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Government wants fatal road washout lawsuit dismissed; families seek millions in damages

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Washed out (copy)

Heavy rain washed out a section of a highway on the Standing Rock Sioux Reservation in July 2019, killing two people and injuring two others. The culvert that washed out had been identified for replacement years earlier.

U.S. government attorneys say the Bureau of Indian Affairs and the Standing Rock Sioux Tribe were right to use their discretion in maintaining a culvert that washed out two years ago and killed two people, and they want a lawsuit filed by the families dismissed.

But the families' attorney is urging a federal judge to deny the request, saying the BIA knew about the poor condition of the culvert and had adopted but not adhered to plans that required inspection and maintenance.

Trudy Peterson and Jim Vander Wal, both of Mobridge, South Dakota, died in July 2019 when the vehicles they were driving entered a chasm left behind on a washed-out section of BIA Road 3. A culvert just north of the South Dakota line underneath what is known locally as the Kenel Road had been scoured away by 7 inches of rain that fell overnight.

Peterson, 60, was headed from Mobridge to Fort Yates, where she worked at the Indian Health Services facility. Vander Wal, 65, was headed south from Bismarck to Mobridge with a load of U.S. mail.

Their families in September 2020 filed an administrative claim against the BIA, claiming the agency knew the bridge was in disrepair and that its failure to replace it led to Peterson and Vander Wal’s deaths. The bureau had six months to deny the claims, settle them, or simply not respond.

Attorney Tim Purdon filed a lawsuit in April 2021 after receiving no response from the BIA. He represents the families of Peterson and Vander Wal as well as two other men -- Steven Willard and Evan Thompson, who drove into the gap and were injured. All four were traveling to jobs on the reservation or driving the road as part of their jobs in the dark, early morning hours of July 9, 2019.

The lawsuit seeks monetary damages for wrongful death, personal injury and property damage. The government in an August response to the suit states 11 claims were submitted totaling more than $10 million.

The BIA through Acting U.S. Attorney Nicholas Chase says the claims should be barred. The BIA and Standing Rock Sioux Tribe have discretion to maintain roads subject to the availability of funds, and there is no mandatory directive requiring maintenance be performed in a specific way, the government said in its response to the suit.

The BIA adopted road maintenance standards from the transportation departments of North Dakota and South Dakota, which Purdon says include inspection, maintenance and signage requirements. He argues that the washout could have been avoided if the BIA had adhered to those standards.

The government argues further that the plaintiffs didn’t exhaust administrative claims before filing the lawsuit, and that claims made by survivors weren’t properly presented in the administrative phase. Purdon argues that deficiencies in the forms submitted in that phase don’t warrant dismissal of the case, adding that “the government was plainly placed on notice of the survival claims because a legally trained reader would infer a survival action claim was being asserted.”

Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com

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