Rosebud COVID-19 Reply Brief

Case 4:18-cv-00118-BMM Document 150 Filed 04/03/20 Page 1 of 19
Natalie A. Landreth (pro hac vice)

Wesley James Furlong (MT Bar No. 42771409)
NATIVE AMERICAN RIGHTS FUND
745 West 4th Avenue, Suite 502
Anchorage, AK 99501
Tel. (907) 276-0680
Fax (907) 276-2466
[email protected]
[email protected]
Matthew L. Campbell (pro hac vice)

1506 Broadway
Boulder, CO 80302
Tel. (303) 447-8760
Fax (303) 443-7776
[email protected]
Counsel for all Plaintiffs

Additional Counsel Listed on Signature Page
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ROSEBUD SIOUX TRIBE et al., Case No. 4:18-cv-00118-BMM
Plaintiffs,
v. PLAINTIFFS’ REPLY IN
SUPPORT OF APPLICATION
DONALD J. TRUMP et al., FOR TEMPORARY
RESTRAINING ORDER
Defendants.
Introduction
The spread of COVID-19 within our Nation’s communities

threatens to strain our Nation’s healthcare systems. As of March
12, 2020, 1,645 people from 47 States have been infected with the
virus that causes COVID-19. It is incumbent on hospitals and
medical facilities throughout the country to assess their
preparedness posture and be prepared to surge capacity and
capability.
Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020).
Defendants proclaim the Tribes have improperly moved for a TRO.
But the new and ever-evolving information about COVID-19 demands swift
and appropriate action to protect the Tribes. On the same day the Trump
Administration announced that up to 240,000 people may succumb to the
virus, see Rick Noack et al., White House Task Force Projects 100,000 to 240,000
Deaths in U.S., Even with Mitigation Efforts, WASH. POST (Mar. 31, 2020),
https://www.washingtonpost.com/world/2020/03/31/coronavirus-
latest-news/, TransCanada announced it intends to move forward with the
Pipeline’s construction. TC Energy to Build Keystone XL Pipeline, TC Energy
Corp. (Mar. 31, 2020), https://www.tcenergy.com/announcements/2020-
03-31tc-energy-to-build-keystone-xl-pipeline/. This, during the projected
peak of the virus. See COVID-19 Projections, INST. FOR HEALTH METRICS &
EVALUATION, https://covid19.healthdata.org/projections (last visited Apr.
2
2, 2020). And TransCanada has outlined numerous activities for April all
along the route of the Pipeline, not just at the border. See Doc. 94
(construction of access roads, preparation of man camps and pipe yards,
etc.). But even at the border, construction must be undertaken by workers
that must be brought in from somewhere. The Fort Belknap Indian
Reservation is located an hour and a half away from Morgan, Montana,
where construction is slated to begin, and Malta, Montana, the county seat
for Philips County, where supplies and the Philips County Hospital are
located, is just off the reservation. Defendants fail to recognize the import of
the pandemic and only faintly address this impending threat.
Defendants also proclaim the Tribes have improperly moved to amend
their First Amended Complaint. But, the Federal Rules of Civil Procedure
specifically allow for amendments during and after trial and the Ninth
Circuit has sanctioned the exact request the Tribes have made. “[W]hen
issues are raised in opposition to a motion for summary judgment that are
outside the scope of the complaint, [t]he district court should [construe the
matter raised] as a request pursuant to rule 15(b) of the Federal Rules of Civil
Procedure to amend the pleadings out of time.” Desertrain v. City of Los
Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citations and quotation marks
3
omitted). The difference here is the request is not out of time because there
is not even a scheduling order in place, and thus leave shall be freely given
“with extreme liberality.” Id. (quoting Fed. R. Civ. P. 15(a)).
In reality, it is the Tribes that have been prejudiced by Defendants
gamesmanship. TransCanada moved for summary judgment just two days
after the Bureau of Land Management’s Record of Decision. Doc. 97. They
did so without answering the Tribes’ First Amended Complaint, meaning
the Tribes were entitled to a default judgment and the facts in the complaint
are to be taken as true. See. Doc. 111, at 11. They also moved without any
scheduling order, without any discovery, and without providing the Tribes
with the maps that it (and presumably the United States) has in its
possession so that the Tribes may conduct their own land surveys. See Doc.
111, at 10-16 (pointing to Federal Rule of Civil Procedure 56(d)); Doc. 125; see
also Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (describing a premature
motion for summary judgment without any discovery as being
“railroaded”). TransCanada even boldly asserted, without answering the
First Amended Complaint, that the “undisputed evidence establishes that
Keystone XL will not cross either tribe’s reservation or any property owned
by either tribe.” Doc. 97, at 1. Yet, the First Amended Complaint should be
4
taken as true without an answer. And in the same document, TransCanada
admitted that the Pipeline would indeed cross property owned by Rosebud
and Rosebud members. Doc. 97, at 4; Doc. 114, at 5-6.
The United States asserts we are at a late stage in this proceeding, yet
they, too, have only just recently asked to file an answer out of time. Doc 116.
They made this request after filing a motion for summary judgment, meaning
the Tribes were likewise entitled to default judgment against the United
States, and the facts in the First Amended Complaint should be deemed true.
Doc. 109; Doc. 111; Doc. 116. Because there has been no discovery, and not
even a scheduling order, it is hardly “very late” in this proceeding. The
Tribes wished to bring these issues to the Court, Doc. 100, but the Court,
justifiably wanting to be in a position to rule by April, set a briefing schedule
on motions for summary judgment. Doc. 104. Defendants proclaim that the
Tribes could have easily amended during the successive rounds of briefing
ordered by the Court, yet they have previously filed motions to dismiss
arguing that the Tribes complaint fails to state a claim. Doc. 67, at 7; Doc. 65.
The Tribes’ request to amend should be granted because any alleged
prejudice and delay created here was caused by Defendants’ own actions.
The TRO Should Be Granted
5
“[T]he purpose of a temporary restraining order is to preserve the
status quo until a hearing may be held on the appropriateness of a
preliminary injunction.” Native Ecosystems Council v. Marten, No. CV 18-87-
M-DLC, 2018 WL 3148145, at *1 (D. Mont. June 27, 2018) (citation omitted).
This Court has already set a hearing on the Tribes’ Motion for Preliminary
Injunction for April 16, 2020. The Tribes seek to simply maintain the status
quo for the next thirteen days, in the face of the rapidly evolving COVID-19
pandemic and the irreparable injuries they will suffer from “the actual
construction and operation of [the Pipeline].” Indigenous Envtl. Network v.
U.S. Dep’t of State, CV-17-29-GF-BMM, 2019 WL 652416, at *11 (D. Mont. Feb.
15, 2019). TransCanada faces no hardship by a thirteen-day delay in
construction. Instead, TransCanada wishes to quickly build as much of the
Pipeline as possible and use this construction as justification for allowing the
project to proceed whether or not it is legal. This is precisely the type of
momentum the Tribes are concerned with.
On March 26, 2020, Montana Governor Steve Bullock issued a shelter
in place order for the entire State of Montana in response to the expanding
COVID-19 crisis. Governor of Mont., Directive Implementing Executive Orders
2-2020 and 3-2020 Providing Measures to Stay at Home and Designating Certain
6
Essential Functions (Mar. 26, 2020) (“Shelter in Place Order”) (Pls.’ Ex. A). The
Shelter-in-Place order mandates social distancing, prohibits non-essential
activities, and mandates the closure of non-essential businesses, operations,
and services.
The Shelter in Place Order does allow individuals to “leave their
residence to provide any service or perform any work necessary to offer,
provision, operate, maintain and repair Essential Infrastructure.” Id. at 5. The
Shelter in Place Order goes on to list examples of Essential Infrastructure. Id.
The construction of new crude oil pipelines is not one of them, and such
construction does not “offer, provision, operate, maintain [or] repair”
existing Essential Infrastructure. Accordingly, the Pipeline is not Essential
Infrastructure, and its construction is not an Essential Operation or Activity.
See id. at 2-3.
At the time of this filing, there are at least 243 confirmed cases of
COVID-19 in Montana, including in Cascade, Glacier, Toole, Liberty, Hill,
Roosevelt, Musselshell, and Yellowstone Counties. See Montana Response:
COVID-19 – Coronavirus – Global, National, and State Information Resources,
https://montana.maps.arcgis.com/apps/MapSeries/index.html?appid=7c
34f3412536439491adcc2103421d4b (last visited Apr. 2, 2020, 3:12 pm MDT).
7
It is now beyond imperative that the Court grant the Tribes immediate,
temporary relief enjoining all of TransCanada’s preconstruction and
construction activities for the Pipeline. TransCanada’s preconstruction and
construction activities, including constructing man-camps and other related
facilities and infrastructure, as well as mobilizing workers, immediately
threaten the health, safety, and welfare of the Tribes and other tribal and
rural communities throughout Montana, South Dakota, and Nebraska, along
the Pipeline’s route.
TransCanada anticipates hiring over 10,000 workers to construct the
Pipeline, only ten percent of whom may be from local communities. 2014
FEIS, at 4.10-2.1 TransCanada anticipates deploying 900 to 1,300 workers to
each “construction spread” along the Pipeline’s route. Id. TransCanada
proposes four construction spreads in Montana and three construction
spreads in South Dakota. Id. at 3.10-19. Accordingly, in Montana alone,
TransCanada anticipates deploying up to 5,200 workers within Montana in
the coming weeks and months for the 2020 construction season, ninety
percent of whom will not be local.
1 All 2014 FEIS excerpts are attached as Plaintiffs’ Exhibit B.
8
In order to house these workers, TransCanada must construct man-
camps along the Pipeline’s route. Indeed, TransCanada’s current
preconstruction activities include constructing man-camps. See Doc. 94.
TransCanada intends on constructing at least six man-camps in Montana:
one in Philips County (PS-09), near Fort Belknap; two in Valley County
(Hinsdale and Fort Peck), near Fort Belknap and the Fort Peck Indian
Reservation; one in McCone County (Circle); one in Dawson County
(Glendive); and one in Fallon County (Baker). 2019 FEIS, at 2-7 (Pls.’ Ex. C).
TransCanada also intends on constructing at least four man-camps in South
Dakota: one in Harding County (Buffalo); one in Meade County (Opal); one
in Haakon County (Philip); and one in Tripp County (Colome). Id. at 2-7 to
2-8. A large community of Rosebud tribal members live in Colome. Even
after these camps are constructed, TransCanada intends on housing their
transient workers in local hotels and motels, RV parks, and rental properties.
2014 FEIS, at 4.10-12. And while these camps are being constructed, transient
workers will have to be housed in local, rural, and tribal communities.
TransCanada’s preconstruction and construction activities, including
the construction and operation of man-camps, and the influx of hundreds or
thousands of transient, out-of-state workers pose serious, immediate, and
9
irreparable health risks to the Tribes during the COVID-19 pandemic. Tribal
and rural communities face serious healthcare delivery shortfalls. The
healthcare systems in tribal and rural communities are already strained to
provide basic healthcare services, much less the critical emergency services
necessary to responded to an outbreak of COVID-19. C.f. Mary Smith, Native
Americans: A Crisis in Health Equity, 43:3 AM. BAR. ASS’N HUMAN RIGHTS
MAGAZINE (2018), available at
https://www.americanbar.org/groups/crsj/publications/human_rights_
magazine_home/the-state-of-healthcare-in-the-united-states/native-
american-crisis-in-health-equity/; Erika Ziller & Andrew Coburn, Health
Equity Challenges in Rural America, 43:3 AM. BAR. ASS’N HUMAN RIGHTS
MAGAZINE (2018), available at
https://www.americanbar.org/groups/crsj/publications/human_rights_
magazine_home/the-state-of-healthcare-in-the-united-states/health-
equity-challenges-in-rural-america/. An outbreak of COVID-19 in tribal and
rural communities could immediately overwhelm and cripple these already
over-leveraged healthcare systems. C.f. Cecily Hilleary, Native American
Tribes Face Critical Shortages of COVID-19 Test Kits, Protective Gear, VOICE OF
AM. (Mar. 21, 2020), https://www.voanews.com/science-
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health/coronavirus-outbreak/native-american-tribes-face-critical-
shortages-covid-19-test. Should any of TransCanada’s thousands of
anticipated transient, out-of-state workers contract or bring with them
COVID-19, such an outbreak would make it nearly impossible for the Tribes
(and other tribes and rural communities) to provide essential and lifesaving
healthcare services to those COVID-19 patients, as well as other patients as
needed. TransCanada’s decision to steamroll the construction of the Pipeline
during the COVID-19 pandemic literally threatens the lives of its workers,
the Tribes’ members, and those living in the tribal and rural communities
TransCanada’s workforce will live in and travel through.
TransCanada’s argument that the Tribes do not face imminent harms
from the construction of the Pipeline or man-camps is specious. On March
31, 2020, TransCanada announced publicly that it was moving forward with
construction. See TC Energy to Build Keystone XL Pipeline, supra. TransCanada
has already informed the Court that it intends to construct man-camps in
March and April. See Doc. 94. These man-camps do not build themselves.
The workforce necessary to construct these man-camps must be housed in
local communities. Even if TransCanada’s activities are only limited to the
1.2-mile border segment, which they are not, see id. (detailing activities
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throughout Montana and South Dakota in March and April), TransCanada
intends on constructing at least one man-camp at milepost one on the
Pipeline’s route: Camp PS-09 in Philips County. 2019 FEIS at 2-7. Irrespective
of the construction of man-camps, TransCanada intends on employing
thousands of workers to construct the Pipeline, ninety-percent of whom will
not be local. See 2014 FEIS, at 4.10-2.
The influx of thousands of out-of-state workers during the COVID-19
pandemic—regardless of what they are constructing and whether they are
staying in man-camps or local communities—poses an immediate,
irreparable, and unacceptable risk to the Tribes. TransCanada’s financial
gain from constructing the Pipeline does not outweigh the risk of exposing
the Tribes, their members, and their communities to COVID-19 and
collapsing their healthcare systems.
Defendants further argue that the Tribes do not face immediate and
irreparable harms to their cultural resources. Defendants support this
argument by supplying selected documents from the administrative record.
Defendants argument rests on shifting the burden of NHPA consultation
onto the Tribes, despite the statute’s and regulations’ clear command that it
is the federal government’s obligation to engage in good faith consultation.
12
Accord 54 U.S.C. § 302706(b); 36 C.F.R. §§ 800.2(a) (“It is the statutory
obligation of the Federal agency to fulfill the requirements of section 106”),
800.2(c)(2)(ii). The Tribes challenge the adequacy of the United States’
Section 106 processes for the Pipeline and the sufficiency of its consultation
efforts. In response, Defendants cite a handful of documents they claim
prove the Tribes repeatedly rejected the opportunity to engage in
consultation. Yet, the Tribes repeatedly raised objections to the adequacy of
the State Department’s Section 106 processes (as well as the Pipeline
traversing their land and water) during the permit application reviews. See,
e.g., Letter from Cyril Scott, President, Rosebud Sioux Tribe, to Jack C.
Jackson, U.S. Dep’t of State (Jan. 31, 2014) (noting that Rosebud, and not
Yankton Sioux Tribe, claim the land the State Department was attempting to
assess) (Pls.’ Ex D); Letter from Cyril Scott, President, Rosebud Sioux Tribe,
to U.S. Dep’t of State, Bureau of Energy Res. (Mar. 5, 2014) (Pls.’ Ex. E). The
Tribes’ objections to and concerns with the State Department’s Section 106
processes were ignored.
Consultation requires more than merely providing the Tribes the
opportunity to express their concerns. It requires the United States to “seek[],
discuss[], and consider[] the views of [the Tribes], and, where feasible, seek[]
13
agreement with them regarding matters arising in the section 106 process,”
36 C.F.R. § 800.16(f), in recognition of “the government-to-Government
relationship between the Federal Government and [the] [T]ribes . . . [and] in
a manner sensitive to the concerns and needs of the [Tribes].” Id. §
800.2(c)(ii)(C); Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of
Interior, 755 F. Supp. 2d 1104, 1109 (S.D. Ca. 2010) (“Indian tribes are entitled
to special consideration in the course of an agency’s fulfillment of its
consultation obligations.” (emphasis in original)); c.f. U.N. Declaration on
the Rights of Indigenous Peoples art. 19 (2007) (free, prior and informed
consent). Furthermore, the Treaties, the NHPA, and other “various federal
statutes aimed at protecting Indian cultural resources, located both on
Indian land and public land, demonstrate the government’s comprehensive
responsibility to protect those resources and[] thereby established a
fiduciary duty.” Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072,
1109 (S.D. Cal. 2008). Simply citing a list of documents is insufficient to
establish that the United States engaged in meaningful consultation. See
Quechan Tribe, 755 F. Supp. 2d at 1108-20.
In spite of the extreme danger posed to the Tribes and their members,
the public at large, and their own workers, TransCanada seeks to forge
14
ahead, undoubtedly hoping to build bureaucratic momentum. The United
States makes the disingenuous statement: “Moreover, the Ninth Circuit has
not endorsed the bureaucratic momentum theory. See, e.g., N. Cheyenne Tribe
v. Hodel, 851 F.2d 1152, 1157 (9th Cir. 1988) (refusing to vacate oil and gas
leases).” Doc. 143, at 21. To the contrary, Norther Cheyenne Tribe actual states:
Bureaucratic rationalization and bureaucratic momentum are real

dangers, to be anticipated and avoided by the Secretary. But the
difference between voiding the leases and suspending them does
not create any major difference in the process that must now go
on. We see no reason to suppose that the Secretary will feel
greater commitment to the original project if the leases are not
voided but held in abeyance until a new evaluation is made,
especially as the injunction will now specifically direct the
Secretary not to consider prior investments by the lessees when
he reconsiders the lease sale.
851 F.2d at 1157 (emphasis added). The court specifically acknowledged the
dangers of bureaucratic momentum, but held that in the unique facts
presented in that case, facts not present here, it was not an issue.
Defendants’ arguments that bureaucratic momentum does not apply
here because a NEPA analysis has been done, are equally unavailing. No
analysis was made of the devastating effects of the current pandemic, either
as to the whole Pipeline or the 1.2-mile border section, no adequate
15
consultation has occurred pursuant to the treaties and Interior policy, and
the Tribes’ consent has not been obtained.
In light of the rapidly changing circumstances surrounding the
COVID-19 pandemic, its dangers not just the Tribes’ members, but the public
at large, and the other immediate, irreparable injuries the Tribes face, it is
imperative that the Court temporarily restrain TransCanada from
undertaking any preconstruction and construction activities related to the
Pipeline until it can issue more permanent injunctive relief.
RESPECTFULLY SUBMITTED this 3d day of April, 2020.
/s/ Wesley James Furlong

Natalie A. Landreth (pro hac vice)
/s/ Matthew L. Campbell

Matthew L. Campbell (pro hac vice)
Daniel D. Lewerenz (pro hac vice)

1514 P Street Northwest (rear), Suite D
Washington, D.C. 20005
Tel. (202) 785-4166
Fax (202) 822-0068
[email protected]
Counsel for all Plaintiffs
16
Daniel D. Belcourt (MT Bar No. 3914)

BELCOURT LAW, P.C.
120 Woodworth Avenue
Missoula, MT 59801
Ph. (406) 265-0934
Fax (406) 926-1041
[email protected]
Ronnie M. Flannery (MT Bar No. 5890)

LAW OFFICE OF RONNI M. FLANNERY
936 South 2nd Street West
Missoula, MT 59801
Ph. (406) 214-5700
[email protected]
Counsel for Plaintiff Fort Belknap Indian

Community
17
CERTIFICATE OF COMPLIANCE
I hereby certify that the forgoing PLAINTIFFS’ REPLY IN SUPPORT

OF APPLICATION FOR TEMPORARY RESTRAINING ORDER
complies with: (1) Local Civil Rule 7.1(d)(2)(A) because it contains 2,890
words, excluding those parts of the brief exempted by Local Civil Rule
7.1(d)(2)(E); and (2) the typeface requirements of Local Civil Rule 1.5(a)
because it has been prepared using proportionally spaced typeface using
Microsoft World 2016, in 14-point Times New Roman font.

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CERTIFICATE OF SERVICE
I hereby certify that on the 3d day of March, 2020, I electronically filed

the foregoing PLAINTIFFS’ REPLY IN SUPPORT OF APPLICATION
FOR TEMPORARY RESTRAINING ORDER with the Clerk of the Court
for the United States District Court for the District of Montana by using the
CM/ECF system. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the CM/ECF
system.

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Case 4:18-cv-00118-BMM Document 150-1 Filed 04/03/20 Page 1 of 11
Plaintiffs’ Exhibit A
Shelter in Place Order
OFFICEDocument
Case 4:18-cv-00118-BMM GOVERNOR
OF THE150-1 Filed 04/03/20 Page 2 of 11
STATE OF MONTANA
STEVE BULLOCK MIKE COONEY
GOVERNOR LT. GOVERNOR
TO: Montanans; all officers and agencies of the State of Montana

FROM: Governor Steve Bullock
DATE: March 26, 2020
RE: Directive Implementing Executive Orders 2-2020 and 3-2020 providing measures to
stay at home and designating certain essential functions
Executive Orders 2-2020 and 3-2020 declare that a state of emergency exists in Montana due to the
global outbreak of COVID-19 Novel Coronavirus.
Section 10-3-104(2)(a), MCA, authorizes the Governor, during a state of emergency, to “suspend the
provisions of any regulatory statute prescribing the procedures for conduct of state business or orders
or rules of any state agency if the strict compliance with the provisions of any statute, order, or rule
would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster.”
Further, it authorizes the Governor to “control ingress and egress to and from an incident or emergency
or disaster area, the movement of persons within the area, and the occupancy of premises within the
area.” Section 10-3-104(2)(c), MCA. Montana’s public health laws also authorize the Department of
Public Health and Human Services (DPHHS or Department), acting under the Governor’s direction, to
“issue written orders for correction” of “conditions of public health importance,” to “prevent and
mitigate conditions of public health importance” through measures including “isolation and
quarantine” and “abatement of public health nuisances.” Section 50-1-202, MCA. The Department,
under the Governor’s direction, may also take action to correct public health deficiencies in “buildings
or facilities where people congregate.” Section 50-1-203, MCA. The Department, under the
Governor’s direction, is also authorized to impose quarantine and isolation measures to protect public
health. Section 50-1-204, MCA. Montana law provides that these authorities will be utilized to respond
to an “outbreak of disease,” § 10-3-103(4), MCA, and to “limit the transmission of the communicable
disease.” See, e.g., § 50-1-101(6), MCA.
COVID-19 is a contagion that most frequently spreads person to person. The virus may live on
surfaces and remain in the air after someone coughs or sneezes for an unknown period of time, creating
a range of opportunities for exposure. Exposure can also happen when a person touches a surface or
object that has the live virus on it and then touches one’s face. Montana currently faces an emergency
statewide, with infections or the imminent threat of infections present across the state. Accordingly, for
the preservation of public health and safety throughout the entire State of Montana, to protect those
most at-risk, and to avoid overwhelming our health care delivery system, I have determined that
additional measures consistent with public health guidance are necessary to slow and stop the spread of
COVID-19.
To curtail the spread of the COVID-19 pandemic in Montana, and to protect the health and economic
wellbeing of all Montanans, it is necessary immediately to implement measures to ensure social
distancing to prevent the spread of disease. Such an approach will reduce the overall number of
infections in the state and preserve increasingly scarce health care resources. In consultation with
public health experts, health care providers, and emergency management professionals, I have
determined that to protect public health and human safety, it is essential to the health, safety, and
STATE CAPITOL • P.O. BOX 200801 • HELENA, MONTANA 59620-0801
TELEPHONE: 406-444-3111 • FAX: 406-444-5529 • WEBSITE: WWW.MT.GOV
March 26, 2020
Page 2 Case 4:18-cv-00118-BMM Document 150-1 Filed 04/03/20 Page 3 of 11
welfare of the State of Montana during the ongoing state of emergency that, to the maximum extent
possible, individuals stay at home or at their place of residence.
Pandemics are not without precedent in Montana. Neither are the measures necessary to stop the
spread of communicable disease and respond to the emergency. During the Spanish Influenza outbreak
of 1918, public health authorities closed schools and other public places. These measures can save
lives across the United States now. Montana must act now, before its own rate of infection mirrors that
of other states. While the times ahead will not be easy, Montanans have always pulled together in
times of crisis. This crisis is no different, and will require all Montanans, collectively, to do their
individual part to slow the growth of COVID-19 infections and protect their friends, family, and
neighbors from this dangerous infection.
In accordance with the authority vested in me under the Constitution, Article VI, Sections 4 and 13,
and the laws of the State of Montana, Title 10, Chapter 3 and Title 50, Chapter 1, MCA, and other
applicable provisions of the Constitution and Montana Law, I hereby direct the following measures be
in place in the State of Montana effective statewide at 12:01 a.m. on March 28, 2020, through April 10,
2020:
I. Stay at Home; Social Distancing Requirements; and Essential Businesses and Operations
• 1. Stay at home or place of residence. With exceptions as outlined below, all individuals
currently living within the State of Montana are directed to stay at home or at their place of
residence to the greatest extent possible, except as allowed in this Directive. As used in this
Directive, homes or residences include hotels, motels, shared rental units, shelters, and similar
facilities.
Non-essential social and recreational gatherings of individuals outside of a home or place of

residence are prohibited, regardless of size, if a distance of at least six feet between individuals
cannot be maintained.
All persons may leave their homes or place of residence only for Essential Activities or to
operate Essential Businesses and Operations, all as defined below.
Individuals whose residences are unsafe or become unsafe, such as victims of domestic
violence, are permitted and urged to leave their home and stay at a safe alternative location.
• 2. Non-essential business and operations to cease. All businesses and operations in the State,
except Essential Businesses and Operations as defined below, are required to cease all activities
within the State except Minimum Basic Operations, as defined below. Businesses may also
continue operations consisting exclusively of employees or contractors performing activities at
their own residences (i.e., working from home).
To the greatest extent feasible, Essential Businesses and Operations shall comply with Social
Distancing Requirements as defined in this Directive, including by maintaining six-foot social
distancing for both employees and members of the public at all times, including, but not limited
to, when any customers are standing in line. Essential Businesses and Operation should also
employ, where feasible, telework or other remote working opportunities to limit disease spread.
March 26, 2020
• 3. Prohibited activities. All public and private gatherings of any number of people occurring
outside a household or living unit are prohibited, except for the limited purposes permitted by
this Directive.
The March 24, 2020 Directive that closes certain businesses to ingress, egress, and occupancy
by the public, while expanding delivery and to-go options, remains in effect. However, the
portions of that order requiring social distancing (Section 1) and social distancing guidelines
for retail businesses (Section 3) are superseded by the requirements in this Directive.
• 4. Prohibited and permitted travel. All travel should be limited to Essential Travel and travel
for Essential Activities. People riding on public transit must comply with social distancing to
the greatest extent feasible. When individuals need to leave their homes or residences, they
should at all times maintain social distancing of at least six feet from any person who is not a
member of their immediate household, to the greatest extent possible.
• 5. Leaving your home for essential activities is permitted. For purposes of this Directive,
individuals may leave their home or residence only to perform any of the following Essential
Activities and must ensure a distance of six feet from others not in their household:
For health and safety. To engage in activities or perform tasks essential to their health and
safety, or to the health and safety of their family or household members (including, but not
limited to, pets), such as, by way of example only and without limitation, seeking
emergency services, obtaining medical supplies or medication, or visiting a health care
professional.
For necessary supplies and services. To obtain necessary services or supplies for
themselves and their family or household members, or to deliver those services or supplies
to others, such as, by way of example only and without limitation, groceries and food,
household consumer products, supplies they need to work from home, and products
necessary to maintain the safety, sanitation, and essential operation of residences.
For outdoor activity. To engage in outdoor activity, provided that individuals comply with
social distancing, as defined below, such as, by way of example and without limitation,
walking, hiking, running, or biking. Individuals may go to public parks and open outdoor
recreation areas, including public lands in Montana provided they remain open to
recreation. Montanans are discouraged from outdoor recreation activities that pose
enhanced risks of injury or could otherwise stress the ability of local first responders to
address the COVID-19 emergency (e.g., backcountry skiing in a manner inconsistent with
avalanche recommendations or in closed terrain).
For certain types of work. To perform work providing essential products and services at
Essential Businesses or Operations or to otherwise carry out activities specifically permitted
in this Directive, including Minimum Basic Operations.
To take care of others. To care for a family member, friend, or pet in another household,
and to transport family members, friends, or pets as allowed by this Directive.
March 26, 2020
• 6. Health Care and Public Health Operations. For purposes of this Directive, individuals
may leave their residence to work for or obtain services through Health Care and Public Health
Operations.
Health Care and Public Health Operations includes, but is not limited to: hospitals; clinics;
dental offices; pharmacies; public health entities, including those that compile, model, analyze
and communicate public health information; pharmaceutical, pharmacy, medical device and
equipment, and biotechnology companies (including operations, research and development,
manufacture, and supply chain); organizations collecting blood, platelets, plasma, and other
necessary materials; licensed medical cannabis dispensaries and licensed cannabis cultivation
centers; reproductive health care providers; eye care centers, including those that sell glasses
and contact lenses; home Health Care services providers; mental health and substance use
providers; other Health Care facilities and suppliers and providers of any related and/or
ancillary Health Care services; and entities that transport and dispose of medical materials and
remains.
Specifically included in Health Care and Public Health Operations are manufacturers,
technicians, logistics, and warehouse operators and distributors of medical equipment, personal
protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products,
vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization
supplies, and tissue and paper towel products.
Health Care and Public Health Operations also includes veterinary care and all Health Care
services provided to animals.
Health Care and Public Health Operations shall be construed broadly to avoid any impacts to
the delivery of Health Care, broadly defined. Health Care and Public Health Operations does
not include fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar
facilities.
• 7. Human Services Operations. For purposes of this Directive, individuals may leave their
residence to work for or obtain services at any Human Services Operations, including any
provider funded by DPHHS, or Medicaid, that is providing services to the public and including
state-operated, institutional, or community-based settings providing human services to the
public.
Human Services Operations includes, but is not limited to: long-term care facilities; residential
settings and shelters for adults, seniors, children, and/or people with developmental disabilities,
intellectual disabilities, substance use disorders, and/or mental illness; transitional facilities;
home-based settings to provide services to individuals with physical, intellectual, and/or
developmental disabilities, seniors, adults, and children; field offices that provide and help to
determine eligibility for basic needs including food, cash assistance, medical coverage, child
care, vocational services, rehabilitation services; developmental centers; adoption agencies;
businesses that provide food, shelter, and social services, and other necessities of life for
economically disadvantaged individuals, individuals with physical, intellectual, and/or
developmental disabilities, or otherwise needy individuals.
Human Services Operations shall be construed broadly to avoid any impacts to the delivery of
human services, broadly defined.
March 26, 2020
• 8. Essential Infrastructure. For purposes of this Directive, individuals may leave their
residence to provide any services or perform any work necessary to offer, provision, operate,
maintain and repair Essential Infrastructure. Essential Infrastructure includes, but is not limited
to: food production, distribution, storage, and sale; construction (including, but not limited to,
construction required in response to this public health emergency, hospital construction,
construction of long-term care facilities, public works construction, and housing construction);
building management and maintenance; airport operations; aircraft fueling services; operation
and maintenance of utilities, including water, sewer, and gas; electrical (including power
generation, distribution, and production of raw materials); distribution centers; oil and biofuel
refining; roads, highways, railroads, and public transportation; cybersecurity operations; flood
control; operation of dams, locks, ditches, canals, diversions, and levies; solid waste and
recycling collection and removal; and internet, video, and telecommunications systems
(including the provision of essential global, national, and local infrastructure for computing
services, business infrastructure, communications, and web-based services).
Essential Infrastructure shall be construed broadly to avoid any impacts to essential

infrastructure, broadly defined.
• 9. Governmental Functions. All first responders, emergency management personnel,

emergency dispatchers, court personnel, law enforcement and corrections personnel, hazardous
materials responders, child protection and child welfare personnel, fire protection personnel,
wildland fire fighters, housing and shelter personnel, military, government employees involved
in training the above functions, and other government employees are categorically exempt from
this Directive. For purposes of this Directive, state government employees are categorically
exempt from this Directive. Local governments are permitted to designate which functions and
employees are essential and exempt for the purposes of this Directive, apart from those
positions and functions named above.
This Directive does not apply to the United States government. Nothing in this Directive shall
prohibit any individual from performing or accessing Essential Governmental Functions.
Nothing in this Directive shall be interpreted or applied in a way that interferes with or
supersedes tribal sovereignty.
• 10. Businesses covered by this Directive. For the purposes of this Directive, covered
businesses include any for-profit, non-profit, or educational entities, regardless of the nature of
the service, the function it performs, or its corporate or entity structure.
• 11. Essential Businesses and Operations. For the purposes of this Directive, Essential
Businesses and Operations means Health Care and Public Health Operations, Human Services
Operations, Essential Governmental Functions, and Essential Infrastructure, and the following: 1
1
On March 19, 2020, the U.S. Department of Homeland Security, Cybersecurity & Infrastructure
Security Agency, issued a Memorandum on Identification of Essential Critical Infrastructure Workers
During COVID-19 Response, available at: https://www.cisa.gov/publication/guidance-essential-
critical-infrastructure-workforce. The definition of Essential Businesses and Operations in this Order is
meant to encompass the workers identified in that Memorandum.
March 26, 2020
a. Stores that sell groceries and medicine. Grocery stores, pharmacies, farm and
produce stands, supermarkets, convenience stores, and other establishments engaged
in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and
vegetables, pet supplies, fresh meats, fish, and poultry, alcoholic and non-alcoholic
beverages, and any other household consumer products (such as cleaning and
personal care products). This includes stores that sell groceries, medicine, including
medication not requiring a medical prescription, and also that sell other non-grocery
products, and products necessary to maintaining the safety, sanitation, and essential
operation of residences and Essential Businesses and Operations;
b. Food and beverage production and agriculture. Food and beverage
manufacturing, production, processing, and cultivation, including farming,
livestock, fishing, baking, and other production agriculture, including cultivation,
marketing, production, and wholesale or retail distribution of animals and goods for
consumption; licensed medical cannabis dispensaries and licensed cannabis
cultivation centers; and businesses that provide food, shelter, and other necessities
of life for animals, including veterinary and animal health services, animal shelters,
rescues, shelters, kennels, and adoption facilities; businesses that provide
equipment, transportation, seed, feed, fertilizer, or other products or services critical
to food and livestock production;
c. Organizations that provide charitable and social services. Businesses and
religious and secular nonprofit organizations, including food banks, when providing
food, shelter, and social services, and other necessities of life for economically
disadvantaged or otherwise needy individuals, individuals who need assistance as a
result of this emergency, and people with disabilities;
d. Media. Newspapers, television, radio, and other media services;
e. Gas stations and businesses needed for transportation. Gas stations and auto
supply, auto repair, and related facilities and bicycle shops and related facilities;
f. Financial and real estate services and institutions. Banks, consumer lenders,
including but not limited, to pawnbrokers, accountants, consumer installment
lenders and sales finance lenders, credit unions, appraisers, realtors or others
providing real estate services, title companies, financial markets, trading and futures
exchanges, affiliates of financial institutions, entities that issue bonds, related
financial institutions, and institutions selling financial products;
g. Hardware and supply stores. Hardware stores and businesses that sell electrical,
plumbing, and heating material;
h. Critical trades. Building and Construction Tradesmen and Tradeswomen, and other
trades including but not limited to plumbers, electricians, exterminators, cleaning
and janitorial staff for commercial and governmental properties, security staff,
operating engineers, HVAC, painting, moving and relocation services, and other
service providers who provide services that are necessary to maintaining the safety,
sanitation, and essential operation of residences, Essential Activities, and Essential
Businesses and Operations;
i. Mail, post, shipping, logistics, delivery, and pick-up services. Post offices and
other businesses that provide shipping and delivery services, and businesses that
ship or deliver groceries, food, alcoholic and non-alcoholic beverages, goods or
services to end users or through commercial channels;
j. Educational institutions. Educational institutions—including public and private
pre-K-12 schools, colleges, and universities—for purposes of facilitating remote
learning, performing critical research, or performing other essential functions
March 26, 2020
consistent with prior Directives on school closures and the continued provision of
certain services, provided that social distancing of six-feet per person is maintained
to the greatest extent possible. This Directive is consistent with and does not amend
or supersede the March 24, 2020 Directive closing non-residential public schools
through April 10, 2020;
k. Laundry services. Laundromats, dry cleaners, industrial laundry services, and
laundry service providers;
l. Restaurants for consumption off-premises. Restaurants and other facilities that
prepare and serve food, but only for consumption off-premises, through such means
as in-house delivery, third-party delivery, drive-through, curbside pick-up, and
carry-out. Schools and other entities that typically provide food services to students
or members of the public may continue to do so under this Directive on the
condition that the food is provided to students or members of the public on a pick-
up and takeaway basis only. Schools and other entities that provide food services
under this exemption shall not permit the food to be eaten at the site where it is
provided, or at any other gathering site due to the virus’s propensity to physically
impact surfaces and personal property.
This exception is to be interpreted consistent with the restrictions on on-premises

dining and beverage businesses, as well as the expanded options for delivery and
take out, provided in the March 24, 2020 Directive, Section 2.;
m. Supplies to work from home. Businesses that sell, manufacture, or supply products
needed for people to work from home;
n. Supplies for Essential Businesses and Operations. Businesses that sell,
manufacture, or supply other Essential Businesses and Operations with the support
or materials necessary to operate, including computers, audio and video electronics,
household appliances; IT and telecommunication equipment; hardware, paint, flat
glass; electrical, plumbing and heating material; sanitary equipment; personal
hygiene products; food, food additives, ingredients and components; medical and
orthopedic equipment; optics and photography equipment; diagnostics, food and
beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers
and retailers for purposes of safety and security;
o. Transportation. Airlines, taxis, transportation network providers (such as Uber and
Lyft), vehicle rental services, paratransit, and other private, public, and commercial
transportation and logistics providers necessary for Essential Activities and other
purposes expressly authorized in this Directive;
p. Home-based care and services. Home-based care for adults, seniors, children,
and/or people with developmental disabilities, intellectual disabilities, substance use
disorders, and/or mental illness, including caregivers such as nannies who may
travel to the child’s home to provide care, and other in-home services including
meal delivery;
q. Residential facilities and shelters. Residential facilities and shelters for adults,
seniors, children, and/or people with developmental disabilities, intellectual
disabilities, substance use disorders, and/or mental illness;
r. Professional services. Professional services, such as legal services, accounting
services, insurance services, information technology services, real estate services
(including appraisal and title services);
March 26, 2020
s. Manufacture, distribution, and supply chain for critical products and

industries. Manufacturing companies, distributors, and supply chain companies
producing and supplying essential products and services in and for industries such
as pharmaceutical, technology, biotechnology, Health Care, chemicals and
sanitization, waste pickup and disposal, agriculture, food and beverage,
transportation, energy, steel and steel products, petroleum and fuel, forest products,
mining, construction, national defense, communications, as well as products used by
other Essential Businesses and Operations.
t. Critical labor union functions. Labor union essential activities including the
administration of health and welfare funds and personnel checking on the wellbeing
and safety of members providing services in Essential Businesses and Operations –
provided that these checks should be done by telephone or remotely where possible.
u. Hotels and motels. Hotels and motels, to the extent used for lodging and delivery or
carry-out food services.
v. Funeral services. Funeral, mortuary, cremation, burial, cemetery, and related
services.
• 12. Social Distancing Requirements for Essential Businesses and Operations. Essential
Businesses and Operations and businesses engaged in Minimum Basic Operations must take
proactive measures to ensure compliance with Social Distancing Requirements, including
where possible:
a. Designate six-foot distances. Designating with signage, tape, or by other means six-
foot spacing for employees and customers in line to maintain appropriate distance;
b. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products
readily available for employees and customers;
c. Separate operating hours for vulnerable populations. Implementing separate
operating hours for elderly and vulnerable customers; and
d. Online and remote access. Posting online whether a facility is open and how best to
reach the facility and continue services by phone or remotely.
• 13. Minimum Basic Operations. For the purposes of this Directive, Minimum Basic
Operations include the following, provided that employees comply with Social Distancing
Requirements, to the extent possible, while carrying out such operations:
a. The minimum necessary activities to maintain the value of the business’s inventory,
preserve the condition of the business’s physical plant and equipment, ensure security,
process payroll and employee benefits, or for related functions.
b. The minimum necessary activities to facilitate employees of the business being able to
continue to work remotely from their residences.
• 14. Essential Travel. For the purposes of this Directive, Essential Travel includes travel for
any of the following purposes:
a. Any travel related to the provision of or access to Essential Activities, Essential

Businesses and Operations, or Minimum Basic Operations.
b. Travel to care for elderly, minors, dependents, persons with disabilities, or other
vulnerable persons.
March 26, 2020
c. Travel to or from educational institutions for purposes of receiving materials for

distance learning, for receiving meals, and any other related services.
d. Travel to return to a place of residence from outside the jurisdiction.
e. Travel required by law enforcement or court order, including to transport children
pursuant to a custody agreement.
f. Travel required for non-residents to return to their place of residence outside the State.
Individuals are strongly encouraged to verify that their transportation out of the State
remains available and functional prior to commencing such travel.
• 15. Intent of this Directive. The intent of this Directive is to ensure that the maximum number
of people self-isolate in their places of residence to the maximum extent feasible, while
enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent
possible. These measures are designed to end the epidemic as early as possible, and to protect
the well-being of Montanans by returning to the course of business and everyday life as soon as
is practicable and safe. When people need to leave their places of residence, whether to perform
Essential Activities, or to otherwise facilitate authorized activities necessary for continuity of
social and commercial life, they should at all times and as much as reasonably possible comply
with Social Distancing Requirements. All provisions of this Directive should be interpreted to
effectuate this intent.
II. Directive Is Public Health Order and Enforceable By County Attorney

• This Directive, along with any prior Directive that implements and references the public health
authorities of the Department of Public Health and Human Services (DPHHS) provided in Title
50, constitutes a “public health . . . order[]” within the meaning of § 50-1-103(2), MCA, and is
enforceable by the Attorney General, DPHHS, a county attorney, or other local authorities
under the direction of a county attorney.
III. Local Public Health Agencies to Assist in Administration of this Public Health Order
• Local public health agencies are directed to assist in the administration of this Directive,
consistent with § 50-1-202(2)(a), MCA.
IV. Less-Restrictive Local Ordinances Preempted

• This Directive is in effect statewide in Montana. In the interest of uniformity of laws and to
prevent the spread of disease, all inconsistent emergency county health ordinances are
preempted by this Directive, but only to the extent they are less restrictive. Counties may adopt
more restrictive ordinances.
Authorities: Section 10-3-104, MCA; §§ 50-1-103, -202, -203, and -204, MCA; Executive Orders 2-
2020 and 3-2020; Montana Constitution, Art. VI, Sections 4 and 13; §§ 10-3-103, -302, and -305,
MCA; and all other applicable provisions of state and federal law.
Limitations
• This Directive is effective at 12:01 a.m. on March 28, 2020 through April 10, 2020.
• This Directive shall be implemented consistent with applicable law and subject to the
availability of appropriations.
• If any provision of this Directive or its application to any person or circumstance is held invalid
by any court of competent jurisdiction, this invalidity does not affect any other provision or
application of this Directive, which can be given effect without the invalid provision or
March 26, 2020
application. To achieve this purpose, the provisions of this Directive are declared to be
severable.
• This Directive is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the State of Montana, its
departments, agencies, or entities, its officers, employees, or agents, or any other person.
Plaintiffs’ Exhibit B
2014 FEIS Excerpts
Final Supplemental Environmental Impact Statement Chapter 3
Keystone XL Project Affected Environment
Table 3.10-8 Economic Corridor Counties

State/Construction Spread County
Phillips
Valley
Montana McCone
(Construction Spreads 1, 2, 3, and 4) Dawson
Prairie
Fallon
Harding
Perkins
Haakon
South Dakota
Jones
(Construction Spreads 5, 6, and 7)
Lyman
Tripp
Gregory
Keya Paha
Nebraska—North
Boyd
(Construction Spreads 8)
Holt
Antelope
Pierce
Madison
Stanton
Boone
Platte
Nance
Nebraska—Central/South Howard
(Construction Spreads 9 and 10) Merrick
Polk
Hall
York
Fillmore
Saline
Jefferson
Gage
Butte, Meade, and Pennington counties in South Dakota are not included in the economic
corridor because their economic centers are too distant from where pipeline and worker activity
would occur. Gregory County in South Dakota is included in the economic corridor due to its
proximity to the pipeline right-of-way (approximately 500 feet). Pierce, Madison, Stanton, Platte,
Hall, Howard, and Gage counties in Nebraska are not in the proposed pipeline corridor, but are
included in the economic corridor because they contain economic centers such as Norfolk,
Columbus, Grand Island, and Beatrice that are within a reasonable commuting distance of the
pipeline route. Bowman County, North Dakota, and Clay and Butler counties in Kansas are not
included in the economic corridor because daily spending by construction workers in these
counties would be negligible. However, baseline data for these counties are presented in several
tables because the proposed Project would result in economic impacts.
3.10-19
Keystone XL Project Environmental Consequences
• The presentation of the proposed Project jobs numbers impacts has been standardized as
average annual jobs.
• A reference to Keystone’s action plans for employment opportunities for minority and low-
income populations has been included.
• The amount of property taxes that would be paid during operations has been revised.
• Appendix O, Socioeconomics, now includes a description of the IMPLAN® model used in
the economic impact calculation methodology.
Summary
The proposed Project is expected to take 1 to 2 years to construct and includes approximately
875 miles of pipeline, 20 pump stations, and ancillary facilities (e.g., access roads, pump
stations, and construction camps). Construction of the proposed Project would contribute
approximately $3.4 billion to the U.S. GDP. This number includes not only earnings by workers,
but all other income earned by businesses and individuals engaged in the production of goods
and services demanded by the proposed Project, such as profits, rent, interest, and dividends.
When compared with the GDP in 2010, the proposed Project’s contribution represents
approximately 0.02 percent of annual economic activity across the nation. This percentage
remains the same if the contribution is compared to the GDP in 2012. Construction contracts,
materials, and support purchased in the United States would total approximately $3.1 billion,
with another $233 million spent on construction camps. During construction, this spending
would support a combined total of approximately 42,100 average annual jobs and approximately
$2 billion in earnings throughout the United States. A job consists of one position that is filled
for 1 year. Of these jobs:
• Approximately 16,100 would be direct jobs at firms that are awarded contracts for goods and
services, including construction, directly by Keystone. The other approximately 26,000 jobs
would result from indirect and induced spending; this would consist of goods and services
purchased by the construction contractors and spending by employees working for either the
construction contractor or for any supplier of goods and services required in the construction
process.
• About 12,000 jobs, or 29 percent of the 42,100 jobs, would be held by residents of the four
proposed Project area states 1; of these 12,000 jobs, approximately 5,400 would be direct jobs
and approximately 6,600 would be indirect and induced jobs (Figure 4.10.1-1).
The proposed Project would temporarily increase the population in the proposed Project area as
workers relocate to build the pipeline. Approximately 10,400 construction workers engaged for
4- to 8-month seasonal construction periods would be needed, equating to approximately 3,900
jobs (or 1,950 per year if construction took 2 years). The workforce would be distributed by
construction spread (pipeline section), with approximately 900 to 1,300 workers allocated to
each spread. Because of the specialized nature of the work, Keystone estimates that only
approximately 10 percent of the construction workforce would be hired from the four proposed
Project area states.
1
The proposed Project pipeline would go through Montana, South Dakota, and Nebraska, with two additional pump
stations in Kansas. There would also be a pipe yard and rail siding located in North Dakota.
4.10-2
Keystone XL Project Environmental Consequences
much of the construction, and because of the relatively small labor force and relatively low
unemployment rate in the economic corridor counties (i.e., counties that are likely to experience
daily spending by construction workers; see Table 3.10-10), nearly all local hires would be from
the rest of state area (i.e., counties outside the economic corridor, but within the same state; see
geographies definitions in Section 3.10.1, Introduction). It is expected that few workers would be
accompanied by their families because of the short duration and mobile nature of the work.
Therefore, impacts to the proposed Project area population during construction would be
temporary.
Housing
The proposed Project would require 5,000 to 6,000 construction workers each year of the
construction phase, or 900 to 1,300 workers within any one construction spread (10 spreads
total). Proposed Project construction would require temporary housing for almost all of these
workers.
The availability of short-term housing varies across the proposed pipeline route. As of 2012,
there were approximately 2,000 available rental properties, 3,300 hotel/motel rooms, and 2,000
recreational vehicle (RV) sites (for a total of approximately 7,300 separate potential
accommodations) within reasonable proximity (commuting distance) to the pipeline route (see
Section 3.10.2.2, Housing). Actual vacancy rates vary by year and season, with the spring and
fall seasons having the lowest vacancy rates. Therefore, the actual availability of temporary
housing at any given time could be lower.
The proposed Project-related demand for housing (6,000 seasonal workers) would take up
approximately 82 percent (6,000 divided by 7,300) of the estimated available temporary housing
along the pipeline route, leaving only 18 percent to meet non-Project related needs. Therefore,
the temporary housing available along the proposed pipeline route would likely be insufficient to
meet the demand for housing resulting from construction activities. More urban areas, such as
the central/south Nebraska spreads, have more short-term housing available, particularly hotel
and motel rooms.
Keystone proposes to meet the housing need through a combination of construction camps and
local housing.
Construction Camps
As discussed above, most of the proposed Project area counties do not have sufficient temporary
housing to house all the necessary construction personnel. Keystone proposes to construct eight
temporary construction camps to meet the housing needs in Montana, South Dakota, and
northern Nebraska (see Table 4.10-2); approximately one camp per spread for construction
spreads 1 through 8.
4.10-12
Plaintiffs’ Exhibit C
2019 FEIS Excerpts
FINAL SEIS KEYSTONE XL PROJECT
Table 2-5. Updated List of Proposed Keystone XL Pipeline Construction Camp Locations
Camp State County Nearest Notes
Milepost
PS-09 MT Phillips 1 New proposed mini-campa. Site is a cultivated hay field within a
landscape matrix dominated by agriculture. Surveys completed for
wetlands, waterbodies, noxious weeds and cultural resources
identified:
• Two marginal wetland features (a farmed wetland and a small,
isolated, depressional wetland).
• Canada thistle (invasive plant which is included in the Noxious
Weed Plan).
Raptor and grouse lek surveys are planned to be completed in
2019.
Hinsdale MT Valley 47 New proposed construction camp location. Site is a cultivated hay
field within a landscape matrix dominated by agriculture. Surveys
completed for wetlands, waterbodies, raptor nests (including bald
and golden eagle), noxious weeds and cultural resources identified:
• No wetlands at the site.
• No raptor nests within the 1.0-mile survey buffer; no sharp-tailed
grouse leks or sage-grouse leks within their survey buffers
(0.25-mile and 4.0-mile, respectively).
• Field bindweed and Canada thistle (invasive plants which are
included the Noxious Weed Plan).
• One non-eligible historic homestead (site 24VL2063).
Fort Peck MT Valley 86 Same site as analyzed in the 2014 Keystone XL Final SEIS.
Circle MT McCone 146 Same site as analyzed in the 2014 Keystone XL Final SEIS.
Glendive MT Dawson 195 New proposed construction camp. Site is a mix of native and non-
native grassland and occurs within a landscape matrix dominated
by agriculture, immediately adjacent to Interstate 94. Surveys
completed for wetlands, waterbodies, raptor nests (including bald
and golden eagle), noxious weeds and cultural resources identified:
• One ephemeral waterbody without a wetland component (camp
design to avoid feature).
• One red-tailed hawk nest approximately 0.8 mile north of the site
(outside the Montana Department of Environmental Quality
required 1,000-meter seasonal construction constraint buffer); no
sharp-tailed grouse leks or sage-grouse leks in their survey
buffers (0.25-mile and 4.0-mile, respectively).
• Leafy spurge, Canada thistle and field bindweed (invasive plants
which are included in the Noxious Weed Plan).
• No cultural sites.
Baker MT Fallon 249 Same site as analyzed in the 2014 Keystone XL Final SEIS.
Buffalo SD Harding 313 Same site as analyzed in the 2014 Keystone XL Final SEIS.
Opal SD Meade 381 New proposed construction camp location. Site is a cultivated hay
field within a landscape matrix of agriculture and native grassland.
Surveys completed for wetlands, waterbodies, raptor nests
(including bald and golden eagle), sharp-tailed grouse leks, noxious
weeds and cultural resources did not identify any of these
resources.
CHAPTER 2. DEVELOPMENT OF ALTERNATIVES 2-7

FINAL SEIS KEYSTONE XL PROJECT
Table 2-5. Updated List of Proposed Keystone XL Pipeline Construction Camp Locations
Camp State County Nearest Notes
Milepost
Philip SD Haakon 463 New proposed construction camp. Site is a cultivated field within a
landscape matrix of agriculture and native and non-native
grassland. Surveys completed for raptor nests (including bald and
golden eagle), sharp-tailed grouse leks, noxious weeds and cultural
resources did not identify any of these resources. The wetland and
waterbodies survey identified two ephemeral pothole wetlands, both
of which were significantly disturbed by past agricultural activity and
do not appear to hold water in all years.
Colome SD Tripp 580 Same site as analyzed in the 2014 Keystone XL Final SEIS.
O’Neill NE Holt 654 New proposed construction camp location. Site is currently in crop
rotation and use. Surveys completed for wetlands, waterbodies,
raptor nests (including bald and golden eagle), and noxious weeds
did not identify any of these resources. The cultural resources
survey identified two non-eligible isolated finds (C601HT003FS
[prehistoric] and C601HT002FS [historic]).
a.The proposed “mini-camp” accommodates fewer camp residents (96-150) than a full-size camp (646-1,000) and occupy an
overall smaller footprint (containing fewer housing, and a smaller kitchen, dining hall, and recreational center).
MT = Montana; NE = Nebraska; PS = pump station; SD = South Dakota
Note: The 2014 Keystone XL Final SEIS considered a construction camp in Howes (Meade County), SD but it has been
removed.
Section 4.10 of the 2014 Keystone XL Final SEIS also discusses measures to establish a camp Code of
Conduct to control and manage behavior in all proposed Project camps which would apply to the
additional three camps proposed. The Code of Conduct addresses camp access control procedures,
bringing weapons into the camp, disruptive or abusive behavior, alcohol use and criminal/illegal
activities. All camp residents must agree to abide by the conditions of the Code of Conduct. Workers
who violate the camp Code of Conduct would be dismissed. In addition, as stated in the 2014
Keystone XL Final SEIS, each camp site would be fully fenced and have a guard house at a single
entrance. A contract security officer manning the guard house would be provided on a 24/7 basis and at
all times there would be at least one additional roving security officer supplemented with off-duty law
enforcement personnel, as needed.
2.4.6 Temporary and Permanent Access Roads

Keystone would use existing public and private roads to gain access to most of the construction ROW.
Keystone would build temporary access roads where existing roads are lacking or unavailable for use, and
construct permanent access roads from public roads to pump stations and MLVs. The typical access road
would be 30 feet wide. Temporary access roads would be reclaimed to landowner requirements following
construction. Keystone would be responsible for maintenance of the new permanent access roads.
2.4.7 Aboveground Facilities

The MAR would require approximately 37 acres of land, other than permanent ROW, along the proposed
route for aboveground facilities, including pump stations with MLVs, and intermediate MLVs that are not
associated with a pump station (see Table 2-1).
2.4.7.1 Pump Stations

The MAR would require three pump stations, resulting in a total of six pump stations located in Nebraska.
Although Keystone has not yet determined the exact locations of the pump stations, Figure 2-1 shows
the approximate locations proposed for the three pump stations associated with the MAR. The pump
CHAPTER 2. DEVELOPMENT OF ALTERNATIVES 2-8

Plaintiffs’ Exhibit D
Rosebud Sioux Tribe Letter (Jan. 31, 2014)
<Pwse6ucfSt:owc rr'ribe William 'Willie' Kindle

Vice-President
C;rrifL. Scott, <Presic[ent Louis Wayne Boyd
SICANGU OYP.TE Treasurer
P.O. BOX 430 Linda L. Marshall
ROSEBUD, SD 57570 Secretary
Phone (605) 747-2381 Fax (605) 747-2434
Glen Yellow Eagle
Sergeant-at-arms
5
January 31 1, 20 J 4
Jack C. Jackson, Jr.

Senior Advisor and Liai on for Native American Affairs
US Department of State I .
Bureau of Oceans and I emational Environmental and
Scientific Affairs \
Office of Environmental puality/Transboundary Issues(OES/EQT)
2201 C Street, N. W. Roo , 2726
Washington, DC 20520
Dear Mr. Jackson,
REQUEST FOR REVIE% AND CON CURRAN CE, AMENDED PROGR.A..MMITI.C

l
AGREEMENT, KEY TONE XL PIPELINE PROJECT
I write this letter in resp 1 nse to your letter of December 24, 2013, regarding your request for
. review and concurrence iwith the amended Programmatic Agreement (PA) for the proposed
Keystone XL Pipeline P 1oject (Project) by signing as a concurring party on the designated
signatory page. The Ros ibud Sioux Tribe cannot agree to sign as a concurring party on the PA
and ft.uihermore, objects t the amended PA for the following reasons.
1
I. .
The amended PA mistake ily identifies the Yankton Sioux Tribe as the consulting Tribe for tribal
lands within the jurisdictio of the Rosebud Sioux Tribe located in Tripp County, Rosebud Sioux
Tribe Reservation, South Dakota_ The misidentification of "Tribal lands" in the amended
Programmatic Agreement 1esults in errors in fact, and errors in law resulting in substantial non-
compliance of the amend d Programmatic Agreement with applicable federal law and federal
regulations governing the \roposed construction of the TransCanada Keystone XL Pipeline.
l
The Rosebud Sioux Tribe a federally recognized sovereign Indian tribe orgamzed pursuant to
the Act of June 18, 1934, 8 Stat. 984, as amended, and is governed by a Constitution and By-
laws ratified on Novembe 23 , 1935, and approved by the Secretary of the Interior, Harold L.
Ickes, on December 16, 19 5, and as amended. The Rosebud Sioux Tribe Reservation includes
tribally-owned trust lands nd allotted lands ov,1ned by enrolled tribal members within Todd,
Tripp, Mellette, Gregory, ai d Lyman Counties, South Dakota.
The Rosebud Sioux Tribe as jurisdiction of all trust and restricted lands located in the counties
of Lyman, Todd, Tripp, lvie lette, and Gregory counties of South Dakota, of the Rosebud Sioux
1
Tribe established by the 1•51 and 1868 Treaty of Fort Laramie and the Act of March 2, 1889,
25 Stat. 888 .
EXHIBIT NO. 2
North
Dakota
Chippewa
~,
Cree
outh
Montana
Dakota
Northern
Arapaho
Yankton
Sioux
I
Wyoming
:: ~ ,,;,; '.:::·-:::
,··
:·:;;~:.
Nebraska
' Colorado
~
--·-11
1 ==~ Pawnee
Kansas
LEGEND
G)
Prop sed Pump Station
Moni l ring Location

0
- Prop sed Keyston e XL Projec1 PROPOSED OVERVIEW MAP
KEYSTONE XL PROJECT AREAS OF TRIBAL CONCERN
NOT USG CLASSIFIED

~o 80 120
I MILES
160
EXHIBIT NO. 1
The PA does not me t the goal of consultation required by Section 106 of the National Historic
Preservation Act, 16 U.S.C. § 4 70 et. seq., with the proper Indian Tribe, to identify historic
properties potentially affected by construction of the Keystone XL Pipeline, assess its affects and
1
seek ways to avoid, n 'nimize or mitigate any adverse effects on historic properties.
Appendix A of the T1 'bal Monitoring Plan, PA, containing a map of the proposed construction
route of the Keyston ! XL Pipeline, mistakenly identifies Tripp County as an area of tribal
consultation with the 'ankton Sioux Tribe. Tripp County is an area that lies within the original
boundaries of the Ro ebud Sioux Tribe as established by the 1851 and 1868 Treaty of Fort
Laramie and Act of M~rch 2, 1889 25 Stat.888, and contains tracts of tribally-owned and allotted
lands within the jurisd-btion of the Rosebud Sioux Tribe.
It is the statutory obli ation of the Federal agency to fulfill the requirements of section 106 and
1
to ensure that the agen y official with jurisdiction over an undertaking takes legal and financial
responsibility for secti n 106 compliance in accordance with subpart B of this part. Title 36, Part
800, 36 C.F.R. §800.2 (a). The agency official shall involve the consulting parties described in
paragraph (c) of this se i ti on in findings and determinations made during the section 106 process,
1
and should plan cons ltations appropriate to the scale of the undertaking and the scope of
Federal involvement a d coordinated with other requirements of other statutes, as applicable,
such as National En ~ onmental Policy Act, the Native American Graves Protection and
1
Repatriation Act, the erican Indian Religious Freedom Act, the Archeological Resources
Protection Act, and ag cy-specific legislation. 36 C.F.R. §800. 2 (a)(4). 'When an Indian tribe
has not assumed the r sponsibilities of the SHPO ("State Historic Preservation Officer") the
agency official shall co sult with a representative designated by such Indian tribe in additional to
1
the SHPO regarding un ertakings occurring on or affecting historic properties on its tribal lands.
36 C.F.R. § 800.2 (c)(2 (B)(ii). Section 101 (d)(6)(B) of the act requires the agency official to
consult with any Indian tribe or Native Hawaiian organization that attaches religious or cultural
significance to historic properties that may be affected by an undertaking, regardless of the
location of the historic property. 36 C.F.R. §800.2(c)(2)(B)(ii). It is the responsibility of the
agency official to make a reasonable and good faith effort to identify Indian tribes and Native
Hawaiian organizations that shall be consulted in the section 106 process. 36 C.F.R. §
800.2(c)(2)(B)(ii)(A). Tl e Federal Government has a unique legal relationship with Indian tribes
set for the in the Const ltution of the United States, treaties, statutes, and court decisions, and
consultations with India , tribes should be conducted in a sensitive manner respectful of tribal
sovereignty. 36 C.F.R. § 1800.2(c)(2)(B)(ii)(B). Consultations with an Indian tribe must recognize
the goverm11ent-to-gove m1ent relationship between the Federal government and tribes. 36
C.F.R. §800.2(c)(2)(B)(i i)(C). When Indian tribes and Hawaiian organizations attach religious
a11d cultural significanc to historic properties off tribal lands, section 101 (d)(6)(B) of the act
requires federal agencie to consult with Indian tribes in the section 106 process, and federal
agencies should be awar . that frequently historic properties ofreligious and cultural significance
are located on ancestra, aboriginal, or ceded lands of Indian tribes and Native Hawaiian
organizations and shoul consider that when complying with the procedures in this part. 36
1
C.F.R. §800 .2(c)(2)(B)(ii (D).
The incorrect designatio of "Tribal lands", in Tripp County, Rosebud Sioux Tribe Reservation,
as lands within the Yank 011 Sioux Tribe Reservation in the amended Programmatic Agreement
2
results in the following mistakes, errors in fact and errors in law, tha create substantial non -
compliance of the amended Programmatic Agreement with applicable federal law and federal
regulations governing the proposed construction of the TransCanada Ke tone XL Pipeline:
1
J. The seventh WHEREAS, page 2, states, "WHEREAS, th · DOS ... has consulted
with .. .Indian tribes who may ascribe religious and cultural significance to historic
prope1iies that may be affected by the unde1taking ... consiste t with 36 Pmi 800 ... "
a. Misidentifying Tripp County as part of the area under theilljurisdiction and control
of the "Yankton Sioux Tribe" instead of the "Rosebud S oux Tribe", adjacent to
the route of the proposed pipeline construction zone, a d the resulting lack of
consultation with the Rosebud Sioux Tribe regardinl those "tribal lands"
threatens, jeopardizes, and fails to identify and protect an , historic prope1ties that
the Rosebud Sioux Tribe ascribes religious and cultural si ! nificance.
1
2. The ninth WHEREAS, page 5, "the DOS provided Indian ibes the opp01tunity to
1
provide information about historic properties of concern to I di an tribes and conduct
1
Traditional Cultural Property ("TCP") studies within the pr posed Project APE, as
summarized in Attachment I,"
a. Misidentifying Tripp County as part of the area under the jurisdiction and control
of the "Yankton Sioux Tribe" instead of the Rosebud Sio x Tribe, adjacent to the
1
proposed pipeline construction corridor, and the resulti g lack of consultation
· with the Rosebud Sioux Tribe has prevented the Ros bud Sioux Tribe from
planning and taking part in Traditional Cultural Properties ("TCP") studies.
3. Part 1 C., Standards and Definitions.
a. "Coordination Plan: A plan that, pursuant to Sti~ lations V.B and V.D,
describes the coordination of construction with ident! fication and evaluation
of cultural resources, treatment of adverse effe its, and protection of
unanticipated discoveries." The "Coordination Pl !" that contains "tribal
lands" in Tripp County and lists the wrong tribe, the ankton Sioux Tribe, in
the place of the proper consulting Tribe, the Rosebud ioux Tribe, jeopardizes
historic and cultural properties, and does not properl plan for identification
and evaluation of cultural resources, treatment a adverse effects, and
1
protection of unanticipated discoveries.

b. "Consulting Indian Tribes: Indian tribes that have 1,onsultative roles in the
1
Section 106 process consistent with 36 C.F.R. 800.'.2.(c)." DOS has

'
misidentified the "Yankton Sioux Tribe" as the "S nsulting Indian tribe",
rather than the Rosebud Sioux Tribe, as having "Tri I al Lands" within Tripp
County. DOS has therefore failed to identify "triba lands" of the Rosebud
Sioux Tribe located in Tripp County adjacent to he pipeline corridor or
1
misidentified areas containing "tribal lands" of the R sebud Sioux Tribe. The
PA either has not identified or misidentified the Ros: bud Sioux Tribe as the
"Consulting Indian Tribe" for "tribal lands" Tripp Co nty, South Dakota.
1
c. "Determination of Effect: A determination made iy a Federal agency in

regards to a Project's effect upon a historic property !onsistent with 36 C.F.R.
Part 800." Depaiiment of State cannot make a propJ detem1ination of effect
upon historic properties without proper and meaning! 1 consultation with the
Rosebud Sioux Tribe regarding the areas not identifil d as tribal lands within
Tripp County, South Dakota.
3
d. "Tri al Monitorin° Plan: A plan that, pursuant to Stipulation VE and

1
Atta i hment E, identifies appropriate areas for monitoring construction by

triba members appointed by their respective tribes. These tribal members
shall \ meet the qualifications as noted by Stipulation V.E.3. The plan 's
p7in i pal goal i~ to reduce the potential for i~1pacts t? previously u:1i?entified
histo 1c properties that may also be properties of historic and religious and
1
cultu ·al significance to Indian tribes that meet the National Register criteria
(see 6 C.F.R. § 800.16(1)(a} " The Tribal Monitoring Plan that misidentifies
Trip County as "tribal lands" of the Yankton Sioux Tribe fails in its principle
goal o reduce the potential for impacts to previously unidentified historic
prop :rties that also may be properties of religious and cultural significance to
1
India tribes by failing to consult with the proper Indian Tribe with lands in
the c \nstruction corridor, the Rosebud Sioux Tribe.
4. "KEYSTON : XL PROJECT-PIPELINE CONSTRUCTION B. (1). Page 10, 11. "In
consultation ith the SHPOs, designated representatives of consulting Indian tribes,
and other co sulting parties, the DOS will make a reasonable and good faith effort to
complete the identification and evaluation of historic properties within the APE for
each constru~ion spread, including in areas yet to b. e surveyed outlined in Attachment
1
A, prior to t I e initiation of construction of that spread, consistent with 36 C.F.R.
§§800.4 (a), ), and (c)." A reasonable and good faith effort to complete the
identification and evaluation of historic properties cannot be accomplished without
proper cons 1tation and participation of the Rosebud Sioux Tribe in Tripp County,
South Dakota prior to initiation of construction of that Spread.
B. 2. (a). "In fhe identification and evaluation of historic properties to which Indian
tribes may ttach religious and cultural significance, the DOS will take into
consideration information through consultations and through the protocols for the
TCP studies, ost-review discovery, and the Tribal Monitoring Plan, as set forth in
this PA." The Department of State should consult with the Rosebud Sioux Tribe on
"tribal lands" ~ ocated in Tripp County, to avoid the risk of failing to properly identify
and evaluate historic properties Indian tribes may attach religious and cultural
significance. he Rosebud Sioux Tribe should be the consulting Indian Tribe for
Tripp County, 'rather than the Yankton Sioux Tribe.
B.2.(b). "Intl event identification of historic properties cannot be completed for any
Construction preads prior to construction, Keystone will develop and submit a
!
Coordination lan for the DOS to review and approval pursuant to Stipulation V.D.
The Coordina ion Plan must describe the measures Keystone w ill use to implement
and complete the identification and evaluation of cultural resources and appropriate
consultation 1 efore any historic properties are adversely affected by vegetation
clearing and c ' nstruction activities related to that spread." The proposed pipeline has
not received 'mal approval for construction, therefore, there is sufficient time and
opportunity fo the DOS to consult with the Rosebud Sioux Tribe for identifying and
evaluating his oric properties in Tripp County, South Dakota.
C. 1. " Treatn~ent of Historic Properties. ·whenever feasibl e, avoidance of adverse
effects to hist ric properties ·will be the pre~erred ;re atme~t. . ln consul:ation with the
1
DOS, ACHP, . HPOs, designated representatives or consultmg Indian tnbes . and other
consultino pa 1ies. Keystone mav elect to consider and impl ement avoi dance
0 I . - ,
4
measures prior to completing the evaluation of historic 1roperties." The areas of

proposed pipeline construction in Tripp County, South Da ota, should be properly
identified as areas within the original boundaries of the Ros . bud Sioux Tribe defined
by the 1851 and l 868 Treaties of Fort Laramie and the Act o March 2, 1889, 25 Stat.
1
888. The PA should identify the Rosebud Sioux Tribe as the I onsulting Tribe in Tripp
County, not the Yankton Sioux Tribe, for the construction oITidor in Tripp County,
South Dakota. " . . I
C.4., page 12. If, after consultat10n, the DOS detenmne that the adverse effect
1
cannot be avoided, Keystone will draft a comprehensive reatment Plan for each
adversely effected historic property." The areas of proposed pipeline construction in
Mellette and Tripp Counties, South Dakota, should be pro ! erly identified as areas
within the original boundaries of the Rosebud Sioux Tribe 1efined by the 18 51 and
1868 Treaties of Fort Laramie and the Act of March 2, 188 , 25 Stat. 888. The PA
should identify the Rosebud Sioux Tribe as the consulting Tri be in Tripp County, not
the Yankton Sioux Tribe, for the construction corridor in Trip I County, South Dakota.
D.2. (a). page 13. "A Coordination Plan will be prepared or each state and will
include those measures developed by Keystone pursuant to tipulations VB and V.C
to complete the identification and evaluation of histo~ c properties, and, as
appropriate, mitigation of adverse effects to them during1 and coordinated with
vegetation clearing and construction activities." The area of proposed pipeline
1
construction in Tripp County, South Dakota, should be pro 1erly identified as areas
I
within the original boundaries of the Rosebud Sioux Tribe fined by the 1851 and
1868 Treaties of Fort Laramie and Act of March 2, 1889, 25 : tat. 888. The PA should
I
identify the Rosebud Sioux Tribe as the consulting in Tripp ounty, not the Yankton
Sioux Tribe, for the construction corridor in Tripp County, So ' th Dakota.
E.l.(b). page 14. " Historical Trail and Archaeological Mo litoring Plan ("HTAM
Plan") and Tribal Monitoring Plan.
b. "The Tribal Monitoring Plan outlines areas tha 1 have been previously
identified by Indian tribes, either through the preparation of Traditional Cultural
Property reports or through consultation, that warrant monito ing during clearing and
trenching for potential effects to previously unidentified hist i ri c properties that may
1
include properties of religious and cultural significance to Indian tribe and that
meet the ~ati~1ml Historic.crit~ria. ~See 36 C.F.R. § 800.~6(1)(1)." The areas of
proposed p1pel111e construction m Tnpp County, South Dak ta, should be properly
identified as areas within the original boundaries of the Rose i ud Sioux Tribe defined
1
by the 1851 and 1868 Treaties of Fort Laramie and Act of arch 2, J 889, 25 Stat.
888. The PA should identify the Rosebud Sioux Tribe as the c nsulti~1g Tr~be in Tripp
1
County, not the Yankton Sioux Tribe, for the construction c rridor m Tnpp County,
South Dakota.
For the reasons stated above, the Rosebud Sioux Tribe cannot sign the mended Progranm1atic
Agreement as a concurring party, and objects to the amended PA on th basis. Please consider
the remarks of the Rosebud Sioux Tribe in amending the PA to properl identify, preserve and
!
protect cultural and historic prope1iies that ma)' be effected by the : roposed Keystone XL
Project.
Sincerely,
Cyril Scott, President

Rosebud Sioux Tribe
cc: Rosebud Sioux Trib l Council
Rosebud Sioux Trib · Treaty Commission
RST Legal Departm nt
6
EXHIBIT NO. 3
Weldon Loudermilk I Date

Great Plains Regional D' rcctor
United States Bureau orn ndian Affairs
Programmatic Agreement Keystone XL Pipeline Project

SECTION 3 - Signatory Parties December 2013
EXHIBIT NO. 4
Plaintiffs’ Exhibit E
Rosebud Sioux Tribe Letter (Mar. 5, 2014)
ROSEBUD S IOUX TRIBE Cyril Scott, President

PO Box 430 Willie Kindle, Vice President
Rosebud, SD 57570 Julia M. Peneaux, Secretary
Phone: 605.747.2381 Byron Wright, Treasurer
Fax: 605.747.2243 Glen Yellow Eagle, Sergeant-at-Arms
Website: rosebudsiouxtribe-nsn.qov
March 5, 2014
U.S. Department of State ureau of Energy Resources

Room 4843
Attn. Keystone XL Publi
Washington, DC 20520
Dear Sir/Madam,
COMMENTS REGARD G THE NATIONAL INTEREST DET'ERMINATION FOR

TRANSCANADA KifYSTONE PIPELINE AND OBJECTIONS TO THE
CONSTRUCTION OF THE TRANSCANADA XL PIPELINE ADJACENT TO TRIBAL
AND ALLOTED LAIDDS WITHIN THE REGULATORY JURISDICTION OF THE
ROSEBUD SIOUX TkIBEAND WITHIN THE 1851 TREATY OF FORT LARAMIE AND
1868 TREATY OF FtjRT LARAMIE BOUNDARIES
I write this letter onbe~hlf of the Rosebud Sioux Tribe to comment on the National Interest
Determination for the approval of the Presidential Permit for the construction of the TransCanada
Keystone XL Pipeline. Tlle Rosebud Sioux Tribe objects to the construction of the TransCanada
Keystone XL Pipeline a~d recommends the President Barak Obama find that it is not in the
national interest of the United States to approve the construction of the TransCanada Keystone
XL Pipeline and deny the application for Presidential Pem1it for the followipg reasons.
FACTUAL BACKGROUND
The Rosebud Sioux Tribej is a federally recognized sovereign Indian tribe organized pursuant to
the Act of June 18, 1934) 48 Stat. 984, as amended, (Indian Reorganization Act), and governed
pursuant to a Constitutio and Bylaws ratified on November 23, 1935, and approved by the
Secretary of the Interior, arold L. Ikes, on December 16, 1935.
owned by enrolled tribal embers within Todd, Tripp, Mellette, Gregory, and Lyman Counties,
South Dakota, establishe by the 1851 and 1868 Treaty of Fort Laramie and the Act of March 2,
1889, 25 Stat. 888.
I
The United States Supr~e Court in Rosebud Sioux Tribe v. Kniep, 430 U .S. 584, 615 (1977),
1
held that the legislative 11· tory of acts opening up Todd, Mellette, Tripp, and Lyman Counties to
settlement demonstrated a legislative intent to diminish the boundaries of the Rosebud
Reservation to remove ce ain lands in South Dakota from the jurisdiction of the Rosebud Sioux
Tribe, but also stated, Eth regard to lands held in trust in those counties, Footnote 48, as
follows: "To the extent 1e members of the Rosebud Sioux Tribe are living on allotted land
outside the Reservation, 1l ey, too, are on "Indian Country" within the definition of 18 U.S.C s
1151, and hence subject to federal provisions and protections." 430J .S. at 615, Footnote No.
48.
THE FINAL ENVIRONMENTAL IMPACT STATEMENT FO THE KEYSTONE XL

PIPELINE CONCLUDING THERE ARE NO SIGNIFICANT IM ACTS ON CULTURAL
RESOURCES IS BASED UPON ERRORS IN FACT AND ERRORS IN LAW CONTAINED
IN THE AMENDED PROGRAMMATJC AGREEMENT. I
The Final Supplemental Envirorunental Impact Statement, Keystonl XL Project, Chapter I,

Section 1.6.1, Tribal and SHPO Consultation, Tribal Consultation, prolides;
"Following Keystone's 2012, Presidential permit applicati :i, the Department began
additional government-to government consultation consisten~ with Section l 06 of the
NHPA for the current Supplemental EIS process for the proposed Project. As the lead
federal agency for the proposed Project, the Department is continuing throughout the
Supplemental EIS process to engage in consultation on t~e Supplemental EIS, the
proposed Project generally, and on cultural resources consistent with Section 106 of the
NHPA with identified consulting parties, including federal ag~ cies, state agencies, State
1
Historic Preservation Offices (SHPOs), the Advisory Council on Historic Preservation,

and interested federally recognized Indian tribes (70 Feder I Register 71194) in the
vicinity of the proposed project. Starting in September 201 , the Department notified
Indian tribes of its intent to amend the Programmatic Agreem~et to reflect changes to the
proposed Project route since 2011 and comments received fro consulting parties. Tribal
meetings were held in October 2012 in Montana, South Dako , and Nebraska, and May
2013 in South Dakota. Discussion of the consultation efforts :yid a complete list, to date
are included in Section 3.11.4.3, Tribal Consultation, and ~1e amended Programmatic
Agreement (see Appendix E, Amended Programmatic A reement and Record of
Consultation."
Final Supplemental Environmental Impact Statement, Keystone XL Project, pg. 1.6-1.
Appendix A of the Tribal Monitoring Plan, Programmatic Agreement,jExhibit No. 1), containing
a map of the proposed construction route of the Keystone XL Pipe ine, mistakenly identifies
Tripp County as an area of tribal consultation with the Yankton Siou ~ Tribe. Tripp County is an
area that lies within the original boundaries of the Rosebud Sioux ribe as established by the
1851 and 1868 Treaty of Fort Laramie and Act of March 2, 1889 25 S at.888, and contains tracts
of tribally-owned and allotted lands within the jurisdiction of the Rose ud Sioux Tribe.
It is the statutory obligation of the Federal agency to fulfill the requi ements of section I 06 and
to ensure that the agency official with jurisdiction over an undertaki1!g takes legal and financial
responsibility for section 106 compliance in accordance with subpart of this part. Title 36, Part
800, 36 C.F.R. §800.2 (a). The agency official shall involve the con ulting parties described in
paragraph ( c) of this section in findings and determinations made during the section 106 process,
and should plan consultations appropriate to the scale of the undertaking and the scope of
Federal involvement and coordinated with other requirements of ot~er statutes, as applicable,
such as National Environmental Policy Act, the Native Americ n Graves Protection and
Repatriation Act, the American Indian Religious Freedom Act, th Archeological Resources
Protection Act, and agency-specific legislation. 36 C.F.R. §800. 2 (al (4). \Vhen an Indian tribe
2
has not assumed the re ponsibilities of the SHPO ("State Historic Preservation Officer") the
agency official shall co~sult with a representative designated by such Indian tribe in addition to
the SHPO regarding und'.ertakings occurring on or affecting historic properties on its tribal lands.
36 C.F.R. § 800.2 (c)(2)(B)(ii). Section 101 (d)(6)(B) of the act requires the agency official to
c?n~ult with any !ndi~n ! ibe or. Native Hawaiian organization that attach~s religious or cultw·al
significance to h1stonc Jropert1es that may be affected by an undertakmg, regardless of the
location of the historic rope1ty. 36 C.F.R. §800.2(c)(2)(B)(ii). It is the responsibility of the
agency official to make reasonable and good faith effort to identify Indian tribes and Native
I
Hawaiian organizations that shall be consulted in the section 106 process. 36 C.F.R. §
800.2(c)(2)(B)(ii)(A). Tri Federal Government has a unique legal relationship with Indian tribes
set for the in the Consti ution of the United States, treaties, statutes, and court decisions, and
consultations with India tribes should be conducted in a sensitive manner respectful of tribal
sovereignty. 36 C.F.R. § 00.2(c)(2)(B)(ii)(B). Consultations with an Indian tribe must recognize
the governrnent-to-gove~nment relationship between the Federal government and tribes. 36
C.F.R. §800.2(c)(2)(B)(ii)(C). When Indian tribes and Hawaiian organizations attach religious
and cultural significanc~ to historic properties off tribal lands, section 101 (d)(6)(B) of the act
requires federal agencie to consult with Indian tribes in the section 106 process, and federal
agencies should be awar · that frequently historic prope11ies of religious and cultural significance
are located on ancestra] aboriginal, or ceded lands of Indian tribes and Native Hawaiian
organizations and shou1J consider that when complying with the procedures in this part. 36
C.F.R. §800.2(c)(2)(B)(ii~).
The United States Depar . ent of State has the statutory obligation to meet the requirements of
1
Section 106 of the NHP and has legal and financial responsibility for Section 106 Compliance.
36 C.F.R. §800.2 (a). The consultations planned by the Department of State did not designate the
Rosebud Sioux Tribe as the "consulting Tribe" for construction activities in Tripp County,
Rosebud Reservation, fo{ coordinating compliance with National Environmental Policy Act,
Native Graves Protection1_and Repatriation Act, the Archeological Resources Protection Act, and
agency specific legislatiqn. 36 C.F.R. §800.2(a)(4). When an Indian Tribe has not assumed the
responsibilities of the St~le Historic Preservation Office, as it was in this matter, the Department
of State is required to co~sult with the representative designated by the Indian Tribe in addition
to the SHPO regarding undertakings occurring or affecting historic properties on the lands of the
Rosebud Sioux Tribe. 36 C.F.R. §800.2 (c)(2)(B)(ii). These consultations did not occur with the
Rosebud Sioux Tribe, i stead the amended PA designated the Yankton Sioux Tribe as the
"consulting Indian Tribe ' The Department of State should have consulted with the Rosebud
Sioux Tribe on tribal lan · s in the disestablished area of the Rosebud Sioux Tribe Reservation,
Tripp County, pursuant t Section 101(d)(6)(B) of the NHPA, an area that Indian Tribe attaches
"religious or cultural si ificance to historic properties that may be affected by an unde1iak.ing,
regardless of the location of the historic property." 36 C.F.R. §800.2(c)(2)(B)(ii). The
Department of State failed to identify Tripp County as an area containing lands of the Rosebud
Sioux Tribe, and therefo~e failed to "make reasonable and good faith effoti to identify Indian
Tribes and Hawaiian orgarnizations that shall be consulted in the section 106 process." 36 C.F.R.
§800.2(c)(2)(B)(ii)(A). T~e Department of State failed to consider Tribal lands of the Rosebud
Sioux Tribe in Tripp Co ty, containing cultural resources and historic properties located in the
disestablished portion of he Rosebud Sioux Tribe Reservation, and therefore failed to comply
with the Section 101 (d)( )(B) of the 'NHPA. 36 C.F.R. §800.2(c)(2)(B)(ii)(D).
3
The incorrect designation of "Tribal lands", in Tripp County, Rosebu Sio ux Tribe Reservation,
as lands within the Yankton Sioux Tribe Reservation in the amended Programmatic Agreement
results in the following mistakes, errors in fact and errors in law, t~at create substantial non-
compliance of the amended Programmatic Agreement with applicabfe federal law and federal
regulations governing the proposed construction of the TransCanada K ystone XL Pipeline:
1. The seventh WHEREAS, page 2, states, "WHEREAS, 1e DOS ... has consulted
with .. .Indian tribes who may ascribe religious and cultur~I significance to historic
properties that may be affected by the undertaking ... consis ent with 36 Part 800 ... ,,
a. Misidentifying Tripp County as part of the area under t e jurisdiction and control
of the "Yankton Sioux Tribe" instead of the "Rosebu~Sioux Tribe", adjacent to
the route of the proposed pipeline construction zone, and the resulting Jack of
consultation with the Rosebud Sioux Tribe regar 'ng those "tribal lands"
threatens, jeopardizes, and fails to identify and protect f!Y historic properties that
the Rosebud Sioux Tribe ascribes religious and cultural f ignificance.
2. The ninth WHEREAS, page 5, "the DOS provided India tribes the opportunity to
provide information about historic properties of concern to Indian tribes and conduct
Traditional Cultural Property ("TCP") studies within the reposed Project APE, as
summarized in Attachment I,"
a. Misidentifying Tripp County as part of the area under e jurisdiction and control
of the "Yankton Sioux Tribe" instead of the Rosebud S~oux Tribe, adjacent to the
proposed pipeline construction corridor, and the restllting lack of consultation
with the Rosebud Sioux Tribe has prevented the 1sebud Sioux Tribe from
planning and taking part in Traditional Cultural Propert es ("TCP") studies.
3. Part 1 C., Standards and Definitions.
a. "Coordination Plan: A plan that, pursuant to Stipulations V.B and V.D,
describes the coordination of construction with idfntification and evaluation
of cultural resources, treatment of adverse eifects, and protection of
unanticipated discoveries." The "Coordination Ran" that contains "tribal
lands" in Tripp County and lists the wrong tribe, t e Yankton Sioux Tribe, in
the place of the proper consulting Tribe, the Roseb d Sioux Tribe, jeopardizes
historic and cultural properties, and does not prop rly plan for identification
and evaluation of cultural resources, treatment of adverse effects, and
protection of unanticipated discoveries.
b. "Consulting Indian Tribes: Indian tribes that havf consultative roles in the
Section 106 process consistent with 36 C.F.Rj. § 800.2(c)." DOS has
misidentified the "Yankton Sioux Tribe" as the !"consulting Indian tribe",
rather than the Rosebud Sioux Tribe, as having 'Jribal Lands" within Tripp
County. DOS has therefore failed to identify "tripal lands" of the Rosebud
Sioux Tribe located in Tripp County adjacent ~ the pipeline corridor or
misidentified areas containing "tribal lands" of th Rosebud Sioux Tribe. The
PA either has not identified or misidentified the 1osebud Sioux Tribe as the
"Consulting Indian Tribe" for "tribal lands" Tripp~ounty, South Dakota.
c. "Determination of Effect: A determination mad by a Federal agency in
regards to a Project's effect upon a historic prope consistent with 36 C.F.R.
Pa11 800." Department of State ca1U1ot make a pr1per determination of effect
upon historic properties without proper and meani gful consultation with the
4
Rose ud Sioux Tribe regarding the areas not identified as tribal lands within
Tripp County, South Dakota.
d. "Trib 1 Monitoring Plan: A plan that, pursuant to Stipulation V.E and
Attachment E, identifies appropriate areas for monitoring construction by
tribat l members appointed by their respective tribes. These tribal members
shall meet the qualifications as noted by Stipulation V.E.3. The plan's
princiPat goal is to reduce the potential for impacts to previously unidentified
histo1c proper6es that may also be properties of historic and religious and
cuJtu~al significance to Indian tribes that meet the National Register criteria
(see 36 C.F.R. § 800.16(1 )(a)." The Tribal Monitoring Plan that misidentifies
Tripp County as "tribal lands" of the Yankton Sioux Tribe fails in its principle
goal o reduce the potential for impacts to previously unidentified historic
prope ties that also may be properties of religious and cultural significance to
lndi tribes by failing to consult with the proper Indian Tribe with lands in
the co truction corridor, the Rosebud Sioux Tribe.
4. "KEYSTONE XL PROJECT-PIPELINE CONSTRUCTION B. (1). Page 10, 11. "In
consultation ith the SHPOs, designated representatives of consulting Indian tribes,
and other co suiting parties, the DOS will make a reasonable and good faith effort to
complete the identification and evaluation of historic properties within the APE for
each constru~otion spread, including in areas yet to be surveyed outlined in Attachment
A, prior to e initiation of construction of that spread, consistent with 36 C.F.R.
§§800.4 (a), lb), and (c)." A reasonable and good faith effort to complete the
identification and evaluation of historic properties cannot be accomplished without
proper consu tation and participation of the Rosebud Sioux Tribe in Tripp County,
South Dakot~ prior to initiation of construction of that Spread.
B. 2. (a). "Inlthe identification and evaluation of historic properties to which Indian
tribes may ttach religious and cultural significance, the DOS will take into
consideration information through consultations and through the protocols for the
TCP studies, post-review discovery, and the Tribal Monitoring Plan, as set forth in
this PA." Th Department of State should consult with the Rosebud Sioux Tribe on
"tribal lands" located in Tripp County, to avoid the risk of failing to properly identify
and evaluate historic properties Indian tribes may attach religious and cultural
significance. he Rosebud Sioux Tribe should be the consulting Indian Tribe for
Tripp County rather than the Yankton Sioux Tribe.
B.2.(b). "Int e event identification of historic properties cannot be completed for any
Construction Spreads prior to construction, Keystone will develop and submit a
Coordination Plan for the DOS to review and approval pursuant to Stipulation V.D.
The Coordin tion Plan must describe the measures Keystone will use to implement
and complet the identification and evaluation of cultural resources and appropriate
consultation efore any historic properties are adversely affected by vegetation
clearing and construction activities related to that spread." The proposed pipeline has
not received final approval for construction, therefore, there is sufficient time and
opportunity for the DOS to consult with the Rosebud Sioux Tribe for identifying and
evaluating historic properties in Tripp County, South Dakota.
C. 1. "Treat ent of Historic Properties. Whenever feasible, avoidance of adverse
effects to his oric properties will be the preferred treatment. In consultation with the
s
DOS, ACHP, SHPOs, designated representatives of consultihg Indian tribes, and other
consulting parties, Keystone may elect to consider a?d implement avoidance
measures prior to completing the evaluation of historic properties." The areas of
proposed pipeline construction in Tripp County, South Dhkota, should be properly
identified as areas within the original boundaries of the Ro~ebud Sioux Tribe defined
by the 1851 and 1868 Treaties of Fort Laramie and the Act of March 2, l 889, 25 Stat.
888. The PA should identify the Rosebud Sioux Tribe as th1 consulting Tribe in Tripp
County, not the Yankton Sioux Tribe, for the construction corridor in Tripp County,
South Dakota.
C.4., page 12. "If, after consultation, the DOS determines that the adverse effect
cannot be avoided, Keystone will draft a comprehensive! Treatment Plan for each
adversely effected historic prope1ty." The areas of propos9d pipeline construction in
Mellette and Tripp Counties, South Dakota, should be ploperly identified as areas
within the original boundaries of the Rosebud Sioux Trib~ defined by the 1851 and
1868 Treaties of Fort Laran1ie and the Act of March 2, 1889, ~
25 Stat. 888. The PA
should identify the Rosebud Sioux Tribe as the consulting fribe in Tripp County, not
the Yankton Sioux Tribe, for the construction corridor in Tr\P,p County, South Dakota.
D.2. (a). page 13. "A Coordination Plan will be prepared for each state and will
include those measures developed by Keystone pursuant tiStipulations VB and V.C
to complete the identification and evaluation of his oric properties, and, as
appropriate, mitigation of adverse effects to them duri, g and coordinated with
vegetation clearing and construction activities." The ar as of proposed pipeline
construction in Tripp County, South Dakota, should be properly identified as areas
within the original boundaries of the Rosebud Sioux Tribe defined by the 1851 and
1868 Treaties of Fort Laramie and Act of March 2, 1889, 2Js Stat. 888. The PA should
identify the Rosebud Sioux Tribe as the consulting in Tripp County, not the Yankton
Sioux Tribe, for the construction corridor in Tripp County, South Dakota.
E. l.(b). page 14. " Historical Trail and Archaeological ronitoring Plan ("HTAM
Plan") and Tribal Monitoring Plan.
b. "The Tribal Monitoring Plan outlines areas 1 at have been previously
identified by Indian tribes, either through the preparatiJn of Traditional Cultural
Property reports or through consultation, that warrant monitoring during clearing and
trenching for potential effects to previously unidentified h}.storic properties that may
include properties of religious and cultural significance tb an Indian tribe and that
meet the National Historic criteria. (See 36 C.F.R. § 8d0.16(1 )(1 )." The areas of
proposed pipeline construction in Tripp County, South Dakota, should be properly
identified as areas within the original boundaries of the R9sebud Sioux Tribe defined
by the 1851 and 1868 Treaties of Fort Laramie and Act ff March 2, 1889, 25 Stat.
888. The PA should identify the Rosebud Sioux Tribe as t~e consulting Tribe in Tripp
County, not the Yankton Sioux Tribe, for the construction co1Tidor in Tripp County,
South Dakota.
l6
The PA does no! meet the goal of consultation required by Section 1 of the National Historic
Preservation Act, 16 U.S.C. § 470 et. seq., with the proper IndianfTribe, to identify historic
properties potentially affected by construction of the Keystone XL PiJ:ieline, assess its affects and
seek ways to avoid, minimize or mitigate any adverse effects on histo ic properties. The Rosebud
6
Sioux Tribe submitted ~ts comments on the amended Programmatic Agreement, Keystone XL
Pipeline, to Mr. Jack C.Jackson, Jr., on January 31, 2014. Exhibit No. 2.
The Enviromnental lm act Statement, finding no significant impact on cultural resources, is

based upon incorrect fa tual and legal assumptions, was prepared without proper consultation
with the Rosebud Sioux Tribe, the Indian Tribe with jurisdiction of allotted lands adjacent to the
KXL Pipeline construction corridor. The EIS is therefore improperly prepared, and its findings
based upon erroneous factual and legal assumptions under federal law.
THE DEPARTMENT IOF STATE WILL CONSULT WITH THE DEPARTMENT OF

INTERIOR IN FOCU~G ON WHETHER THE PROPOSED PROJECT SERVES THE
NATIONAL INTERES~. THE UNITED STATES DEPARTMENT OF INTERJOR, BUREAU
OF INDIAN AFFAIR~, IN SIGNING OFF ON THE AMENDED PROGRAMMATIC
AGREEMENT, KEYSTONE XL PIPELINE, FAILED TO PERFORM ITS TRUST
RESPONSIBILITY TO THE ROSEBUD SIOUX TRIBE, AND THEREFORE APPROVAL OF
THE PROJECT IS NOT IN THE NATIONAL INTEREST.
The Bureau of Indian A~airs, in signing off on the amended Programmatic Agreement, (Exhibit
No. 3), failed in its trust g·esponsibility to the Rosebud Sioux Tribe, for the following reasons: 1)
by failing to review the ended Programmatic Agreement and Tribal Monitoring Plan before
signing off on the PA; 2) y failing to comment or take action to correct the wrongful designation
of Tripp County as an area within the jurisdiction of the Yankton Sioux Tribe; 3) failing to
identify those allotted ~d tribal trust tracts in Tripp County lying within the original treaty
boundaries of the Rosebud Sioux Tribe and recognized by the United States Supreme Court as
being part of "Indian Country": 4) by failing to comment or take corrective action to identify the
Rosebud Sioux Tribe as he "Consulting Indian Tribe" in the Tribal Monitoring Plan, amended
Programmatic Agreemen .
The Rosebud Sioux Tribh submitted its letter of o~jections to the Hon. Sally Jewel, Secretary,
Department of Interior, ol February 19, 2014. Exhibit No. 4.
APPROVAL OF THE PRESIDENTIAL PERMIT FOR THE CONSTRUCTION OF THE

PROPOSED KEYSTONE XL PROJECT IS INCONSISTENT WITH PRESIDENTIAL
EXECUTIVE ORDERS NOS. 13175 AND 12898, AND THEREFORE IS NOT IN THE
NATIONAL INTEREST.
Executive Order 13175, igned by President William J. Clinton on November 6, 2000, provides
by authority vested in th office of the President by the Constitution and the laws of the United
States of American, th t the United States, in order to establish regular and meaningful
consultation and collabo ation with tribal officials in the development of Federal policies that
have tribal implications, o strengthen the United States government-to-government relationships
with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes,
provides for the United States to recognize the rights of the Indian Tribes to self-government and
supports tribal sovereign1P.' and self-determination, and that federal agencies shall respect Indian
tribal self-government ant sovereignty, honor tribal treaty and other rights, and strive to meet the
responsibilities that arise rom the unique legal relationship between the Federal government and
Indian Tribal government .
7
Executive Order 13175 was reaffirmed by the MEMORANDUM FOR THE HEADS OF
EXECUTIVE DEPARTMENTS AND AGENCIES, signed by * resident Barak Obama,
I
November 5, 2009.
The construction of the TransCanada XL Pipeline crosses lands withi and adjacent to the lands
within the Treaty boundaries of 185 l Treaty of Fort Laramie and the I 868 Treaty of Fort
Laramie. The Rosebud Sioux Tribe is a successor to the signatory Gr at Sioux Nation Tribes to
the 1851 Treaty of Fo11 Laramie and the 1868 Treaty of Fort Larami] . The tribal nations of the
Great Sioux Nation have retained aboriginal and treaty rights to those ands, including protection
of grave sites and sacred sites, (Native American Graves Protection and Repatriation Act. 25
U.S.C. Section 3001 et. seq., Pub. L. 101-601), protection of cultur~l, religious and historical
sites, (National Historic Preservation Act of 1966,16 U.S.C. Section 470 et. seq., Pub. L. 89-
665), and protection of the Oglala Aquifer from contamination of p tential catastrophic levels
protection of Tribally reserved waters rights under the Winters Doctrpie, and protection of our
lands and waters on the tribal aboriginal treaty lands from desecration from tar sands sludge
spills. The portion of the Oglala Aquifer located within the tribal land~ in South Dakota, and the
Rosebud Sioux Tribe Indian Reservation, are adjacent to and threater ed by the construction of
the TransCanada XL Pipeline.
The Rosebud Sioux Tribe has regulatory jurisdiction to regulate land use and potential harmful
discharges into Reservation waters on tribally-owned trust lands and allotted trust lands owned
by enrolled members of the Rosebud Sioux Tribe within Todd, Tr3·p, Mellette, Gregory, and
Lyman Counties of South Dakota. The construction of the TransC ada XL Pipeli ne does not
cross any tribal or allotted trust lands, but the proposed route lies a jacent to tracts of tribally
owned trust and allotted trust parcels of land in Tripp County, Sou~ Dakota and is located in
"Indian Country" defined by federal statute as "Indian Country." 18 U .S.C. § 1151 (a). The
construction of the Pipeline, and a possible spill or release of tar sand sludge from the Pipeline,
?oses a direct threat to two of the most important asse.ts of the Rosebur Sioux Tribe, its lands and
its water resources.
The damage caused by a release of tar sands sludge to Tribal trus and allotted lands could
destroy and result in the loss of the essential character and beauty oi the Rosebud Reservation,
result in the destruction of the historical and cultural values and tradi, ions of the Tribe, increase
air, water, and solid waste pollution, and increase the possibility f contamination from the
Oglala Aquifer and surface water supplies, and result in the deteri1ration of the standards of
living, quality of life, welfare and well-being of all Reservation reside(s.
Executive Order 12898, signed by President William Clinton on f ebruary 11, 1994, directs
federal agencies to make achieving environmental justice as part of tpe mission by indentifying
and addressing, as appropriate, disproportionately high adverse hum~ health or environmental
effects of its activities on minority and low-income populations. The qlnited States and its federal
agencies must make achieving environmental justice part of its nrission by identifying and
addressing, as appropriate, dispropo1tionately high and adverse humaj heath, environmental, and
social effects of its programs, policies, and activities on minority and ow-income populations.
8
-.
Todd County, South DF,ota, also an area encompassing the Rosebud Sioux Tribe Indian
Reservation, is the second poorest County in the United Stales. A spill of the tar sands sludge
from the TransCanada P'peline in Tripp County, South Dakota, would have a direct impact on
the economic security, Q.ealth, welfare and general well-being of the Tribe and its members
residing in both Tripp an~ Todd Counties.
CONCLUSION
b
The Final Environmental mpact Statement for the Keystone XL Pipeline project is based upon
legal and factual errors, a ssions, and does not comply with applicable federal statutes,
regulations, and court decisions. The proposed project does not serve the national interest, and
the application for the Prr identiaJ Permit must be denied.
Respectfully ~·tted,
...... - ....
r2
.-~
_,L
···"----
'
~
.....
Cyril Scott, President

Rosebud Sioux Tribe
cc: Rosebud Sioux Tribal Council
9
APPENDIX
EXHIBITS
1. Overview Map, Appendix A of the amended Programmatic AgreJment.

2. Letter, Request for Review and Concunence, to Jack C. Jackson, Jr., Senior Advisor and
Liaison for Native American Affairs, US Depa1tment of State, from Cyril Scott,
President, Rosebud Sioux Tribe, January 31, 2014.
3. Signature Page, Programmatic Agreement, Great Plains Regional Director, US Bureau of
Indian Affairs, date, December 18, 2013.
4. Letter, Position of Rosebud Sioux T~ibe on EIS, TransCanada Ket stone XL Pipeline, and
the Federal Trust Responsibility of the Bureau of Indian Affairs, to Hon. Sally Jewel,
Secretary, US Department of Interior, from Cyril Scott, President Rosebud Sioux Tribe,
February 19, 201 4.

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Case 4:18-cv-00118-BMM Document 150 Filed 04/03/20 Page 1 of 19

Natalie A. Landreth (pro hac vice)

Matthew L. Campbell (pro hac vice)

Counsel for all Plaintiffs

IN THE UNITED STATES DISTRICT COURT

ROSEBUD SIOUX TRIBE et al., Case No. 4:18-cv-00118-BMM

The spread of COVID-19 within our Nation’s communities

Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020).

Defendants proclaim the Tribes have improperly moved for a TRO.

Administration announced that up to 240,000 people may succumb to the

latest-news/, TransCanada announced it intends to move forward with the

Pipeline’s construction. TC Energy to Build Keystone XL Pipeline, TC Energy

Corp. (Mar. 31, 2020), https://www.tcenergy.com/announcements/2020-

03-31tc-energy-to-build-keystone-xl-pipeline/. This, during the projected

EVALUATION, https://covid19.healthdata.org/projections (last visited Apr.

(construction of access roads, preparation of man camps and pipe yards,

etc.). But even at the border, construction must be undertaken by workers

that must be brought in from somewhere. The Fort Belknap Indian

Reservation is located an hour and a half away from Morgan, Montana,

the pandemic and only faintly address this impending threat.

Defendants also proclaim the Tribes have improperly moved to amend

Procedure to amend the pleadings out of time.” Desertrain v. City of Los

“with extreme liberality.” Id. (quoting Fed. R. Civ. P. 15(a)).

In reality, it is the Tribes that have been prejudiced by Defendants

gamesmanship. TransCanada moved for summary judgment just two days

did so without answering the Tribes’ First Amended Complaint, meaning

motion for summary judgment without any discovery as being

“railroaded”). TransCanada even boldly asserted, without answering the

First Amended Complaint, that the “undisputed evidence establishes that

taken as true without an answer. And in the same document, TransCanada

and Rosebud members. Doc. 97, at 4; Doc. 114, at 5-6.

even a scheduling order, it is hardly “very late” in this proceeding. The

justifiably wanting to be in a position to rule by April, set a briefing schedule

The Tribes’ request to amend should be granted because any alleged

The TRO Should Be Granted

“[T]he purpose of a temporary restraining order is to preserve the

status quo until a hearing may be held on the appropriateness of a

preliminary injunction.” Native Ecosystems Council v. Marten, No. CV 18-87-

construction and operation of [the Pipeline].” Indigenous Envtl. Network v.

15, 2019). TransCanada faces no hardship by a thirteen-day delay in

construction. Instead, TransCanada wishes to quickly build as much of the

project to proceed whether or not it is legal. This is precisely the type of

momentum the Tribes are concerned with.

On March 26, 2020, Montana Governor Steve Bullock issued a shelter

COVID-19 crisis. Governor of Mont., Directive Implementing Executive Orders

Shelter-in-Place order mandates social distancing, prohibits non-essential

activities, and mandates the closure of non-essential businesses, operations,

The Shelter in Place Order does allow individuals to “leave their

residence to provide any service or perform any work necessary to offer,

provision, operate, maintain and repair Essential Infrastructure.” Id. at 5. The

Shelter in Place Order goes on to list examples of Essential Infrastructure. Id.

construction does not “offer, provision, operate, maintain [or] repair”

existing Essential Infrastructure. Accordingly, the Pipeline is not Essential

Infrastructure, and its construction is not an Essential Operation or Activity.

See id. at 2-3.

COVID-19 in Montana, including in Cascade, Glacier, Toole, Liberty, Hill,

Roosevelt, Musselshell, and Yellowstone Counties. See Montana Response:

COVID-19 – Coronavirus – Global, National, and State Information Resources,

34f3412536439491adcc2103421d4b (last visited Apr. 2, 2020, 3:12 pm MDT).