5 years on, public records battle brews over Dakota Access Pipeline protest enforcement
Jurisdiction over the some 16,000 documents provided to the state by the private security contractor TigerSwan has pit operators of the Dakota Access Pipeline against a North Dakota board.
BISMARCK — Documents pertaining to a partnership between operators of the Dakota Access Pipeline and a private security contractor during the Standing Rock protests five years ago are at the center of a public records fight still playing out in North Dakota’s courts today.
The question of who has jurisdiction over roughly 16,000 documents provided to the state by the private security contractor TigerSwan has pit Energy Transfer Partners, the Texas-based parent company to Dakota Access, against the North Dakota Private Investigation and Security Board.
And late last month, parties in two combined cases jockeying over accessibility of the documents filed motions for summary judgment in an effort to keep the files in the state's custody. Currently, the files are locked under a judge’s temporary restraining order.
The contents of the disputed documents are not clear, but their connection to the North Carolina-based security company TigerSwan has prompted intrigue among some watchdogs and journalists. Last December, the New York-based First Look Institute, publisher of the investigative reporting outfit The Intercept, sued the board after it denied their open records request, citing a litigation exemption to open records law.
The Dakota Access Pipeline protests have left several unresolved lawsuits trailing in the North Dakota court system, and the tug-of-war over the TigerSwan files follows 2018 reporting in The Intercept that accused the security company of deploying military-style undercover and counterinsurgency tactics against protesters while it was contracted with Energy Transfer.
The ongoing battle over the documents is an extension of lawsuits that have wrapped up Energy Transfer, TigerSwan and the state of North Dakota for several years. In 2017, the North Dakota Private Investigation and Security Board (PISB) sued TigerSwan, alleging that it operated in the state without a license during the protests. Last year, TigerSwan handed over the 16,000 documents to PISB under a judge's orders, eventually reaching a $175,000 settlement with the board in September, under which the security company did not acknowledge any wrongdoing but agreed not to operate in North Dakota.
Energy Transfer tried to intervene in that settlement in a bid to recover the documents, but was denied by a district court judge in June.
In separate litigation, recently merged with the challenge from First Look, Energy Transfer sued both TigerSwan and the board to regain custody of the documents. The pipeline company argues that TigerSwan breached its contract when it provided the documents to the board, asking the judge to rule that the documents “are not public records under North Dakota law” and to direct that the board return them.
Both Energy Transfer and John Shorey, executive director for the PISB, declined to comment for this story.
TigerSwan has argued that it was operating under a judge’s orders when it surrendered the documents. PISB, meanwhile, has argued that it is beholden to North Dakota open records laws, noting that an agreement between two outside parties does not absolve its legal responsibility to retain the documents and make them available to the public.
“This position is absurd,” wrote Energy Transfer attorneys in a motion filed late last month. “It is outside the realm of reasonableness to hold that the North Dakota records retention statute and open records laws are intended to apply to documents that were inadvertently, mistakenly, illegally, or improperly produced in litigation.”
"Without a candid understanding of TigerSwan’s operations and the Board’s enforcement action, the public cannot make an informed judgment about whether stronger protections for the right to peaceably assemble are warranted," wrote First Look attorney Tim Purdon in its motion, adding in an interview, "There's no question that Energy Transfer Partners is working very hard to keep these documents away from the public."
In a brief filed last year, TigerSwan asked that the documents remain sealed to protect information proprietary to Energy Transfer, as well as “confidential” communications from law enforcement and the North Dakota governor’s office.