Montana Free Presswhich has stoked fears that out-of-state pipeline workers might spread the virus and overwhelm the sparsely populated region’s medical resources — present such depredation. “The president has a responsibility to protect the tribes,” he said. Campbell said the treaties also require tribal consent for projects like pipelines to cross tribal land, which the U.S. government and TC Energy did not seek when planning Keystone XL. Though Keystone XL is not slated to cross the Fort Belknap or Rosebud Sioux reservations, it does cross off-reservation tribal land held in trust by the U.S. Department of the Interior. The trust process was created to return land to tribes after reservation land was taken by the government. “We’re not just talking about reservation land,” Campbell said. “We’re talking about treaty lands.” Campbell said that the treaties require tribal consent for actions, including Keystone XL, that would affect mineral rights on trust lands. Campbell also touched on arguments shared by plaintiffs in the second lawsuit that Trump’s re-permitting of Keystone XL last year violated the Commerce Clause of the U.S. Constitution. According to Indigenous Environmental Network and North Coast Rivers Alliance attorney Stephan Volker, the Commerce Clause gives Congress sole power to regulate foreign trade such as foreign pipelines entering the country. Volker said that while Congress has long acquiesced to the executive branch taking the lead on pipeline certification, with various presidents modifying that process, Trump’s executive order re-certifying Keystone XL was incompatible with the will of Congress.
Representing the federal government, U.S. Department of Justice attorney Marissa Piropato said Trump’s permit isn’t solely an issue of commerce, but of foreign affairs and national security as well, over which the president exercises sole discretion. Piropato said Trump’s permit addresses only the border crossing, not the entire pipeline route, and that since no water bodies within the area of the border crossing flow into the Missouri River, the risk of the pipeline spilling oil into the Missouri River is “pure speculation.” She said the court cannot stop Trump from fulfilling his official duties. Luther Hajek, also representing the federal government, said the tribes haven’t shown any evidence of harm, and that the case should be dismissed. TC Energy is digging a trench on tribal trust lands for a pipeline, not for mining, so mineral rights don’t come into play, he said. According to Hajek, the tribes’ claim presumes the United States is obligated to file trespass claims against TC Energy on behalf of the tribes. Hajek said even if TC Energy were mining, the tribes couldn’t compel the U.S. government to act. Furthermore, Hajek said, prior court rulings on tribal treaties have established that the United States’ duty to defend the tribes against depredation applies only to current tribal lands — that is, reservations — and not to trust lands. That argument was echoed by attorney Peter Whitfield, representing TC Energy, who has intervened in both cases on the side of the federal government. Whitfield also said Keystone XL does not count as mining, and that “this pipeline is designed not to spill.” “That’s always what they say about every single pipeline, and yet we do have spills,” Campbell said during rebuttal. Campbell also accused the defendants of failing to address one of the several relevant treaties that does support a mineral rights argument, and said that, in effect, Trump’s border-crossing permit green-lights the entire project, not just the 1.2 mile border crossing. Volker agreed that the plain language of the permit shows it applies to the whole pipeline, not just the border crossing. He also said the defendants must not understand that water flows downhill, as a creek in the vicinity of the border crossing eventually flows into the Missouri River.
Gov. Steve Bullock (D) of #Montana is allowing construction to begin on the Keystone XL Pipeline despite opposition from tribes, who say the work will contribute to the spread of the #Coronavirus. #NoKXL #COVID19 https://t.co/cBhSbAhhUG— indianz.com (@indianz) April 7, 2020
Hunter Pauli is a Seattle-born, Missoula-based freelance investigative reporter and graduate of the University of Montana School of Journalism.
Note: This story originally appeared on Montana Free Press. It is published under a Creative Commons license.
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Related StoriesMontana Free Press: Governor OKs Keystone XL construction despite #Coronavirus threat (April 7, 2020)