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North Dakota still seeking to recover $38M in Dakota Access protest policing costs

North Dakota still seeking to recover $38M in Dakota Access protest policing costs

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While the legal battle heats up over the potential shutdown of the Dakota Access Pipeline, the state of North Dakota continues its effort to recoup $38 million in expenses it incurred policing protests of the project more than three years ago.

The federal government is asking a judge to dismiss the state’s lawsuit seeking reimbursement for the cost of sustaining the monthslong law enforcement response to the protests, which began on a large scale in August 2016 and occurred primarily in Morton County and Bismarck. The parties met Tuesday for a hearing in U.S. District Court in Bismarck.

Attorneys spent significant time focusing on the protesters' lack of a permit to camp on federal land managed by the U.S. Army Corps of Engineers, and on the Corps attempting to establish a “free speech zone” in the area in November 2016.

“The Corps was faced with an unprecedented event,” said Grant Treaster, an attorney for the U.S. Department of Justice.

North Dakota Attorney General Wayne Stenehjem countered that the state was “wracked by over seven months of catastrophe as a result of the protests that occurred” and said he was “disappointed in my federal government, to say the least.”

“The Army Corps of Engineers has done nothing but avoid and evade their responsibility,” he said.

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A decal attached to an iron fence post with the words "No Spiritual Surrender" is one of the few visible remnants of the Dakota Access Pipeline protest camp that flourished in 2016 and 2017 on federal land north of Cannon Ball in Morton County.

Thousands of protesters occupied grassy fields along the confluence of the Cannonball and Missouri rivers in 2016 and 2017, some of them camped on Corps-managed land and others on land belonging to members of the Standing Rock Sioux Tribe, whose reservation lies just south of the pipeline’s Missouri River crossing. Pipeline opponents fear an oil leak will harm the environment, especially the river.

An attorney for the state of North Dakota pointed out that the Corps never authorized a permit for the protesters, despite a press release the agency issued in September 2016 saying it had granted one to the tribe. Treaster characterized the press release as a “misstatement” and said the Corps at the time was in talks with the tribe and protesters about a permit.

Protesters submitted an application for a permit in August 2016 and later made a separate verbal request, Treaster said. The Corps never granted a permit because the protesters failed to obtain a bond for the use of the land, he said. A bond would have ensured monetary backing to cover any damage that might occur.

The Corps in November 2016 issued a letter designating a “free speech zone” on its land south of the Cannonball River and asked protesters to move there and leave land north of the river in what was known as the “Oceti Sakowin” camp.

“It was a strategy the Corps used to help manage the protests and contain the protests,” Treaster said, adding that the new location would allow first responders to more readily access the area in case of medical emergencies, fires or other crises.

One of the key aspects of his legal argument centered around the Corps’ “discretion” authority in enforcing its policies. There is no “mandatory action” required of the Corps to respond to trespassers and it has “many tools” at its disposal to use in its response, Treaster argued. The agency used its discretion to establish the free speech zone, he said. 

“The Corps employees have extremely limited enforcement authority,” he said.

The agency’s decisions also were “susceptible to policy considerations,” he said, including the safety of Corps employees, the rights and safety of others, as well as tribal relations.

While some protesters did leave Oceti Sakowin when the Corps asked, many did not, said Paul Seby, special assistant attorney general for North Dakota. He said the free speech zone was an effort by the Corps “to create a buffer,” adding that protesters at the time were planning to overtake Turtle Hill, a prominent landmark in the area beyond which pipeline construction was taking place.

Some protesters continued to occupy the land for another four months until law enforcement raided the camp in February 2017 and arrested the remaining protesters who refused to leave.

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Law enforcement entered the Oceti Sakowin camp on Feb. 23, 2017, to begin arresting the last Dakota Access Pipeline protesters in Morton County near Cannon Ball. As the arrests were underway, law enforcement personnel drove  large construction equipment into the camp to begin the cleanup process of razing tents and structures before hired contractors took over.

The state argued in court documents that the Corps “invited” and "encouraged" demonstrators to protest there by issuing the letter establishing the free speech zone and by processing protesters' applications for a permit to use the land, in violation of policies restricting the use of such land to recreational purposes.

Seby said “no private person could escape liability” for acting in the way the Corps did in response to the protests. He added that situation was avoidable. The Corps never should have allowed protesters on its property to begin with, he said.

“This overwhelmed North Dakota's law enforcement,” he said.

Law officers from across North Dakota responded to the protests, and leaders in the police response even called in assistance from other states. While officers say such a robust response was necessary to protect the public and that some protesters used dangerous weapons, protesters criticized the militarized nature of the response. Police often donned riot gear and sometimes used armored vehicles and “less-lethal” weapons such as rubber bullets to push back demonstrators. Officers made 761 arrests in a six-month span.

Seby said the Corps could have requested to enter into a cooperative law enforcement agreement with the Morton County Sheriff's Office, one of the agencies leading the police response. The Corps has such an agreement with law enforcement in McLean County north of Bismarck, and “it does provide for the Corps to pay McLean County for the use of its law enforcement,” he said. But the Corps did not make such a request during the protests.

Seby said the state also contributed funds to the cleanup effort at the camps, hiring contractors to remove the debris that the protesters left behind, before the spring thaw.

“The river swells in the spring with the snowmelt,” he said. “That was all going into the river if it didn’t get cleaned up."

Judge Daniel Traynor, who is presiding over the case, said he will rule in the coming weeks.

The state of North Dakota brought the suit against the federal government last July.

The state’s lawsuit comes after it submitted an administrative claim against the Corps seeking the money in 2018. The Corps never responded to the request, short of a notification that the agency had received it, Stenehjem said.

The state already received $25 million in 2017 to help offset the cost of policing the protests. The money includes a $10 million grant from a Justice Department assistance program, as well as a $15 million donation from pipeline developer Energy Transfer. Stenehjem has said that he intended to pursue the full $38 million cost in court, regardless, because "the Corps of Engineers is not entitled to the benefit of that gift" and because it should be up to the Corps to justify that the $10 million should be credited toward the state's costs.

Stenehjem said a year ago that any further money the state receives from the federal government would go toward paying back $13 million still owed to the state-owned Bank of North Dakota for loans that covered policing expenses, with the rest going to the state's general fund.

The state made one other effort to try to recover its expenses by asking for a disaster declaration from the Trump administration, but that request was denied in 2017.

Reach Amy R. Sisk at 701-250-8252 or amy.sisk@bismarcktribune.com.

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