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Judge rules lawsuit to recover $38M in pipeline protest policing costs can continue

Judge rules lawsuit to recover $38M in pipeline protest policing costs can continue

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Dozens of people were pepper sprayed and at least two were shot with less-lethal bullets during a standoff between Dakota Access Pipeline protesters and police at Cantapeta Creek below Turtle Hill north of the main Oceti Sakowin camp in 2016.

North Dakota's lawsuit to recover $38 million from the federal government to cover the costs of policing the Dakota Access Pipeline protests can continue, a judge ruled Wednesday.

The U.S. Department of Justice sought to dismiss the lawsuit at a hearing before U.S. District Judge Daniel Traynor in Bismarck last month. Much of the debate centered on the protesters' lack of a permit to camp for months on federal land managed by the U.S. Army Corps of Engineers.

Traynor on Wednesday ruled that although federal regulations did not require that the Corps take any specific enforcement action in response to the protesters' conduct, the agency's "failure to comply with the mandatory permitting process tainted all other decisions made" by the Corps.

"Here, the maxim applies: 'You break it, you bought it,'" Traynor wrote.

Traynor denied DOJ's effort to dismiss four of the five claims raised by the state.

North Dakota Attorney General Wayne Stenehjem said in a statement that he was "very pleased to see the Court agree that the Army Corps of Engineers can be held responsible for the multi-million dollar disaster they created or encouraged."

"We plan to vigorously proceed with our litigation through to the end," he said.

The DOJ did not immediately respond to a request for comment. An attorney for the agency argued at the July hearing that the Corps was faced with "an unprecedented event" when the protests occurred. The Corps has limited enforcement ability but the agency has discretion in how to enforce its policies, attorney Grant Treaster said.

Law enforcement maintained a large presence in Morton County and Bismarck for months in 2016 and 2017 while responding to the pipeline protests. Demonstrators criticized the "militarization" of the police, who often donned riot gear and used rubber bullets, among other forms of crowd-suppression tactics, as protesters marched on highways, intersections, the state Capitol and areas near pipeline construction sites. The state also incurred expenses in 2017 cleaning up the protest camps along the border of the Standing Rock Sioux Reservation, just downstream from the pipeline's Missouri River crossing.

Thousands of protesters came to the camps over the course of a seven-month stretch to show their support for the tribe, which continues to fight the oil pipeline in court, arguing a spill could contaminate its water supply.

North Dakota's lawsuit seeking reimbursement for the protest costs comes after the state submitted an administrative claim against the Corps in 2018. The agency did not respond to the request, short of a notification that it had received it, Stenehjem has said. The state also unsuccessfully sought a disaster declaration from the Trump administration to recover the costs, which was denied in 2017.

North Dakota already received $25 million in 2017 to help offset the costs, including a $10 million grant from the DOJ as well as a $15 million donation from pipeline developer Energy Transfer. Stenehjem has said that he intends to pursue the full $38 million cost in court, regardless, because "the Corps of Engineers is not entitled to the benefit of that (Energy Transfer) gift" and because it should be up to the Corps to justify that the $10 million should be credited toward the state's costs.

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

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