TigerSwan, County Sheriff Sued Over Road Blockade During Dakota Access Pipeline Protests

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On October 18,ย twoย Standing Rock Sioux Tribe members and a pastor for an Episcopal Church on the reservationย filed a class action civil lawsuit against state,ย county, and private law enforcement in the latest chapter of theย Dakota Access pipelineย (DAPL)ย saga.ย 

The plaintiffs allege that these groups were involved in a prolonged effort to blockade North Dakota State Highway 1806 to opponents ofย the controversial oil pipeline during the most heated protests from late October 2016 through early 2017.

The plaintiffs wereย Cissy Thunderhawk, Waste’Win Young, and Rev.ย John Floberg. Theyย filed their lawsuit against Morton County, North Dakota, and its sheriff Kyle Kirchmeier, as well as the currentย and former North Dakota Governors, Doug Burgum andย Jack Dalrymple, respectively, and the private security firmย Tigerswan.

Filed in U.S. District Court in Bismarck, the 32-page legal complaint was submittedย 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 protestย the pipeline owned by the company Energy Transferย (formerly known as Energy Transfer Partners).

But the plaintiffs also allegedย that, beyond impeding access to sacred grounds for the self-proclaimed โ€œWater Protectorsโ€ย โ€” the term also used by Smith-Drelich and Harcourt in their complaintย โ€” the blockade imposed by government and law enforcement did not impact those who lived in the area or employees of Energyย Transfer.ย 

โ€œFor thousands of local residents, Highway 1806 is their primary means of visiting family, shopping, seeking medical attention, etc.,โ€ reads the complaint. โ€œHighway 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 Riverย Reservation.โ€

โ€œThis 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,โ€ the complaint further alleges. โ€œIn 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 โ€” at least to Water Protectors โ€” until March 15,ย 2017.โ€

As a result, the complaint reads, both the Fifth and Fourteenth Amendment rights of the plaintiffs to โ€œlife, liberty, or propertyโ€ were infringed upon by not having travel access to a site considered sacred toย 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 โ€œmotivated by evil motive orย intent.โ€ย 

The Highway 1806 blockade, the complaint reads, halted the โ€œright 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 familyย members.โ€

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 administrationย 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 currentย lawsuit.ย 

โ€œThe importance of this specific site for speech, assembly, and prayer increased dramatically in early September [2016] 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,โ€ the complaintย details.

โ€œThese 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 1806ย has.โ€

When asked why the lawsuit was filed now, Smith-Drelichย explained that they felt the broader issues enveloped in the case were important to challengeย for legal precedent-settingย reasons.

โ€œThe 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,โ€ saidย Smith-Drelich.ย โ€œThe rights in question โ€” including the right to free speech, to free religious exercise, and to travel โ€” represent the bedrock on which our society stands, and so it is crucial to ensure that policies that infringe these rights do not goย unchallenged.โ€ย 

Energy Transfer has yet to react to the lawsuit and did not respond to a request for comment. Morton County Sheriff’sย Department told DeSmog that it isย โ€œunable to share any information at this time due to the caseโ€™s open status, but once the litigation is resolved, we can discuss it further.โ€œ The defendants in this case will likely not file a response for a matter of weeks, par for the course in civilย 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 (โ€œfrackingโ€) in North Dakota’s Bakken Shale basin.

One of the companies which has oil flowingย 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 viaย 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 midtermย elections.ย ย 

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 thousandsย to Republican Party candidates for the 2018 electionย cycle.ย 

Main image:ย National Guard begin operations at Highway 1806 checkpoint south of Mandan, North Dakota, on September 8, 2016. Credit: Unicorn Riot,ย CC BYNCSA 3.0 US

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Steve Horn is the owner of the consultancy Horn Communications & Research Services, which provides public relations, content writing, and investigative research work products to a wide range of nonprofit and for-profit clients across the world. He is an investigative reporter on the climate beat for over a decade and former Research Fellow for DeSmog.

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