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North Dakota is what I tongue-in-cheek call a nuisance friendly state

Posted on: September 19th, 2016
by David Ganje

Because of unique nuisance statutes and case law, North Dakota is what I tongue-in-cheek call a nuisance friendly state. For background on this interesting topic, please see my article in the Bakken Weekly, “Nuisance Laws on the Bakken.” The present article discusses a common defense simply stated as, ‘But I got the permit. Why am I a nuisance?’

North Dakota statutes protect one from a lawsuit in nuisance if another statute grants authority to act in a particular manner. Those statutes are strictly applied to preserve the meaning legislature gave to them. However, in extreme cases the party may yet be subject to a suit in nuisance if the act allowed by statute is performed in a negligent or unreasonable manner. For example, a statute granted the City of Dickinson the authority to operate a sewage system as part of its governmental function. The statute even allowed the city to discharge sewage into any river.

“The offense was so great that a chemist who was called as a witness for the plaintiff testified, without objection, that the hydrogen-sulphide gas, which the city engineer said was the source of the noxious odor, is about 17% heavier than air; that in water it has a disagreeable taste, and that when inhaled it causes nausea; that it is poisonous and will cause headaches if inhaled in sufficient quantities.”

That said, a nuisance claim was successfully brought against the city because the amount was so excessive that it was deemed unreasonable. The court said that “by casting its sewage into the river with improper and insufficient treatment for a long period of time, the city was remiss in its duty and it may not now rely upon its legislative immunity to protect it from responding in damages.”

Let us look at a nuisance lawsuit further. North Dakota derived the statute N.D. Cent. Code Ann. § 42-01-12 that states “Nothing which is done or maintained under the express authority of a statute shall be deemed a nuisance,” from California, and in doing so, North Dakota has determined that if you are conducting business in a district zoned for that type of activity, you are not completely immune from a nuisance lawsuit. Take the famous grain terminal case for example,

“Harmon Motors is located in an area zoned C-2 “a general commercial district,” and GTA was located in an area zoned N-1 “a light industrial district.” No evidence was introduced that GTA was operating in violation of any city zoning ordinance or that GTA was in violation of any health ordinances. For that matter, the Williston zoning ordinance passed in 1970 provides for an exception for those businesses which were in operation when the zoning ordinance was adopted and GTA was in operation when that zoning ordinance was adopted. This, however, is not per se conclusive of the issues.”

The court indicated that even though the ‘offending party’ had been both grandfathered in as well as in compliance with city zoning ordinances, all this did not mean that the offending party was in the clear. In this case North Dakota also considered whether the party making the complaint has “come to the nuisance,” that is, moved into an area where a nuisance-like activity already existed. North Dakota courts gave less favorability to the complaining party and indicated that the burden of proof required to defeat the “coming to the nuisance” doctrine is very high.

The defense of ‘I got the permit. Why am I a nuisance?’ nevertheless goes even further in North Dakota than other jurisdictions. An oil drilling operation had been flaring the excess gas it produced. This caused diminished air quality and excessive odors. But the court in Kartch v. EOG Res., Inc., determined that the drilling operation was not a nuisance because the operators acted within the guidelines set forth in the applicable statute and their practices were customary in the oil industry in North Dakota.
Special consideration is also given to agricultural operations. If the agricultural operation has been in operation for more than one year and was not a nuisance at the time it began it shall not become a nuisance. Additionally, North Dakota recently passed a law that bars other laws from limiting farmer’s rights to “employ agricultural technology, modern livestock production and ranching practices.” This was a necessary modernization to current statutes protecting farmers from surrounding urban developments.

Now to be sure, no legal system would be in proper order without some ambiguity, and as evidenced above there are exceptions to every rule. The takeaway: Just having the permit is not enough. And just being in statutory compliance is not enough. A claim in nuisance could still be successful in court.

David Ganje practices law in the area of natural resources, environmental and commercial law in South Dakota and North Dakota. His website is Lexenergy.net.

Tribal Water Rights – The Road to Securing Water

Posted on: September 8th, 2016
by David Ganje

Tribal Water Rights – The Road to Securing Water
By David L Ganje

“Water is perhaps the most valuable tribal resource remaining and is one of the most significant potential forces of change. The potential size of tribal water rights should not be underestimated.” – Western Water Policy Review Advisory Commission

A Canadian Judge – in making a legal decision — recently recited two important principals of British law, both of which are found in US law. The Judge stated there are two legal maxims, one at common law and the other at the law of equity: First, the law comes to the aid of those who are vigilant, not those who sleep on their rights. Second the legal principle of equity comes to the aid of those who are vigilant, not those who sleep on their rights. Upper Great Plains tribes today must be vigilant in obtaining reserved but yet undetermined water rights. This involves two choices. Litigation or negotiation. In this article I argue that the Upper Great Plains tribes should undertake first, active, public and aggressive negotiation, and then if unsuccessful, litigation to recover water rights. But for the current water rights negotiation by the Standing Rock Sioux tribe, reserve language found in the successful Mni Wiconi Rural Water Supply Project and language found in some tribal water codes, Upper Great Plains tribes have not taken an official position with the BIA claiming reserved water rights. This silence is a mistake. My argument is this: treaties and case law have given Upper Great Plains tribes a property right, which is a right to use and access groundwater and surface water. However Upper Great Plains tribes have not fully sought and claimed that right. Both groundwater and surface water reserved rights must be championed by Upper Great Plains tribes.

While Standing Rock has taken the first step in opening negotiations with the State of South Dakota and North Dakota on the matter of water rights, the US Department of Interior has yet failed to assign a representative from its Indian water rights division to participate in these negotiations. Standing Rock is taking the right action; it is putting on the table the reservation’s water claims and doing it in a serious forum. Standing Rock has not by these negotiations abrogated its claims, and will preserve the tribe’s water rights throughout the negotiations without prejudice to its right to refuse any proposed terms or accept any proposed settlement terms. Having recognized this strategically proper first step by the tribe it is important to disclose the failure of the Department of Interior to participate in the negotiations. The DOI’s failure to participate in the ongoing talks is wrong and contradicts that department’s statutory duties regarding Indian tribes in the US. Interior Secretary Sally Jewell, who has publicly stated the administration’s commitment to resolving water rights, should immediately direct a staff person to actively participate in these water talks.

Some tribes have not yet adopted tribal water codes – legal guides for the tribal community for the management and use of water. Tribes should consider the creation of an official water code as a relevant step to securing water rights. Some tribes may have to amend the tribal constitution in order to properly pass a tribal water code. But it is worth the effort.

Tribal rights to water is a treaty right. It cannot be lost through non-assertion. Indian reserved water rights may be asserted at any time, cannot be lost by nonuse, and are assigned priority dates based on the date for the establishment of reservation. In legal theory the loss of water rights would require abrogation by a tribe or the federal government before the rights could be extinguished. Such an abrogation is in reality irrelevant because this has not and will not happen. Abrogation is not therefore the issue at hand.

It is a mistake to assume that any non-Indian interest group or government agency will make efforts to preserve, advocate for or even address these reserved yet undetermined tribal water rights. The US Army Corps of Engineers (Corps), for example, recognized in congressional testimony in 2004 that the tribes have claims to reserve water rights. Having taken that position, the Corps nevertheless in 2012 proposed a new program to produce revenue for the US government by selling what it called “surplus water” from Missouri River reservoirs. In proposing this new program for the sale of so-called surplus water the Corps created a 204-page report to support its argument for the proposed project. The Corp’s report provided statistics, projections and data but ignored and failed to discuss the existing water rights of tribes. Indian tribes are not subject to the Corps’ general authority to create or impose surplus water regulations.

It has not proven so historically, and it is not to be expected that non-tribal government agencies, whether trust-based or regulatory, have any strong reason to advance tribal water rights. No politician or bureaucrat will seriously address tribal water rights as long as the institution he represents have unchallenged bureaucratic control over water management. The only change preferred by a bureaucracy-in-charge is a change resulting in an expansion of the bureaucracy’s own power. That has been the case, for example, with the slow accretion of non-Indian interests and water demands placed on existing water in the Missouri River. As time goes on there will be less and less water to claim.

The Corp’s recent surplus money project is an example of an agency asserting itself over available water. It matters not whether the available water is called surplus water, water behind a damn, groundwater, or instream flows. A claim was made to the water. The claim did not exist before the Corps did the study and asserted the claim. Had the Corp’s project been successful, that water would have been that much more water taken away and earmarked for management and control by a bureaucracy.
Litigation of reserved water rights is one of the two alternative means to secure water rights discussed in this article. Water rights litigation is a complex, time consuming legal playing field. Much can be achieved, but the time, well known litigation risks and money involved must be kept in mind.

The Crow Creek Reservation recently started water rights litigation in the United States Court of Federal Claims asking for both money damages as well as a request for a ruling quantifying the tribe’s reserved surface water rights to the Missouri River. The Crow Creek complaint calls for money damages, as mentioned, and for a judgment that the tribe is ‘entitled to declaratory and injunctive relief including judgment requiring Defendant (the United States) to establish and measure the reserved water rights held by the tribe, and to quantify the reserved water rights held by the tribe, and to assert water rights on behalf of the tribe and to record legal title to water held in trust for the benefit of the tribe.’

The complaint lists the type of relief that should be requested in reserved water rights litigation. The complaint filed by Crow Creek, however, has problems:

The court in which the complaint was filed does not have full jurisdiction to award the complete relief requested in the complaint. By the reorganization statutes of the Court of Federal Claims is has authority to render declaratory judgments only in matters regarding contract or procurement disputes.
The court is unlikely to get into its main jurisdictional issue: money damages in favor of the tribe. It is unlikely to do this because there is no existing water rights determination or quantification by statute, final decree, or water agreement from which the court could calculate a money damages amount. And, further, the important matter of Indian water rights under the Winter’s doctrine is beyond the general expertise of the Court of Claims.
One of the important requests in the complaint is for injunctive relief. This is also beyond the jurisdiction of the Court of Claims. Bowen v. Massachusetts, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court of Claims has no power to grant equitable relief.’’
The relevant requests in the Crow Creek complaint are requests for an injunction, for a declaration of rights, for the establishment of water rights and for quantification of water rights. The Court of Claims however has only incidental or collateral jurisdiction over these requests making it unlikely that the court would take on such important, significant and historical remedies.
The complaint does not include a necessary party if it is attempting to finalize tribal surface water rights. The state of South Dakota also has water rights to the river. The state is not named in the lawsuit. The Court of Claims cannot impose duties or obligations regarding water rights or the allocation of the tribe’s claim when a relevant party is not included in the suit.
Any adjudication against or settlement with the United States under the pending complaint would be incomplete as stated in the complaint. Groundwater is an integral part of all Indian reserved water claims. The majority of courts in the United States addressing Indian reserved water rights have acknowledged that Indian reserved water rights also apply to groundwater. The reserved water claims of the Crow Creek reservation, one must assume, also include groundwater. However, the Crow Creek complaint for damages for loss of water resources makes no claim for reserved tribal groundwater rights.

Tribes in the US have found success through water rights negotiations with State and Federal bodies. With an appreciation for the uncertainty of litigation, negotiating is the best first step. Negotiations should be pursued in the following fashion. The master water rights Settlement Agreement should include: an agreement setting forth rights to use and administer waters; and an agreement quantifying reserved water rights for historic and current as well as planned uses; and if there is a specific project planned by a tribe, then that project is to be negotiated and drafted as a separate agreement but integrated as a part of the master Settlement Agreement. Any Settlement Agreement would become effective if the Congress passes a Settlement Act and the President signs the act into law. Once the Settlement Act becomes law, the Secretary of the Interior must execute the Settlement Agreement and the Settlement Contract.

An advantage of multiple party negotiations: actual representatives are present sitting across the table. These face to face negotiations bring out the real differences between the parties without hiding behind silence, animosity or evasive politics. If the negotiated terms do not satisfy the rights of tribes, they are not bound to accept the terms. The final outcome of the negotiations is to be decided by the tribe.

The Snake River Water Settlement Act is a recent example of successful Indian water right’s negotiations. Although the US Senate is not an owíčhota of wisdom and justice, the Senate report discussing the Snake River Water Settlement Act addresses the issue of litigation of water rights versus negotiated water agreements:

“The shortcomings of the general stream adjudication process [this is a fancy phrase for litigation] as a device for water rights dispute resolution have led to an increasing number of agreed-to water rights settlements on streams in the western States where the parties, including Indian tribes, negotiate and compromise among themselves as to quantity, priority dates and other issues, and where the Federal government contributes money to the settlement in order to achieve various goals that could not otherwise be achieved within the confines of a general stream adjudication.”
Sen. Rep. 108-389, at 2-3

The Snake River water agreements provided, among other terms, designated water for a variety of tribal uses on the reservation; recognition of allotment water rights and a due process requirement for tribal regulation of such rights; a right to access and use of springs and fountains on federal lands in off-reservation areas; and instream flow minimums at over two hundred locations. When protecting a people’s rights, it is good to hesitate and think. However, it is not good to hesitate and think and then not act.

Water rights granted to tribes are the most important example in American law of treaty-based reserved rights. Tribes do not however dwell alone in the world of water rights. Tribes should abandon silence on the subject, stick their elbows in the table now and publicly assert their water rights. A tribe cannot secure what it does not itself assert.

Workouts and Turnarounds before Bankruptcies – 2016

Posted on: August 24th, 2016
by David Ganje

Current bankruptcies are not foreign to the oil patch when the inevitable economic cycles in oil and gas show bankruptcy numbers increasing in the Bakken. There have been two significant prior economic down-cycles in my career that have caused a spike in bankruptcy filings. When I taught bankruptcy law I used a medical analogy: I told the young scholars that bankruptcy filing is akin to surgery, and surgery should always be treated as the last option. In the medical field, a reasonable first option is an antibiotic. Here, the antibiotic is a ‘workout’ or a ‘turnaround,’ each of which are bankruptcy alternatives. These alternatives have value and should be attempted by both creditors and debtors as a viable option, not just a throwaway line. I have successfully represented debtors and creditors in turnarounds and workouts. Resolving “stressed-business” issues out of court makes sense when the option is there.

Financial restructuring and workouts involve working closely with a business’s creditors to create, or ‘workout,’ a plan (often a written contract) to restructure business debts while allowing the business to remain viable. This process allows the business entity to negotiate its debts in a way that retains profitability without involving the court system. This is not as difficult as it might sound – creditors often share the same objective of returning a financially stressed business to good financial health in order to ensure their debts are paid.

A ‘turnaround’ is a separate process from a workout. It may also use the availability of restructuring and workouts, but a turnaround has several other components. A turnaround will generally restructure operational aspects of the business. This may be the solution when the problem lies deeper in the company than lack of cash flow. Where a creditor will not restructure the debts owed to it, a turnaround will be utilized to find alternative financing or new ownership. Another possibility in a turnaround is the sale of ownership or a portion of ownership, which can provide liquidity at the expense of a change of control of the business.

If the company’s goal is to continue in business, particularly under current ownership, then a creditor or a lender workout should be considered. If new ownership, or a sale of the business in whole or in part, is an acceptable outcome so long as the business is preserved as a going concern, a turnaround can be considered as well.

The process of financial restructuring and negotiating a workout with business creditors is something that should be considered to avoid the expenses and bureaucracy related to a bankruptcy proceeding. The chapter 11 bankruptcy reorganization process is expensive and time consuming. The goal of business turnarounds or financial restructuring is to provide a cost effective approach by way of a ‘non judicial/non bankruptcy’ business reorganization, to restructure business debts.
Courtship and finances have something closely in common: timing is everything. When a business is in a stressed situation, neither the business nor its creditors should go in stand-by mode. Negotiations should begin immediately. In both the workout and turnaround, all parties must agree to the terms; both are matters of serious negotiation to be done with all deliberate speed. Bankruptcy proceedings are not the only way to save a business – sometimes a well-prescribed antibiotic can halt the damage and let the healing begin.

Nuisance as a legal concept is not foreign to the oil patch

Posted on: August 12th, 2016
by David Ganje

Nuisance as a legal concept is not foreign to the oil patch as well as farm country in North Dakota. Producers and property owners should be cognizant of a possible nuisance claim concerning production and development issues. Nuisance is an interference with one’s right to own, possess, or enjoy their land. The law maintains two kinds of nuisances: private and public nuisances. A public nuisance is one that affects the community, neighborhood, or a considerable number of people in an area. A private nuisance is one that affects an individual or group of people from enjoying a right not common to the public.

In a recent decision by Texas Supreme Court, a landowner was found to have grounds to bring a civil claim for nuisance against an owner and operator of a natural gas company. The landowner sold small piece of land adjoining their ranch to the natural gas company. The gas company then built a gas compressor station. Shortly after construction, the landowner complained of loud noise and vibrations coming from the gas compressor station. Even though the natural gas company built walls and took steps to muffle the noise, the landowners brought a lawsuit for nuisance against the gas company.

The Supreme Court of Texas found that even though the landowners had legal sufficiency to make their claim, they did not have enough evidence for the court to rule in their favor. The court mentioned that although the landowners claimed that there was other technology available that could further reduce the noise, the landowners did not provide such evidence. Furthermore, no evidence was presented showing that the gas company operated its equipment negligently, that the efforts the gas company did make to reduce the noise took too long, or that enclosing the generator in a building would actually reduce the noise. So, if you think you have a nuisance on your hands, make sure you have more than enough evidence to support your claims before you do battle.

Although that grain elevator that sits next to your land may be kicking up a lot of dust and creating a racket, there may not be much you could do about it. North Dakota protects its agricultural operations from claims of nuisance once they have been in operation for more than one year. The state defines agricultural operations as the “science and art of producing plants and animals useful to people, by a corporation or a limited liability company.”

The one weakness to the agricultural defence is if the operation is run “negligently.” For example, let’s say a self-employed farmer had issues keeping his hogs to stay in their pens. Over a six-month period, there were 20 reports of his hogs leaving their pens. One incident included a hog that wandered onto the highway and was hit by a car causing several hundred dollars in damage. The court determined that the farmer willfully maintained a public nuisance. As Supreme Court Justice Sutherland once said, “A nuisance may be merely a right thing in the wrong place — like a pig in the parlor instead of the barnyard.”

Once a nuisance is identified, there are a few actions that can be taken to resolve the nuisance. The injured party can bring a civil action. The civil action may result in a court order to stop the actions creating the nuisance or an order to take actions to lessen the nuisance. The injured party may also recover monetary damages.

Have you ever seen those turbines spinning peacefully in the distance as you drive by? Well, they may not be so peaceful if you live next to one. A family bought land adjoining a wind turbine and moved a mobile home onto the lot. After two years of living there, the family complained that the wind turbine was a private nuisance because it created loud noise, violated residential covenants, and supposedly threw chunks of ice into their yard. However, the court determined that the wind generator was not a nuisance. No other neighbors complained about the noise, the noise did not violate any noise ordinances, the wind generator was engineered specifically so that it would not throw ice from its blades, and the developer and residents of the subdivision had abandon the supposed covenants.

An interesting intricacy to North Dakota’s nuisance law has to do with how the state interprets the “coming to the nuisance” doctrine. In some states the doctrine prevents a person from bringing a case against a public or private nuisance if that person moved to an area where a nuisance already existed. In other states, such as North Dakota, it does not prevent the person from bringing a nuisance action but it does serve as a factor for consideration. North Dakota will also consider “what role the alleged nuisance activity has with the general business activities of the community and state,” and whether the activity is aligned with the state’s economic goals. Additionally, North Dakota considers whether the activity is regulated by the government or not. Although these factors can make a case for nuisance uncertain, if you are moving to a nuisance, you have heavy burden of proof to overcome.

North Dakota follows a strict statutory application, but when it comes to determining whether or not a nuisance interfered with your right to possess, use, or enjoy your land, a jury of your peers (including your neighbors) make that determination. So, if you have an issue with one of your neighbors, try to work it out peacefully first. You never know when you may need their help to tackle a nuisance.

Leaky Laws – Oil Spill Liability in North Dakota

Posted on: May 17th, 2016
by David Ganje

Pipelines, even privately owned, are a publically regulated transportation and operating system. The question is not whether pipelines are “essential to our society.” Pipelines are already integral to the country: the US had over 1,700,000 miles of oil and gas pipelines in 2014, and North Dakota had 8,080 miles of pipelines in 2011. When a pipeline leak occurs, it only deflects from the problem at hand to discuss a pipeline’s place in modern society. The media puts its attention on the statements of politicians after a pipeline leak has occurred. Such media attention does address the question of how to manage the risk. Operating systems will malfunction. The process for legally authorizing operating systems should not. To paraphrase Norman Vincent Peale, the problem with most publically regulated systems is that they would rather be ruined by praise than saved by criticism.

In 2013, a pipeline operated by Tesoro Logistics began leaking thousands of barrels of oil into wheat fields. By the time the leak was caught and stopped, over 840,000 gallons of crude oil spilled into North Dakota. Tesoro Logistics originally estimated that the cleanup would take around $4 million. Two years later, the costs have passed $40 million and continue to rise. Oil spills are not going away – as more pipelines are built, spills are only increasing. The relevant question should be how regulated pipeline leaks will be cleaned up, and who will pay for them.

Under both Federal and state laws, the party responsible for a leak is the one responsible for cleanup. Usually a company like Tesoro Logistics prefers to take care of the cleanup itself. Not only does this help soothe public relations problems resulting from a leak, but it helps the operator control the costs. While North Dakota’s Department of Health is supervising the cleanup, Tesoro Logistics manages the contractors for the cleanup. But a pipeline operator causing a spill may not always be willing or able to clean up a spill. The liable operator could be bankrupt, dissolved, or perhaps not have the money. In these cases, clean up cannot wait for years of court cases or bureaucratic lethargy. The money for a cleanup needs to be there, ready to be used.

The state tells us that ‘them what operates a car must financially assure the public against the risk of its operation.’ Thus, the state has mandatory car insurance. North Dakota can require operators to provide financial assurances of their ability to clean up a spill, but the state can only require such insurance after a spill has already happened. The North Dakota Department of Health “may require insurance coverage or other financial assurance for any additional environmental monitoring or remediation that may become necessary on the property…and must require such…when the projected cost of an active monitoring or remediation program exceeds five hundred thousand dollars.” This requirement applies only to “real property contaminated by regulated substance or other pollution or contamination.” In other words, the state can only require financial assurances for land that has already been contaminated. What about money to help before a spill occurs?

North Dakota also maintains the Petroleum Release Compensation Fund. Unfortunately, this fund is not there to help landowners damaged by oil spills – the PRCF is a fund designed to “reimburse an eligible owner or operator for ninety percent of the costs of corrective action.” In other words, the PRCF is a fund to pay back the operators for money they pay cleaning up their mistakes. The PRCF is funded by oil companies, not taxpayers. And landowners can recover from the fund, but only if very specific requirements are met: the pipeline must have complied with all state and federal rules, the Dept. of Health was notified properly, the operator must have already begun paying the costs of corrective action, and the operator must be cooperating fully. Why these requirements? Because the PRCF is not designed to protect landowners and reimburse them for damages – the PRCF is designed to help companies defray expenses. The only reason the PRCF includes the capability to pay landowners for damages is so the pipeline operator won’t have to do it themselves. The PRCF does help encourage companies to come clean and take responsibility for leaks, knowing that they will be paid back from the fund. But the fund does not solve the problem of providing ongoing financial assurance, also referred to commonly as insurance.

The best fund available to aid the state’s immediate spill response is the Hazardous Chemicals Preparedness and Response Fund (HCPPF). This fund is created through an annual fee paid by facilities housing hazardous materials ($25 per hazardous material housed, with a $475 cap) in the state, as well as other appropriations by the legislature. These fees are distributed between the North Dakota Department of Emergency Services and the many Local Emergency Planning Committees, and pay for training, equipment, and disaster relief. This kind of fund is a good start, and ensures that North Dakota has equipment and trained professionals in disaster relief ready to move when a spill is detected. But the limitations on fundraising for the HCPPF means that if a leak like Tesoro Logistic’s occurs, the HCPPF will not be sufficient to manage the cleanup effort – at least, not without taxpayer monies coming from the state to fill the gaps. And landowners should not be forced to pay for oil spills.

This is not to say that North Dakota would be alone in a crisis. Both the Coast Guard and the EPA have trust funds in place to help states and the federal government. But the Coast Guard’s fund only applies to spills into navigable waters, and cannot apply to cleaning up spills on land. Meanwhile, the EPA’s Leaking Underground Storage Tank Fund is funded with a tax on motor fuel – a tax paid by private citizens, not the companies causing the damages in the first place.

A better solution is required to ensure that those who cause the damages pay for it. Waiting until after a spill happens to look for money to fix it cannot be how pipelines are managed. This is especially troublesome when so many spills go undetected for months, like the 3 million gallons of fracking brine that leaked into the Blacktail Creek in 2015; the pipeline had been leaking for over three months before it was detected. The very same pipeline leaked another seven thousand gallons of brine this January. Pipeline spills are not going away. North Dakota reported approximately 1,400 hazardous material release incidents in 2014 alone. Financial assurances for spills must be required before the damage happens, in amounts sufficient to cover the hundreds of spills that happen every year. The legislature needs to create a modern statute addressing financial assurances for pipeline leaks.

David Ganje practices law in the area of natural resources, environmental and commercial law in South Dakota and North Dakota. His website is Lexenergy.net