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Pipeline protest trial ends, ruling still months out
CANNON BALL, ND - DECEMBER 03: Hawk Laughing, a Mohawk originally from northern New York, helps to build a tipi at Oceti Sakowin Camp on the edge of the Standing Rock Sioux Reservation on December 3, 2016 outside Cannon Ball, North Dakota. Native Americans and activists from around the country have been gathering at the camp for several months trying to halt the construction of the Dakota Access Pipeline. The proposed 1,172-mile-long pipeline would transport oil from the North Dakota Bakken region through South Dakota, Iowa and into Illinois. (Photo by Scott Olson/Getty Images)
State, federal authorities at odds over covering the $38 million cost of the protest
There was no answer to the $38 million question as a four-week trial over the cost of Dakota Access Pipeline protests ended Thursday.
No closing arguments were presented. A ruling from U.S. District Court Judge Dan Traynor is still months away, and will follow additional summary documents from attorneys.
Attorneys for North Dakota argue the actions of federal agencies escalated and extended the length of the protests, while also withholding resources from state and local law enforcement.
The state is asking for $38 million from the United States as compensation for costs it claims were incurred policing the demonstrations.
The United States has argued that North Dakota is exaggerating those costs, that the federal government responded to the demonstrations the best it could and its actions did not intensify the protests.
The trial closed with the recorded deposition of Scott Davis, who at the time of the protests was the executive director of the North Dakota Indian Affairs Commission and a Mandan city commissioner.
Protesters descended on south central North Dakota in 2016 and 2017 in solidarity with the Standing Rock Sioux Tribe, which opposed the pipeline out of concerns it infringed on tribal land and would endanger the tribe’s water supply.
Davis described the difficulty of trying to coordinate protest response with tribal leadership, police officials and the pipeline company, Energy Transfer Partners.
“There were times where the pipeline didn’t want to hear what law enforcement had to say,” he said.
Davis said, at the request of law enforcement leaders, he asked Energy Transfer Partners to temporarily pause construction of the pipeline.
Police didn’t have the resources to ensure the safety of protesters and construction workers, he said. They hoped delaying work on the project would keep the protests manageable until more law enforcement personnel were available.
According to Davis, the pipeline company didn’t go for it.
“I’m sure they were on a timeline to build and so forth, I get that,” Davis said. “But public safety-wise, people are going to get hurt.”
During the demonstrations, there were times Davis personally approached protesters and tried to convince them to go home. He got the sense they felt a sense of purpose at the camps — something that may have been difficult for them to leave behind, he said.
“I would assume that a lot of them really strongly felt that by staying here, seeing this through and not giving up, that ultimately this pipeline would never be constructed,” Davis said.
The pipeline, completed in 2017, carries oil from North Dakota’s Bakken oilfield to Illinois.
The head of the Bureau of Indian Affairs law enforcement arm testified also this week for the United States that the agency’s response to the Dakota Access Pipeline protests was largely limited by jurisdiction.
Darren Cruzan, who led the BIA’s Office of Justice Services at the time of the protests, said officers did not have jurisdiction north of the Standing Rock Reservation. The largest encampment of pipeline opponents was north of the Cannonball River, just outside the boundary for the reservation.
Witnesses for the state involved in North Dakota’s handling of the DAPL protests claimed the state went to great lengths to recruit more federal law enforcement support, but were mostly unsuccessful. Several raised questions about the level of attention and resources federal agencies, including the BIA, devoted to addressing the demonstrations.
About 25% of the 20 BIA law enforcement positions at Standing Rock were vacant at the time of the protest, Cruzan testified this week. BIA officers from other areas were brought in to help, but at most the staffing was 40 to 45 officers, he said, adding that they also had responsibility for the entire reservation, which straddles the border of North Dakota and South Dakota.
The agency’s role included staffing checkpoints on Highway 1806 at the request of state officials to gather information about the number of people and what was going into the camp.
From Feb. 6, 2017, through March 12, 2017, additional Department of Interior law enforcement officials from the National Park Service, U.S. Fish and Wildlife and other Interior agencies deployed staff to assist with the protests, Cruzan testified. That added an additional 50 to 60 officers, he said.
Attorneys from North Dakota highlighted an email from a Department of Justice employee that Cruzan received and expressed confusion about, according to the exhibit.
The Department of Justice conciliation specialist wrote in September 2016 that she had conducted self marshal training in the protest camp and she was asking for equipment for security volunteers in the camp. She listed the needs of the volunteers including all-weather outerwear, walkie-talkies, boots and other equipment.
Traynor questioned why someone at the Department of Justice was taking people’s shoe sizes during the protest and referred to the email as “absurdity.”