An MHA nation family’s lawsuit seeking punitive damages related to a 2016 oil spill by White Butte, affiliated with Slawson, has come to an end after a long and winding journey.
The plaintiffs in the case, Edward “Sully” Danks Sr. and Georgianna Danks, filed suit in 2018, intending to seek punitive damages over the September 20, 2016 spill, which they had claimed was more extensive than the company admitted and affected the water supply for their cattle.
Plaintiffs had also contended that White Butte trespassed on their land to remove vegetation and soil affected by the spill, without the knowledge and consent of plaintiffs.
The plaintiffs had originally sought redress in tribal court, but that venue determined a 2012 agreement between the parties required disputes be handled by North Dakota state or federal courts, which landed it in the court of Federal Magistrate Judge Charles S. Miller.
White Butte, in its defense, said its reports showed that the family had not actually suffered enough damage to meet jurisdictional thresholds for the case, and had asked the case to be dismissed on that ground.
However, Miller said the reports the defendants submitted did show that at least some damage was suffered, and did not actually provide any evidence to refute the contention that more areas than mentioned in the report were affected.
“The very evidence defendants claim is established and uncontested proves there was some damage, even if small or difficult to calculate,” Miller wrote. “In other words, the undersigned does not buy defendants’ argument that, because White Butte removed any property damaged by its operations, there was no damage.”
He did however, decide that plaintiffs could not seek punitive damages, since they flouted discovery rules and did not file timely documentation, and the evidence they did finally offer seemed unlikely to support such an award anyway.
Miller also disagreed that damages were an essential element of plaintiff’s claims.
“If liability is proved, plaintiffs may be entitled to recovery of nominal damages,” he wrote.
Plaintiffs also filed two motions for dismissal of the case, but had hoped it would be without prejudice.
They argued, in these motions, that the court lacked jurisdiction because BIA procedures had not yet been exhausted.
Miller said the cases cited were related to actions the Bureau of Indian Affairs takes against a person or entity that has occupied Indian trust lands without the required right of way.
“The court is not aware of any right-of-way that can be obtained that allows a person or entity to pollute allotted or tribally owned lands and thereby creating a nuisance and in some instances potentially resulting in a trespass,” Miller wrote.
Miller also directed the plaintiffs to show cause why the case shouldn’t be dismissed for failure to prosecute, and advised them that failure to save and file their witness and exhibit lists on or before Oct. 15 would be grounds for dismissal of the matter with prejudice.
That date came and went with no filing from the plaintiffs.
“With this most recent failure (or decision by plaintiffs that the case is no longer worth pursuing given the court limiting any recovery to the nominal damage of one dollar), the court concludes that dismissal of this action with prejudice pursuant to Rule 16 (f) (1) as well as Rule 41 (b) is appropriate.”