Trial begins to recoup costs of policing Dakota Access pipeline protests

Much of the case appears focused on two 2016 Corps statements related to a special use permit and a 'free speech zone' for demonstrators

Opening statements began Thursday in the trial of North Dakota’s lawsuit against the federal government for the costs of responding to the Dakota Access Pipeline protests, the culmination of an unusual and drawn-out court fight.

The state filed the lawsuit in 2019, seeking $38 million from the federal government for policing the protests. The bench trial before U.S. District Court Judge Daniel Traynor is expected to last 12 to 13 days.

In an interview, North Dakota Attorney General Drew Wrigley said the trial will show examples of numerous requests to the federal government for help and the “complete refusal” to offer resources and financial support in response.

“It ought not be one of the options of the federal government to just throw up its hands and tell states ‘You’re on your own’ in an instance like this where the illegalities are what they are,” Wrigley said.

Thousands of people camped and demonstrated near the oil pipeline’s controversial Missouri River crossing upstream from the Standing Rock Sioux Tribe’s reservation. The tribe has long opposed the pipeline because of the threat of an oil spill polluting the tribe’s water supply.

The protests lasted from about August 2016 to February 2017. Some days involved clashes between demonstrators and officers, including at a blocked highway bridge where officers used tear gas and rubber bullets and sprayed water in below-freezing temperatures as protesters tried to move past and allegedly threw rocks and burning logs.

In court, Special Assistant Attorney General Paul Seby said the Obama-era federal government allowed and encouraged an “unpermitted, massive and long-term occupation of federal lands.” The protests drew a 230-day response that involved 178 agencies, resulted in 761 arrests and required a four-day cleanup of the camp and 600 bins to remove 9.8 million pounds of trash, he said.

“North Dakota was left to deal with this crisis on its own,” Seby said.

The state relied on compacts to bring in law enforcement officers from around the region and the country for help, Wrigley said. Then-Gov. Jack Dalrymple activated the North Dakota National Guard in September 2016.

The state’s complaint alleges many “trespassers at these unlawful encampments engaged in disruptive, illegal and sometimes violent conduct on federal, State and private lands, including blocking public highways, threatening individuals working on the DAPL pipeline and the local population (such as ranchers), and directly initiating violence against law enforcement personnel and first responders.”

Assistant U.S. Attorney Jane Bobet Rejko said U.S. Army Corps of Engineers officials “acted reasonably given limited options at their disposal” during the protests, which she called “unique, unpredictable and hard to control.”

Much of the case appears focused on two 2016 Corps statements related to a special use permit and a “free speech zone” for demonstrators. Bobet Rejko said those statements had no effect on the protests. North Dakota’s claim is “greatly overstated” and can’t show the Corps statements caused the state to incur the $38 million of response costs, she said.

Seby outlined a litany of witnesses who will testify, including Dalrymple and Gov. Doug Burgum and law enforcement and emergency response leaders.

The pipeline has been transporting oil since June 2017. Many state government officials and industry leaders support the pipeline as crucial infrastructure in the major oil-producing state.

In 2017, the pipeline company donated $15 million to help cover the response costs. That same year, the U.S. Justice Department gave a $10 million grant to the state for reimbursing the response. Wrigley declined to say how those funds affect the amount the state is seeking.

Former President Donald Trump denied a 2017 request from the state for the federal government to cover the costs through a disaster declaration.

A public comment period ended in December on the draft of a court-ordered environmental review of the pipeline’s river crossing. The process is key for the future of the pipeline, with a decision expected in late 2024.

The document laid out options of denying the easement and removing or abandoning the line’s river segment, granting the easement with no changes or with additional safety measures, or rerouting the pipeline north of Bismarck.

Dateline:

BISMARCK, N.D.