STATE OF SOUTH DAKOTA IN CIRCUIT COURT COUNTY OF LINCOLN SECOND JUDICIAL CIRCUIT SLACK FAMILY PROPERTIES, LLC, CIV. 17- Plaintiff, COMPLAINT AND DEMAND vs. FOR JURY TRIAL DAKOTA ACCESS, LLC, Defendant. Plaintiff, Slack Family Properties, LLC, by and through its attorney, Glenn J. Boomsma of Breit Law Office, P.C., for its Complaint against the above-named Defendant states and alleges as follows: Parties And Jurisdiction 1. Plaintiff Slack Family Properties, LLC is a South Dakota liniited liability company with an address of 27093 Fairway Circle, Harrisburg, SD 57032. 2. Defendant Dakota Access, LLC is a Delaware limited liability company with a mailing address of 1300 Main Street, Houston, Texas 77002. 3. This Honorable Court has jurisdiction over this action pursuant to SD. Const. Art. 5 and SDCL 16-6-9 and 15-7-2. 4. Venue is proper and Within the indicated judicial circuit under SDCL 15-5-1 and I 5-5~5. Facts And Background Information 5. On or about March 29, 2016 Plaintiff and Defendant executed an Easement Agreement (hereinafter ?Easement Agreement?) granting Defendant an easement to construct, Filed: 10/31/2017 2:13:16 PM CST Lincoln County, South Dakota install, operate, and maintain a crude oil pipeline over Plaintiff?s real property with the following legal description: The Northwest Quarter (NW Vs), except the East 225.68 feet of the West 1,762.69 feet of the North 238.32 feet thereof, of Section 12, Township 99 North, Range 50 West of the P.M., Lincoln County, South Dakota. 6. A true and correct copy of the March 29, 2016 Basement Agreement, together with all exhibits thereto, is attached collectively hereto as Exhibit A and incorporated herein in its entirety. 7. Under the Basement Agreement, Defendant was granted a ?fty foot wide permanent pipeline easement, a temporary construction easement on hundred feet (100?) in width and an easement not to exceed twenty-?ve feet in width for access to and from the Pipeline Basement and the Temporary Construction Easement. (Ex. A). 8. Plaintiff also granted Defendant an easement for ?a fifty foot seventy ?ve foot (50? 75 surface site, such surface site to be used for valves, risers, meters, pumps, electric facilities and lines, and associated pipeline facilities and the Access Easement(s) to be for ingress and egress, power lines and electric transmission or generation lines as may be needed to supply power to the facilities, located on the surface site? (Ex. A, page 1). 9. In the Basement Agreement Defendant agreed to ?restore all top soil to the entire Easement area.? (Ex. A at p. 4, (emphasis added). 10. Defendant also agreed to ?leave the surface of the Temporary Construction Easem ent, Pipeline Easement, or Access Easement as nearly as reasonably possible as it was prior to the use of same and will restore all fences, access driveways/approaches, and access roads as nearly as possible to as good, or better, condition as they were prior to the use of said Basement and completion of the work for which said use was made, except for that Filed: 1013112017 2:13:16 PM CST Lincoln County, South Dakota 41CIV17-000460 part of the property within the Easements that is permanently altered in accordance with the rights given under this Agreement.? (EXDefendant further agreed ?that after it has exercised its rights to use the Easements in any manner that disturbs the surface of the Easements, it will restore the surface to the condition in which was in prior to the immediately preceding use of the Easements, except as the surface may be permanently modi?ed in accordance with the rights granted under this Agreement.? (Expart of the Easement Agreement, Defendant agreed to comply with the terms of the South Dakota Public Utilities Commission?s (hereinafter Final Order and Permit Conditions of December 14, 2015, bearing Docket Number HP14-002, captioned In The Matter ofihe Application Of Dakota Access, LLC For An Energr Facility Permit To Construct The Dakota Access Pipeline. 13. Sections 46 and 48 of Article of the SDPUC Permit Conditions provide that: Dakota Access shall repair or replace all property removed or damaged during all phases of construction and operation of the proposed transmission facility, including but not limited to, all fences, gates and utility, water supply, irrigation, or drainage systems. Dakota Access shall compensate the owners for damages or losses that cannot be fully remedied by repair or replacement, such as lost productivity and crop and livestock losses, loss of organic certification, or loss of value to a paleontological resource damaged by construction or other activities. Any damage that occurs as a result of soil disturbance on a person?s property resulting from the construction or operations of Dakota Access shall be paid for by Dakota Access. 14. At an evidentiary hearing before the SDPUC, Defendant submitted the following pertinent exhibits in support of its application for a facility permit to construct and operate the Dakota Access Pipeline: Exhibit DAPL 1 - Application; Filed: 10/31/2017 2:13:16 PM CST Lincoln County, South Dakota we -.- we Exhibit DAPL 2 - Exhibit A of Application? Project Mapping; Exhibit DAPL 3 - Exhibit of Application- Project Typicals and Flow Diagrams; Exhibit DAPL 4 - Exhibit of Application Supplementary Table; and Exhibit DAPL 5- Exhibit of Application Dakota Access Project Plans. 15. Contained within Exhibit DAPL 4? Exhibit of Application Supplementary Table is a document called ?Soil Characteristics for Each Soil Map Unit within the Project Area.? This document identi?es the map units, map unit symbols, pipeline crossing length, prime farm land, hydric soils, compaction potential, steep slopes, shallow bedrock, shallow natric layer, and re?vegetation potential, which can be found on Exhibit DAPL 2- Exhibit A of Application- Project Mapping. 16. The Final Order states as follows: The majority of the soils within the project area are classified as hydrie. Hydrie soils are de?ned by the US. Army Corp of Engineers as soils that formed under conditions saturation, ?ooding or ponding long enough during growing seasons to develop anaerobic conditions in the upper part. Hydric soils can be prone to compaction and rutting. Dakota Access will minimize impacts to hydric soils by implementing mitigation measures as outlined in the Stormwater Pollution Prevention Plan. (Internal citations omitted). 17. Plaintiff? land is classi?ed as hydric soil with a high compaction potential under the speci?cations of Exhibit DAPL 2- Exhibit A of Application? Project Mapping and Exhibit DAPL 4? Exhibit of Application Supplementary Table. 18. Section 24 of the Basement Agreement obligated Defendant to provide ?notice not in excess of 24 hours prior to the back?ll of dirt into the trench so as to enable Grantor?s own drain tile consultant reasonable opportunity to inspect all drain tile repairs and/or installation.? (Ex. A at Filed: 10/31/2017 2:13:16 PM CST Lincoln County, South Dakota 41CIV17-000460 19. 20. 21. 22. 23. Filed: Plaintiff farms and controls the following described parcels of real property: Parcel 1: Parcel 1 consists of 160 acres of land descn'bed as the NW 91 of Section 12, Township 99 North, Range 50 West of the P.M., Lincoln County, SD. The oil pipeline travels along the southern boundary of this land; Parcel 2: Parcel 2 consists of 160 acres of land described as the SW 951 of Section 12, Township 99 North, Range 50 West of the 5?h P.M., Lincoln County, Parcel 3: Parcel 3 consists of 160 acres of land described as the SE 1/3 of Section 12, Township 99 North, Range 50 West of the P.M., Lincoln County, Parcel 4: Parcel 4 consists of 160 acres of land described as the NW of Section 13, Township 99 North, Range 50 West of the P.M., Lincoln County, and Parcel 52 Parcel 5 consists of 160 acres of land described as the SW V: of Section 13 Township 99 North, Range 50 West of the 5 P.M., Lincoln County, SD. In 2016, Plaintiff raised approximately 153 acres of corn on Parcel 1. The 2017 crop on Parcel 1 consisted of 153 acres of soybeans. The water in Plaintiffs drain tile system on Parcel 1 flows to the north and eventually empties into Nine Mile Creek. In 2016, Plaintiff raised approximately 155 acres of soybeans on Parcel 2. The 2017 crop on Parcel 2 consisted of 155 acres of corn. The tiling on Parcel 2 is extensive and all of the water ?ows through tiles to the north over and across Parcel 1. In 2016, Plaintiff raised approximately 50 acres of soybeans and 100 acres of corn on Parcel 3. The 2017 crop consists of 100 acres of soybeans and 50 acres of corn. Parcel 3 is tiled and the water generally flows to the northeast corner of Parcel 3. The drain tile in the northeast corner of Parcel 3 was unhooked and/or plugged during the construction. phase. As a result, water pooled and gathered on Parcel 3 and the 2016 soybean crop was damaged. The drain tile in the northeast corner of Parcel 3 is still not functioning properly and the 2017 crop has been adversely impacted. 10l31l2017 2:13:16 PM CST Lincoln County, South Dakota 41CIV17-000460 um mum-u- a? "yr- Wbl?l??dJ-l .- 24. In 2016, Plaintiffraised approximately 100 acres of soybeans and 50 acres of corn on Parcel 4. The 2017 crop consisted of 150 acres of soybeans. 25. The water in the drain tile on Parcel 4 ?ows to the north. The water crosses the road to the north by way of two large culverts. The water then travels through tiles across Parcels 1 and 2 above where it eventually empties into Nine Mile Creek. 26. In 2016, Plaintiff raised approximately 1. 60 acres of corn on Parcel 5. The 2017 crop consisted of 160 acres of soybeans. 27. Water ?ows to the north on Parcel 5 through interconnected tiles and crosses over Parcels 1, 2 and 4 described above. 28. Water pooled and gathered on Parcels 1 through 5 in 2016 2017 when the drain tiles were disconnected, and the crops have been signi?cantly impacted. 29. The water is currently not draining properly off of Parcels 1 through 5 due to the non? functioning drain tile systems on the said Parcels. 30. On October 13, 2016, Plaintiff ?led an informal complaint with the SDPUC wherein it reported that ?the Dakota Access contractors disconnected the drain tile when installing the pipe and have failed to re-connect the said tile.? Defendant was also informed that the non-functioning drain tile was causing damage to Plaintiffs corn and soybean crops. 31. On or about October 20, 2016, Defendant informed the SDPUC staff that the necessary repairs to Plaintiff?s drain tile had been completed. Defendant knew this statement and representation was false at the time it was made. 32. On March 31, 2017, Defendant was informed that Plaintiff?s drain tiles still were not functioning correctly. Plaintiff requested additional information from Defendant so that it could mitigate its losses and take steps to repair the drain tile. Filed: 10/31/2017 2:13:16 PM CST Lincoln County, South Dakota 33. On or about April 7 2017, one of the Defendant?s representatives inspected Plaintiff?s land. However, Defendant failed to take any remedial measures. 34. Plaintiff sent additional written correspondence to Defendant on April 5, April 17, May 3, July 5, July 17, and July 28, 2017, notifying it of Plaintiff? non-functioning drain tile and other related problems stemming from the pipeline construction. 35. On April 25, 2017, Defendant provided a letter wherein it stated that ?it will be several weeks until Dakota Access will have a completed spring construction plan.? Further, it was reported that ?Dakota Access and its contractors will stand behind the commitments in the Basement Agreement and will work with all landowners to achieve success?ll restoration.? 36. No remedial action was taken by Defendant in the following months. Meanwhile, a good portion of Plaintiffs Spring 2017 crop on Parcels 1 through 5 drowned out or was severely stunted due to the pending of water and overly saturated soils. Many of the acres needed to be replanted. 37. On June 6-9, 2017 Plaintiffs drain tile contractor D'ekam Construction, LLC excavated ?ve of the main drain tile lines on Parcel 1. It was discovered that the ?ve main tile lines were entirely disconnected and/or crushed, and as a result were entirely non- functioning. Several repairs were made. Dekam Construction, LLC performed additional drain tile repairs on July 5-7, 2017. 3 8. Defendant?s oil pipeline intersects with Plaintiff?s drain tiles on Parcel 1 in as many as ten locations. The exact number of crossings is uncertain since Defendant refuses to provide its constructionfdrain tile information to Plaintiff. Filed: 10/31/2017 2:13:16 PM CST Lincoln County, South Dakota 41 39. Parcels 1 through 5 are also adversely impacted by soil compaction, loss of fertility, and altered soil biology as a result of the construction of the oil pipeline. 40. The 2016 and 2017 corn and soybean yields on Parcels 1 through 5 were signi?cantly decreased as a result of the non-?tnctioning drain tile and the other items described in the preceding paragraph. Additionally, Plaintiff expects that its 2018 crop yields will also be adversely affected. . 41. In violation of Section 41 of the December 14, 2015 PUC Permit Conditions, Defendant refused to provide its ?record of drain tile system information kept throughout the planning and construction, including pre-construction location of the tiles.? Count I: Breach Of Contract For Failure To Restore The Easement Area 42. Plaintiff rc?alleges the preceding paragraphs as though fully set forth herein. 43. Defendant failed to comply with the conditions in the SDPUC Final Order and with the Easement Agreement signed between the parties. Speci?cally, Defendant failed to prevent compaction of Plaintiffs land, has failed to return the soil to pre-construction condition, and has failed to protect and repair Plaintiff?s drain tile systems. 44. Plaintiff has incurred substantial damages as a result of Defendant?s failure to restore Plaintiffs land and Plaintiff?s drain tile system. Count II: Breach Of Contract: Unauthorized Taking 45. Plaintiff re-alleges the preceding paragraphs as though fully set forth herein. 46. Defendant installed a road which travels from Cliff Avenue to the surface site. The road is approximately 150 feet long and 50 feet wide. Filed: 1013112017 2:13:16 PM CST Lincoln County, South Dakota 41CIV17-000460 - .. .. 47. 48. 49. 50. 51. 52. S3. 54. 55. 56. Filed: While Defendant was granted an ingress/egress easement so as to access the surface site, it was not granted the right to construct a road. Defendant was not authorized to take this land. In fact, under Section 5 of the Easement Agreement, Defendant agreed to restore the access easement to its pre-construotion "state. This breach caused Plaintiff damages. Count Fraud And Deceit Plaintiff re-alleges the preceding paragraphs as though fully set forth herein. On October 13, 2016, Plaintiff ?led an informal complaint with the SDPUC wherein it reported that ?the Dakota Access contractors disconnected the drain tile when installing the pipe and have failed to re-connect the said tile.? Defendant was also informed that the non-functioning drain tile was causing damage to Plaintiff 3 corn and soybean crops. On or about October 20, 2016, the Defendant informed the SDPUC staff that the necessary repairs to Plaintiff?s drain tile were now complete. Defendant knew this statement and representation was false at the time it was made. Plainti 11" suffered damages due to its reliance on said Defendant?s intentional misrepresentation and actions. Plaintifi?is entitled to a judgment against said Defendant for its fraud and deceit in an amount to be proven at trial. Count IV: Recover}; Of Attorney Fees/Disbursements Plaintiff re-alleges the preceding paragraphs as though fully set forth herein. Section 12 of the parties? March 29, 2016 Basement Agreement states as follows: 9 1013112017 2:13:16 PM CST Lincoln County, South Dakota 41CIV17-000460 Grantee hereby agrees to indemnify, reimburse, and hold Grantor harmless from and against any claim or liability or loss in relating to Grantee?s breach of an}r covenants of this Agreement, any representations and warranties contained in the Agreement, and any attorney fees incurred by Grantor in connection with enforcement of this Agreement, if Grantor is the prevailing party. 57. Plaintiff has incurred attorney fees and disbursements as a result of Defendant?s breach of the Basement Agreement and is entitled to recover the same. Count V: Reeoveg Of Punitive Damages 58. Plaintiff re-alleges the preceding paragraphs as though fully set forth herein. 59. Defendant?s acts were undertaken in a manner which were willful, malicious or oppressive, entitling Plaintiff an award of punitive damages as provided by SDCL {3 21-3- 2. WHEREFORE, Plaintiff prays for relief against Defendant as follows: (1) Actual, compensatory, and consequential damages in an amount to be determined by 3,1111% (2) For pre- and post-judgment interest; (3) Attorney fees and disbursements herein; (4) Punitive damages; and (5) For such other and further relief as the Court determines to be just and proper. Dated this iiday of ij a 2017. wax-2mm?: Glenn J. Boomsma Attorney for the Plaintiff gh?rlbreitlawoccom 606 E. Tan Tara Circle Sioux Falls, SD 57108 (605) 336?8234 10 Filed: 10/31/2017 2:13:16 PM CST Lincoln County, South Dakota DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury on all issues qgjt/riablc. . 7' 5:3? Glenn J. Boomsma 11 Filed: 10/3112017 2:13:16 PM CST Lincoln County, South Dakota 41 CIV1 7-000460