North Dakota can claim DAPL policing costs as damages

BISMARCK, N.D. – North Dakota can continue to pursue reimbursement from the federal government of the millions of dollars spent policing protests against the Dakota Access oil pipeline, a judge has ruled.

U.S. District Judge Daniel Traynor denied the federal government’s motion to rule in its favor regarding North Dakota’s attempt to recover more than $38 million relating to the pipeline protests five years ago.

The federal government argued North Dakota’s emergency response expenses are not “money damages” for “injury or loss of property.”

Traynor, who is based in Bismarck and nominated for the judgeship by former President Donald Trump, ruled the state’s claim of damages is permissible.

The state filed a lawsuit against the U.S. Army Corps of Engineers in 2019. North Dakota Attorney General Wayne Stenehjem has long argued that the Corps allowed and sometimes encouraged protesters to illegally camp without a federal permit. The Corps has said protesters weren’t evicted due to free speech reasons.

The $3.8 billion pipeline has been moving oil from the Dakotas through Iowa to Illinois since 2017. Thousands of opponents gathered in southern North Dakota in 2016 and early 2017, camping on federal land and often clashing with police. Hundreds were arrested over six months.

The Standing Rock Sioux Tribe opposed the pipeline built by Texas-based Energy Transfer Partners over fears it would harm cultural sites and the tribe’s Missouri River water supply — claims rejected by the company and the state.

Trump in 2018 denied a state-requested disaster declaration to cover the state’s costs. The Justice Department later gave the state a $10 million grant for policing-related bills. The pipeline developer gave the state $15 million to help with the costs that were funded from loans from the state-owned Bank of North Dakota.

Stenehjem has argued the reimbursements don’t get the Corps off the hook for the state’s $38 million total cost of policing. The federal government says the $10 million should be deducted. Traynor said he’ll rule on the matter after it’s decided whether any damages are awarded.

Traynor last year issued a ruling allowing North Dakota to proceed in its effort to recoup money the state spent on policing protests against the pipeline.  The Corps then recommended the Justice Department negotiate a settlement with North Dakota.

Stenehjem says settlement talks are ongoing. If no settlement can be reached, a trial is set for May 1, 2023.