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Dakota Access Pipeline developer sues state over thousands of unreturned documents

Dakota Access Pipeline developer sues state over thousands of unreturned documents

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The company that built the Dakota Access Pipeline is suing for the return of 16,000 documents held by the state of North Dakota, saying the information is private and that any disclosure presents a security risk to the line.

Energy Transfer and its subsidiary Dakota Access LLC are suing both the North Dakota Private Investigative and Security Board and TigerSwan, the North Carolina-based company that handled security for the pipeline while it was being built.

The state regulatory board and TigerSwan in September settled a two-year-long battle over whether the company operated illegally in North Dakota while the pipeline was under construction in the state in 2016 and 2017 -- and under heavy protest by American Indian tribes and environmentalists.

TigerSwan provided the documents to the board as part of that dispute, according to the complaint that Energy Transfer and Dakota Access filed in state court in mid-October.

The developers now want the records back, saying the board recently provided some “confidential, proprietary, and privileged documents” to an unspecified third party under an open records request.

The disclosure of such material “puts the pipeline, Plaintiffs’ employees, and the citizens of North Dakota at risk,” plaintiffs’ attorney Randall Bakke wrote.

Assistant Attorney General Courtney Titus, who is representing the board, in a court filing Thursday asked South Central District Judge Cynthia Feland to dismiss the case.

"All records received by or coming into the custody, control, or possession of public officials are the property of the State and all records of a public entity are public records," she wrote.

Titus referred a Tribune request for comment to attorney general spokeswoman Liz Brocker, who said the office does not comment on ongoing litigation.

Document dispute

The dispute between TigerSwan and the board wound in and out of state district court and culminated with a settlement in September under which the company and former President James Reese agreed to pay $175,000 to the board. The company did not admit to any wrongdoing but agreed to not operate in North Dakota.

About a month later, Energy Transfer and Dakota Access sued the board and TigerSwan, seeking the documents the security company gave the board and the destruction of all copies, along with unspecified damages.

“TigerSwan does not own the documents. The Board does not own the documents. Plaintiffs’ rights to control their own confidential property have been violated by both,” Bakke wrote.

The plaintiffs also asked Feland to order the records kept confidential until the dispute is resolved. She agreed to do so after a conference with attorneys on Thursday.

TigerSwan attorney Lynn Boughey in a court filing said he had no objection to the request. He said the company for many months had objected to having to provide any documents to the board “on the grounds that the Board should be required to prove its case without compelling TigerSwan to provide evidence that could be used against Tigerswan.”

He reiterated the company's stance in court Thursday, telling Feland that "we would like the documents returned."

Titus said the state felt there was no need for an order because the records are being held by the attorney general's office, which she said has no intention of disclosing them until the court decides their fate.

The documents include records protected by attorney-client privilege, confidential commercial documents, records concerning pipeline operations in other states, and “documents that contain information central to the security of critical infrastructure in North Dakota, specifically the Dakota Access Pipeline,” Bakke wrote in a court filing.

TigerSwan handed over the documents in June only after being ordered to do so by an administrative law judge, according to Boughey. He also claimed in court documents that the board reneged on a promise to keep the documents shielded from the public.

Titus in her court filing said the board has a legal duty to respond to open records requests. She told Feland in court that the state thinks it's unclear whether the board can even return the documents.

Plaintiff's attorney Jennifer Recine told Feland that the companies have done everything they could to avoid "bothering the court" with the issue but that "we've had effectively zero cooperation" from the board during months of negotiations. 

The Dakota Access Pipeline has been moving North Dakota oil to a shipping point in Illinois for more than three years, though it remains tangled in its own legal dispute. American Indian tribes including the Standing Rock Sioux who oppose the pipeline because they fear an oil spill could pollute their water supply continue to fight the project in federal court. That lawsuit -- parts of which have spilled over into a federal appeals court -- began four years ago and is likely to linger into next year.

 

Reach Blake Nicholson at 701-250-8266 or blake.nicholson@bismarcktribune.com.

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