A group of protesters pose in front of the Missouri River in Great Falls in May in support of a federal lawsuit against the Keystone XL oil pipeline. Credit: Hunter Pauli / MTFP

GREAT FALLS — Attorneys for Montana Indian tribes argued before a federal judge Thursday that a construction permit for the proposed Keystone XL pipeline violates federal treaties and environmental laws. 

The Rosebud Sioux Tribe and the Assiniboine and Gros Ventre tribes of the Fort Belknap Indian Reservation filed the lawsuit against the federal government and TC Energy Corp., formerly TransCanada. The lawsuit argues that President Donald Trump’s executive order allowing the company to cross an international border to build the pipeline is illegal. 

Attorneys for the administration asked District Court Judge Brian Morris to dismiss the case. 

The Rosebud Sioux Tribe, represented by Matthew Campbell of the Native American Rights Fund, argued that the permit violates treaties and the National Environmental Policy Act process, and that the pipeline would cross tribal lands without tribal approval.

Campbell argued that because some of the reservation lands are held in federal trust, the government and TC Energy Corp. require consent. “TransCanada just misunderstands what Indian Country really is,” Campbell said.

Campbell said the crux of the case lies in treaties with the tribes that Trump’s permit violates. The president doesn’t have unilateral authority to abrogate treaties, Campbell said.

“The tribes are taking affirmative action here to ensure their lands are protected,” Campbell said. The tribes, he argued, do not have to wait “until irreparable harm is beginning” to seek such protections.

“Without the president’s permit, there wouldn’t be a pipeline,” Campbell said.

On the other side, Luther Hajek, an attorney for the U.S. Department of Justice, called for the case to be dismissed, arguing that the permit in question isn’t applicable to tribal lands, but rather to a 1.2-mile segment of land crossing the border. Hajek said that NEPA applies to federal agencies but not to presidents, and that the “tribe’s lands are nowhere close” to where the pipeline would cross the border.

In response to the plaintiffs’ argument that they are damaged by the issuance of the permit, Hajek said, “There’s nothing imminent caused by the authorization of the border facilities.”

Attorneys for TC Energy said the company won’t begin construction of the pipeline until 2021.

Additionally, Hajek claimed that the president has authority over foreign relations and isn’t subject to oversight in issuing such permits. He said Trump violated no statutes in issuing the permit. 

Permitting of cross-border infrastructure has been the purview of the U.S. State Department since President Lyndon B. Johnson delegated the duty by executive order in 1968. Trump superseded that precedent with a new executive order on April 10 reclaiming presidential permitting authority.

Hajek argued that prior to Johnson’s executive order, presidents issued similar permits for projects crossing international borders. Hajek claimed that the president has authority over foreign relations and isn’t subject to oversight in issuing such permits.  

Native American Rights Fund attorney Wesley Furlong, arguing for the plaintiffs, said the pipeline is a matter of foreign commerce, over which the president does not have authority.

At least two other Keystone-related lawsuits are pending, the attorneys said, including one that Morris will hear in October.

“This is not the end of litigation over the Keystone XL pipeline,” but there’s no legal basis for the Rosebud Sioux Tribe’s claim, Hajek said.

Morris granted an injunction in November 2018 preventing construction of the pipeline, after finding that the environmental study used to grant the 2017 permit violated NEPA. Morris had also previously ruled in 2017 against a government request to dismiss the tribes’ lawsuit on the basis of executive authority.

Morris did not issue an order from the bench on the government’s motion to dismiss.

Jenn Rowell is founder and editor of local news organization The Electric in Great Falls, focusing on local government, military and economic development. She has previously worked for newspapers in Montana, Alabama and Virginia.