (“NEPA”) – alleged in the First (NEPA) Claim for
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`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 3 of 78
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`Relief;
`
`(2) Defendant PRESIDENT DONALD J. TRUMP’s (“PRESIDENT
`
`TRUMP’s”) claim that issuance on April 10, 2019 of his Executive Order 13,867
`
`retroactively saved his March 29, 2019 Presidential Permit (“2019 Permit”) from
`
`invalidation due to its conflict with Executive Order 13,337 – alleged in the Fifth
`
`(Declaratory Judgment) Claim for Relief.
`
`(3) Defendant UNITED STATES DEPARTMENT OF STATE’s
`
`(“STATE’s”) issuance on December 20, 2019 of a deficient Final Supplemental
`
`Environmental Impact Statement (“2019 FSEIS”) for Keystone in violation of
`
`NEPA – alleged in the First (NEPA) Claim for Relief;
`
`(4) Defendant UNITED STATES FISH AND WILDLIFE SERVICE’s
`
`(“FWS’s”) decision on December 23, 2019 to rely upon an inadequate Biological
`
`Assessment (“BA”) rather than to prepare a Biological Opinion (“BiOp”) as
`
`required to analyze the Project’s impacts on endangered and threatened species
`
`(other than the American burying beetle) in violation of the Endangered Species
`
`Act, 16 U.S.C. section 1531 et seq. (“ESA”) and the Administrative Procedure
`
`Act, 5 U.S.C. sections 701-707 (“APA”) – alleged in the Fourth (ESA and APA)
`
`Claim for Relief; and
`
`(5) Defendant UNITED STATES BUREAU OF LAND MANAGEMENT’s
`
`(“BLM’s”) issuance on January 22, 2020 of a Record of Decision (“ROD”)
`
`approving a right-of-way (“ROW”) and temporary use permit (“TUP”) allowing
`
`construction and operation of the Project, based on State’s deficient 2019 FSEIS,
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`in violation of NEPA, the Mineral Leasing Act, 30 U.S.C. section 181 et seq.
`
`(“MLA”) and the Federal Land Policy Management Act, 43 U.S.C. section 1701 et
`
`seq. (“FLPMA”) – alleged in the First (NEPA), Second (MLA) and Third
`
`(FLPMA) Claims for Relief, respectively.
`
` INTRODUCTION
`
`1.
`
`Keystone is a proposed 1,209-mile long, 36-inch diameter crude oil
`
`pipeline that would be constructed within a 110-foot wide construction right-of-
`
`way across 327 miles in the Canadian provinces of Alberta and Saskatchewan and
`
`882 miles in the states of Montana, South Dakota and Nebraska to transport up to
`
`830,000 barrels per day of tar sands crude oil from Hardisty, Alberta and the
`
`Bakken shale formation in Montana to existing pipeline facilities near Steele City,
`
`Nebraska. U.S. Department of State, Final Supplemental Environmental Impact
`
`Statement for the Keystone XL Project (December 2019) (“2019 FSEIS”) at S-1;
`
`84 Fed.Reg. 13101-13103 (Apr. 3, 2019). The Project would pose grave risks to
`
`the environment, including the climate, cultural resources, water resources, fish
`
`and wildlife, and human health and safety.
`
`2.
`
`State’s issuance of the 2019 FSEIS on December 20, 2019, FWS’s
`
`reliance on BLM’s inadequate BA rather than preparing the required BiOp on
`
`December 23, 2019, and BLM’s issuance of a ROD granting rights-of-way and
`
`temporary use permits on January 22, 2020, are the latest in a series of unlawful
`
`actions by the Administration of President Donald J. Trump to implement his
`
`unlawful 2019 Permit. Plaintiffs challenged that permit in a separate action filed
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`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 5 of 78
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`April 5, 2019, Indigenous Environmental Network v. Trump, Case No. 19-CV-
`
`0028-GF-BMM (D. Mont.)), which remains pending.
`
`3.
`
`Notwithstanding a thoroughly-documented determination on
`
`November 6, 2015 by former Secretary of State John Kerry that the Keystone
`
`Pipeline Project was not in the national interest, shortly after his inauguration in
`
`early 2017, President Trump requested TransCanada’s reapplication for a
`
`Presidential Permit, which President Trump approved just two months later despite
`
`the fact that State’s underlying Final Supplemental Environmental Impact
`
`Statement (“FSEIS”) was unlawfully inadequate in several notable respects.
`
`Indigenous Environmental Network v. United States Department of State, 347
`
`F.Supp.3d 561, 591 (D. Mont. Nov. 8, 2018) (ordering that the 2017 Permit be
`
`“VACATED” due to deficiencies in the 2014 FSEIS); 82 Fed.Reg. 16467 (April 4,
`
`2017).
`
`4. When this Court ruled the 2014 FSEIS invalid in August, 2018,
`
`because it failed to address the Project’s new alignment through Nebraska, and
`
`again in November, 2018, because it ignored or understated several of the
`
`Project’s significant impacts, President Trump refused to comply with this Court’s
`
`Judgment. Instead, President Trump actively sought to sidestep – and unlawfully
`
`to alter – the law to fit his agenda. On March 29, 2019, he unilaterally and
`
`unconstitutionally approved a new Presidential Permit (“2019 Permit”) for the
`
`Project (84 Fed.Reg. 13101-13103 (Mar. 29, 2019)), which, as noted, Plaintiffs
`
`have challenged in separate litigation. Indigenous Environmental Network v.
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`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 6 of 78
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`Trump, Case No. 19-cv-0028-GF-BMM (D.Mont.). He then attempted to
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`retroactively legalize his 2019 Permit by revoking the Executive Order it directly
`
`violated – Executive Order 13,337 – through issuance of Executive Order 13,867
`
`on April 10, 2019 – twelve days after his unlawful issuance of the 2019 Permit on
`
`March 29, 2019.
`
`5.
`
`Despite this Project’s continuing illegality and profound
`
`environmental impacts, particularly its exacerbation of the global warming crisis,
`
`Defendants are still attempting to resurrect and construct Keystone.
`
`6.
`
`In furtherance of this ill-conceived Project, BLM’s ROD grants a
`
`right-of-way (“ROW”) and temporary use permit (“TUP”) pursuant to the MLA.
`
`The ROW and TUP allow the Project to cross 46.28 miles of federal land in
`
`Montana – 44.4 miles managed by BLM, and 1.88 miles managed by the Corps.
`
`2019 FSEIS at S-7, 1.3.4. However, that ROD relies upon a deficient FSEIS, in
`
`violation of NEPA, and its approvals of the ROW and TUP for Keystone
`
`contravene bedrock environmental protections embodied in FLPMA, the MLA
`
`and the ESA.
`
`7.
`
`Defendant State issued the 2019 FSEIS, and published notice of its
`
`availability for public review through January 21, 2020 in the Federal Register, on
`
`December 20, 2019. 84 Fed.Reg. 70187-70188 (Dec. 20, 2019). One month later,
`
`when BLM published in the Federal Register notice of its ROD approving the
`
`ROW and TUP for Keystone, its notice acknowledged that “[t]he State
`
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`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 7 of 78
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`Department has been the Lead Federal Agency for purposes of NEPA, and BLM
`
`and USACE have been Cooperating Agencies from the beginning of this project.”
`
`85 Fed.Reg. 5232 (January 29, 2020). As Lead Federal Agency under NEPA,
`
`State has “primary responsibility” for the content of the FSEIS and its failure to
`
`comply with NEPA’s requirements. 40 C.F.R. § 1508.16 (“‘Lead agency’ means
`
`the agency or agencies preparing or having taken primary responsibility for
`
`preparing the environmental impact statement.”). The 2019 FSEIS, like the
`
`deficient 2014 FSEIS before it, fails to take a hard look at the impacts of
`
`Keystone. BLM’s approval of the ROD based on this inadequate 2019 FSEIS
`
`violates NEPA.
`
`8.
`
`BLM’s ROD likewise violates the MLA. The MLA mandates that
`
`grants of rights-of-way and associated temporary permits must comply with
`
`applicable federal environmental laws, including NEPA, and be based on
`
`regulations or stipulations “designed to control or prevent [] damage to the
`
`environment” including “damage to fish and wildlife habitat” and “hazards to
`
`public health and safety,” and “protect . . . individuals living in the general area of
`
`the right-of-way or permit who rely on the fish, wildlife and biotic resources of the
`
`area for subsistence purposes.” 30 U.S.C. §§ 185(h)(1), 185(h)(2). Because the
`
`ROD relies on the 2019 FSEIS which fails to adequately analyze the Project’s
`
`environmental impacts as detailed below, and because, as a consequence of this
`
`deficient NEPA review, the ROW and TUP are not adequately designed to control
`
`or prevent damage to the environment including fish and wildlife, and to the
`
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`Indigenous communities who rely on the fish, wildlife and biotic resources of the
`
`impacted areas for subsistence purposes, the ROD violates both NEPA and the
`
`MLA.
`
`9.
`
`The ROD also violates FLPMA’s mandate that BLM must limit to the
`
`extent feasible the natural resource damage that the Project would cause along its
`
`right-of-way. 43 U.S.C. § 1765. Because the 2019 FSEIS fails to adequately
`
`analyze the Project’s environmental impacts as detailed below, and as a
`
`consequence BLM failed to adequately explore, evaluate and adopt terms and
`
`conditions that would avoid or reduce the Project’s foreseeable environmental
`
`impacts, Keystone will cause unnecessary and undue degradation to the
`
`environment and thus BLM’s ROD violates FLPMA.
`
`10.
`
`FWS violated the ESA when it issued its December 23, 2019
`
`concurrence letter based solely on, and without independently evaluating, BLM’s
`
`inadequate 2019 Biological Assessment on Keystone. 16 U.S.C. § 1536(a)(2); 50
`
`C.F.R. § 402.14(a), (b)(1). The record before FWS demonstrated that the Project
`
`might affect listed species or their critical habitat and that there had been no
`
`consultation as to those impacts. Consequently, FWS had a duty under the ESA to
`
`prepare a Biological Opinion to evaluate Keystone’s impacts on threatened and
`
`endangered species and their critical habitat, but failed to do so. Id. FWS also
`
`failed, in preparing its deficient concurrence letter, to rely on the best available
`
`scientific data as required by the ESA. 16 U.S.C. § 1536(a)(2), (b), (c).
`
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`11.
`
`The Corps violated NEPA when it issued its Decision Document and
`
`FONSI on January 6, 2017, approving a revised NWP 12 under section 404(e) of
`
`the CWA, 33 U.S.C. section 1344(e). The Corps’ approval of NWP 12 allowed
`
`the Project’s discharge of dredged or fill materials into waters of the United States,
`
`as that permit’s scope includes any “pipeline for the transportation of any . . .
`
`liquid . . . substance” such as crude oil. 82 Fed.Reg. 1860, 1985, 1999-2000
`
`(January 6, 2017). The Corps purported to find that NWP 12 would result in “no
`
`more than minimal individual and cumulative adverse effects on the aquatic
`
`environment” under the CWA. In fact, NWP 12 posed potentially significant
`
`impacts on the aquatic environment, and therefore under NEPA, the Corps had a
`
`duty to either prepare, or receive from another federal agency, an adequate
`
`environmental impact statement addressing those impacts.
`
`12. By accepting the Corps’ erroneous conclusion that the Project’s NWP
`
`12 does not affect listed species or critical habitat, the FWS likewise failed to
`
`perform its duty to adequately consult with the Corps under the ESA and the APA.
`
`13.
`
`To remedy these violations of law, Plaintiffs seek orders from this
`
`Court: (1) declaring that (a) Defendants violated NEPA, the MLA, FLPMA, the
`
`ESA, and the APA, and (b) President Trump’s issuance of Executive Order 13,867
`
`did not retroactively excuse the 2019 Permit’s violation of Executive Order
`
`13,337; (2) granting preliminary injunctive relief restraining Defendants, including
`
`TransCanada should it intervene, from taking any action that would result in any
`
`change to the physical environment in connection with Keystone pending a full
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`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 10 of 78
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`hearing on the merits; and (3) granting permanent injunctive relief overturning
`
`Defendants’ aforementioned approvals of Keystone pending their compliance with
`
`applicable law including NEPA, the MLA, FLPMA, the ESA and the APA.
`
`JURISDICTION AND VENUE
`
`14.
`
`The Court has jurisdiction over this action under 28 U.S.C. sections
`
`1331 (federal question), 1346 (U.S. as defendant), 1361 (mandamus against an
`
`officer of the U.S.), 2201 (declaratory judgment), and 2202 (injunctive relief);
`
`under the APA, 5 U.S.C. section 706(1) and (2) (to compel agency action
`
`unlawfully withheld or delayed, and to hold unlawful and set aside agency action
`
`found to be arbitrary, capricious, an abuse of discretion or otherwise not in
`
`accordance with law, contrary to constitutional right or power, in excess of
`
`jurisdiction, or without observance of procedure required by law); and under the
`
`ESA, 16 U.S.C. sections 1540(g)(1)(A) and (C) (based on notice given in 2017
`
`and to be renewed as necessary, to the extent, if any, jurisdiction does not exist
`
`under the APA per American Rivers v. National Marine Fisheries Service
`
`(“American Rivers”), 126 F.3d 1118, 1124-1125 (9th Cir. 1997)) because:
`
` (1) the action arises under NEPA, the MLA, FLPMA, and the ESA and
`
`challenges final agency action reviewable under the APA per American Rivers,
`
`126 F.3d at 1124-1125;
`
`(2) State, BLM, the Corps, and FWS are agencies of the U.S. government,
`
`and the individual Defendants are sued in their official capacities as officers of the
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`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 11 of 78
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`U.S. government;
`
`(3) the action seeks a declaratory judgment (a) declaring void the Corps’
`
`January 6, 2017 NWP 12, State’s December 20, 2019 FSEIS, FWS’ December 23,
`
`2019 acceptance of a deficient Biological Assessment and decision not to prepare
`
`a Biological Opinion, and BLM’s January 22, 2020 ROD approving the ROW and
`
`TUP that allow Keystone’s construction and operation, and (b) declaring that
`
`President Trump’s issuance of Executive Order 13,867 on April 10, 2019 did not
`
`retroactively validate the 2019 Permit; and
`
`(4) the action seeks further injunctive and mandamus relief until the
`
`Defendants comply with applicable law.
`
`15. Venue is proper in this judicial district pursuant to 28 U.S.C. section
`
`1391(e)(1)(B) and Montana Local Civil Rules 1.2(c)(3) and 3.2(b)(1)(A) because a
`
`substantial part of the events giving rise to this action – namely, construction and
`
`operation of the proposed pipeline Project – would cross the international border
`
`in, and thence pass through, Phillips County, Montana, which is located within the
`
`Great Falls Division of this judicial district. 28 U.S.C. § 1391(e)(1)(B); Mont.
`
`Civ.R. 3.2(b)(1)(A).
`
`16.
`
`There exists now between the parties hereto an actual, justiciable
`
`controversy in which Plaintiffs are entitled to have a declaration of their rights, a
`
`declaration of Defendants’ obligations, and further relief because of the facts and
`
`circumstances herein set forth.
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`17.
`
`This Complaint is timely filed within the applicable six-year statute of
`
`limitations set forth in 28 U.S.C. section 2401(a).
`
`18.
`
`Plaintiffs have standing to assert their claims and, to the extent
`
`required, have exhausted all applicable remedies. In particular, Plaintiffs’
`
`members live, work, recreate in or otherwise use and enjoy the lands, waters and
`
`plant and animal species and their habitat through which Keystone would pass or
`
`otherwise impact, including the federal lands and waters it would cross.
`
`PARTIES
`
`19.
`
`Plaintiff INDIGENOUS ENVIRONMENTAL NETWORK (“IEN”) is
`
`incorporated under the non-profit organizational name of Indigenous Educational
`
`Network of Turtle Island. Established in 1990, IEN is a network of Indigenous
`
`peoples from throughout North America including the states of Montana, South
`
`Dakota and Nebraska and the Province of Alberta through which the Project is
`
`proposed to be built, who are empowering their Indigenous Nations and
`
`communities toward ecologically sustainable livelihoods, long-denied
`
`environmental justice, and full restoration and protection of the Sacred Fire of
`
`their traditions. Its members include chiefs, leaders and members of Indigenous
`
`Nations and communities who inhabit the states and provinces through which the
`
`Project is proposed to be built and who would be directly and irreparably harmed
`
`by its many severe adverse environmental and cultural impacts. IEN has been
`
`involved in grassroots efforts throughout the United States and Canada to mobilize
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`and educate the public regarding the harmful environmental and cultural impacts
`
`of the Project. IEN’s members include individuals who have hiked, fished,
`
`hunted, observed and photographed wildlife and wild flowers, star-gazed, rode
`
`their horses, floated, swum, camped and worshipped the Creator on lands and
`
`waters within and adjacent to the proposed route of the Project and who intend to
`
`continue to do so in the future. Because IEN’s members use and enjoy the land
`
`and water resources and wildlife within the Project area that the Project would
`
`harm, they would be directly and irreparably harmed by the construction and
`
`operation of the Project and by the Project’s oil spills that would pollute the lands
`
`and waters that IEN’s members use and enjoy.
`
`20.
`
`Plaintiff NORTH COAST RIVERS ALLIANCE (“NCRA”) is an
`
`unincorporated association of conservation leaders from the western and northern
`
`United States and Canada. NCRA has participated in public education, advocacy
`
`before legislative and administrative tribunals, and litigation in state and federal
`
`court to enforce compliance by state and federal agencies with state and federal
`
`environmental laws. NCRA’s members include individuals who have camped,
`
`fished, observed and photographed wildlife and wildflowers, star-gazed, rode their
`
`horses, drove their wagon teams, floated, hiked and worshipped the Creator on
`
`lands and waters within and adjacent to the proposed route of the Project and who
`
`intend to continue to do so in the future. Because NCRA’s members use and enjoy
`
`the land and water resources and wildlife within the Project area that the Project
`
`would harm, they would be directly and irreparably harmed by the construction
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`and operation of the Project and by the Project’s oil spills that would pollute the
`
`lands and waters that NCRA’s members use and enjoy.
`
`21.
`
`Plaintiffs’ injuries are fairly traceable to Defendants’ actions.
`
`Construction and operation of the Project, including the 46.28 miles on federal
`
`land in Montana, will harm Plaintiffs’ use of the Project area including ground and
`
`surface waters the Project would cross, for fishing, hunting, camping and other
`
`recreational purposes, and domestic, cultural and spiritual activities including
`
`nature study, wildlife and wildflower viewing, scenic enjoyment, photography,
`
`hiking, family outings, star gazing and meditation. These injuries are actual,
`
`concrete, and imminent. Plaintiffs have no plain, speedy, or adequate remedy at
`
`law. Accordingly, Plaintiffs seek injunctive, mandamus, and declaratory relief
`
`from this Court to set aside Defendants’ unlawful acts and omissions, and to
`
`redress Plaintiffs’ injuries.
`
`22. Defendant UNITED STATES BUREAU OF LAND
`
`MANAGEMENT (“BLM”) is an agency within the U.S. Department of the
`
`Interior. Under FLPMA, BLM is charged with administering lands owned by the
`
`United States and assigned to its management, including lands within the proposed
`
`route of the Project, consistent with federal environmental laws including NEPA,
`
`the MLA, the ESA, and the APA. 43 U.S.C. § 1701 et seq. On January 22, 2020,
`
`BLM issued the ROD that authorizes the ROW and TUP for Keystone that this
`
`action challenges.
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`23. Defendant DAVID BERNHARDT is the Secretary of the U.S.
`
`Department of the Interior and is sued in his official capacity. He is the federal
`
`official charged with responsibility for the proper management of BLM and FWS
`
`in compliance with applicable law, and is responsible for the actions or failure to
`
`act of those agencies regarding the Project challenged herein. He is the official
`
`who signed the ROD authorizing the ROW and TUP for Keystone that this action
`
`challenges.
`
`24. Defendant JOHN MEHLHOFF is the State Director for the
`
`Montana/Dakotas State Office of BLM. He is the official who recommended
`
`approval of the ROD authorizing the ROW and TUP for Keystone that this action
`
`challenges.
`
`25. Defendant UNITED STATES ARMY CORPS OF ENGINEERS
`
`(“the Corps”) is an agency of the federal government. The Corps is charged with
`
`management of waters of the United States, including compliance with the Clean
`
`Water Act and related statutes intended to protect those waters from
`
`environmental harm. The Corps has specific responsibility over issuance of both
`
`individual and nationwide permits for the discharge of dredged or fill materials
`
`into navigable waters of the United States under section 404 of the Clean Water
`
`Act. 33 U.S.C. § 1344. On January 6, 2017 the Corps approved renewal of
`
`Nationwide Permit 12 (“NWP 12”) on which Defendants rely to construct
`
`crossings for Keystone over and under waters of the United States under section
`
`404(e) of the Clean Water Act, 33 U.S.C. section 1344(e). The Corps also
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`manages 1.88 miles of the ROW for Keystone whose approval this action
`
`challenges.
`
`26. Defendant LT. GENERAL TODD T. SEMONITE is Chief of
`
`Engineers and Commanding General of the Corps, and is sued herein in his
`
`official capacity. He is charged with the supervision and management of all
`
`decisions and actions by the Corps, including those allowing construction of
`
`Keystone that this action challenges.
`
`27. Defendant UNITED STATES DEPARTMENT OF STATE
`
`(“Department of State” or “State”) is an agency of the United States government
`
`charged with review and approval of permits for pipelines that cross the United
`
`States’ borders with other countries, including Canada. Executive Order 13,337;
`
`see also, Executive Order 13,867 (purportedly revoking Executive Order 13,337).
`
`Under NEPA, the Department of State was responsible for preparing the 2019
`
`FSEIS on which BLM’s ROD relies in authorizing the ROW and TUP for
`
`Keystone that this action challenges. 22 C.F.R. §§ 161.7, 161.7(c)(1)
`
`(acknowledging State’s NEPA obligations when reviewing trans-boundary
`
`pipeline permits); 85 Fed.Reg. 5232 (acknowledging that “[t]he State Department
`
`has been the Lead Federal Agency for the purposes of NEPA” for the United
`
`States’ review of Keystone); 40 C.F.R. § 1508.16 (defining “lead agency”).
`
`28. Defendant MICHAEL R. POMPEO is the U.S. Secretary of State, and
`
`is sued herein in his official capacity. He is the official charged with
`
`- 16 -
`
`

`

`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 17 of 78
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`administering the Department of State, including carrying out and complying with
`
`NEPA, and is responsible for the deficiencies in the 2019 FSEIS that this action
`
`challenges.
`
`29. Defendant UNITED STATES FISH AND WILDLIFE SERVICE
`
`(“FWS”) is an agency within the U.S. Department of the Interior. Under the ESA,
`
`FWS is charged with the preservation of endangered and threatened species and
`
`their habitat, including the species that the Project will harm. FWS violated the
`
`ESA when it issued its December 23, 2019 concurrence letter based on, and
`
`without independently evaluating, BLM’s inadequate 2019 Biological Assessment
`
`on Keystone, and by failing to prepare the Biological Opinion it was required to
`
`prepare to evaluate Keystone’s impacts on threatened and endangered species.
`
`FWS therefore failed to conduct the formal consultation with BLM required by the
`
`ESA, and in doing so, failed to rely on the best available scientific data as required
`
`by the ESA. Each of these unlawful actions was a “final agency action”
`
`reviewable under the APA.
`
`30. Defendant AURELIA SKIPWITH is the Director of FWS, and is sued
`
`herein in her official capacity. She is charged with responsibility for carrying out
`
`and complying with the ESA, and with preserving endangered and threatened
`
`species and their habitat that Keystone will harm. She failed to discharge her
`
`duties under the ESA by allowing Keystone to be approved without compliance
`
`with the ESA.
`
`- 17 -
`
`

`

`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 18 of 78
`
`31. Defendant DONALD J. TRUMP (“President Trump”) is the President
`
`of the United States, and is sued in his official capacity. On March 29, 2019 he
`
`issued the Presidential Permit whose implementation this action challenges. His
`
`2019 Permit was published on April 3, 2019 in the Federal Register. 84 Fed.Reg.
`
`13101-13103. On April 10, 2019, President Trump issued Executive Order 13,867
`
`as to which this action seeks declaratory relief. Executive Order 13,867 was
`
`published on April 15, 2019 in the Federal Register. 84 Fed.Reg. 15491-15493.
`
`BACKGROUND
`
`32.
`
`In September 2008, TransCanada filed with State an initial
`
`application for a Presidential Permit to construct and operate Keystone. The
`
`original application was amended and resubmitted on May 4, 2012 to modify the
`
`description of the Project’s route through Nebraska, and to remove the original
`
`Project’s southern segment from Cushing, Oklahoma to the Gulf of Mexico. The
`
`amended application requested approval of a Presidential Permit for a proposed
`
`crude oil pipeline widely known as the Keystone XL Pipeline that would run
`
`approximately 875 miles from the Canadian border in Phillips County, Montana to
`
`connect to an oil pipeline in Steele City, Nebraska.
`
`33. On March 1, 2013, State released a Draft Supplemental
`
`Environmental Impact Statement (“2013 DSEIS”) for the new Presidential Permit
`
`application for the proposed Keystone XL Pipeline Project.
`
`34. On March 8, 2013, the U.S. Environmental Protection Agency
`
`- 18 -
`
`

`

`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 19 of 78
`
`(“EPA”) announced the availability of the 2013 DSEIS on its website, starting the
`
`45-day public comment period.
`
`35. On April 18, 2013, State held a public meeting in Grand Island,
`
`Nebraska, and on April 22, 2013, the comment period on the 2013 DSEIS closed.
`
`36. On May 15, 2013, FWS transmitted its Biological Opinion for the
`
`proposed Keystone XL Pipeline Project to State.
`
`37.
`
`State provided an additional 30-day opportunity for the public to
`
`comment during the National Interest Determination comment period that began
`
`with the February 5, 2014 notice in the Federal Register announcing the release of
`
`the Final SEIS (“2014 FSEIS”).
`
`38. On November 6, 2015, Secretary of State John Kerry determined,
`
`pursuant to Executive Order 13,337, that issuing a Presidential Permit for the
`
`proposed Keystone XL Pipeline’s border facilities would not serve the national
`
`interest, and denied the permit application.
`
`39. On January 6, 2017, the Corps adopted its final Decision Document
`
`and FONSI approving reissuance of NWP 12 under section 404(e) of the CWA, 33
`
`U.S.C. section 1344(e). NWP 12 allowed discharges of dredged and fill materials
`
`that could cause significant impacts to the aquatic environment from oil pipeline
`
`projects such as Keystone. The Corps purported to find that NWP 12 would result
`
`in “no more than minimal individual and cumulative adverse effects on the aquatic
`
`environment” under the CWA, and therefore issued a FONSI declaring that its
`
`- 19 -
`
`

`

`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 20 of 78
`
`approval would have no potential for significant impacts on the environment. In
`
`fact, NWP 12 and the projects it enabled do pose such impacts.
`
`40. On January 20, 2017, Donald J. Trump was inaugurated as the 45th
`
`President of the United States. Four days later, on January 24, 2017, President
`
`Trump issued a Presidential Memorandum Regarding Construction of the
`
`Keystone XL Pipeline which, inter alia, invited the permit applicant “to resubmit
`
`its application to the Department of State for a Presidential permit for the
`
`construction and operation of the Keystone XL Pipeline.”
`
`41. On January 24, 2017, President Trump also issued an Executive
`
`Order on Expediting Environmental Reviews and Approvals for High Priority
`
`Infrastructure Projects in which he set forth the general policy of the Executive
`
`Branch “to streamline and expedite, in a manner consistent with law,
`
`environmental reviews and approvals for all infrastructure projects, especially
`
`projects that are a high priority for the Nation,” and cited pipelines as an example
`
`of such high priority projects. Id.
`
`42. On January 26, 2017, State received a re-submitted application from
`
`TransCanada for the proposed Project. The re-submitted application included
`
`purportedly minor route alterations reflecting agreements with local property
`
`owners for specific rights-of-way and easement access, ostensibly within the areas
`
`previously included by State in its 2014 FSEIS.
`
`43.
`
`Less than two months later, and without providing for public and
`
`- 20 -
`
`

`

`Case 4:20-cv-00115-BMM Document 1 Filed 12/04/20 Page 21 of 78
`
`agency review of TransCanada’s January 26, 2017 application, on March 23,
`
`2017, State granted a Presidential Permit to TransCanada, allowing its
`
`construction and operation of Keystone.
`
`44. On March 27, 2017, Plaintiffs filed suit challenging State’s Record of
`
`Decision and National Interest Determination, and its Presidential Permit,
`
`allowing TransCanada to construct and operate the Project, as well as the
`
`Department of State’s 2014 FSEIS for the Project. A second suit challenging
`
`those approvals was filed on March 30, 2017, and on October 4, 2017, both
`
`actions were consolidated for briefing and hearing.
`
`45. On November 22, 2017, the Court denied motions to dismiss filed by
`
`TransCanada and State that claimed that Plaintiffs had challenged a Presidential
`
`action that was not reviewable under the APA.
`
`46. On August 15, 2018, the Court granted partial summary judgment to
`
`Plaintiffs, and

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