Fort Berthold Reservation allotted landowners seek intervention in Tesoro Pipeline lawsuit

A group of 26 individual Indian owners of allotted trust land on the Fort Berthold Indian Reservation has filed a Motion to Intervene in Tesoro High Plains Pipeline Company LLC v. United States, No. 1:21-CV-00090-DMT-CRH, an outstanding lawsuit between Marathon subsidiary Tesoro High Plains Pipeline, LLC (“Tesoro”), and the United States in the U.S. District Court in North Dakota. The landowners are seeking to intervene on one central basis: their federal trustee has abjectly failed to protect their interests every step of the way.

The lawsuit revolves around Tesoro’s longstanding trespass on private individually-owned allotted lands within the Fort Berthold Indian Reservation. Tesoro has operated a crude oil pipeline across 34 tracts of allotted land on the Reservation with no valid rights-of-way for at least two decades.

Currently, none of the individual Indian landowners are party to the litigation. Instead, the Fort Berthold Indian allottee landowners have been forced to rely solely upon the United States Bureau of Indian Affairs and the Department of Justice, which to date inadequately and half-heartedly represents their interests, if at all. As the facts of this case illustrate, however, the United States Department of the Interior has a substantial conflict of interest that renders it incapable of representing the beneficial or title ownership interests of the landowners.

While Tesoro’s trespass is at the heart of the litigation, the landowners have taken the position that the United States Bureau of Indian Affairs’ persistent failures and bad-faithed efforts to properly address this situation must not be ignored either. The intervening American Indian landowners claim that Tesoro’s trespass began as early as 1993, when the United States, Bureau of Indian Affairs failed to obtain consent from individual landowners to renew Tesoro’s rights-of-way, as required under federal regulations.

The landowners further allege that the Bureau of Indian Affairs has also failed to follow applicable regulations, policies, and procedures to ensure that any consideration given for a renewal was fair and reasonable. The Bureau of Indian Affairs has failed unequivocally to utilize any well- established methodology or processes mandated by federal law such as those based on market rates or throughput. In either case, as the landowners assert, it is undisputed that the rights-of-way expired in 2013, and Tesoro has been in trespass ever since, illegally operating on the privately- owned Indian lands and unjustly profiting from the pipeline.

The Bureau of Indian Affairs took no meaningful action to address Tesoro’s longstanding trespass until 2020, when an association of Fort Berthold landowners commissioned its own oil and gas pipeline appraisal to determine the scope of trespass damages. The landowners’ pursuit of meaningful recourse was thwarted by the BIA.

The BIA denied the American Indian allottee landowners’ due process. The BIA suddenly, and without any justifiable reasoning, vacated its decision and obtained a separate, contested as incompetent valuation through the Department of the Interior. The new, inadequate appraisal came out to a 98% reduction in trespass damages.

The current lawsuit is the culmination of a prolonged series of events defined by the complacency of the Department of Interior on one hand and the dysfunction of the Bureau of Indian Affairs on the other, all at the expense of the landowners whose property rights have been violated and lands damaged by years of uncompensated use and unjust enrichment by Tesoro.

Change in the U.S. executive administration has not yielded any better results for the landowners when dealing with the deep-pocketed, politically connected Texas-based corporation. The Fort Berthold Indian allottee landowners continue to be plagued by Tesoro’s trespass and the gross mismanagement of the Bureau of Indian Affairs, by which it fails or refuses to enforce the laws meant to protect private individual reservation landowner rights enacted by Congress. The individual Indian landowners own over 73% of the affected lands, while the Tribe itself collectively owns only 27%.

A proposed settlement agreement was presented to the allottees in July 2022. According to the proposal, the United States federal agency would have been able to argue that by accepting the settlement, the Indian landowners would waive any claim they had against the United States Bureau of Indian Affairs for breach of trust. The proposed settlement agreement would not only have benefited Tesoro, but also the BIA by allowing it to sweep its own misdeeds under the rug. This further exemplifies the United States’ bureaucratic conflict of interest and its inability or unwillingness to represent the interests of the individual American Indian landowners, who are not only trust beneficiaries but private citizens of the United States.

“The Biden Administration is clearly more concerned with protecting its own image and maintaining its subjective relationship with the powerful Marathon corporation than it is with protecting the interests of individual landowners,” say the allottees in a joint statement. “They want to see this case go away. They have allowed Tesoro to assume the role of victim while it simultaneously continues to suppress and violate our protected civil rights, with the tactic permission and full support of the Bureau of Indian Affairs. We demand justice and accountability. Our interests have been inexcusably severely compromised by our federal trustee. The Bureau of Indian Affairs has allowed Tesoro to continue to reap exorbitant profits from our lands with no valid right to do so for over a decade. The federal government, for whatever reason, makes it a nightmare for us as private citizens to advocate for our own interests as Indian landowners.”

Dateline:

New Town, N.D.