The Rosebud Sioux and Fort Belknap tribes filed suit in September, claiming there had been no analysis detailing how the project would affect their water systems and treaty rights, and asking the court to set aside the State Department's 2017 permit and to block any further construction or use of the pipeline.
In their complaint, the tribes said the pipeline permit was issued in violation of the National Environmental Policy Act and National Historic Preservation Act because the State Department neglected to complete the required analyses of the trust obligation the federal government owes to them.
In November, U.S. District Judge Brian Morris — the same judge as in the current suit —
vacated the 2017 permit, saying the administration's decision didn't pass legal muster on several counts, led by an insufficiently explained reversal of the Obama-era conclusions about the climate-related impacts of the project.
In March, Trump
issued a new cross-border permit in an apparent effort to circumvent that ruling.
That strategy bore fruit last month, when the Ninth Circuit
tossed a consolidated case brought by environmental groups and tribes looking to block construction of the pipeline, finding the action was rendered moot by Trump's issuance of the new permit.
On June 27, the administration said in its motion to dismiss the Rosebud Sioux and Fort Belknap tribes' suit that their claims over the 2017 permit were similarly moot, and that their claims over the 2019 permit failed for lack of standing because they "allege no injuries arising from the border crossing itself, which is the only thing that the permit authorized."
In their response Friday, the tribes said that the 2019 permit did authorize the entire pipeline and not just a short section at the border, and that Trump intruded on Congress' power when he issued the permit.
While the tribes acknowledged their claims regarding the 2017 permit are now moot, they argued they still have standing under their treaties "because the pipeline would cross their lands (surface and mineral estates), their sacred sites and ceremonial grounds, and would threaten their only water supply."
Trump "injured the tribes by effectively abrogating the treaties and approving the pipeline through their lands" and "issued the 2019 permit without seeking Rosebud's consent to cross Rosebud's lands as required by the treaties," according to the filing.
