BISMARCK – Friday concluded the fifth week in North Dakota v. United States, a lawsuit filed by the state under the Federal Tort Claims Act (FTCA), seeking $38 million in damages due to the unlawful occupation of Dakota Access Pipeline (DAPL) protestors on federal lands more than seven years ago. As a result of the violent and illegal activities which took place on federal, state, and private land, North Dakota experienced a public safety crisis after the federal government failed to follow its special use permitting process or meaningfully assist the state with emergency response efforts.
This landmark trial has captured both state and national attention as the actions of the Department of Justice (DOJ) have come under scrutiny, revealing a pattern of behavior which has significantly impacted North Dakota. Since the beginning of this legal battle, the DOJ has filed numerous motions to extend the duration of the litigation. From 2019 to 2024, the DOJ's strategic filings have not only challenged the jurisdiction and sought summary judgments but have also aimed to control the evidence through motions to compel and exclude expert testimonies. Such actions reveal a calculated attempt to delay the litigation, increase costs, and leverage the complexities of the federal legal system to hinder a swift resolution.
Throughout the last five weeks of trial, the court has heard video depositions and testimony from more than a dozen witnesses on behalf of the state and the United States. The state presented mountains of evidence showing the federal government encouraged DAPL protestors and were aware of the consequences.
“The government’s strategy so far is to focus on anything and everything other than their own culpability for the protests. Instead of evaluating the merits of North Dakota’s $38 million claim, they bring in experts and protestors themselves to distract from North Dakota’s claim at hand. North Dakota did what the feds would not and worked to enforce law and order in an unruly and violent situation, and no amount of beating around the bush will distract from their lack of action,” said Cramer.
Witnesses on behalf of the United States appeared before the court to continue providing testimony and video depositions. Ed Maguire, professor of criminology and criminal justice at Arizona State University retained by the federal government, testified first on Monday. The extent of his background as a law enforcement officer constituted a few summers as a reserve officer while attending college. Maguire reviewed local and state law enforcement agency policies and training regarding responding to protests and use of lethal force. He testified that adding federal law enforcement would have “risked escalating the matter significantly and triggering destructive and violent behavior” and disagreed with U.S. Marshals own testimony they would have been an effective addition.
Chase Iron Eyes, a DAPL protest leader, said he learned of the pipeline in February of 2016 and felt an overwhelming sense of anxiety and feeling trespassed upon. He expressed his belief that the U.S. Army Corps of Engineers (Corps or USACE) unilaterally announced moving the pipeline from north of Bismarck to its current route. Chase Iron Eyes testified it did not make a difference whether or not the protests were issued a permit to be there and agreed the camps on Corps land were a safe haven for activists.
On Tuesday, Winona LaDuke, an environmental activist, stated in her testimony she had been successfully working against the Enbridge Sandpiper pipeline project which would have transported Bakken oil to Superior, Wisconsin. When she learned about DAPL in April 2016, LaDuke claimed there was a lack of tribal consultation and the need for an Environmental Impact Statement (EIS). LaDuke declared there was no need for Corps approval or permitting to occupy the land.
When the trespassers eventually left the land they illegally occupied for eight months, cleanup crews discarded about 21,480,000 pounds of trash and debris. Instead of taking accountability for the protestors' actions which soiled the environment of the encampments, LaDuke blamed the state and was more worried about hydraulic fracturing impacting water.
Emily Greenwald, a historian hired by the federal government from Bozeman, Montana, mentioned the 1851 and 1868 Treaties and subsequent actions which established tribal boundaries. She also discussed a number of events in history between settlers and Native Americans.
Darren Cruzan, Director of the Bureau of Indian Affairs (BIA) Office of Justice Services, testified he was opposed to the Corps directing protesters to camp on its land south of the Cannonball River within the reservation because BIA was woefully understaffed to handle an influx of protesters. His testimony also revealed efforts by DOJ employee Rosa Salamanca to train and equip protesters as a Self-Marshal security force. Cruzan and other law enforcement were surprised and disagreed with her actions. Nicholas Estes, enrolled member of the Lower Brule Sioux Tribe, appeared before the court by means of a video deposition, camped in the area at least four times while attending graduate school.
On Wednesday, the court heard testimony from Joel Steckel, a New York University Marketing Professor, who was hired to examine evidence of whether the Corps statements from September 16 or November 25, had substantial behavior impacts for protesters. Among all the high dollar experts the U.S. hired, he charged the most at $900 per hour and billed 113 hours so far. It is estimated the U.S. spent $1.6 million before the trial began on expert witnesses. Through his research, he used BIA’s rough estimates of camp population on the reservation, vehicle counts from North Dakota Department of Emergency Services, donation data reported by a third party, and social media pages. He was not allowed to include an analysis of other statements or actions made by the Corps or other federal officials, including specific comments made by President Obama.
Noam Yuchtman, Political Economy Professor at Oxford University in London, was tasked to evaluate, again, only the September 16 and November 25 Corps statements and determine whether or not they influenced the level of participation in or intensity of the protest. He concluded those two statements had no effect on protest activity or intensity and that evicting protesters on August 23 would have intensified the protesters in an alternate location. This is eight days after Colonel Henderson testified to becoming aware of protesters on Corps land outside the reservation.
Gary Warner, Director of Research in Computer Forensics at the University of Alabama Birmingham, was a state expert witness to rebut Steckel’s analysis. While examining evidence like the September 9 joint statement and comments from the Department of the Army and President Obama on November 2, Warner found they were relevant and had considerably more interactions than the two statements the U.S. limited themselves to analyzing.
Thursday also featured video depositions from Eric Stasch, former Corps Operations Project Manager for the Oahe Project, and Scott Davis, former Executive Director of the North Dakota Indian Affairs Commission, former Mandan City Commissioner, and Standing Rock tribal member. Stasch confirmed the Corps never had an operative special use permit or placed any conditions on the protest activity on Corps land.
Davis said the Corps should have been more responsive early on in North Dakota and believed illegal encampments would have been nonexistent if the Corps did not fail to enforce the law.
"This trial is not merely about recouping the costs associated with policing the DAPL protests; it is about holding the federal government accountable for its inaction and the subsequent burden placed on our state," added Cramer. "At every turn, the DOJ has demonstrated a disheartening disregard for the expeditious resolution of a matter of great importance to North Dakota."
The court should be done assembling the record within a 60-day period. Once it is filed, North Dakota will have 60 days to file its brief and proposed findings of fact and conclusions of law. The United States will then have 45 days from the state’s submission for its brief and proposed findings of fact and conclusions of law to which the state will have 30 days to reply. Judge Traynor is expected to issue his ruling shortly after the post-trial process concludes.
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. Click here to read the recap of week four.