North Dakota v. United States, Case No. 1:19-cv-00150

• Decision Date: 19 August 2020
• Docket Number: Case No. 1:19-cv-00150
• Citation: 480 F.Supp.3d 917
• Parties: State of NORTH DAKOTA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of North Dakota

480 F.Supp.3d 917

State of NORTH DAKOTA, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 1:19-cv-00150

United States District Court, D. North Dakota.

Signed August 19, 2020

Matthew A. Sagsveen, Attorney General's Office, Bismarck, ND, Paul M. Seby, Greenberg Traurig, P.A., Denver, CO, for Plaintiff.

Grant Treaster, DOJ-Civ, Washington D.C., DC, for Defendant.

ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Daniel M. Traynor, District Judge

[¶1] THIS MATTER comes before the Court on a Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by the Defendant, the United States of America, on September 17, 2019. Doc. No. 5. Plaintiff, State of North Dakota filed an Opposition to Defendant's Motion to Dismiss on November 7, 2019. Doc. No. 14. The United States filed a Reply in Support of Motion to Dismiss on November 21, 2019. Doc. No. 16. North Dakota was allowed to file a Sur-Reply, a corrected version of which was submitted on December 13, 2019. Doc. No. 18-1; Doc. No. 29. The United States’ Response to the Sur-Reply was filed on December 30, 2019. Doc. No. 21-1; Doc. No. 30. The Court held hearing for oral argument on July 22, 2020, in Bismarck, North Dakota. For the reasons set forth below, the United States’ Motion to Dismiss is DENIED, in part, and GRANTED, in part .

INTRODUCTION

[¶2] North Dakota brought a five-count Complaint against the United States, acting through the U.S. Army Corps of Engineers ("Corps"), to recover more than $38 million dollars in damages to the State resulting from and arising out of more than seven months of protests to the construction of the Dakota Access Pipeline ("DAPL"). The Complaint alleges claims for public nuisance, negligence, Good Samaritan negligence, gross negligence, and civil trespass. The United States’ Motion to Dismiss challenges this Court's subject matter jurisdiction. The United States asserts North Dakota's claims are barred by the discretionary function exception to the Federal Tort Claims Act ("FTCA"). Additionally, the United States argues the State's claims do not come within the waiver of sovereign immunity provided in the FTCA.

FACTUAL BACKGROUND

[¶3] For purposes of this motion, the United States has accepted as true the allegations set forth in North Dakota's Complaint. Several exhibits were received into evidence at the July 22, 2020 hearing, and those exhibits are also considered by the Court. See Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019) (providing that courts may receive and consider evidence by any rational mode of inquiry in determining whether subject matter jurisdiction exists).

[¶4] From about August 10, 2016, to approximately March 31, 2017, DAPL protesters occupied Corps-managed land near Lake Oahe and the Oahe Dam in Morton County, North Dakota. Doc. No. 1, ¶¶ 2, 8. The protesters established three main encampments adjacent to the Cannonball River and Lake Oahe: the Seven Council (Oceti Sakowin), Rosebud, and Sacred Stone encampments. Id. at ¶ 8. North Dakota alleges the encampment populations at their peak grew to approximately 5,500 people with some estimates as high as 8,000 people. Id.

[¶5] While there, some of the protesters engaged in unlawful and dangerous activities both on and off Corps-managed land, including blocking public highways and bridges, threatening individuals working on the DAPL pipeline and local residents, initiating violence against law enforcement personnel and first responders, damaging State and private property, destroying personal property and equipment, and killing cattle and local wildlife. Id. at ¶¶ 9, 34. These actions required sustained law enforcement efforts to enforce state law, curb illegal conduct, protect persons from harm, and protect State and private property. During this time, law enforcement made 761 arrests, less than 7% of those arrested were North Dakota residents. Id. at ¶11. The vast majority of arrests were of people who had traveled to North Dakota to engage in the protests. Id.

[¶6] North Dakota alleges the Corps, through its actions, assumed a legal duty to protect the protesters and to prevent unlawful dangerous activities, including trespass on federal lands, and that failing in that duty, the Corps aggravated the harm caused by some of the protesters to persons and state and private property in the area. Id. at ¶3. The Complaint alleges the Corps’ tortious conduct included failing to enforce mandatory legal requirements governing access to and conduct on Corps-managed land, violating the legal duty it assumed to protect protesters and the public generally from unlawful and dangerous protest activity, failing to fulfill its mandatory regulatory obligations that require the Corps to issue and enforce use permits that are required to hold activities on Corps-managed land, and failing to address or prevent the protesters’ violations of the regulations and restrictions on use of Corps-managed land. Id. at ¶¶ 4-5.

[¶7] North Dakota further claims the Corps invited, enabled, and encouraged the protestors to pour into Corps-managed land by making a public announcement that a special use permit had been issued authorizing the Tribe to engage in lawful free speech demonstration in the areas identified in the permit. See id. at ¶ 49. The announcement, published on September 16, 2016, stated:

Today the U.S. Army Corps of Engineers (Corps) issued a Special Use Permit to the Standing Rock Sioux Tribe to use Federal lands managed by the Corps near Lake Oahe. Omaha District Commander, Col. John W. Henderson, informed Standing Rock Sioux Tribal Chairman Dave Archambault II, that the Tribe's Spiritual gathering, located south of the Cannonball River, has been granted a Special Use Permit, which allows the Tribe to gather to engage in lawful free speech demonstration on Federal lands designated in the permit.

Doc. No. 35-2.

[¶8] The United States now contends this announcement was incorrect.¹ Despite issuing a press release to the contrary, the Corps now asserts it had not granted any special use permits for the encampments south of the Cannonball River. See Doc. No. 1, ¶¶ 46, 49-51. The Corps also argues it had not granted permits or permission for anyone to access the area north of the river, although groups of people had set up camp in that area too, including the Seven Councils Camp. See, e.g., Doc. No. 35-3. At hearing, the United States claimed the Corps viewed the people in the encampments as trespassers and contends this was the legal status also recognized by North Dakota in the Complaint. Despite claiming to view the protesters as trespassers, the United States admitted at the hearing the Corps did not request any immediate assistance from state or local authorities to remove the protesters from Corps-managed land.

[¶9] A few weeks later, on November 1, 2016, Colonel John W. Henderson, District Commander of the Omaha Department of the Army Corps of Engineers ("District Commander Henderson"), by letter requested state law enforcement assistance from the Morton County Sheriff's Department. Doc. No. 1, ¶ 53; Doc. No. 35-3. The letter was at least partially in response to protesters moving up a branch of the Cantapeta Creek, a tributary of the Cannonball River, to camp in an area closer to where the DAPL project had proposed to place the pipeline. Doc. No. 35-3. The letter asserted the Corps had not provided any permits or permission for anyone to access that area, which was not opened or designated for use by the public. Id. District Commander Henderson requested law enforcement assistance from the Morton County Sheriff's Department to address the issues occurring in that area. Id. Around November 21, 2016, District Commander Henderson had a change of heart and rescinded the request for law enforcement assistance in a follow-up letter to the Morton County Sheriff. Doc. No. 1, ¶ 54.

[¶10] A few days later, on November 25, 2016, District Commander Henderson wrote to the Chairman of the Standing Rock Sioux Tribe, Dave Archambault II, informing him that all Corps-managed land north of the Cannonball River would be closed for all use effective December 5, 2016. Id. at ¶ 56; Doc. No. 35-5. District Commander Henderson explained closure was "necessary to protect the general public from the violent confrontations between protesters and law enforcement officials that have occurred in this area, and to prevent death, illness, or serious injury to the inhabitants of the encampments." Doc. No. 35-5. The letter advised Chairman Archambault the Corps had "established a free speech zone on land south of the Cannonball River for anyone wishing to peaceably protest the Dakota Access pipeline project, subject to the rules of 36 C.F.R. Part 327." Id. District Commander Henderson further advised that anyone found on land north of the Cannonball River would be subject to prosecution and assumed all risk and liabilities for their unlawful presence on such lands. Id. Chairman Archambault was urged to encourage protesters to move to the designated free speech zone on Corps lands south of the Cannonball River. Id.

[¶11] As a result, some of the protesters moved to the established free speech zone, but others continued to unlawfully occupy areas north of the Cannonball River. Doc. No. 1, ¶ 62. North Dakota alleges thereafter the Corps "continued to turn a ‘blind eye’ " to the unlawful use, occupation, and activities of the protesters. Id. North Dakota claims the Corps’ nonexistent enforcement of the laws and regulations "attracted a host of illegal activities not only to the ‘free speech zone’ but to surrounding areas as well." Id. The Complaint alleges that rather than address the problems, the Corps chose to let the situation "play out," despite requests from State and local law enforcement for federal assistance to curb the use of illegal encampments which were being used as staging areas for violent and unlawful activities by some of...