A judge has granted the federal government’s motion to dismiss a lawsuit against the Bureau of Indian Affairs.

The lawsuit stems from a 2019 road washout on the Standing Rock Indian Reservation that killed two and injured two others.

In his decision, United States District Court Judge Daniel Hovland noted that “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.”

As such, Hovland ruled, as a matter of law, “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.

But while Hovland said his decision was in accordance with the law, he also acknowledged that he was deeply troubled by it, calling its application in this case “extremely unfair.” He added, “This exception to federal tort liability is a concept that needs to be eroded and is in dire need of a correction.”

In summary, Hovland noted, “Common sense, fairness, and justice are absent in the application of the exception in this case. Hopefully, Congress will see fit to address this law because a legislative change is needed.”

KX News reached out to Timothy Purdon, attorney for the two men injured and the family members of James Vander Wal and Trudy Peterson, who were killed in the washout. Purdon provided us with the following statement:

“As the Order states, notions of common sense, fairness, and justice are absent from the dismissal of this case on discretionary immunity grounds.  I agree.  Under this ruling there may be no remedy for our clients  — not for the two families who had loved ones die in the washout nor for the severely injured who survived.  We are heartbroken for these families who, as the Court notes, may see no justice here.”

Purdon also said he was discussing options with his clients.