FARGO — The American Civil Liberties Union is weighing in on a lawsuit that claims state and county authorities violated free speech rights of groups protesting the Dakota Access pipeline by shutting down a North Dakota highway during the height of protests over the pipeline.
In an amicus brief filed recently with the U.S. Court of Appeals for the Eighth Circuit, the ACLU and the ACLU of North Dakota stated that public streets are traditional public forums and roads of every kind have served as sites of protest throughout U.S. history, including the civil rights marches and the anti-war demonstrations of the 1960s and 1970s.
Protests connected to the Dakota Access pipeline were no different, the ACLU said in a statement announcing its filing of the amicus brief in a lawsuit initially filed in U.S. District Court in 2018 by two members of the Standing Rock Sioux tribe and a reservation priest.
The suit seeks unspecified monetary damages from the state of North Dakota, Morton County and TigerSwan, a North Carolina-based firm that oversaw private security for pipeline developer Energy Transfer Partners.
The suit claims that closing the highway violated a number of rights, including the right to free speech.
Last fall, a U.S. District Court judge partially granted motions made by the state of North Dakota and Morton County by dismissing six of the seven claims brought by the plaintiffs, allowing only one claim — that First Amendment rights were violated by the road closure — to proceed.
The county appealed that decision, maintaining that all seven claims should have been dismissed.
In supporting the district court’s order from last fall, Andrew Malone, ACLU of North Dakota staff attorney, said in a news release:
“The Supreme Court has recognized that our right to protest in the streets is a time-honored and cherished right. It is high time for police officers, prosecutors, other government attorneys and legislators to do the same.”
In court filings, the state of North Dakota said the plaintiffs are not entitled to any damages, fees, or other relief resulting from any conduct of the state and that no class action is warranted.
The state also maintains plaintiffs cannot show they have suffered any constitutional violation.
The suit was initially brought by Cissy Thunderhawk, a reservation businesswoman; Waste’Win Young, a pipeline opponent; and the Rev. John Floberg, of St. James’ Episcopal Church in Cannon Ball, N.D. A fourth individual, José Zhagñay, later joined the suit as a plaintiff.
Demonstrations drew thousands of people to southern North Dakota during pipeline construction in 2016 and 2017.
During one six-month period, more than 700 people were arrested.
During the protests, officials barricaded a portion of Highway 1806 in October 2016 around the time that a bridge was damaged by fires.
A brief recently filed by the plaintiffs states the five-month closure of the highway was implemented several days before any damage was done to the bridge and that the road remained closed for nearly a month after any unrest had ceased.
We will follow the story.