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North Dakota Notches Court Win 

The Dakotan
 October 28, 2022
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Case on DAPL Protests’ Damages 

WASHINGTON – U.S. Senator Kevin Cramer, R-ND, issued the following statement on District Court for the District of North Dakota Judge Dan Traynor’s ruling denying the United States motion for case management, which sought to limit the scope of North Dakota’s claims seeking damages from the federal government as a result of the Dakota Access Pipeline (DAPL) protests: 

 “Judge Traynor is right to deny the Department of Justice’s motion, which is based more on arrogance than facts. The coordinated efforts by several federal agencies to facilitate illegal and often violent activity to shut down a properly cited and permitted pipeline must be exposed. The State of North Dakota should not have to make its case with both hands tied behind their backs. Full access to witnesses and evidence from all of the participating agencies is important and appropriate. This is a promising win in our state’s vigorous fight to ensure the people of North Dakota are reimbursed fully for the federal government's negligence. I look forward to seeing what this new avenue of discovery turns up.” 

The ruling stated, “The USACE’s failure to follow the permitting procedure opened the gates to North Dakota being damaged by the United States, its agencies, and third parties. The USACE created a liability mess. It let protestors and other hapless federal agencies exacerbate the damages and then left North Dakota to clean it up.” 

 “[T]he Court agrees with North Dakota that it appears the United States may be utilizing this motion to prevent discovery from the other federal agencies involved in this case or caused damage to the State of North Dakota. Damage that would not have occurred but for the USACE’s ineptitude,” continued the ruling.  

Judge Traynor described the U.S. Army Corps of Engineers’ failures during the DAPL protests as “gigantic federally created mayhem.” He ruled that other federal agencies may have contributed to the damages incurred by the State of North Dakota and are relevant to the ongoing discovery process.  

Background:In October 2021, U.S. District Court for the District of North Dakota Judge Dan Traynor denied the United States Attorney General’s motion for Partial Summary Judgment seeking to prevent North Dakota from claiming damages from the federal government as a result of the DAPL protests. 

Last summer, Senator Cramer discussed North Dakota’s DAPL Federal Tort Claims Act litigation in depth in an essay in the Harvard Journal of Law & Public Policy on restoring states’ rights and federalism in environmental policy. He noted there has been continued resistance from the federal government to assist with the cost of cleanup, enforcement, and policing since the protests.  

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