mark steger smith assistant u.s. attorney u.s. attorney’s ......mar 30, 2020 · exhibit 9 –...

MARK STEGER SMITH Assistant U.S. Attorney U.S. Attorney’s Office 2601 Second Avenue North, Suite 3200 Billings, MT 59101 Ph: (406) 247-4667; Fax: (406) 657-6058 [email protected] PRERAK SHAH Deputy Assistant Attorney General LUTHER L. HAJEK (CO Bar 44303) United States Department of Justice Environment and Natural Resources Division 999 18th St., South Terrace, Suite 370 Denver, CO 80202 Ph: (303) 844-1376; Fax: (303) 844-1350 [email protected]

Attorneys for Federal Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

ROSEBUD SIOUX TRIBE, et al., Plaintiffs, v.

DONALD J. TRUMP, et al., Defendants, and TC ENERGY CORP., et al.,

Defendant-Intervenors.

CV 18-118-GF-BMM DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 4:18-cv-00118-BMM Document 145 Filed 03/30/20 of 23

mailto:[email protected]


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TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

I. The Court Lacks Jurisdiction Over Plaintiffs’ Claims. ......................... 2

A. Plaintiffs Have Failed to Demonstrate Standing. ....................... 2

B. Plaintiffs’ Claims Against the President Are Barred by Sovereign Immunity. ................................................................... 4

II. The President Did Not Violate the Constitution by Issuing the Permit Allowing the Construction of Border Facilities. ....................... 6

III. The President Did Not Violate Any Treaty Obligations. ...................... 8

IV. Plaintiffs Have Not Properly Pled Any Claim Against the Agencies. .............................................................................................12

CONCLUSION ........................................................................................................14


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TABLE OF AUTHORITIES Cases

Camp v. Pitts, 411 U.S. 138 (1973) .............................................................................................13

Desertrain v. City of Los Angeles, 754 F.3d 1147 (9th Cir. 2014) ..............................................................................14

E.V. v. Robinson, 906 F.3d 1082 (9th Cir. 2018) ................................................................................ 5

Franklin v. Massachusetts, 505 U.S. 788 (1992) ............................................................................................... 4

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006) ......................................................................... 10, 12

Herrera v. Wyoming, 139 S. Ct. 1686 (2019) .........................................................................................11

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ...........................................................................................4, 6

Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980 (9th Cir. 1999) ................................................................................14

Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) ..............................................................................13

Okanogan Highlands All. v. Williams, 236 F.3d 468 (9th Cir. 2000) ................................................................................10

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) ................................................................................................. 5

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir. 2006) ................................................................................13

Shoshone–Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) .............................................................................10

Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) .................................................................................. 4

Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ...........................................................................4, 5


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Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) .............................................................................................13

Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422 (9th Cir. 2011) ................................................................................13

United States v. Washington, 853 F.3d 946 (9th Cir. 2017) ................................................................................11

United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986) .................................................................................. 5

Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989 (9th Cir. 2006) ................................................................................13

Washington State Department of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019) .........................................................................................11

Statutes

Pub. L. No. 112-78, 125 Stat. 1280 ........................................................................... 7

Regulations

84 Fed. Reg. 13 (Mar. 29, 2019) ............................................................................3, 9

Other Authorities

22 U.S. Op. Atty Gen. 13 (1898) ............................................................................... 7

Veto Message to the Senate: S. 1, Keystone XL Pipeline Approval Act, 2015 WL 758544 (White House Feb. 24, 2015) .................................................... 8


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EXHIBIT INDEX

Exhibit 1 – Moore, Digest of International Law, Vol. II (1906) (excerpt)1

Exhibit 2 – President Ulysses Grant’s Seventh Annual Message to Congress, reprinted in Papers Relating to the Foreign Relations of the United States, Vol. 1, 44th Cong. 1st Sess., H.R. Doc. No. 1, Pt. 1 (Dec. 6, 1875) (excerpt)

Exhibit 3 – Hackworth, Digest of International Law, Vol. IV, § 350 (1942) (excerpt)

Exhibit 4 – Whiteman, Digest of International Law, Vol. 9 (1968) (excerpt)

Exhibit 5 – Presidential Permit Authorizing the Lakehead Pipe Line Company Inc. (“Lakehead”) to Construct, Operate, Maintain, and Connect Facilities for the Transportation and Exportation to Canada of Oil, President Dwight D. Eisenhower (April 28, 1953)

Exhibit 6 – Presidential Permit Authorizing the Lakehead Pipe Line Company Inc. to Connect, Construct, Operate, and Maintain a Pipeline at the International Boundary Line Between the United States and Canada, President John F. Kennedy (October 18, 1962)

Exhibit 7 – Presidential Permit Authorizing the Lakehead Pipe Line Company Inc. to Connect, Construct, Operate, and Maintain a Pipeline at the International Boundary Line Between the United States and Canada, President Lyndon B. Johnson (January 22, 1968)

Exhibit 8 – Compilation of Historical Presidential Permits

Exhibit 9 – S.1, Keystone XL Pipeline Approval Act (Jan. 6, 2015)

Exhibit 10 – S. Rep. No. 114-1, Keystone XL Pipeline (Jan. 12, 2015)

1 Exhibits 1 through 10 are attached to Defendants’ Responses to the Court’s Questions in Its December 20, 2019 Order, ECF No. 101. Exhibits 11 through 14 are attached to Defendants’ Statement of Undisputed Facts, ECF No. 110. Exhibits 15-17 are attached to Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction, ECF No. 127. Exhibit 18 is attached to Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment, ECF No. 139.


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Exhibit 11 – Department of State Record of Decision and National Interest Determination, TransCanada Keystone Pipeline, L.P. Application for a Presidential Permit (November 3, 2015)

Exhibit 12 – TransCanada Keystone Pipeline, L.P. Application for Presidential Permit for Keystone XL Pipeline Project (May 4, 2012)

Exhibit 13 – Memorandum of January 24, 2017, Construction of Keystone XL Pipeline

Exhibit 14 – TransCanada Keystone Pipeline, L.P. Application for Presidential Permit for Keystone XL Pipeline Project (January 26, 2017)

Exhibit 15 – 2019 Final Supplemental Environmental Impact Statement for the Keystone XL Project (December 2019), Excerpts Regarding the Analysis of Impacts to Cultural Resources

Exhibit 16 – 2014 Final Supplemental Environmental Impact Statement for the Keystone XL Project (January 2014), Excerpts Regarding the Analysis of Impacts to Cultural Resources

Exhibit 17 – Amended Programmatic Agreement and Record of Consultation (December 2013)

Exhibit 18 – 2014 Final Supplemental Environmental Impact Statement for the Keystone XL Pipeline Project (January 2014), Excerpts Regarding Federal, State, and Local Approvals for the Pipeline


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INTRODUCTION

The President issued a Permit narrowly authorizing TC Energy to construct

pipeline facilities at the international border with Canada, and Plaintiffs have not

demonstrated that this Permit—as opposed to other federal and state approvals for

the Keystone XL Pipeline—affects their interests. Therefore, summary judgment

should be granted to the United States.

First, Plaintiffs continue to insist that the Permit approved the entire

pipeline. Once again, it clearly did not, as demonstrated by TC Energy’s

application and the Permit itself. The Plaintiffs are free to bring proper challenges

to other federal approvals relating to the pipeline, but they have not done so.

Second, the President’s constitutional authority has been well established

over a 150-year history of Presidents exercising similar authority over border-

crossings. Plaintiffs’ contrary arguments should be rejected.

Third, Plaintiffs’ tribal treaty claims lack merit because neither the President

nor the agencies authorized the pipeline to cross tribal land. Moreover, Plaintiffs

have failed to show that Defendants violated any treaty obligations owed to the

Tribes.

Finally, in their summary judgment opposition, Plaintiffs attempt to amend

their complaint to add a challenge to the U.S. Bureau of Land Management’s

(“BLM”) decision to approve a right-of-way authorizing the pipeline to cross


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approximately 46 miles of federal land in Montana. This attempt is not only

procedurally improper, but prejudicial to Defendants—because any such claim

must be resolved based on BLM’s administrative record, which has not yet been

prepared. Moreover, this new, unpled claim has no bearing on the Defendants’

pending motion for summary judgment, which addresses the claims in the First

Amended Complaint, ECF No. 58, none of which involve a BLM right of way.

Accordingly, summary judgment should be granted to Defendants on all

claims.

ARGUMENT

I. The Court Lacks Jurisdiction Over Plaintiffs’ Claims.

A. Plaintiffs Have Failed to Demonstrate Standing.

Plaintiffs lack standing to challenge the President’s issuance of the Permit.

In an effort to create standing, Plaintiffs again mischaracterize the Permit, asserting

that the President harmed their interests by “permitting the entire length of the

Pipeline.” Pls.’ Resp. in Opp. to Fed. Defs.’ Mot. for Summ. J. (“Pls.’ SJ Opp.”) at

5, ECF No. 137. That is simply inaccurate.

TC Energy applied for permission to construct “border crossing facilities

associated with Keystone XL Project.” TransCanada Keystone Pipeline, L.P.,

Application for Keystone XL Pipeline Project (Jan. 26, 2017) at 6, Ex. 14. The

President authorized TC Energy to construct facilities “at the international border


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of the United States and Canada,” subject to obtaining all other necessary

approvals. See Permit, 84 Fed. Reg. 13,101, 13,101 (Mar. 29, 2019).

Plaintiffs claim there are four cultural resource sites within the 1.2-mile

border segment that will be harmed by the construction of the border facilities. See

Pls.’ SJ Opp. at 7. That also is inaccurate. The sites that they claim are within the

first 1.2 miles of the pipeline right-of-way were not located during detailed Class

III cultural resource surveys conducted between 2008 and 2013. See Defs.’ Opp.

to Pls.’ Appl. for a Temp. Restraining Order (“Defs.’ TRO Opp.”) at 6, ECF No.

143; Declaration of Joshua Chase ¶ 4, ECF No. 143-4.

Further, Plaintiffs’ alleged procedural injuries alone are insufficient to

establish standing. See Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ SJ

Mem.”) at 7-8, ECF No. 109. Nor have they shown that the issuance of the Permit,

as opposed to other federal and state approvals relating to the pipeline, will cause

them harm. See Defs.’ Opp. to Pls.’ Mot. for Summ. J. (“Defs.’ SJ Opp.”) at 3-4,

ECF No. 139.

Finally, any injuries are not redressable because, out of respect for the

separation of powers, the Court cannot enjoin the President’s issuance of the

Permit. See Defs.’ SJ Mem. at 8-9. Plaintiffs argue that relief is available because

the Court can direct relief against other federal officials. Pls.’ SJ Opp. at 10 (citing

Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019)). But the Permit at issue here


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was issued solely by the President, see Permit, 84 Fed. Reg. at 13,101, and

Plaintiffs do not identify any subordinate official whose actions could be enjoined

in a manner that would provide them a remedy. Accordingly, only an injunction

against the President would grant them the relief they seek, and such an injunction

would improperly interfere with the separation of powers. See Swan v. Clinton,

100 F.3d 973, 976-77 (D.C. Cir. 1996).

Accordingly, Plaintiffs lack standing.

B. Plaintiffs’ Claims Against the President Are Barred by Sovereign Immunity.

Plaintiffs point to no valid waiver of sovereign immunity by Congress,

instead asserting that they may sue the President without a waiver because they

allege that the Permit is unconstitutional or exceeds statutory authority (ultra

vires). Pls.’ SJ Opp. at 12-13. But this Court should respect Congress’ choice to

maintain the United States’ immunity from suit.

Plaintiffs’ theory of non-statutory review stems from Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1949). But Larson provides no basis for

judicial review of Executive Branch actions after Congress amended Section 702

of the Administrative Procedure Act (“APA”) in 1976 to waive sovereign

immunity for non-monetary relief against a federal agency or officer (but not the

President, see Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992)). The

Supreme Court has labeled Larson a “narrow and questionable exception” to


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immunity. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 116

(1984). And the Supreme Court has never held that Larson authorizes review of

presidential action; nor, since 1963, has the Court applied Larson in the context

of federal sovereign immunity. See id.; see also E.V. v. Robinson, 906 F.3d 1082,

1091 n.9 (9th Cir. 2018).2

Plaintiffs rely on Swan, in which the D.C. Circuit ruled that if the President’s

action violates a federal statute, then Larson authorizes review. See Swan, 100

F.3d at 981 & n.4. Swan is not binding on this Court, and the more persuasive

view is that Congress’ decision not to include the President in the waiver of

immunity in Section 702 of the APA confirms that sovereign immunity applies to

Presidential action.

Even if Larson survives and authorizes non-statutory review, Plaintiffs’ suit

fails to qualify for its exceptions. Under Larson’s first exception for ultra vires

acts, Plaintiffs’ claim falls short of the high bar for establishing that the President’s

decision was “completely outside his governmental authority.” United States v.

Yakima Tribal Court, 806 F.2d 853, 859-60 (9th Cir. 1986). Plaintiffs have failed

to identify a violation of a clear statutory mandate or a treaty obligation that

2 Despite Robinson’s holding that the Larson exceptions have continued vitality, the United States’ position is that Congress abrogated the Larson exceptions in the 1976 amendments to APA Section 702. In any event, Robinson applied Larson to authorize judicial review of the action of a federal judge, not of the President.


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applies to the President. Defs.’ SJ Mem. at 12-14.

Under Larson’s second exception for unconstitutional acts, courts may in

proper cases review the President’s actions for constitutionality. But Larson also

confirms that a plaintiff must have a valid cause of action to pursue such relief—

without one, the plaintiff’s suit “must fail even if he alleges that the agent acted

beyond statutory authority or unconstitutionally.” Larson, 337 U.S. at 692-93

(emphasis added). As we explained, Plaintiffs have failed to identify a recognized

implied cause of action directly under the Constitution that they may bring against

the President. Defs.’ SJ Mem. at 20-21. Their claims therefore fail for lack of a

valid waiver of sovereign immunity.

II. The President Did Not Violate the Constitution by Issuing the Permit Allowing the Construction of Border Facilities.

The President did not violate the Constitution by approving the Permit

authorizing the construction of border facilities for the Keystone XL Pipeline. The

President’s inherent constitutional authority to grant or deny such permits has long

been recognized and has not been abridged by Congress in the context of cross-

border oil pipelines.

As already demonstrated, while Plaintiffs view the act of authorizing a

physical connection to the United States to be a simple act of Congress, there is

over a century of precedent to the contrary. See Defs.’ SJ Opp. at 8-9. As

explained by the Acting Attorney General in 1898, “[t]he preservation of our


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territorial integrity and the protection of our foreign interests is intrusted, in the

first instance, to the President.” Foreign Cables, 22 U.S. Op. Atty Gen. 13, 25

(1898). The Court should decline Plaintiffs’ invitation to re-write over a hundred

years of judicial precedent and remove this important power of the President to

protect the integrity of the nation’s borders.

The Temporary Payroll Tax Cut Continuation Act (“TPTCCA”) of 2011,

Pub. L. No. 112-78, 125 Stat. 1280, does not support Plaintiffs’ arguments. The

TPTCCA was limited to one prior application for a permit for the Keystone XL

Pipeline, and all that it required was for the President to either grant or deny a

permit for the pipeline within sixty days in accordance with procedures established

by President George W. Bush in Executive Order 13,337. See TPTCCA § 501(a)-

(b), 125 Stat. at 1289-90. It has no applicability to any other application for a

permit for the Keystone XL Pipeline or any other pipeline. Plaintiffs argue that

President Barack Obama “capitulated” to Congress’s authority by denying a permit

for the pipeline. See Pls. SJ Opp. at 16. This was hardly a capitulation because

what Congress had primarily directed the President to do was to “grant a permit”

for the pipeline. TPTCCA § 501(a). In response, Congress took no action to

override the President’s decision.

Demonstrating that the TPTCCA has no continuing vitality, in 2015,

Congress passed the Keystone XL Pipeline Approval Act, S. 1, 114th Cong. §§ 1-6


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(1st Sess. 2015), this time expressly directing that a permit for the pipeline be

approved. See S.1., Keystone XL Pipeline Approval Act (“Approval Act”) (Jan. 6,

2015), ECF No. 101-9. This time President Obama vetoed that act so that it never

became law. See Veto Message to the Senate: S. 1, Keystone XL Pipeline

Approval Act, 2015 WL 758544 (White House Feb. 24, 2015). And again,

Congress acquiesced in the President’s prerogative to make the final decision

regarding a border crossing. See also Defs.’ SJ Opp. at 9-13 (demonstrating

Congress’s acquiescence in the President’s authority over cross-border permits for

oil pipelines). Thus, Congress has never usurped the President’s role over border-

crossings for pipelines in the way that Plaintiffs suggest.

In sum, the President has authority to permit an oil pipeline to cross the

international border with the United States, and Plaintiffs’ constitutional claim fails

on the merits.

III. The President Did Not Violate Any Treaty Obligations.

The President did not violate any treaty obligations by authorizing the border

facilities for the Keystone XL Pipeline. The border facilities do not cross any

tribal land, and the President did not authorize the pipeline to cross any tribal land.

These facts are dispositive of Plaintiffs’ claims. If the Court nevertheless considers

the remainder of the pipeline—which the President did not authorize—Plaintiffs

still fail to show that the off-reservation pipeline will cause a “depredation” of


9

tribal lands under the Treaty because that term can only be construed in the context

of generally applicable laws, and the President has not violated any statutes.

First, the President did not authorize the pipeline to cross tribal lands. The

crux of Plaintiffs’ argument is that the President authorized “the construction of a

crude oil pipeline through their treaty lands.” Pls.’ SJ Opp. at 18. But that has

simply not occurred. The President granted a Permit to TC Energy for border

facilities at the international border with Canada. See Permit, 84 Fed. Reg. 13,101.

There is no factual basis for the assertion that the President authorized the entire

pipeline.

Further, to the extent that Plaintiffs are claiming that the U.S. Department of

the Interior was required to approve a right-of-way across tribal land for the

pipeline, those arguments fail for reasons already demonstrated. See Defs.’ SJ

Opp. at 14-25. The pipeline will cross no surface estates either owned by the

Tribes or held in trust for the Tribes, and a right-of-way is not required for crossing

mineral estates held in trust. See id. at 17-18. Further, the installation of a pipeline

does not constitute “mining” within the Indian Mineral Leasing Act, and therefore

TC Energy was not required to obtain a lease before constructing the pipeline

across those parcels. See id. at 19-21. Nor do the Tribes have a claim for mineral

trespass because no such trespass has occurred or is planned. Id. at 21-23.

Second, Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006)


10

governs the outcome of this case. In Gros Ventre, the court interpreted the very

same treaty provisions at issue here—the duty to avoid depredations under the

1851 Fort Laramie Treaty and the 1855 Lame Bull Treaty. Id. at 813. The court

found that those duties extended only to current tribal land. Id. (“[T]he United

States agreed to protect the Tribes from depredations that occurred only on tribal

land.”). As already discussed, the Permit does not authorize any pipeline

construction across tribal land.

Further, interpreting the very same treaties at issue here, the Ninth Circuit

found that the duty under the treaties to avoid depredation could only be

determined by reference to generally applicable statutes and regulations. Id. at

812; see also Okanogan Highlands All. v. Williams, 236 F.3d 468, 479-80 (9th Cir.

2000) (BLM satisfied its trust obligations through compliance with NEPA).

Plaintiffs argue that Gros Ventre was different from this case because it was a

breach of trust case. See Pls.’ SJ Opp. at 19. But the claim for breach of trust in

Gros Ventre was, like the claim Plaintiffs bring here, grounded in an alleged duty

owed to the Tribes under the treaty. See Gros Ventre, 469 F.3d at 803, 812; accord

Shoshone–Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995) (“While it

is true that the United States acts in a fiduciary capacity in its dealings with Indian

tribal property, it is also true that the government’s fiduciary responsibilities

necessarily depend on the substantive laws creating those obligations.”). The


11

treaty provisions at issue in Gros Ventre were the same as those at issue here, and

the Ninth Circuit’s interpretation of those provisions is binding on this Court.

Third, the other cases cited by Plaintiffs involved different treaties, which

are not at issue in this case. In United States v. Washington, 853 F.3d 946 (9th Cir.

2017), the United States brought suit on behalf of several Indian tribes to protect

off-reservation fishing rights established through the Stevens Treaties. Id. at 953-

54, 962. The court concluded that the State of Washington had violated the treaties

by building culverts, which impeded the tribes’ fishing rights. Id. at 979-80. The

interpretation of different treaties regarding fishing rights has no bearing in this

case.

The other cases Plaintiffs cite are similarly inapposite. Herrera v. Wyoming,

139 S. Ct. 1686 (2019), involved hunting rights under an 1868 treaty with the

Crow Tribe. Id. at 1691-93. Wyoming prosecuted Herrera for hunting elk without

a license, but the Supreme Court ultimately threw out the conviction based on the

hunting rights under the treaty. Id. at 1698-703. Similarly, in Washington State

Department of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019), the Court

held that the state had improperly levied a fine on the tribe because a treaty

protected the tribe’s right to travel on state highways without paying a fuel tax.

See id. at 1010-16.

The fact that these other courts interpreted rights granted by particular


12

treaties to apply outside of Indian reservations does not mean that the duty to avoid

depredations in the treaties at issue here applies off of the reservations. In this

case, the Tribes are claiming that the United States owes them a duty to manage

non-tribal land for their benefit, and the Ninth Circuit has said—interpreting the

very same treaties at issue here—that no such duty is owed. Gros Ventre, 469 F.3d

at 815.

In sum, neither the President nor the agencies violated the Tribes’ treaty

rights.

IV. Plaintiffs Have Not Properly Pled Any Claim Against the Agencies.

Plaintiffs’ complaint contains no claims challenging final agency actions by

the U.S. Department of State and the U.S. Department of the Interior. See Defs.’

SJ Mem. at 10. Instead, at this very late stage, Plaintiffs seek to brief a claim

challenging BLM’s recent right-of-way decision. Their attempt to add claims in

the context of an opposition to a summary judgment motion is a non sequitur

because Defendants’ opening brief did not address the BLM right-of-way decision.

In any event, Plaintiffs attempt to brief the claims without first moving to amend

their complaint is improper and highly prejudicial and therefore should be rejected.

Plaintiffs’ attempt to argue a claim not pled in their complaint is

procedurally improper. A plaintiff is required to “give the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it rests.” Pickern v. Pier 1


13

Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (quoting Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 512 (2002)). “[S]ummary judgment is not a

procedural second chance to flesh out inadequate pleadings.” Wasco Prods., Inc.

v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (citation omitted);

Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008)

(“[W]here, as here, the complaint does not include the necessary factual allegations

to state a claim, raising such claim in a summary judgment motion is insufficient to

present the claim to the district court.”); see also, e.g., Trishan Air, Inc. v. Fed. Ins.

Co., 635 F.3d 422, 435 (9th Cir. 2011) (claim raised for the first time on summary

judgment “was not properly before the district court”). Therefore, the attempted

amendment is procedurally improper. See also Defs.’ TRO Opp. at 10-12

(rebutting Plaintiffs’ rationales for not following the proper procedures).

Further, allowing Plaintiffs to amend their complaint in this manner would

be prejudicial because Plaintiffs’ claims challenging BLM’s right-of-way decision

must be resolved based on BLM’s administrative record, which BLM has not yet

had time to prepare. See Camp v. Pitts, 411 U.S. 138, 142 (1973) (holding that a

court must review “the administrative record already in existence, not some new

record made initially in the reviewing court”). Courts in analogous cases have

rejected attempts to amend pleadings at a late stage in litigation where the

proposed new claims would require the development of facts. See Lockheed


14

Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999) (finding that

the need for additional fact-finding would delay the resolution of the case,

supporting a finding of prejudice). The same result should follow here. Plaintiffs’

reliance on Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014),

is misplaced because no new evidence was required in that case to resolve the

claim that plaintiffs added in their opening summary judgment brief. Id. at 1155.

In sum, Plaintiffs’ belated attempt to amend their complaint with a new

claim against BLM in no way undermines the United States’ motion for judgment

on the existing claims.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that summary

judgment be granted in their favor on all claims.

Respectfully submitted this 30th day of March, 2020,

MARK STEGER SMITH Assistant U.S. Attorney U.S. Attorney’s Office 2601 Second Avenue North, Suite 3200 Billings, MT 59101 Ph: (406) 247-4667; Fax: (406) 657-6058 [email protected]

PRERAK SHAH

Deputy Assistant Attorney General /s/ Luther L. Hajek________________

LUTHER L. HAJEK (CO Bar 44303) United States Department of Justice



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Environment and Natural Resources Division 999 18th Street, South Terrace, Suite 370 Denver, CO 80202 Ph: (303) 844-1376; Fax: (303) 844-1350 [email protected] Attorneys for Federal Defendants



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CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(d)(2)(E), the foregoing brief is proportionately

spaced, has a typeface of 14 points, and contains 3,228 words, excluding the tables,

caption, signature, certificate of compliance, and certificate of service.

/s/ Luther L. Hajek

LUTHER L. HAJEK U.S. Department of Justice


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CERTIFICATE OF SERVICE

I hereby certify that on March 30, 2020, a copy of the foregoing Defendants’

Reply in Support of Motion for Summary Judgment was served on all counsel of

record via the Court’s CM/ECF system.

/s/ Luther L. Hajek LUTHER L. HAJEK U.S. Department of Justice


mark steger smith assistant u.s. attorney u.s. attorney’s ......mar 30, 2020 · exhibit 9 –...

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