BISMARCK – Throughout the last four weeks of trial in North Dakota v. United States, more than a dozen witnesses have appeared before the court on behalf of the state, providing testimony and evidence demonstrating the federal government neglected the state of North Dakota during the eight-month long Dakota Access Pipeline (DAPL) protests. The demonstrations, which caused North Dakota more than $38 million in damages, created a public safety crisis when activists unlawfully occupied federal lands and frequently staged aggressive protests.
“This week’s witnesses made the truth painstakingly obvious: the Obama regime ignored North Dakota’s requests for assistance while actively working against promoting law and order,” said Cramer. “Bureaucrats like Jo-Ellen Darcy chose willful ignorance because the truth didn’t fit the narrative pushed by the administration. The media and popular narrative surrounding the protests is so far from reality it’s almost funny, and the testimony from this trial is finally correcting the DAPL fiction pushed by liberals.
Day 10 of the trial featured testimony from several witnesses, including Holly Gaugler, an accounting manager for the North Dakota Department of Emergency Services, Ronald Tolstad, a certified public accountant and former auditor for North Dakota, and Assistant Secretary of the Army (ASA) for Civil Works Jo-Ellen Darcy.
When Gaugler appeared before the court, she provided a breakdown of the expenses North Dakota sustained due to the protests. Through the lawsuit, the state is seeking approximately $38 million in damages which includes $3.2 million that was spent on the purchase of equipment, supplies, and materials and $12.3 million that was spent on mutual aid to state and local law enforcement from around the country.
Throughout Darcy’s testimony on Monday, she frequently used the response, “I do not recall.” However, she did recall helping to write the September 9, 2016 joint statement, which has been demonstrated as emboldening and supportive to the protesters. The statement reversed course after the Corps won in federal court that same day upholding its permitting decisions. While protesters viewed it as a victory, a decision on the easement remained. Darcy was shown an email written by the Chief of Engineers Todd Semonite on October 14, 2016, describing the Corps being “wrapped into an extended administration delay or blocking action” by Obama political appointees as indecision continued. Darcy said it would be an “unfortunate outcome” if North Dakota were to be left with the burden of the costs incurred from emergency response efforts.
On Tuesday, a video deposition from former Chief of Engineers and Commanding General of the Army Corps of Engineers Todd Semonite described the U.S. Department of Justice (DOJ) and the U.S. Department of the Interior (DOI) influencing the direction of DAPL protest activity on Corps land. He testified to the September 9 joint statement emboldening protesters on the ground and marked the deviation from normal regulatory procedures. He said echelons above him wanted to continue studying it even though experts in the agency believed no further analysis was necessary.
Dr. Katherine Kuhlman, a Doctor of Psychology with a specialization in forensic psychology and threat assessment, claimed the federal government invited, encouraged, and supported protesters to remain at the DAPL protests. Dr. Kuhlman’s testimony enhanced the state’s argument that the federal government’s actions increased the resolve of the activists and their perceived legitimacy.
The court also heard from Paul Ward, former U.S. Marshal for North Dakota. Ward, who served during most of the protest activity, said he made numerous requests for federal law enforcement support, all of which were denied. When asked if the federal law enforcement response was “weak,” Ward described it as “nonexistent.” Emails detailing his requests for law enforcement support were presented before the courtroom, highlighting North Dakota and surrounding states were “exhausted and severely outnumbered.” He went on to say, “You’ve got to understand it’s difficult for me to turn down a cop, and this was a lot of cops. This was the most disappointing thing I’ve done in 40 years of law enforcement.”
On Wednesday, Lt. General Scott Spellmon, 55th Chief of the Army Corps of Engineers, took the stand. Similar to Colonel Henderson, he was “surprised” and “frustrated” with the September 9 joint statement. Through his testimony, General Spellmon said he believed the Army’s delay on the pipeline easement decision was only “fueling” the DAPL protest activity. While the USACE is considering rerouting the existing pipeline, General Spellmon stated the Corps does not have the authority to do so. He also applauded North Dakota’s efforts to clean up the soiled land following the protests, saying the state did an excellent job.
The court heard from three witnesses on Thursday: Robert Handy, a law enforcement expert retained by the state, former Principal Deputy to the ASA Civil Works Lowry Crook, Moira Kelly Gipe, witness for the Department of the Army and Special Assistant to ASA Darcy, and Patrick Wynters Hornbuckle, witness from the DOJ.
During his testimony, Robert Handy expressed local and state law enforcement did a good job responding to the protests in North Dakota and felt as if they were playing catch up the entire time. After stating he believed the request for federal law enforcement was appropriate and should have been provided, Handy discussed it would be either an OSHA violation or negligence to not provide helmets, shields, or other resources which may not be the best for optics.
By video deposition, Lowry Crook, spoke about the different interactions and discussions he was involved in with the White House, DOI, and DOJ throughout the protest and permitting decision. He described everyone was involved in deciding to issue and write the September 9 joint statement, including himself and ASA Darcy. Following President Obama’s statements on November 2 saying they will “let this play out several more weeks” and looking to “reroute” the pipeline, ASA Darcy announced on December 6, denying the easement and directing another environmental analysis. When asked if they took any steps to deescalate the protests, Crook said the statement released on December 6 sent many protesters home.
Thursday’s video deposition from Hornbuckle revealed during the eight-month long DAPL protests, the DOJ believed sending federal law enforcement to assist North Dakota would escalate and destabilize the situation.
“With all the other testimony and Principal Deputy Crook identifying the December 6 decision on the easement as deescalating the protests after months of delay, begs the question if the Obama political machine wanted the protests to continue. It seems like they wanted the instability to last,” added Cramer. “You got to love a law enforcement agency whose position on illegal activity is to not send officers because it may escalate the situation.”
The trial continued with video deposition from Jason O’ Neal, a witness for DOI, which revealed DOI first became aware of the escalating riots in North Dakota after the arrest of Chairman Archambault. It also highlighted two incidents Bureau of Indian Affairs (BIA) responded to during the protests. The first event was when a male was turned over to the Federal Bureau of Investigation after firing a gun. The second event occurred after a belligerent individual drove into the protest camp, entered a tipi, and was assaulted by other participants. Due to the absence of resources and understaffing of BIA law enforcement, O’Neal’s testimony admitted there was no direct operational involvement by the Bureau.
The federal government made a motion for direct judgement claiming USACE could not be held liable for third party conduct, and the State of North Dakota was responsible for pushing the protestors to the main camp. The federal government said the USACE’s actions were reasonable, even though the State never asked the USACE to remove the protesters. The State argued in opposition saying testimony revealed Col. Henderson reached out to the tribe, knowing a permit was needed to protest on the land. The USACE knew failure to obtain the permit violated the agency’s policies and procedures and were outside the standard scope and care of USACE permits. The USACE never corrected the special use permit before granting the free speech zone, which allowed violent and destructive behavior to occur.
Judge Traynor denied the federal government’s motion stating the USACE violated a nondiscretionary duty. He said if we don’t hold generals in the USACE and cabinet level secretaries accountable to the rule of law, how can any citizens feel like they must obey the rule of law.
The trial resumed with defense witness testimony from Brad Wilson, who worked with the American Institute of Public Accounts to examine and calculate the expenses and damages from the DAPL protests. Levi Bachmeier was the last federal government witness to testify on Friday, claiming the money the State of North Dakota received from Energy Transfer was a donation, and the state legislature directed the funds to the North Dakota Emergency Management Services.
The trial is anticipated to wrap up at the end of next week.
Click here to read the recap of week one. Click here to read the recap of week two. Click here to read the recap of week three.