Directional Drilling Insurance in North Dakota

A North Dakota excavation notice asks a question almost no other ticket asks: it wants to know whether the work involves horizontal boring. That single field changes the character of the whole chapter, because it means the operators receiving your notice are told the method before anyone arrives.

It also means a bore that was ticketed as an open cut is a bore that was ticketed wrong. What follows is N.D.C.C. chapter 49-23 as it bears on fiber work. The ticket, the clock and the hand-tool band all describe one excavation, and that excavation is set out on the Directional Drilling Insurance pillar and the pollution liability page.

The ticket has a field for your bore

Section 49-23-04(1) requires an excavator, except in an emergency, to contact the notification center and provide an excavation or location notice before beginning any excavation, and it specifies what the notice must contain. Alongside the names, addresses and telephone numbers, two of those requirements are unusual and both matter to a drilling contractor.

Subdivision (d) requires the depth of planned excavation. Subdivision (e) requires the type and extent of excavation being planned, including whether the excavation involves tunneling or horizontal boring.

A locator who knows a bore is coming is a locator making different decisions about how precisely to mark and how much to say about depth. That is the benefit. The corresponding risk is that the notice becomes a record of what you told the operators you were going to do, and a strike on a bore that was noticed as something else is a strike with a documentary problem attached before the engineering is even discussed.

Section 49-23-01(7) puts the method beyond argument in any event: “excavation” means any operation in which earth, rock or other materials in or below the ground is moved or otherwise displaced by hand or power tools, power equipment or explosives, and includes grading, trenching, digging, ditching, dredging, drilling, augering, tunneling, boring, scraping, and cable or pipe plowing and driving.

A clock that starts at 12:01 the next morning

Section 49-23-01(12) defines the locate period as the later of two things. The first is the forty-eight hour period beginning at 12:01 a.m. of the day after the location request was submitted to the notification center, excluding any Saturday, Sunday or holiday, and any twenty-four hour extension provided through the notification center. The second is the period between submission of the request and the noted date and time of excavation.

The start point is the part to diary correctly. The clock does not begin when the call is made; it begins at 12:01 a.m. on the following day, so an afternoon request and an early-morning one on the same date mature at the same moment. Because the period is the later of the two limbs, a ticket submitted well ahead of a scheduled start does not mature early — the noted excavation date holds it open.

Section 49-23-04(4) then sets the release: an excavator may begin in a location when it has received notice that all facilities have been located or cleared, or at the expiration of the location period or an extension of it. Section 49-23-01(16) defines that confirmation as a positive response — notification by the operator to the notification center that facilities within the area have been marked or cleared.

A request that runs out of route before it runs out of time

This is the provision most likely to surprise a crew arriving from a state that meters tickets purely by the calendar. Section 49-23-04(3) provides that a request for location is limited to an area not exceeding three contiguous city blocks within an urban area, or an area of four contiguous quarter sections or five linear miles in a rural area.

A long rural fiber alignment therefore cannot be ticketed as one job. It has to be broken into requests, each of which carries its own locate period, its own positive responses and its own expiry — and the seams between them are where a route loses track of which stretch is currently live.

Section 49-23-04(2) adds a second layer to each of those requests: unless exempted, the ticket must include site identification by white marking, digital white lining, project staking, geographic information system shape file, detailed drawing, map, or other means agreed upon by the parties. It is not required where the precise location can be clearly identified on the notice and is limited to a single street address or platted lot, where the excavation is an emergency, or where the excavator requests and conducts a meeting with the affected operators at the location before any excavation.

Section 49-23-04(6)(f) closes the loop on schedule slip: after facilities are located, the excavator must notify the notification center if it postpones the commencement time by more than forty-eight hours, or any extension of that period, or cancels the excavation.

Two feet, and the question of who pays to find it

Section 49-23-04(6)(a) requires an operator with facilities in the area of a request to locate and mark, or otherwise provide, the approximate horizontal location within the location period or as agreed. Subdivision (b) then defines that as a strip of land two feet on either side of the underground facilities, and allocates cost: an operator of a facility required to be locatable is responsible for the costs of location.

The same subdivision carries a remedy that runs toward the contractor. If an excavator is unable to locate a facility within two feet on either side of the operator’s markings and requests assistance from the operator, but the operator fails to provide the requested assistance within a reasonable time, the operator is responsible for the excavator’s reasonable costs incurred to locate the facility. That remedy has a precondition made of paperwork: you have to have asked. A crew that quietly spends a day hunting for a mismarked line has spent it on its own account.

Set against that is §49-23-05(4), which places on the ticket holder the duty to assume the cost of excavation to expose the facility unless otherwise indicated by the owner of the facility. Read the two together and the default is that potholing is yours, while the cost of chasing a locate that was wrong can be shifted — but only if the request for assistance was made and can be shown.

Section 49-23-04(6)(d) requires markers to follow the current color standard used by the American Public Works Association, and (6)(e) requires an operator that cannot complete marking before the stated commencement time to promptly contact the excavator.

Hand tools within two feet of the edge

Section 49-23-05 lists what a ticket holder must do near marked plant: maintain a clearance between the facility and the cutting edge or point of any mechanized equipment considering the known limit of control; provide support in a manner approved by the operator, including backfill of material equal to or better in quality and quantity than the existing backfill; assume ownership of the marking materials, use reasonable efforts to maintain them during excavation and remove them on completion; assume the cost of exposing the facility; conduct the excavation in a careful and prudent manner; and properly manage spoil to prevent shifting or falling material.

That fifth item is a defined term rather than a standard of care. Section 49-23-01(3) provides that careful and prudent manner means manually excavating within twenty-four inches of the outer edges of any underground facility on a horizontal plane as located and marked, and supporting and protecting the uncovered facility.

Both halves are required. Reaching a line by hand and then leaving it unsupported in an open hole is not compliance with the definition, and on a bore the relevant clearance is measured from the marked outer edges rather than from the centerline a locator sprayed.

A class A misdemeanor for what you do after the strike

Section 49-23-06(1) sets out what happens on contact. The excavator must notify the operator as soon as reasonably possible; the operator must dispatch personnel as soon as reasonably possible to investigate. If the damage results in the escape of flammable, toxic or corrosive gas or liquid, the excavator shall call 911 immediately and notify the pipeline operator immediately. Where damage endangers life, health or property, the excavator responsible for the work shall take immediate action to protect the public and property and to minimize the hazard until the operator’s personnel or emergency responders arrive and take charge.

Subdivision (c) requires the excavator to delay backfilling in the immediate area of the damaged facilities until the damage has been investigated by the operator, unless the operator authorizes otherwise, and provides that repair must be performed by the operator or by qualified personnel authorized by the operator.

Then subdivision (d), which is the sentence to put in front of a superintendent. An excavator is guilty of a class A misdemeanor if it damages a facility or its protective covering and knew or reasonably should have known the damage occurred and either does not notify the operator as soon as reasonably possible or backfills in violation of subdivision (c).

Note what is criminalized. It is not the strike. It is the concealment — the failure to report, or the covering up. A nicked duct that a crew backfills over rather than calling in is the fact pattern the subdivision describes, and it converts an insurable property loss into a personal criminal exposure that no policy answers.

The reimbursement reaches past the repair

Section 49-23-06(2)(a) sets the civil consequence, and it is drafted broadly. An excavator who fails to comply with the chapter or damages a facility is liable for all damages caused by the failure to comply and for all damages to the facilities, and must reimburse the operator for the cost of location, repair and restoration, loss of product, and interruption of service occurring because of the damage, together with reasonable costs and expenses of suit, including reasonable attorney’s fees.

Three of those heads are not the cost of a splice. Loss of product, interruption of service and attorney’s fees are consequential and fee-shifting exposures, and they are the reason a modest North Dakota strike can produce a demand out of all proportion to the physical damage. A cut serving a carrier’s customers is an interruption-of-service claim before it is a repair claim.

Subdivision (b) supplies the defense, and it is narrow. Reimbursement is not required if the damage was caused by the sole negligence of the operator, or the operator failed to comply with sections 49-23-03 and 49-23-04. Sole is doing the work in the first limb — contributory fault on the crew’s side puts the reimbursement back. The second limb is the more usable one in practice, because it is about the operator’s own compliance with the notification-center and locating obligations, which is a matter of record rather than of argument.

Pricing a North Dakota account

The contractors who reach us in North Dakota are usually mid-project, holding a certificate a prime has refused and an agent who cannot explain why re-issuing it will not help. What decides money here is the size of the tail behind a cut. Because §49-23-06(2)(a) reaches loss of product, interruption of service and attorney fees, the number that matters is rarely the repair invoice, and a limit set against splice costs is set against the wrong figure.

One structural point specific to North Dakota. Workers compensation here is written through the state fund rather than the private market, so a North Dakota crew’s work injury cover is not part of a package a broker assembles. That changes what a certificate looks like and it changes which pieces we are actually placing — the liability, equipment and pollution lines — so a prime asking for a single certificate covering everything is asking for something the state’s structure does not produce.

Pollution liability is outside chapter 49-23 entirely. The chapter governs facilities and the penalties for damaging them; drilling fluid reaching a slough, a drain tile or the Red River is an environmental loss the general liability form excludes. Contractors equipment earns its place because §49-23-06(1)(c) can hold an excavation open until an operator investigates and repairs. General liability is specified against the subcontract, which in North Dakota is carrying the indemnity question by itself, for the reason below.

Chapter 49-23 gives the ticket a field for your bore and a clock that starts at 12:01 the next morning — both about the excavation itself. The licensing, market and multi-crew side of the account is on our North Dakota fiber contractor insurance page.

The second statute this page does not reach

Most state pages on this site work two axes: the damage prevention act, and the anti-indemnity statute that decides what your subcontract may make you promise. This page works one.

We have not located a North Dakota anti-indemnity statute — no provision voiding or limiting an indemnity clause in a construction contract. That is a statement about a search, not about North Dakota law. Retrieval can show what it found; it cannot establish that nothing exists, and treating an empty result as a negative finding is how a contractor comes to rely on a protection nobody ever read.

Nor are we going to describe North Dakota common law on the subject. Where a court has laid down a rule that does a statute’s work, and where we have retrieved and read the decision, the page for that state names the case and the level of the court. That research has not been done here, and writing an unverified rule into this section to make it look complete would be the opposite of useful.

So the boundary is this. On what we hold, your North Dakota subcontract is governed by its own terms rather than narrowed by a statute we can point you to — which puts the indemnity article, the additional insured wording and the insurance exhibit in charge, and makes reading them before signature the protective step.

Why Fiber Optic Guard Insurance

What we actually do on a North Dakota file: check that the notice said what the work was, since §49-23-04(1)(e) asks whether the job involves horizontal boring and the answer becomes a record; break a long alignment against the three-block and five-mile caps in §49-23-04(3) so no stretch is working under a lapsed request; diary the locate period from 12:01 a.m. the following day rather than from the call; make sure any request for operator assistance under §49-23-04(6)(b) is in writing, because that request is the precondition for shifting the cost; brief the crew that §49-23-06(1)(d) makes concealment a criminal matter and that no policy responds to it; set limits against interruption of service and fee-shifting rather than against repair cost; and read the subcontract as the operative document, since we have not located a North Dakota statute cutting it back.

Frequently asked questions about North Dakota directional drilling insurance