Indian trust land experts agree; the Bureau of Indian Affairs has a big problem with trespass issues on allotted and tribal trust lands.
Tesoro Logistics, a pipeline company that crosses Fort Berthold Reservation trust lands, is trying to settle a trespass violation dating back to June 2013. As an allottee, I received a right-of-way agreement form dated Oct. 30, 2017 informing me that Tesoro has applied to the BIA for a new right of way. They want me – and about 250 other landowners — to sign the agreement for a term that begins June 18, 2013 and ending June 30, 2041.
In their letter to landowners, Tesoro reps offer landowners two forms of payment, one for current use and one for “past use” by the Tesoro High Plains Pipeline Company. The letter also has a BIA form for me to sign should I consent to the new right-of-way agreement.
I receive a number of right-of-way letters. I never sign them. And I won’t sign this one.
On Jan. 15, lawyers from the Kilpatrick Townsend Law Firm are scheduled to arrive in New Town, N.D. to discuss the Tesoro trespass issue with all affected Fort Berthold landowners. The meeting is scheduled from 4:30 to 6:30 p.m. at the Grand Ranch Room of Teddy’s Residential Suites located at 951 Eagle Drive.
Kilpatrick Townsend lawyers Keith Harper and David Smith recently mailed a letter to landowners: “Based on our initial assessment of the documentation, it does not appear that the offering being made represents fair market value. We would be glad to speak with you about this offer and, further, discuss whether you desire to join other landowners who have chosen to pursue their rights and not accept their offers.”
Fort Berthold allottee Roger Birdbear, who is also a lawyer, said “a trespass claim against Tesoro based on the expiration raises issues of negligence and nuisance in addition to a damages argument for every barrel of oil that crossed our respective allotments.”
In addition, Birdbear said the BIA failed to take action to protect land owners while Tesoro continued to transport oil through unauthorized areas, a trespass situation similar to the Oenga vs. United States case. The Court of Federal Claims determined in 2010 that the Oenga family landowners were entitled to damages and cited the BIA’s failure ‘to monitor and, report’ raised an additional claim for a breach of trust against the BIA.
The Tesoro pipeline in North Dakota made national headlines in September 2013 after an undetected pipeline leak spilled 20,000 barrels of oil near Tioga, N.D. The spill contaminated some 13 acres of wheat land. A farmer discovered the leak after his tractor tires were covered in oil.
Tesoro pipeline officials want to continue transporting oil across Fort Berthold lands when in fact they have a dismal track record in cleaning up toxic spills. Given their pipeline leak detection failure, I plan to walk the pipeline route on my land. Maps are available at the local BIA office.
The 2013 Tioga spill was scheduled for final clean up in September 2017, four years after the initial spill. North Dakota Health Department environmental scientist Bill Suess told the Associated Press the land should be ready for replanting in spring 2018.
Suess also said about 1 million tons of contaminated soil have been excavated from the site, and that crews worked “round-the-clock over the years” and “had to dig as deep as 60 feet to remove oil-tainted soil.”
I had attended a Three Affiliated Tribes Business Council meeting a few weeks after the Tioga spill when Tesoro VIPs arrived at the council meeting seeking renewal of their expired right-of-agreement.
The Tesoro pipeline that crosses Fort Berthold carries oil from the Bakken oil fields to the Mandan Refinery. The Tesoro pipeline system also ties into a pipeline from Canada that carries Tar Sands oil. The Tesoro pipeline system also skirts the outer perimeter of the Fort Berthold Reservation.
In an interview for the This Land is Our Land podcast — which will soon be posted on iTunes — Terry Beckwith, an allottee land consultant, said trespass violations remain one of the BIA’s greatest weaknesses.
In the letter mailed to Fort Berthold landowners, Kilpatrick Townsend lawyer wrote that “a number of allotment landowners have approached our law firm to consider pressing legal action against Tesoro Logistics, now Andeavor Logistics, because it operates a pipeline on allotted lands on the Fort Berthold Reservation where the right-of-way has expired.
“You may be one of the affected landowners. In fact, you may have recently received a letter from Tesoro or Andeavor making you an offer for payment to renew the right-of-way for this pipeline.
“Our information indicates that the following allotments may be impacted by the pipeline: 355A, 618A, 698A-A, 698A-B, 715A, 717A, 832A, 833A, T880A-A, 880A-B, 880A-D, 881A-B, 940A, 1001A, T1012A-A, 1050A, 1086A, 1104A, 1105A-B, 1105A-C, 1108A, T1120A, T1120A-A, 1125A, 1127A, 1734, 1744, 1761, 1791, 1793, 1794, T1827, 1949, T1950, 2098-B, 2098-C, 2098-D, 2133, 2134, 2206, 2206-A.”
The Jan. 15 meeting at Teddy’s Hotel is open to all Fort Berthold landowners affected by the pipeline. Landowners who cannot attend or need additional information about this case can contact: Keith M. Harper at KHarper@Kilpatricktownsend.com ((202)-508-5844) or David C. Smith at DCSmith@Kilpatricktownsend.com ((202)-508-5865).
Jodi Rave has received honors and column writing awards from the Columbia University School of Journalism, the Native American Journalists Association, the Society of Professional Journalists-Pacific Northwest and the Montana Newspaper Association. She earned a journalism degree from the University of Colorado-Boulder.