The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Government's motion for summary judgment filed on March 30, 2009. See Docket No. 11. The Plaintiffs filed a response in opposition to the motion on May 15, 2009. See Docket No. 22. The Government filed a reply brief on May 20, 2009. See Docket No. 23. The Court grants the motion for the reasons set forth below.
The plaintiffs, Andrew Gladue and Beatrice Vivier, are enrolled members of the Turtle Mountain Band of Chippewa Indians and reside in Dunseith, North Dakota. Gladue and Vivier own fee land in Rolette County, North Dakota at SW1/4SW1/4 Section 26, Township 162 North, Range 72 West.
On June 29, 1999, the Bureau of Indian Affairs (BIA) contracted with Flickertail Paving & Supply, LLC (Flickertail) to establish a gravel pit in Rolette County, North Dakota at NW1/4SW1/4 Section 26, Township 162 North, Range 72 West, which is tribal land within the Turtle Mountain Indian Reservation and adjacent to the Plaintiffs' land. Flickertail was retained to crush and stockpile 175,000 metric tons of surface coarse aggregate. See Docket No. 14-3, p. 6.
Before beginning the gravel pit project, Flickertail realized that it did not have a stockpile site for the gravel. On August 30, 1999, after Flickertail was unable to negotiate the use of the Plaintiffs' land as a stockpile site, Flickertail informed the BIA that the gravel pit project had been delayed because it did not have access to a stockpile site and that it would have to move to a different location. See Docket No. 15-5. Flickertail then decided that it could establish a gravel pit at the original location by using conveyor belts to stockpile the gravel uphill from where it was being mined.
At some point in 1999, a neighbor informed Andrew Gladue that there was gravel stockpiled on the Plaintiffs' land. Gladue discovered a stockpile of gravel, downed trees, a damaged fence, and that the land had been "bladed." See Docket No. 14-2, pp. 4-5. Gladue noticed workers on the adjacent tribal land but did not know who they were or for whom they worked. Gladue also noticed a worker on the Plaintiffs' land but did not recognize him and did not know for whom he worked. See Docket No. 14-2, p. 5. Gladue informed the Rolette County Sheriff that someone was on the Plaintiffs' property. After the Rolette County Sheriff spoke with BIA employees Ken Davis, Raymond Keplin, and Lyle Warren, the three men visited Gladue and apologized. They then offered Gladue "$5,000 to forget everything." See Docket No. 14-2, p. 5. Within two days, the gravel that had been stockpiled on the Plaintiffs' land was gone.
On June 8, 2000, Gladue filed a Federal Tort Claims Act claim with the BIA for $20,000 in property damages. Gladue argued that the "BIA wrongfully excavated [his] real estate being in Section 26, Township 162 North, Range 72 West, Rolette County, North Dakota. This wrongful excavation caused material and aesthetic damage to [the] property, greatly depreciating the value thereof." See Docket No. 15-2. The claim was forwarded to the United States Department of the Interior for an administrative determination. The Department of the Interior added Jason Vivier as a claimant because he owned the land with Gladue at the time of the claim. Jason Vivier later conveyed his interest in the land to Beatrice Vivier. On March 9, 2007, the Department of the Interior awarded $275.00 to Gladue and Jason Vivier after finding "that in the fall of 1999 the BIA caused the surface disturbance of 2.1 acres of [their] land while constructing a gravel pit on appurtenant land. The cost to repair the surface disturbance exceeds the value of [the] land" which was valued between $125.00 and $150.00 an acre. See Docket No. 14-5. Gladue and Jason Vivier were given forty-five days to accept the award and were informed that if they did not accept it within the time period, the claim would be administratively denied. Gladue and Jason Vivier also were informed that they had six months to request reconsideration of the award or to file suit in United States District Court.
Gladue and Jason Vivier requested reconsideration of the award on April 20, 2007, and raised the amount of property damages claimed to $38,224.88. On June 28, 2007, the Department of the Interior awarded Gladue and Jason Vivier $275.00 for land damage and $117.38 for fence damage, for a total of $392.38. They were informed of their right to accept the award within forty-five days or to file suit in United States District Court within six months. The Department of the Interior denied the claim on August 12, 2007, after the award was not accepted within forty-five days.
On October 15, 2007, the Plaintiffs filed a complaint pursuant to the Federal Tort Claims Act. See Docket No. 1. The Plaintiffs contend that the BIA "entered into Plaintiffs' property without their consent and excavated the property causing damage to timber, trees, underwood, landscape, forage, fencing, and trees." See Docket No. 1 (errors in original). "The carelessness, recklessness, and negligence of the [Government] depreciated the value of the land" and "caused Plaintiff[s] emotional distress and despair" because the land "was of sentimental value as it was inherited from a family member." See Docket No. 1.
On March 30, 2009, the Government filed a motion for summary judgment. See Docket No. 11. The Government argues that if the Plaintiffs' land was damaged, it was damaged by Flickertail and not by the BIA. The Government contends that Flickertail was an independent contractor and, therefore, the Government is not liable for any negligence by Flickertail. The Government also contends that the BIA did not owe a duty to protect the Plaintiffs' land and that the BIA did not trespass on the Plaintiffs' land.
The Plaintiffs contend that "the BIA controlled the physical performance of where material was stockpiled and thus is liable for the negligent placement of the material on the Gladue property and the damage caused by the stockpiling of material." See Docket No. 22. "Additionally, the Department of the Interior has already determined that it is responsible for the damage. This is an admission by the BIA that it is responsible for the damage to the Gladue property." See Docket No. 22 (internal citation omitted). The Plaintiffs contend that "the BIA had a duty not to go on the plaintiff[s'] property without their permission." See Docket No. 22.
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates no genuine issues of material fact exist and, therefore, the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, 490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 ...