The U.S. Army Corps of Engineers is recommending the U.S. Department of Justice try to settle North Dakota’s lawsuit seeking $38,000,000 in damages related to the Dakota Access pipeline protests in 2016 and 2017.
In a letter to the Department of Justice, Col. James E. McPherson suggests pursuing the settlement to avoid protracted and costly litigation.
“Particularly in light of the harm that occurred in this case, I request that you consider engaging in settlement discussions with North Dakota to determine whether a reasonable resolution is within reach,” he wrote.
The letter follows a decision in U.S. District Court that North Dakota may pursue four of its five claims for damages related to the DAPL protests, which attracted thousands of people from all over the world to “free speech” zones the Corps allowed along the banks of the Cannonball River, near the pipeline’s Lake Oahe crossing.
In his ruling, U.S. District Judge Daniel Traynor acknowledged that enforcement of trespassing laws is usually up to individual states when it comes to Corps-managed lands, and that the Corps does have discretion when it comes to enforcing permit violations.
However, the failure to follow its own, mandatory permitting processes when it was setting up its free speech zones “tainted” the federal agency’s decisions, and encouraged a “lawless free-for-all” that ultimately increased the damages to North Dakota and opened the door for its suit.
“Here the maxim applies: You break it, you bought it,” Traynor wrote.
Gov. Doug Burgum said he welcomed the opportunity to discuss a settlement with the Department of Justice.
“From the beginning, we’ve argued that North Dakota taxpayers shouldn’t bear the brunt of the enormous costs of law enforcement and other resources expended on the DAPL protests and cleanup,” he said. “We welcome the Army’s recommendation, and encourage the Justice Department to do the right thing and reach a settlement with Attorney General Wayne Stenehjem.”
North Dakota’s Congressional delegation also applauded the decision, noting their own efforts to push the agencies to help North Dakota with cleanup and law enforcement costs it incurred during the protests.
“We welcome Under Secretary McPherson’s recommendation for the DOJ to enter into settlement negotiations with North Dakota,” Sen. John Hoeven said. “These costs are rightfully the responsibility of the Army Corps of Engineers, and we encourage DOJ to take this reasonable step that would save the state and federal government time and money.”
Sen. Kevin Cramer said he hoped the Department of Justice has learned some humility from Traynor’s recent ruling, and that it will follow through on the Corps’ recommendation.
“Under Secretary McPherson’s argument is the right one,” he said. “Justice Department officials should listen to their client and take this opportunity to work with Attorney General Stenehjem and reach a settlement.”
The Dakota Access pipeline carries 570,000 barrels of oil per day from the Bakken to Illinois and is considered vital infrastructure for the oil and gas industry in North Dakota.
However, building the $3.8 billion pipeline, in operation for three years now, was controversial. It attracted fierce opposition from members of the Standing Rock Sioux, whose reservation is near the pipeline’s Lake Oahe Crossing. The tribe said the crossing would endanger their water supply. The site also has great spiritual significance to them and is considered a sacred site.
The tribe’s struggle served as a lightning rod, attracting international attention and between 5,000 to 8,000 thousand supporters, many of whom were environmental activists.
There were frequent clashes with police during the protest, and hundreds of arrests, as well as numerous reports of property damage throughout the conflict.
When the protests finally vacated the Corps-managed properties, North Dakota reported 21,480,000 pounds of debris left behind, including vehicles, makeshift housing, horse pens, personal belongings and more that were left on site. All of that had to be quickly cleared ahead of annual spring flooding at mostly state expense.