What a fracking nuisance

Flynn v. Hurley Enters., Inc., No. 20130426 (N.D. Mar. 24, 2015).

Western North Dakota is one of the least densely populated parts of the nation, but at night it glows with light from drilling equipment, temporary housing, and flaring gas. (NASA)

Western North Dakota is one of the least densely populated parts of the nation, but at night it glows with light from drilling equipment, temporary housing, and flaring gas. (NASA)

With the advent of fracking, the Bakken formation lying beneath North Dakota has poured forth profits, crime, and—as this case seems to illustrate—social conflict. 

Hurley Enterprises is one of the many businesses that have sprung up in response to the North Dakota oil boom. It provides services to oil fields: porta-potties, generators, potable water, mess halls, telecommunication services, and so on. Hurley Enterprises uses its headquarters, located in East Fairview, North Dakota, for equipment and machine storage—as well as for sewage dumping. 

Hurley’s neighbors, Arlen and Beverly Flynn, have sued, claiming that the noise, dust, and odor from Hurley’s property constitute a nuisance and should be abated. A jury found in favor of Hurley, and the Flynns now appeal, citing two errors.

First, the Flynns say that the trial court shouldn’t have allowed witnesses to testify about the good works of Hurley Enterprises and its owner, Vess Hurley. The trial court allowed witnesses to testify about all that Vess Hurley had done “for the whole community.” One witness even said that, when it comes to Mr. Hurley, “Everything is done anonymously. He absolutely wants no credit.” (The existence of this statement would seem to contradict its content, given that Hurley Enterprises put this witness on the stand.)

The North Dakota Supreme Court says that none of this testimony was relevant. Yes, determining whether something’s a nuisance requires balancing the benefits that come from the defendant’s use of its property against the harm caused by that use. But the benefit flowing from Hurley Enterprises’ use of the property is not what the witnesses were testifying about. They were testifying, as the court says, about Vess Hurley’s “unrelated good deeds performed in the general community.” 

Next, the Flynns argue that an instruction given to the jury erroneously suggested that Hurley Enterprises could not be a nuisance because its use of the property complied with applicable zoning requirements. The court agrees with the Flynns on this point, too, and it holds that the trial court’s evidentiary and instructional errors call for a new trial.