Dakota access protest 2016-17 horse pen (copy)

You could find most anything you were looking for at the Oceti Sakowen campground during the 2016-17 Dakota Access protest, even a horse pen. North Dakota is seeking $38 million in relation to the protests, which it says left literal tons of debris alongside the river and required emergency law enforcement response.

The federal government cannot trim down North Dakota’s lawsuit seeking $38 million in damages for its emergency response to the Dakota Access Pipeline protests, a federal judge has ruled.

District Judge Daniel M. Traynor rejected a motion from the Department of Justice that sought to bar $37 million of North Dakota’s claims as impermissible due to sovereign immunity, and to reduce the remaining damages by $10 million, based on a federal grant the state received for emergency response costs.

The federal government wants to exclude any interest charges on the loan North Dakota took out with the Bank of North Dakota.

North Dakota Sen. John Hoeven, who was instrumental in helping the state get a $10 million grant for some of its expenses, was among those releasing statements praising the judge’s decision.

“The State of North Dakota faced tremendous costs to support both law enforcement and cleanup due to the federal government’s negligence during the DAPL protests,” Hoeven said. “That’s why we’ve worked to reimburse the state and support Attorney General Stenehjem in this lawsuit. We welcome this week’s ruling from Judge Traynor, and we continue to encourage the DOJ to reach a settlement with the state.”

Sen. Kevin Cramer, meanwhile, urged the Department of Justice and U.S. Army Corps of Engineers to reach an agreement with the state to pay the state’s tab for the protests.

“It is the negligence of the Obama White House and the Corps of Engineers and the Interior Department at the time that led to these riots and this upheaval that had to be policed. The State of North Dakota had to bear the cost of tens of millions of dollars to bring in outside police forces and police officers to keep the people safe in our state,” Cramer said. “For whatever reason, the Obama White House wouldn’t feel the obligation, the Trump White House didn’t feel the obligation, nor has the Biden White House. Now, the obligation is clear and the course is set for trial. Let’s spare the people, the public, and the taxpayers of this country a long, drawn-out trial and just do the right thing.”

In his ruling, Traynor agreed with the Department of Justice and the Corps that the U.S., as a sovereign entity, is immune from suit except to the extent that it has waived that sovereign immunity for injury or loss of property caused by the negligent or wrongful act or omission of any government employee acting within the scope of his office or employment.

But, he disagreed that North Dakota’s claims do not fit that limited waiver of sovereign immunity.

“Loss of money is clearly an injury and a loss of property,” Traynor wrote, citing as an example the Tri State case, which was a case involving wrongful prosecution by the federal government. In that case, plaintiffs were allowed to recover their attorney fees, and did not need corresponding physical injury or damage. The loss of money was enough.

“North Dakota’s emergency response costs are “money damages for … injury or loss of property,” Traynor wrote.

And that loss was due to the United States’ failure to follow its own requirements, Traynor added, so it fits the limited waiver of sovereign immunity’s required parameters.

Traynor also agreed it could be that North Dakota’s damage suit must be reduced by the $10 million grant it has already received for its emergency response. But the state’s laws require such a reduction to occur after an award of economic damages, Traynor said, and it’s also not entirely clear from the limited record of facts available to him whether there should in fact be a reduction.

As far as excluding interest charged by the Bank of North Dakota for the state’s emergency response loan, Traynor said it is not clear whether that should be excluded.

“The interest North Dakota claims on the state-owned bank of North Dakota loan is not remedial in nature,” Traynor wrote. “It is born of an agreement between North Dakota and its bank.”

That means the amount of interest is not a matter of court discretion to award. Rather, it’s a sum arising from the agreement between North Dakota and its bank for the loan, which could mean it’s an actual loss, along with the principal amount of the loan.

“The question of whether the court should consider the loan interest as ‘interest prior to judgement’ based on the nature of the relationship between North Dakota and the Bank of North Dakota requires further factual development of this issue at the bench trial,” Traynor wrote.

The bench trial has been set for May 1, 2023 at 9 a.m. in Bismarck Courtroom. Ten days have been set aside for the trial.

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