A judge has rejected an attempt by the federal Justice Department to limit the scope of North Dakota’s legal claims as the state pursues $38 million from the U.S. government to cover the costs of policing the prolonged Dakota Access Pipeline protests.
Thursday’s ruling by U.S. District Judge Dan Traynor in Bismarck and court filings surrounding the issue also indicate that at some point opposing attorneys will be arguing whether the matter is too political in nature for the court to decide.
Thousands of American Indian and environmentalist opponents of the $3.8 billion pipeline that’s been moving Bakken oil to Illinois since June 2017 gathered in southern North Dakota in 2016 and early 2017, camping on federal land and often clashing with police, resulting in 761 arrests over six months. Traynor referred to the protests as “gigantic federally created mayhem.”
North Dakota in July 2019 sued over policing costs, contending the Corps allowed protesters to illegally camp without a federal permit. The Corps has said protesters weren’t evicted due to free speech reasons.
The Justice Department in 2020 asked Traynor to dismiss the lawsuit, but he rejected the request in August of that year. Federal attorneys earlier this year maintained that since that ruling favorable to North Dakota, state attorneys were improperly trying to expand their claims to include federal agencies other than the Corps. Justice attorneys asked Traynor to limit the claims only to that of the Corps allegedly failing to follow a mandatory permit process.
“The state has taken a far more expansive view of its claim, suggesting at certain times that it is contesting the entire federal response to the DAPL protests,” Justice attorney V. William Scarpato III wrote. He added later that limiting the scope of the state’s claims to the permit matter “would help the court achieve a just, speedy, and inexpensive resolution of this case. It would focus the issues remaining ... all to the benefit of the court’s resources and those of the North Dakotan and American taxpayer.”
North Dakota Special Assistant Attorney General Paul Seby in a response called the Justice Department’s argument a “last-ditch attempt.” He said the state has always maintained that Justice, the FBI, the Bureau of Indian Affairs, the Interior Department and the U.S. Marshals Service were “involved in the United States’ actions allowing and encouraging the unpermitted, and thus unlawful, occupation of federal lands by the DAPL protesters.”
Traynor ruled in favor of the state.
“The (Corps’) failure to follow the permitting procedure opened the gates to North Dakota being damaged by the United States, its agencies, and third parties,” the judge wrote. “The (Corps) created a liability mess. It let protestors and other hapless federal agencies exacerbate the damages and then left North Dakota to clean it up.”
Attorney General Drew Wrigley in a statement Friday said he was “very pleased to see the court agree with North Dakota that the United States can be held responsible for the multi-million-dollar disaster it created or encouraged.”
Justice Department spokeswoman Deborah Takahara told the Tribune the agency had no comment on the ruling.
Left unresolved is the question of whether the matter is suited for a court decision.
The “political question doctrine” refers to the idea that “an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue,” according to Cornell Law School’s Legal Information Institute.
The Justice Department has raised the issue of a potential political question defense in the policing costs lawsuit. Scarpato wrote that North Dakota’s alleged expansion of claims raises “complex and thorny issues of the political-question doctrine.”
Federal attorneys have not yet asserted the defense, saying it’s premature until they know more about the state’s claims. But “at latter stages of the case when the state presents evidence ... the United States will assert the political question as appropriate,” Scarpoto wrote.
Then-President Donald Trump in 2018 denied a state-requested disaster declaration to cover the state’s DAPL policing costs. The Justice Department eventually did give the state a $10 million grant for policing-related bills. Texas-based pipeline developer Energy Transfer Partners chipped in $15 million.
The late Wayne Stenehjem, attorney general at the time, maintained the $25 million shouldn’t impact the federal government’s responsibility for the $38 million total state cost. He said it’s up to the Corps to prove that it deserves an offset for the Justice Department grant, and that “the federal government is notww entitled to take advantage of a donation from a private party.”
Stenehjem said that any money the state gets for protest policing costs would go toward compensating agencies that paid out money and repaying money borrowed from the state-owned Bank of North Dakota, with any extra going into the state’s general fund.