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Judge: North Dakota's lawsuit to recoup DAPL protest policing costs can proceed

North Dakota has long argued that the U.S. Army Corps of Engineers should be responsible for covering tens of millions of dollars policing costs from the Dakota Access Pipeline protests five years ago. With this week's ruling, the state can continue pursuing reimbursement, though the two sides have also been engaged in settlement talks.

Poemoceah photo.JPG
Eric Poemoceah speaks with riot equipment-clad police seconds before they charged him and fellow Dakota Access Pipeline protesters in February 2017. Cairns Film / Special to The Forum
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BISMARCK — A legal dispute between the state of North Dakota and the federal government over tens of millions of dollars in policing costs from the Dakota Access Pipeline protests can continue after a Bismarck judge ruled against a federal motion to dismiss the bulk of the claims.

The verdict, issued Tuesday, Oct. 19, by Judge Daniel Traynor of the U.S. District Court for the District of North Dakota, denied a request by the U.S. Army Corps of Engineers to scrap nearly all of the $38 million in policing costs that North Dakota has claimed as damages from the Dakota Access protests five years ago.

The federal government argued that the vast majority of the money spent by North Dakota went toward police response, not "injury or loss of property," and should not be recoverable. Traynor rejected the federal arguments, allowing the state to continue in its effort to recoup the costs.

North Dakota first sued the federal government over the Dakota Access protest costs in 2019. The state has argued that the Army Corps allowed — and in some cases encouraged — protesters to illegally camp without permits on federal land near the site of the Dakota Access's Missouri River crossing during the pipeline's construction in 2016 and 2017. Environmental and tribal activists assembled by the thousands near the river crossing over fears that the $3.8 billion pipeline would endanger the water supply of the Standing Rock Sioux Reservation.

The protests sometimes turned violent and led to hundreds of arrests.

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North Dakota and the Army Corps recently began private negotiations in an effort to settle the case, but Attorney General Wayne Stenehjem said Wednesday that he is no longer optimistic that federal officials want to reach an agreement.

"Any other litigant that loses every step of the way, like the Corps of Engineers has, would get the hint that they are on the wrong side of the case," Stenehjem said in an interview. "But the Corps of Engineers just seems to be tone deaf to all of this."

The Army Corps sought to have the case dismissed last year, but Traynor denied that request as well .

A spokesperson for the U.S. Attorney's Office for the District of Colorado, which is representing the federal government in this case, declined to comment on the ruling or the settlement discussion, citing pending litigation.

The Army Corps sent a team of attorneys to Bismarck last month to negotiate possible settlements with the state. Though the two sides didn't come to an agreement in that first round of discussions, which were moderated by U.S. Magistrate Judge Alice Senechal, Stenehjem said afterward that the meetings were productive and that he believed the federal agency was serious about settling.

But the Republican attorney general said Wednesday that his optimism has since waned. No subsequent negotiation sessions have been scheduled, Stenehjem said.

If the two sides don't come to an agreement, the case is slated to go to trial on May 1, 2023.

North Dakota has previously received funds to offset most of the protest policing costs. The U.S. Department of Justice has provided $10 million to the state to help cover policing costs, while Dakota Access's parent company, the Texas-based Energy Transfer, donated $15 million.

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Stenehjem said those payments do not absolve the Army Corps of its responsibility to cover the full costs of responding to the protests.

Readers can reach reporter Adam Willis, a Report for America corps member, at awillis@forumcomm.com .

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