BISMARCK, N.D. (KXNET) — Those impacted by a road washout on the Standing Rock reservation in 2019 are now asking the United States Supreme Court to review the case.

Federal government asks for more time to respond to road washout lawsuit

In July 2019, heavy rains caused a culvert along Bureau of Indian Affairs Route 3 to collapse. The road washed out as a result, causing four people to crash into the creek below. Two died and two others were injured.

The two survivors, along with family members of the two who were killed, filed suit against the Bureau of Indian Affairs. The suit alleged the BIA  failed “to safely inspect, maintain, and erect warning signage” for the culvert on the Standing Rock Reservation, despite having knowledge that it was failing and a replacement was needed.

In March 2022, United States District Court Judge Daniel Hovland dismissed the case, noting “there are no specific or mandatory statutes, rules, regulations, policies, or procedures which dictate how, when, or where the BIA and the Tribe are to perform road maintenance on reservation roads.” Hovland also noted, “The BIA and the Tribe’s conduct, in this case, is the type of conduct that the discretionary function exception was designed to protect.”

The discretionary function exception protects the government from failure to perform a function that is deemed a matter of discretion.

While Hovland noted at the time that his decision was in accordance with the law, he also called its application in this case “extremely unfair.”

The plaintiffs appealed the decision. However, in June of this year, the Eighth Circuit Court of Appeals upheld the District Court’s decision.

The petition to the Supreme Court notes that the ruling has left the plaintiffs without remedy after suffering either permanent injuries or the deaths of their family members.

According to uscourts.gov, the Supreme Court only hears about 100 to 150 cases of the more than 7,000 cases it is asked to review annually.