Fed. Judge Puts Parts of KXL On Hold-Again
Tribal Elders, Youth Hold Ceremonies to Protest KXL
April 22, 2020
Army veteran and Assiniboine-Sioux Tribe member Lance Fourstar's voice was being carried out over the prairie by a stiff westerly wind as he chanted a traditional Native American song accompanied by a drum and flute. The sounds traveled out overtop of the Keystone XL pipeline's border crossing from Canada as diesel engines revved and back up signals beeped in the distance on April 14.
As Fourstar sang, an elder woman danced and played the flute, and a youth played the drums while the other protesters prayed. According to Fourstar, they prayed for the pipeline workers and security, they prayed for the tribes and the residents of northeast Montana, and they prayed for the water, the earth and the wildlife. Most of all though, they prayed for the pipeline to be stopped.
Fourstar and nine other members of the Assiniboine-Sioux, the Blackfeet and the Northern Cheyenne tribes had traveled to the site, in the extreme north of Phillips County, to hold their ceremony on the Bureau of Land Management's public land west of the pipeline.
The protest's organizer Angelina Cheek, who is an employee of the American Civil Liberties Union on the Fort Peck Reservation, says she wanted to show opposition to the pipeline and make sure their First Amendment rights were not being suppressed because of COVID-19 mitigation efforts. The group worked with the Bureau of Land Management and with the Sheriff's Offices in Phillips and Valley counties to organize the demonstration peacefully and appropriately. The ceremonies were held and the construction continued as the two groups went about their business unaffected by the other. Security was on site and close to the group as were the Phillips County Sheriff and Border Patrol agents.
Cheek said they also oppose the pipeline to protect the health of the Earth. Specifically they are concerned that spills could pollute water supplies, negatively affecting the health of people and wildlife and contribute to climate change.
The Fort Peck Tribes rely on the Missouri River for drinking water. In the 1950s, an oil well spill in Roosevelt County tainted the ground water on the reservation with a brine plume that creeped across the county and condemned almost all rural wells and municipal water supplies in the area. The Dry Prairie Water Project, paid for by the federal government, supplies the tribes with water and also serves a revenue stream for the Fort Peck Tribes, who sell the water to over 8,000 residents in northeast Montana. The Tribes contend that a spill in the Milk or Missouri river basins would pollute the water supply and do harm economically and ecologically to the Fort Peck Tribe.
Native American and environmental groups have opposed the Keystone XL pipeline for years, but it took on renewed vigor from Native communities after the Dakota Access Pipeline (DAPL) protests in 2016 drew large crowds that led to sometimes violent altercations with law enforcement. Fears surrounding protests have persisted on the part of pipeline workers and law enforcement agencies at the federal, state and local levels have planned rigorously for that possibility.
TC Energy spokesperson Sara Rabern said, "We have and will continue to do everything possible to engage with our stakeholders and rights holders along the pipeline route and to answer peoples' questions and address their concerns. We understand that not everyone agrees, and we respect the various viewpoints on this project. We also respect their right to hold peaceful and legal demonstrations."
After taking office President Donald Trump urged the Keystone project forward in 2017, pushing for federal permits that had been canceled, denied or delayed during the Obama administration. Legal actions since have continued to delay the project, which initially began construction in 2018 only to be halted by a federal injunction by a judge in Great Falls last year.
President Trump overcame the injunction by reworking administrative rules and issuing a permit to cross the border in March of 2019, but the company was unable to begin construction until the Ninth Circuit Court of Appeals had heard arguments on Judge Morris' decisions and overturned his ruling. In August, the case was decided and TC Energy was given the green light to proceed. Due to the seasonal work of pipeline construction, the project was scheduled to begin anew in April, 2020.
A new court order however, issued on April 15, placed another hurdle in the path of TC Energy's $8 billion project. Federal Judge Brian Morris in Great Falls nullified the Army Corps of Engineers Permit to dredge and fill across 200 streams and rivers along the portion of the pipeline that runs through the United States. The judge said the permit did not follow rules under the National Environmental Protection Act (NEPA) and the Endangered Species Act. It has been remanded to the Corps of Engineers to become compliant with the two laws.
Judge Morris heard arguments for two other permits issued by the federal government on April 16, but he has not ruled on those arguments. One of those permits concerns the border crossing, which construction began in late March in northern Phillips County amid measures to reduce the coronavirus pandemic.
The actions drew opposition from members of the community concerned about the disease. Health policies implemented by the pipeline contractor, Barnard Pipeline Inc., on the job site and a 14-day quarantine period for all arriving employees seemed to have worked thus far and no reported cases have occurred in Valley County to date.
Construction for the pipeline will likely continue despite the order. Judge Morris' April 15 decision does not enjoin construction on the rest of the permitted route, and only affects the dredge-and-fill water crossings. The order does not seem to affect horizontal drilling permits that would include the Milk, Missouri, Yellowstone and Cheyenne rivers.
TC Energy has remained committed to building the project since the late 2000s, but obstacles have continuously plagued its development. In 2020, the company was infused with a cash investment from the Premier of Alberta to expedite the project and kickstart construction making the new ruling the latest blow.
"The judge's ruling is disappointing in relation to Keystone XL, but the impacts of his ruling are broad-reaching and could have societal implications far beyond our project," TC Energy told the Courier in a statement. "The ruling directly impacts various utilities constructing and maintaining infrastructure projects, including natural gas, liquids, television cable, electrical transmission, telephone, internet, among others. This decision hampers their ability to build or maintain infrastructure projects that cross wetlands or waterbodies across the U.S."
The statement continued, "As we determine our next course of action, we will continue with our construction activities currently underway at the border crossing as the ruling doesn't impact our current activities in any way. We remain completely committed to the Keystone XL project."
In the wake of construction, environmental and Native Groups have continued their opposition as well. Speaking at the ceremonial protest on the border against the pipeline, Cheek, said, "We wanted to make the point that oil is not essential, and that the governor should put a halt on it because of the pandemic that's going on."
Cheek pointed to elders that had traveled to the site for the ceremonies and how, she says, they had exposed themselves to the risk of contracting the disease to oppose KXL. She speculated that more people would have come out to show solidarity against the pipeline had the virus not been an issue in the region. At press time, Roosevelt (where Cheek and other demonstrators are from) and Richland counties in eastern Montana had 10 total cases of COVID-19. Valley and Phillips county, where construction was occurring and crews were lodged, had seen no reported cases at press time.
"We come up here in a peaceful way and in a good way and to start everything out with good intentions," said Fourstar. "[We are] letting everybody understand that we are doing this for the people and for the land and for the water." He added, "no one wants another DAPL"