Across the board in recent years, protestors have become increasingly emboldened. Just this past week, some disgruntled protestors vandalized the homes of Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell. But one refreshing story in the early days of 2021 has been a North Dakota judge’s dismissal with prejudice (meaning the charges cannot be brought forth again) of an Oklahoma man’s complaint alleging law enforcement officers used excessive force against him in 2017 at a Dakota Access pipeline protest site. This was the second such lawsuit to earn dismissal recently.
The lawsuit’s dismissal is a welcome change from the energy infrastructure lawsuits of 2020. Many leaned more towards judicial activism or even obstruction rather than interpreting laws or calling balls and strikes. Litigants and activist judges threw permitting, environmental, and regulatory statutes at a slew of projects (particularly Mariner East, Dakota Access, Keystone, Lines 3 and 5 among others) in hopes of stalling their completion and eventual operation.
Another approach these litigants – similar to the aforementioned Dakota Access dismissal – is tying up projects in court so as to increase costs on the company, dissuade investors, or force a company into breaching contractual commitments through missed deliveries, etc. This was success in 2020: opponents to the Atlantic Coast pipeline were able to corner owners Dominion Energy and Duke Energy in to cancelling the $8 billion 600-mile natural gas project.
Americans at large lose when these tactics are successful. Energy access and reliability is undermined. When projects are cancelled, jobs are shutdown. Less capacity or transport access raises consumer prices.
Kudos to the North Dakota judge that dismissed the excessive force case against the Dakota Access pipeline. As the Bismarck Tribune reported, the case seemed dubious (another sign of activism litigation):
“Poemoceah claimed he was tackled while running from law enforcement in February 2017 and suffered a broken pelvis. He further alleged officers ignored his injury and that their acts were retaliation against him for exercising his rights by filming activities during the protest.
U.S. District Judge Daniel Traynor last Tuesday dismissed the complaint with prejudice — a legal term that means the case cannot be brought again. Poemoceah knew the officers were at the protest site to enforce an evacuation order, admitted that he advanced on the officers before fleeing, and failed to show that Morton County had unconstitutional policies in place, the judge said.
Poemoceah in his complaint stated that officers who forced him to walk 200 feet to a police van knew or should have known he had a broken hip or pelvis. Traynor said Poemoceah’s pleas for medical attention were not ignored, adding that even medical staff at a Bismarck hospital did not discover the pelvic fracture and diagnosed him with minor contusions.
Kirchmeier in a statement said he was pleased with the court’s determination that the level of force used by law enforcement during Poemoceah’s arrest was ‘reasonable and constitutional’”
Litigation abuse has become all too common when it comes to opposing legally permitted and safe energy infrastructure. It is important we stick to the facts when it comes to the development of our nation’s energy infrastructure.