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North Dakota's lawsuit seeking $38M in DAPL protest cleanup costs can proceed, judge rules

Forum Photos of the decade 2010s.03.jpg
A protester pours gasoline on a fire blocking North Dakota Highway 1806 on Oct. 27, 2016, north of Cannon Ball. Protesters of the Dakota Access Pipeline were attempting to keep law enforcement officers from pushing them off the road and out of their camp. Forum file photo

BISMARCK — A judge has rejected the federal government's request to throw out North Dakota's lawsuit seeking $38 million in cleanup reimbursements related to the Dakota Access Pipeline protests.

The decision, announced Wednesday, Aug. 19, by Judge Daniel Traynor of the U.S. District Court for the District of North Dakota, is the latest development in a years-long dispute between North Dakota and the Army Corps of Engineers over responsibility for damages caused by the 2016-2017 protests at DAPL's Lake Oahe crossing near the Standing Rock Reservation.

The two sides debated the requested dismissal in a Bismarck courtroom last month, where the state attorney general's office claimed that the Army Corps "invited" protesters onto federally-managed lands, an act of negligence that resulted in millions of dollars in damages.

Multiple protester camps were located on Corps-managed lands, and while the Corps claims that it established so-called "free speech zones" to help contain the demonstrations, Traynor ruled that the federal agency skipped a crucial permitting process when it allowed protesters onto its land.

Traynor denied the federal government's request to dismiss four of the five complaints raised by North Dakota.

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“I am 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,” Attorney General Wayne Stenehjem wrote in a statement responding to the ruling. “We plan to vigorously proceed with our litigation through to the end."

In his decision, Traynor suggested that the Army Corps may be responsible for the damages caused on the federally managed lands, writing that, "Here, the maxim applies: 'You break it, you bought it.'" Traynor added that the Army Corps "circumvented" the permitting process when it let protesters camp on its land and noted that these shortcuts "negated the very mandatory protections that process provides." This action, Traynor said, "tainted all other decisions made by the Corps."

The attorney general's office first presented its claims to the Army Corps in 2018, but Stenehjem said in the statement that the federal agency did not acknowledge them at the time. In July of 2019, North Dakota sued the Army Corps. “The Corps illegally created a public nuisance by inviting and encouraging dangerous and illegal conduct and our citizens should not have to foot the bill," Stenehjem said in his statement.

The ruling also drew cheers in Washington, where North Dakota's senators commended the court's decision.

"Judge Traynor’s thorough ruling today will hopefully inspire some humility from the Department of Justice and the Army Corps, who seem to want to hide behind legal motions rather than accept responsibility for their actions," Sen. Kevin Cramer wrote in a statement.

Sen. John Hoeven wrote that "the state deserves to have its cleanup and law enforcement costs reimbursed," adding that he intends to work with the rest of the North Dakota delegation to make that happen.

The DAPL protests, which drew international attention, stemmed from the Standing Rock Sioux Tribe's concerns that the pipeline threatened the reservation's drinking water and sacred sites. Gov. Doug Burgum has said about 1,400 law enforcement officers helped deal with the eight months of protests and that about 760 arrests were made.

Readers can reach Forum reporter Adam Willis, a Report for America corps member, at awillis@forumcomm.com.

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North Dakota Attorney General Wayne Stenehjem
North Dakota Attorney General Wayne Stenehjem. Forum News Service file photo

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