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Court rules that Hubbard County sheriff’s blockade of Line 3 opponents’ camp was not legal

The environmentalists filed a civil complaint on July 16, 2021, arguing that the Hubbard County Sheriff’s Office’s blockade on June 28, 2021 to the 80-acre camp was a violation of private property rights, including, in particular, an easement covering the driveway to the property.

June282021Line3Blockade.jpg
Giniw Collective took this photo of Hubbard County Sheriff's Office deputies blocking access to the environmentalists' camp on June 28, 2021. After more than a year of litigation, the Ninth District Court ruled this week that the environmentalists' easement with Hubbard County was a road and all county efforts to obstruct access are barred.
Contributed/ Giniw Collective
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After extensive litigation and months of depositions, a Ninth District Court judge ruled that an easement between Hubbard County and Indigenous environmentalists is a road, not a non-vehicular trail.

The court order bars any county efforts to obstruct access to Giniw Collective’s Line 3 Camp Namewag, located at 14814 Big Buck Drive.

The environmentalists filed a civil complaint on July 16, 2021, arguing that the Hubbard County Sheriff’s Office’s blockade on June 28, 2021 to the 80-acre camp was a violation of private property rights, including, in particular, an easement covering the driveway to the property.

County officials contended that there was no road easement with the current landowner, Texas-based Switchboard Trainers Network. They also argued that a county ordinance prohibits motor traffic on trails across tax-forfeited land.

The plaintiffs, Tara Houska and Winona LaDuke, were represented by Center for Protest Law and Litigation (CPLL), a project of the Partnership for Civil Justice Fund, EarthRights International and local counsel Jason Steck.

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Houska is founder of the Giniw Collective, an Indigenous women-led environmental protection group. LaDuke is executive director of Honor the Earth.

Hubbard County Sheriff Cory Aukes and Hubbard County Land Commissioner Mark "Chip" Lohmeier were named as defendants in the case. They were represented by attorneys Jay Squires, Elizabeth Vieira and Marcus Jardine.

In the Sept. 13, 2022 order, District Judge Jana M. Austad granted the plaintiff’s request for “declaratory relief,” meaning the court states the rights of the party without ordering any specific action or listing awards for damages.

The court ruled that Aukes’ notice prohibiting motor traffic on the easement is “null and void.”

The order states, “Any posted notice shall be removed. Defendants are barred from preventing ingress and egress over the easement based upon any claim or theory that the easement is a trail and not an appurtenant easement.”

The judge also granted the plaintiffs’ request for declaratory relief regarding the citations issued to them for driving on the easement. The plaintiffs’ request for attorney fees was denied.

Final Summary Judgment Order by inforumdocs on Scribd

Background

In the order, District Judge Jana M. Austad lists “relevant, undisputed facts,” such as the property has “historically been accessed via a driveway,” approximately 170 feet of which crosses a county-administered, tax-forfeited parcel directly to the south.

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“The driveway is the only means of accessing the property,” she wrote.

Austad noted there is no dispute that an easement exists, but the parties disagree about the nature of the easement.

In May 2018, the Hubbard County Board granted an easement to LaDuke for “access, ingress and egress between the property and Big Buck Drive,” and she paid the appraised value of that land, which was $192.

In Nov. 2018, LaDuke requested transfer of the easement to Akiing Land Company, LCC, of which she is a board member. The county board approved the transfer.

In Nov. 2020, Akiing transferred ownership of the property via quit claim deed to Switchboard Trainers Network, with Houska as designee.

The judge notes that LaDuke and her invitees have used motor vehicles to access the property across the easement since 2018.

In March 2021, Aukes observed and photographed ruts on the easement.

On June 28, 2021, Aukes served a notice to Houska that “due to no easement for the current landowner” the trail would be closed to vehicular traffic.

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The judge wrote that, on June 28, “a significant number of law enforcement officers appeared on the easement and created a blockade that prevented people from entering or leaving the property. The properties dispute the duration of the blockade.”

The judge further reported that officers began issuing citations to anyone attempting to drive motor vehicles on the roadway, citing Hubbard County’s ordinance regulating the use of vehicles on tax-forfeited land.

On July 23, 2021, the court granted a temporary restraining order against Aukes and Lohmeier. The order barred the sheriff from "barricading, obstructing or otherwise interfering with access to the disputed property" or threatening to arrest persons for coming to and from the Namewag Camp.

In Sept. 2021, the environmentalist amended their complaint, seeking “declaratory and injunctive relief in connection with the easement and for the citations issued to persons in connections with the use of the easement. It does not seek any money damages.” They also filed a motion for summary judgment, which the court denied in Dec. 2021.

In May 2022, both the defendants and plaintiffs filed for a summary judgment.

Sanctions against defendants

On Aug. 11, the judge granted the plaintiffs' motion for sanctions “based upon the defendants’ alleged failure to cooperate with discovery by failing to appear for a properly noticed deposition.” The court said the plaintiffs were entitled “to recover all reasonable costs and fees associated with this deposition as well as costs and fees incurred in connection with the motion.”

In the memorandum, Austad wrote that the record supported the plaintiffs’ allegations that Hubbard County Administrator Jeff Cadwell “was completely unprepared to testify” on May 3, 2022 and “indicated it was because he had been instructed to not make any effort to prepare to testify.”

According to the memorandum, Cadwell testified “that he would not be able to speak to any of the 17 topics of discussion for the deposition.”

The court denied a motion for sanctions based on the defendants not producing GIS files until after the close of discovery and completion of depositions. The judge wrote that the sanctions sought by the plaintiffs “are disproportionate to any harm occasioned by the late disclosure of the GIS shapefiles.”

Judge Corey Harbott was reviewing the plaintiffs’ motion “to compel production of the emails withheld by defendants on the basis of attorney-client privilege.”

A pre-trial conference was held Aug. 22.

‘David vs. Goliath’ victory

In response to the Sept. 13 ruling, Mara Verheyden-Hilliard, constitutional rights lawyer and director of CPLL, stated, “Today, David beat Goliath in a legal victory for people protecting the climate from rapacious corporate destruction. The outrageous blockade and repression of an Indigenous-led water protector camp was fueled by massive sums of money flowing from the Enbridge corporation to the sheriff's department as it acted against water protectors challenging Enbridge's destruction of Native lands.

“Today's decision finds that the paramilitarized blockade was illegal and orders the sheriff and Hubbard County to desist from any ongoing effort to obstruct access. This has been a hard-fought case as Hubbard County and its sheriff have perpetuated the history of efforts to deprive Native people of access to land. Today's victory sends a message to the next police force that might consider similar tactics that activists will not back down and will fight to assert their rights.”

LaDuke stated: “We are grateful to Judge Austad for recognizing how Hubbard County exceeded its authority and violated our rights. Today’s ruling shows that Hubbard County cannot repress Native people for the benefit of Enbridge by circumventing the law. This is also an important victory for all people of the North, reinforcing that a repressive police force should not be able to stop you from accessing your land upon which you hunt or live.”

County response

Hubbard County Attorney Jonathan Frieden noted the ruling itself was “very specific” as to where this easement was and to whom it belonged. The judge ruled that an easement follows the land as opposed to an individual, Frieden said, so the county cannot have an easement process per person. He does not anticipate any long-term repercussions from the summary judgment, adding the county has taken corrective steps.

Frieden said the county’s main issue is to enforce public safety and environmental concerns.

Regarding the cost of the litigation to Hubbard County taxpayers, Frieden said it is the county’s $5,000 insurance deductible to the Minnesota Counties Intergovernmental Trust.

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Shannon Geisen is editor of the Park Rapids Enterprise.
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