By: Mary Steurer (ND Monitor)
A federal judge has ordered the United States government to pay North Dakota nearly $28 million dollars, finding that the executive branch “abandoned the rule of law” in its response to the Dakota Access Pipeline protests of 2016 and 2017.
In the lawsuit, filed in 2019, North Dakota requested $38 million in damages from the United States government — the total sum it claims it paid for policing and cleaning up the demonstrations.
In a long-awaited decision filed Wednesday, U.S. District Court Judge Daniel Traynor sided with the state, finding the Corps at fault for negligence, public nuisance and civil trespass claims.
“While North Dakota was drowning in the chaos of the protests, the United States dropped an anvil into the pool and turned up the turmoil,” he wrote in a nearly 120-page order.
Thousands came to south-central North Dakota to protest the construction of the crude oil pipeline in solidarity with the Standing Rock Sioux Tribe, which views the project as a looming environmental hazard and an encroachment upon Native territory. It has also accused the pipeline of disrupting sacred cultural sites.
Demonstrators set up camp near where the pipeline crosses beneath Lake Oahe — a reservoir on the Missouri River managed by the U.S. Army Corps of Engineers less than a half-mile upstream from the Standing Rock Sioux Reservation. Opponents urged the Army Corps of Engineers — and later, the federal courts — to deny the pipeline’s developer, Energy Transfer, the land easement necessary to cross Lake Oahe.
The largest demonstration camp was located on land managed by the Corps.
The protests lasted from spring of 2016 to February of 2017, when former Gov. Doug Burgum ordered protesters to evacuate the land.
Traynor wrote the Army Corps was legally required to enforce its property rights as soon as it became aware of the protests — either by requiring the demonstrators to obtain a permit to use its land or forcing the protesters to leave.
Early on in the demonstrations, the Standing Rock Sioux Tribe was in talks with the Army Corps about obtaining a special use permit, but those negotiations fell through, witnesses testified during the trial last year.
In September 2016, the Corps published a press release stating the permit had been granted, despite that the tribe never completed the application process.
Had the Corps followed through with the permit, the agency could have prevented millions in damages to the state, Traynor continued. Such a permit could have required demonstrators to handle cleanup, incentivized protest leaders to prevent damage to the land and prohibited protesters from establishing permanent structures at the campsites, he reasoned. He said the agency could have closed its land if protesters refused to comply with these requirements.
The Wednesday ruling expands on a prior order published in December 2023, in which Traynor held that the Army Corps had violated its own permitting procedures by not requiring protesters to obtain the permit.
Traynor found that the Corps’ decision to allow protesters to use its land — coupled with the press release, which he characterized as an endorsement of the demonstrations — prolonged and intensified the movement.
The United States argued other factors were responsible for the protest’s rise in popularity, like the Corps’ pending decision on the pipeline easement, the tribe’s historic claims to the land and national media attention. Winona LaDuke, an Indigenous environmental activist, testified during the trial that the Corps’ actions surrounding the permit and press release did not affect her decision to be at the camp, for example.
Traynor in his Wednesday order called these elements “red herrings” and “immaterial” to the Corps’ fault in the protests.
“Certainly, protesters had their own independent incentives for why they protested,” Traynor wrote, “but as discussed above, the facts as adduced at trial show protesters were supported, enabled, and encouraged by the Corps’ granting of the de facto special use permit that gave protesters a refuge from which they could conduct repeated illegal and illicit activities.”
The United States has argued that the Corps responded the best it could in an extraordinary situation, and that it did not know the protests would unfold the way they did.
Traynor in his decision rejected this claim, finding that evidence presented at trial showed that the U.S. government knew early on that the demonstrations could balloon in size and become unruly.
North Dakota on multiple occasions asked for federal law enforcement to assist with managing the demonstrations, which Traynor said indicates the United States was aware that the protests posed a safety threat.
The United States also said that it cannot be held liable for the damages because the protests were protected speech.
Traynor said that while some protesters engaged in protected speech, the damages at issue in the lawsuit are not covered by the First Amendment since they resulted from violent behavior. He also noted the United States cannot use the First Amendment protections as a defense when no protesters are party to the case.
“The damages here were caused by tumultuous, unsanitary, and otherwise horrific conditions that caused significant violence to the land and responding law enforcement officers,” he wrote.
Participants in the protest, including those who testified during the trial, emphasized that not all were violent. Demonstrators also objected to the response of law enforcement in riot gear and tactics of private security personnel.
Traynor reduced the award to North Dakota by $10 million, since the U.S. government had already awarded the state a grant of that size to offset the cost of its emergency response to the protests.
The state also received a $15 million donation from pipeline company Energy Transfer Partners in connection to the protests.
Traynor’s decision comes more than a year after the case went to trial.
During the four-week trial, which kicked off in February 2024, the court heard from a wide-ranging cast of witnesses — including Burgum and former Gov. Jack Dalrymple, Native activists, federal officials and law enforcement.
It was not immediately clear whether the United States government would appeal Traynor’s decision. The Corps did not immediately respond to a request for comment Wednesday.
North Dakota Gov. Kelly Armstrong and Attorney General Drew Wrigley called the decision “a major win for North Dakota taxpayers and the rule of law.”
“As outlined in trial testimony and Judge Traynor’s ruling, decisions made by the Obama administration emboldened protesters and ultimately caused millions of dollars in damage to North Dakota, while endangering the health and safety of North Dakota communities, families and law enforcement officers who responded to the protests,” Armstrong and Wrigley said in a joint statement.
Lake Oahe is the Standing Rock Sioux Tribe’s primary source of water. The pipeline’s path also includes unceded land recognized as belonging to the Sioux Nation under an 1851 treaty with the U.S. government.
The Dakota Access Pipeline has been in operation since 2017. In a lawsuit brought against the U.S. Army Corps of Engineers by Standing Rock in 2016, a federal judge found that the Army Corps had violated the law by granting DAPL an easement without first conducting a full environmental review of the pipeline, which is required under the National Environmental Policy Act.
The judge vacated the easement and ordered the pipeline to be drained of oil until the Army Corps could complete an environmental impact study. A higher court in 2021 upheld the decision to pull the easement but ruled that DAPL could remain in operation, concluding that Standing Rock had not shown it is likely to suffer irreparable harm if the pipeline is not shuttered.
The environmental impact study is still in progress.
A separate legal challenge brought by Energy Transfer against environmental group Greenpeace related to the DAPL protests went to trial in February. A nine-person jury of Morton County residents found Greenpeace liable for more than $660 million in damages.
