DOJ invites Native landowners to discuss pipeline trespass, expired right-of-way in federal suit

Now approaching the ninth year of an expired pipeline right-of-way and resulting trespass, Justice and Interior department lawyers are meeting this week with allotted landowners on the Fort Berthold Reservation in response to a federal lawsuit. Allottees have two choices. Decide to accept new proposed settlement terms or continue litigation through a USA counterclaim to the Tesoro suit.

The Tesoro High Plains Pipeline vs USA- Interior Department- and Bureau of Indian Affairs lawsuit, filed in April 2021, affects 412 allottees with land located at Fort Berthold in North Dakota. The 500-mile carrier pipeline includes a 15-mile stretch along 44 tracts – 10 tracts are owned by Three Affiliated Tribes — located in the southwest section of the reservation. The USA has a federal trust responsibility for all tribal and individual trust lands on the reservation.

Today, 34 tracts of allotted land are now considered to be “unlawfully” occupied by Tesoro. The company acquired the original right-of-way in 2001. The ROW expired June 18, 2013 but Tesoro kept operating the pipeline until at least Dec. 22, 2020. “Tesoro never submitted an application to renew the ROW prior to its expiration, the allottees never consented to the renewal of the ROW, and the BIA never granted a renewal,” according to the USA counterclaim to the Tesoro suit.

After years of litigation and failed “good faith” negotiations, all parties are now involved in yet another round of settlement talks. Lawyers representing individual landowners have scheduled two meetings on Thursday, April 28 to discuss a proposed settlement with Tesoro. The meetings are scheduled at the Mandan, Hidatsa and Arikara Nation’s tribal energy building in New Town, N.D. For those who can’t appear in person, landowners can participate in a Zoom conference call. Here’s the April 22 BIA letter to landowners regarding the matter. Click here to register for the 2 p.m. Zoom meeting. Or register for the 6 p.m. discussion.

A major stalling point in previous talks rests with Tesoro’s negotiation tactics with two sets of landowners – the Three Affiliated Tribes and individual allottees. Tesoro has offered a stark valuation difference on land depending on who owns it. In fact, Tesoro reached a settlement agreement in February 2017 with the Mandan, Hidatsa and Arikara Nation of the Three Affiliated Tribes.

“Tesoro did not contact the allottees to begin negotiations for a new grant of easement for right-of-way until 2017, nearly four years after the ROW expired,” according to a USA counterclaim suit against the pipeline company. That same claim further considers Tesoro’s occupation of the land “to be knowing, intentional, willful and contrary to federal law.”

Meanwhile, two groups of individual landowners have sought legal representation from two separate law firms. A third group of landowners have dealt directly with Tesoro lawyers. But, Justice Department lawyer Samuel Gollis last week told a group of landowners those agreements are now null and void, meaningless, because all landowners are now represented by the USA.

The landowner group represented by the Pringle Herigstad law firm came close to an out-of-court settlement in July 2020 after a regional office of the Bureau of Indian Affairs awarded allottees $187 million. Tesoro immediately appealed the decision. Then, in a reversal of fortune, the BIA in December 2020 reduced the $187 million award to $3.9 million.

That decision was then affirmed on Jan. 14, 2021 by then-Interior Assistant Secretary of Indian Affairs Tara Sweeney during the final days of the Trump administration. In yet another reversal, that decision was then vacated in March 2021 under the new Biden administration.

Then in April 2021, Tesoro filed a lawsuit against the USA, Interior Department and BIA to secure the reduced award to allottees of $3.9 million. The USA filed a counterclaim on Feb. 8 this year. In an attempt to end the ongoing lawsuit, government lawyers hope the Thursday, April 28 meetings with landowners will draw the stalemate to an end. Lawyers will present proposed new settlement terms. It’s up to landowners to agree, or not.

The USA counterclaim asserts Tesoro has engaged in “intentional and unauthorized use and occupancy of multiple tracts of land that the United States owns in trust for the benefit of the allottees.”

The counterclaim also states: “If a negotiated resolution is not possible, the United States seeks all just and appropriate remedies, including, but not limited to a declaration that Tesoro is in trespass; an accounting of Tesoro’s profits from the pipeline during the period of trespass and compensatory damages in compensation for the past unlawful use and occupancy.”

The USA also calls for an “ejectment” of the Tesoro pipeline as necessary if the company refuses to comply with the right-of-way act.

Meanwhile, on April 21, Gollis, the Department of Justice attorney, led an early discussion with individual landowners to discuss the Tesoro litigation and proposed settlement. I attended the meeting which unfolded in a Staybridge Suites conference room in Minot, N.D. I have an undivided interest in two tracts of land included in the pipeline trespass. The gathering with landowners lasted about six hours.

Those of us present expressed an agreement to turn down the proposed settlement with Tesoro. The trespass issue shines light on archaic laws used to govern trust lands. In 2022, we are ready to set a needed precedent against oil companies who are violating our civil rights because it was made clear to us, the laws, as written, do not consider a near nine-year trespass against Native allotted landowners a criminal act.

In fact, the Bureau of Indian Affairs –another federal trustee expected to act on allotted landowners behalf — isn’t even allowed to issue a fine against Tesoro. This explains why Tesoro leaders chose, instead, to engage in “unjust enrichment” to make a profit by using our land all without fear of any sort of mandatory fine or criminal charge being issued.

Tesoro, reaped vast economic profits on the backs of Indian landowners. The pipeline company is a subsidiary of Marathon Oil, the largest oil refining business in the United States, and one of the top five global refining corporations. The Tesoro pipeline has “without authorization and legal right” transported oil across allotted lands from the Bakken-Three Forks shale formations, one of the most prolific oil producing regions in North America.

DOJ lawyers said in the April 21 meeting that they hope to settle the matter by July 1. But what do the landowners want to do?

Jodi Rave Spotted Bear is the founder and director of the Indigenous Media Freedom Alliance and the publisher of Buffalo’s Fire. Jodi is a 2021-22 John S. Knight Community Impact Fellow at Stanford University. She’s also a Harvard Nieman Fellow and a Paul D. Savanuck Military Print Journalist of the Year.