Thunderhawk v. Cnty. of Morton, Civil No.: 1:18-cv-00212

CourtUnited States District Courts. 8th Circuit. United States District Court of North Dakota
Writing for the CourtDaniel M. Traynor, District Judge
Citation483 F.Supp.3d 684
Parties Cissy THUNDERHAWK; Wašté Win Young; Reverend John Floberg; and José Zhagñay on behalf of themselves and all similarly-situated persons, Plaintiffs, v. COUNTY OF MORTON, North Dakota; Sheriff Kyle Kirchmeier; Governor Doug Burgum; Former Governor Jack Dalrymple ; Director Grant Levi; Superintendent Michael Gerhart Jr.; TigerSwan LLC ; and Does 1 To 100, Defendants.
Decision Date01 September 2020
Docket NumberCivil No.: 1:18-cv-00212

483 F.Supp.3d 684

Cissy THUNDERHAWK; Wašté Win Young; Reverend John Floberg; and José Zhagñay on behalf of themselves and all similarly-situated persons, Plaintiffs,
v.
COUNTY OF MORTON, North Dakota; Sheriff Kyle Kirchmeier; Governor Doug Burgum; Former Governor Jack Dalrymple ; Director Grant Levi; Superintendent Michael Gerhart Jr.; TigerSwan LLC ; and Does 1 To 100, Defendants.

Civil No.: 1:18-cv-00212

United States District Court, D. North Dakota.

Signed September 1, 2020


483 F.Supp.3d 699

Noah Smith-Drelich, Bernard E. Harcourt, Columbia Law School, New York, NY, for Plaintiffs Cissy Thunderhawk, Waste’ Win Young, Reverend John Floberg.

Noah Smith-Drelich, New York, NY, for Plaintiff José Zhagñay.

Randall J. Bakke, Shawn A. Grinolds, Bakke Grinolds Wiederholt, Bismarck, ND, for Defendants North Dakota Morton County of, Sheriff Kyle Kirchmeier.

James E. Nicolai, Matthew A. Sagsveen, Office of the Attorney General, Bismarck, ND, for Defendants Governor Doug Burgum, Former Governor Jack Dalrymple, Director Grant Levi, Superintendent Michael Gerhardt, Jr.

Lynn M. Boughey, Boughey Law Firm, Mandan, ND, for Defendant TigerSwan LLC.

ORDER DENYING, IN PART, AND GRANTING, IN PART, STATE AND COUNTY DEFENDANTS’ MOTIONS TO DISMISS AND DENYING TIGERSWAN'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION TO DISMISS

Daniel M. Traynor, District Judge

¶1] THIS MATTER comes before the Court on separate Motions to Dismiss the

[483 F.Supp.3d 700

Plaintiffs’ Amended Complaint1 filed by the State Defendants (Governor Doug Burgum, Former Governor Jack Dalrymple, Director of North Dakota Department of Transportation Grant Levi, and Superintendent of the North Dakota Highway Patrol Michael Gerhart, Jr.) ("State Defendants") and County Defendants (Morton County, North Dakota and Sheriff Kyle Kirchmeier) ("County Defendants"). The Court also addresses Defendant TigerSwan, LLC's ("TigerSwan") Motion for Summary Judgment, or in the alternative, Motion to Dismiss filed on July 10, 2019. Doc. No. 81.

¶2] On February 15, 2019, the State and County Defendants2 moved to Dismiss the Plaintiffs’ Amended Complaint. Doc. Nos. 48, 51. The Plaintiffs, Cissy Thunderhawk, Wašté Win Young, Reverend John Floberg, and José Zhagñay ("Plaintiffs") filed Response Memorandums in Opposition to the State and County Defendants’ Motions on March 8, 2019. See Doc. Nos. 61, 62. The State Defendants filed a Reply in Support of the Motion to Dismiss on March 22, 2019, and the County Defendants filed a Reply in Support on April 5, 2019. See Doc. Nos. 71, 76.

[¶3] Plaintiffs filed a Response Memorandum in Opposition to TigerSwan's Motion for Summary Judgment, or in the alternative, Motion to Dismiss on July 31, 2019. Doc. No. 84. TigerSwan filed its Reply in Support on August 13, 2019. Doc. No. 85.

[¶4] For the reasons explained below, the State and County Defendants’ Motions to Dismiss are DENIED, IN PART, AND, GRANTED, IN PART, and TigerSwan's Motion for Summary Judgment, or in the alternative, Motion to Dismiss, which the Court will construe as a Rule 12(c) Motion for Judgment on the Pleadings, is DENIED .

A. FACTUAL BACKGROUND

[¶5] The Court accepts as true the allegations contained in the Amended Complaint for purposes of ruling on the present Motions. See Strand v. Diversified Collection Service, Inc., 380 F.3d 316, 317 (8th Cir. 2004) ; Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003). The following facts are provided by the Plaintiffs in the Amended Complaint.

[¶6] From April 2016 to February 2017, the Standing Rock Sioux Tribe was joined by tens of thousands of individuals who identified themselves as "Water Protectors," to protest the construction of the Dakota Access Pipeline ("DAPL"). Doc. No. 44, ¶1. These individuals gathered at camps set up in South-Central, North Dakota, specifically near the intersection of Highway 1806 and the Cannonball River. Id.

[¶7] The Dakota Access Pipeline is a 30-inch diameter pipeline designated to transport up to 570,000 barrels a day of crude oil from the Bakken shale field in North Dakota to refineries in Pakota, Illinois.

[483 F.Supp.3d 701

Doc. No. 44, ¶36. While the pipeline was originally going to cross the Missouri River north of Bismarck,3 it was later rerouted to cross the Missouri River less than one mile north of the Standing Rock Reservation boundary. Id. The Missouri River is the sole water source for the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and many other communities throughout the region. Id. at ¶37. The Plaintiffs assert the area where the pipeline now exists runs through a number of sites that have significant cultural, historical, and spiritual value to the Lakota people. Doc. No. 44, ¶37. In addition, the Plaintiffs assert "DAPL's route, including the entirety of the Lake Oahe crossing traverse land over which the tribes still claim ownership." Doc. No. 44, ¶39.

¶8] The Tribes and their supporters, which included representatives of more than 300 indigenous nations, among many other supporters, gathered near the construction site starting in April of 2016 demanding the halt of construction of the pipeline. Doc. No. 44, ¶40. While a majority of these individuals were out-of-state visitors, the Plaintiffs claim "there remained at all times a strong contingent of North Dakota locals." Doc. No. 44, ¶42. Hundreds of protestors residing on federally and tribally-owned lands became legal residents of the camps. Id. To the Plaintiffs, "[o]ne of the primary functions served by the camps was symbolic, with the very act of staying at or visiting the camps representing the primary means by which numerous individuals expressed their support for the movement." Doc. No. 44, ¶41. By September of 2016, approximately 7,000 – 10,000 individuals made up the population of these camps. Doc. No. 44, ¶43.

[¶9] Plaintiffs assert the "only accessible" route to the camps was by Highway 1806, which is a main route used between Bismarck/Mandan and the Standing Rock Sioux Reservation. Doc. No. 44, ¶41. In addition, according to the North Dakota State and Local Intelligence Center, the Backwater Bridge, which crosses Highway 1806 is "imperative to the flow of commerce and emergency responders to and from the Standing Rock Reservation." Doc. No. 44, ¶81.

[¶10] Protestors utilized Highway 1806 to travel to Bismarck/Mandan to gather supplies and seek medical treatment. Doc. No. 44, ¶3. For example, Plaintiff Wašté Win Young, who has a documented medical condition, utilized Highway 1806 to make routine trips to Bismarck for appointments. Doc. No. 44, ¶88. Plaintiff José Zhagñay, a New Yorker who was a resident of North Dakota with a domicile at the camps for a brief time, also used Highway 1806 to gather supplies for the camps’ homeschool resource center. Doc. No. 44, ¶91. Plaintiff Cissy Thunderhawk utilized Highway 1806 to travel back and forth between Bismarck and Fort Yates, where she owned the restaurant "My Auntie's Place," which was ultimately closed after the events in question. Doc. No. 44, ¶86. Additionally, Father John Floberg, the Episcopal Priest for the St. James’ Episcopal Church in Cannonball, North Dakota, travelled to Cannonball multiple times a week for his congregation. Doc. No. 44, ¶89. In addition to protestors, thousands of other local individuals utilize Highway 1806 to visit family, seek medical attention, and conduct other routine and necessary life activities.4 Doc. No. 44, ¶3.

[483 F.Supp.3d 702

[¶11] Because DAPL crossed Highway 1806, at a location that the Plaintiffs’ claim is rich in ceremonial and scared sites north of where the camps were located, the protestors also used Highway 1806 to assemble, pray, and speak in opposition to the construction of DAPL. Doc. No. 44, ¶2. The protestors also utilized Highway 1806's wide curtilage5 near where DAPL was to cross the highway as a main location for speech, prayer, and assembly. Doc. No. 44, ¶44. This area "has long been open to the public for, among other things, use as a thoroughfare, and that could be (and routinely was) visited safely without impeding or disrupting traffic." Doc. No. 44, ¶44. Plaintiffs utilized this area to hang prayer ties and signs for passing drivers to see. Id. They also used this area to gather in small, medium, and large groups to speak and pray. Id. A "vast majority of the speech, assembly, prayer, and travel in this area was completed in a peaceful and lawful manner." Doc. No. 44, ¶49. According to the Amended Complaint, "[t]housands of Water Protectors prayed, marched, sang, waved placards, and chanted on thousands of occasions over the course of a nearly year-long period without any incident." Doc. No. 44, ¶50.

¶12] The Plaintiffs assert "the longstanding use of this road and other similar roads in the region" including "the road and curtilage in question have historically been used not only for travel by cars, trucks, horseback, ATVs, and pedestrians but also, as the only public space throughout much of this area, for a range of expressive activity." Doc. No. 44, ¶45. Traditional indigenous practices utilizing this area included hanging prayer ties, "undertaking horseback "rides" (like the Bigfoot Ride and the Dakota 30+8 Ride, which each occur in the broader region)," and prior to the road...

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