BISMARCK — A trial expected to shed new light on a federal agency’s management — and potential mismanagement — of the Dakota Access Pipeline protests kicked off Thursday in federal court.
North Dakota is seeking to recoup $38 million it claims it spent policing the protest camps north of the Standing Rock Sioux Reservation in rural Morton County in 2016 and early 2017 opposing the pipeline, often referred to as DAPL.
U.S. District Court Judge Daniel Traynor will hear from witnesses for the state and federal government over the next two weeks. The bench trial is expected to last through Feb. 29, but may continue into March.
Gov. Doug Burgum and former Gov. Jack Dalrymple are expected to be among the dozens of witnesses expected to testify.
Attorneys for the state say federal officials’ response to the protests was poorly coordinated, that the United States denied necessary support to North Dakota and the U.S. Army Corps of Engineers encouraged the protests to continue despite their substantial drain on local government and state resources. The state claims these actions put law enforcement, emergency responders, protesters and Morton County residents in harm’s way.
North Dakota attorneys argue in court records the protest that spanned 233 days resulted from an illegal occupation on federal lands and led to “frequent outbreaks of illegal, dangerous, unsanitary, and life-threatening activity on federal, state and private property.”
“North Dakota was left to deal with this crisis on its own,” Special Assistant Attorney General Paul Seby said Thursday.
Attorneys representing the United States say North Dakota is exaggerating the financial impact of the protests and wants the Corps to take responsibility for matters that were outside its control.
According to Seby, the $38 million figure fairly represents the total cost of the protests and officials have meticulous documentation of each expense incurred by local and state agencies.
North Dakota has already received $25 million to offset the costs of the demonstrations — $10 million from the U.S. Justice Department in 2017, and another $15 million from pipeline developer Energy Transfer Partners.
The court complaint estimates the protest camps grew to 5,500 people at their peak, with some estimates as high as 8,000 people. Protesters came from several states and countries. Law enforcement arrested 761 people, court records show, with North Dakotans accounting for about 7% of the arrests. Many criminal charges were later dismissed.
Central to the case is a Sept. 16 press release issued by the Corps claiming the agency gave the Standing Rock Sioux Tribe a special use permit to protest on Corps land, despite the fact that no such permit was ever granted.
In a December order, Traynor said these actions constituted a breach of the Corps’ own special use permit procedure.
North Dakota asserts the Corps, in claiming it had issued the permit, encouraged more people to come protest. The Corps followed the permit press release with a letter to Standing Rock announcing it had also established a “free speech zone” south of the Cannonball River.
Cody Schulz, director of the North Dakota Parks and Recreation Department, was the state’s first witness. During the DAPL protests, he served as chairman of the Morton County Commission and the disaster recovery chief for the state’s Department of Emergency Services.
According to Schulz, state and local law enforcement were left on the hook for policing the camps and cleaning them up after the protesters were removed. Morton County received no financial assistance from the federal government to help manage the protests, either, he said.
Beyond the drain on law enforcement, the protests caused a range of impacts on Morton County — everything from minor inconveniences like sluggish traffic to damage to private property, Schulz said. He said there were multiple days when protesters caused a local school to temporarily close.
“I’m just very disappointed in the Corps’ responses to the incident and the resources that they put forward,” he said.
Schulz estimated that 80% of the protesters were peaceful, which he defined as not trying to cause harm to people or property.
According to Shulz, it took personnel four days to clean up the camps. They hauled away more than 9 million pounds of garbage, he said.
The state showed a handful of photos taken by Schulz on Feb. 23, the day after the camps were cleared of protesters. The photos depicted abandoned tents, protest signs, piles of garbage and personal items strewn across the snowy landscape.
In multiple photographs, plumes of smoke were visible. Schulz said some protesters had set fire to parts of the camps the day before.
Jane Bobet Rejko, the lead attorney for the United States, argued that the Corps did the best it could to assist North Dakota in the midst of what she called “unique, unpredictable and often uncontrollable” circumstances.
The Corps is not a law enforcement agency, she noted, and didn’t have the training or resources to address the protests.
During cross examination of Schulz, Bobet Rejko presented an email from the Corps to North Dakota officials that indicated the state had jurisdiction to enforce laws on Corps property. Schulz said a local prosecutor told him that North Dakota trespass law would require the landowner – in this case the Corps – to request removal of the trespassers in order to enforce the law.
Bobet Rejko also said the Corps’ statements regarding the permit and “free speech zone” did not change the number of protesters.
The popularity of the DAPL demonstrations can be attributed to a mix of factors, she added, including the historical context behind the U.S.’ relationship with the tribes, encouragement from tribal leadership, the 2016 elections and coverage of the protests in the press and on social media.
Schulz also agreed with a statement by Bobet Rejko that political decisions made by former presidents Barack Obama and Donald Trump impacted the protests.
Bobet Rejko also indicated Thursday that the Corps did clean protest camps south of the Cannonball River and had plans in place to clean the camp north of the river. Schulz said the state handled the Morton County cleanup because officials didn’t have confidence the Corps would handle it before spring flooding.
The other witness to testify Thursday was the North Dakota Highway Patrol chief pilot who flew over the protest camps almost daily and took 20,000 photographs.
The $3.8 billion pipeline has been operating since June 2017, carrying oil from North Dakota to a transportation hub in Illinois. In 2020, a judge revoked the easement for the pipeline crossing under the Missouri River just north of the Standing Rock reservation, requiring additional study but allowing the pipeline to continue operating. The Army Corps is expected to complete its environmental impact statement by the end of the year.
North Dakota officials advocated during a public comment period to keep the pipeline operating, warning that shutting it down would shift oil transportation to rail. Leaders of the Standing Rock Sioux Tribe continue to oppose the pipeline and argue it should be shut down, citing concerns about potential risk to their water supply.