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North Dakota to Proceed With Lawsuit Over Dakota Access Protests

Aug. 19, 2020, 7:52 PM

North Dakota’s lawsuit can proceed against the federal government to force it to pay $38 million in costs the state incurred to respond to protests over the Dakota Access pipeline in 2016 and 2017, a federal judge ruled Wednesday.

Judge Daniel Traynor of the U.S. District Court for the District of North Dakota partly denied the federal government’s motions to dismiss the claims in the case. Traynor agreed to dismiss one of the state’s claims addressing third-party Good Samaritans.

The state sued the federal government in July 2019 to recoup the costs arising from seven months of protests related to the construction of the Energy Transfer LP oil pipeline across North Dakota. The state said the U.S. Army Corps of Engineers enabled the protests and failed to maintain order, leaving public safety to state officials.

North Dakota alleged claims for public nuisance, negligence, Good Samaritan negligence, gross negligence and civil trespass. The federal government countered with assertions that the state’s claims are barred under the Federal Tort Claims Act, asking the court to dismiss all the state’s claims.

Unclear ‘Good Samaritan’ Claim

Traynor mostly disagreed, but said the state’s Good Samaritan claim was unclear. Good Samaritan laws offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be, injured, ill, in peril, or otherwise incapacitated.

The Army Corps assumed a duty to protect the protesters but failed to do so, leaving North Dakota as a third-party Good Samaritan, the state said in its lawsuit.

In tossing out the claim, Traynor said it’s unclear how the Army Corps assumed a duty to the protesters that increased the risk of harm to North Dakota.

“We plan to vigorously proceed with our litigation through to the end,” North Dakota Attorney General Wayne Stenehjem said in a statement Wednesday. He said the judge agreed that the Corps’ “circumvented” permit processes which invited and enabled the protests.

“Having negligently created the problem, the Corps then left it to North Dakota to spend tens of millions of dollars protecting public safety and cleaning up the dangerous mess left behind,” the statement said.

The Army Corps didn’t immediately responded to requests for comment Wednesday.

A Large Response

The state and local response involved around 1,400 law enforcement officers, who spent over 300,000 hours on the job in dealing with the protests, the lawsuit said.

Protesters left behind 21.4 million pounds of trash and debris, and the state had to pay for removal, according to the lawsuit.

The protests focused on Energy Transfer LP’s then-proposed Dakota Access pipeline, which runs from the Bakken oil fields in North Dakota to Southern Illinois.

Opponents of the project raised concerns about damage to sacred lands of Native American tribes and possible environmental damage from oil spills.

The protests continued until the Trump administration provided support for the pipeline shortly after President Donald Trump took office. Construction was completed in April 2017, though the pipeline continues to face litigation over the adequacy of the Army Corps’ environmental review.

North Dakota’s lawsuit came nearly a year after it filed an administrative claim against the Corps under the Federal Tort Claims Act, the lawsuit said.

The case is N.D. v. U.S., D.N.D., No. 1:19-cv-00150, 8/19/20.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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