Friday, December 14, 2018

Shale Law in the Spotlight – Overview of Recent Legal Actions Relating to the Dakota Access Pipeline (Part II): North Dakota Files Notice of Claim Under Federal Tort Claims Act

Written by Chloe Marie – Research Specialist

This is the second article in a planned three-part series to provide an update of recent legal developments related to construction of the Dakota Access Pipeline. This first article addressed litigation filed by several Morton County landowners against Dakota Access Pipeline, LLC.  This article will address a claim of damages submitted by the North Dakota Attorney General to the United States Army Corps of Engineers (USACE).

Construction of the Dakota Access Pipeline has generated significant opposition during the past two-plus years. Such opposition has consisted of peaceful protest demonstrations as well as protests that have led to violence against police forces and which resulted in several protestors being arrested. During the time of protest, several encampments were built on federal lands near the pipeline construction site. Approximately one year following the dismantling of these encampments, North Dakota Attorney General (AG) Wayne Stenehjem filed a notice of claim for damages on July 19, 2018, on behalf of the state of North Dakota against the United States under the Federal Tort Claims Act (FTCA). This FTCA claim alleged negligence, gross negligence, public nuisance and civil trespass resulting from the actions and inactions of USACE with regard to several protests that took place against the Dakota Access Pipeline construction on federal, state and private lands in North Dakota from August 10, 2016, to March 31, 2017.

In the notice of FTCA claim, AG Stenehjem referred to the protester encampments as “protest towns” that, in the aggregate, constituted the 10th largest city in the state of North Dakota. He described the living conditions of protesters as having been unsafe and unsanitary which resulted in land and water contamination. In addition to environmental damages, AG Stenehjem cited the illegal and violent behavior of some of the protesters that required direct action from the North Dakota government in order to contain the growing insurgency. 

AG Stenehjem complained about the tortious conduct of USACE during the protests, explaining that USACE’s “outright abdication of federal law enforcement responsibility” resulted in tortious activities on federal lands, which later spread to state and private lands, and created massive damages in the amount of $38,005,071.66 to the state of North Dakota. The claim states that “actions and inactions by USACE were the direct and immediate cause of the dangerous and illegal civil unrest that required North Dakota to mobilize hundreds of law enforcement personnel to contain the unlawful conduct.”

More precisely, AG Stenehjem alleged that USACE failed in its duty to protect and manage federal lands occupied during the protests, such as provided under 36 C.F.R. Part 327, Guidance ER 1130-2-550, Guidance EP 1130-2-550 and Guidance EC 1130-2-550. According to 36 C.F.R. § 327.19 and § 327.21, anyone engaged in activities on USACE-managed land must obtain a permit from USACE. Although USACE became aware of these illegal activities, the claim alleges that USACE misleadingly suggested several times that it would issue appropriate permits, but never followed through on this statement. The claim states that “USACE chose, instead, to let the situation ‘play out’ as a dangerous experiment threatening North Dakota’s environment, economy, and the health and welfare of its citizens.”

In addition, AG Stenehjem lists the following harm to state and private lands for which the state of North Dakota had to take responsibility in the absence of a federal response: “unpermitted protests on private property requiring removal; destruction of State roadblocks, including fires on two separate bridges; destruction of DAPL construction equipment; creation of illegal roadblocks on public roads and train tracks; protests in local communities including the State Capitol building in Bismarck, multiple courthouses, the Bismarck Kirkwood Mall, and area banks; illegal butchering of livestock on nearby private lands; and illegal possession and killing of deer near the protest grounds.”

On July 20, 2018, the North Dakota Attorney General’s Office issued a News Release stating that the federal government has six months to answer the claims. Following a response by USACE, or if no response is provided, the state of North Dakota may file suit in the federal court system. The federal government is expected to provide an answer this month.

Stay tuned for further legal developments!

This material is based upon work supported by the National Agricultural Research Service, U.S. Department of Agriculture.

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