On October 18, two Standing Rock Sioux Tribe members and a pastor for an Episcopal Church on the reservation filed a class action civil lawsuit against state, county, and private law enforcement in the latest chapter of the Dakota Access pipeline (DAPL) saga.
The plaintiffs allege that these groups were involved in a prolonged effort to blockade North Dakota State Highway 1806 to opponents of the controversial oil pipeline during the most heated protests from late October 2016 through early 2017.
The plaintiffs were Cissy Thunderhawk, Waste’Win Young, and Rev. John Floberg. They filed their lawsuit against Morton County, North Dakota, and its sheriff Kyle Kirchmeier, as well as the current and former North Dakota Governors, Doug Burgum and Jack Dalrymple, respectively, and the private security firm Tigerswan.
Filed in U.S. District Court in Bismarck, the 32-page legal complaint was submitted by Noah Smith-Drelich and Bernard Harcourt, both professors at the Columbia Law School. Harcourt, notably, is the author of the recently published book The Counterrevolution: How Our Government Went to War Against Its Own Citizens.
As the complaint outlines, Highway 1806 served as the exclusive thoroughfare for those coming to and from the Standing Rock Sioux Reservation to protest the pipeline owned by the company Energy Transfer (formerly known as Energy Transfer Partners).
But the plaintiffs also alleged that, beyond impeding access to sacred grounds for the self-proclaimed “Water Protectors” — the term also used by Smith-Drelich and Harcourt in their complaint — the blockade imposed by government and law enforcement did not impact those who lived in the area or employees of Energy Transfer.
“For thousands of local residents, Highway 1806 is their primary means of visiting family, shopping, seeking medical attention, etc.,” reads the complaint. “Highway 1806 is a key north-south public right-of-way for residents of south-central North Dakota, north-central South Dakota, the Standing Rock Reservation, and the Cheyenne River Reservation.”
“This road closure was directed only at Water Protectors: residents of Fort Rice were allowed to drive southbound on Highway 1806 as were employees of DAPL,” the complaint further alleges. “In fact, DAPL employees were permitted to use the closed portion of the road for the duration of the closure. The stretch of Highway 1806 from the Cannonball River to Fort Rice remained fully closed — at least to Water Protectors — until March 15, 2017.”
Video: National Guard & Highway Patrol checkpoint on Highway 1806 (~9 miles south of Mandan, ND) #NoDAPL pic.twitter.com/YM8hcAv2AH
— Unicorn Riot (@UR_Ninja) September 9, 2016
As a result, the complaint reads, both the Fifth and Fourteenth Amendment rights of the plaintiffs to “life, liberty, or property” were infringed upon by not having travel access to a site considered sacred to Native American peoples. So too were the First Amendment guarantees of freedom of assembly and freedom of speech, all of which they conclude were actions “motivated by evil motive or intent.”
The Highway 1806 blockade, the complaint reads, halted the “right to interstate and intrastate travel and, as a consequence, substantially burdened Plaintiffs in seeking needed medical care, in purchasing supplies (and in other ways engaging in commerce), in meeting, speaking and being interviewed by media, in gathering and reporting the news, and in visiting family members.”
Besides serving as a road, the territory on which Highway 1806 sits is also of historic, religious, and cultural importance to the Standing Rock Sioux Tribe, subject to a separate federal civil lawsuit previously covered by DeSmog, in which various federal agencies under the Obama administration were sued for alleged violations of cultural heritage protection laws. That lawsuit failed to halt the construction of Dakota Access and can be seen as the precursor, of sorts, to this current lawsuit.
3 Water Protectors prepare to pray on highway 1806 at Blockade 1. 2 blockades were set up on the highway to quickly shut down the roadway if law enforcement approached Treaty camp. Camp was raided days later on 10/27/16. pic.twitter.com/xnT0z469eg
— Ryan Vizzions (@ryanvizzions) August 8, 2018
“The importance of this specific site for speech, assembly, and prayer increased dramatically in early September  after Tim Menz, the Standing Rock Historic Preservation Officer, identified ancient burial and ceremonial sites, and other significant cultural artifacts, in the area; after Dakota Access LLC immediately subsequently attempted to destroy these sites; and after a resulting confrontation between DAPL-employed security officers and Water Protectors led to the officers unleashing dogs against Water Protectors,” the complaint details.
“These events drew local, national, and international attention to not only the no-DAPL movement but this specific stretch of highway; it is possible that no public right-of-way in North Dakota history has been the topic of international discourse to the extent that this several hundred-yard tract of Highway 1806 has.”
When asked why the lawsuit was filed now, Smith-Drelich explained that they felt the broader issues enveloped in the case were important to challenge for legal precedent-setting reasons.
“The road closure caused a substantial amount of harm to the local community and the no-DAPL movement, and we’re hoping that this suit represents a step towards making people whole,” said Smith-Drelich. “The rights in question — including the right to free speech, to free religious exercise, and to travel — represent the bedrock on which our society stands, and so it is crucial to ensure that policies that infringe these rights do not go unchallenged.”
Energy Transfer has yet to react to the lawsuit and did not respond to a request for comment. Morton County Sheriff’s Department told DeSmog that it is “unable to share any information at this time due to the case’s open status, but once the litigation is resolved, we can discuss it further.“ The defendants in this case will likely not file a response for a matter of weeks, par for the course in civil litigation.
But Energy Transfer did announce on October 22 that it is exploring the prospect of boosting throughput capacity for Dakota Access from 500,000 barrels to 570,000 barrels per day. Oil which flows into Dakota Access comes primarily via hydraulic fracturing (“fracking”) in North Dakota’s Bakken Shale basin.
One of the companies which has oil flowing through that pipeline, Continental Resources, was founded by its CEO Harold Hamm, a major donor to President Donald Trump‘s 2016 presidential campaign and to his 2020 campaign via the America First Action Super-PAC and a maximum allowable individual contribution. Hamm has also given tens of thousands of dollars to Republican Party congressional candidates for the 2018 midterm elections.
Kelcy Warren, the CEO and founder of Energy Transfer, also donated to Trump’s 2016 presidential campaign and has given tens of thousands of dollars to GOP congressional candidates for the 2018 midterm cycle. Energy Transfer, too, has donated tens of thousands to Republican Party candidates for the 2018 election cycle.
Main image: National Guard begin operations at Highway 1806 checkpoint south of Mandan, North Dakota, on September 8, 2016. Credit: Unicorn Riot, CC BY–NC–SA 3.0 US