Judge Daniel Hovland heard oral arguments today concerning a motion to dismiss filed in the case of a 2019 road washout that took place on the Standing Rock Indian Reservation.

Trudy Peterson and James Vander Wal were killed after they drove their vehicles into a gap created by the washout. Two men, Evan Thompson and Steven Willard, were injured in the washout.

A suit was filed by Thompson, Willard, and family members of Peterson and Vander Wal, alleging that the United States Bureau of Indian Affairs failed “to safely inspect, maintain, and erect warning signage for a culvert in the Standing Rock Reservation. Despite knowing of serious safety concerns with this culvert for years and that its replacement was needed, the Bureau of Indian Affairs chose to do nothing,” the complaint alleges.

But in Wednesday’s hearing, Assistant U.S. Attorney James Thomas argued that the suit should be dismissed, stating that the Standing Rock Sioux Tribe assumed responsibility for maintaining the road under a self-determination contract. Thomas argued that the tribe had discretion to prioritize road maintenance based on available funding and that such decisions are protected under the discretionary function exception to the Federal Tort Claims Act.

Timothy Purdon, attorney for the plaintiffs, argued that the Bureau of Indian Affairs knew as early as 2014 that the culvert under the road was failing and neglected to post any signage warning of the potential hazard or to properly inspect the culvert. Purdon also said there was an inherent requirement within the North Dakota Bridge Inspection Procedures to inspect the culvert.

Judge Hovland gave both sides one week to file briefs in the case. He says following the filing of the briefs, he expects to make a ruling on the motion within 30 days.