ND seeks $38 million from Corps for DAPL protest costs

By Patrick C. Miller | July 24, 2018

The state of North Dakota has filed a $38 million claim against the federal government for the reimbursement of damages stemming from protests over the Dakota Access Pipeline (DAPL) in 2016 and 2017.

Wayne Stenehjem, North Dakota attorney general, filed the claim last week, asserting that law enforcement and other costs were incurred by the state because the U.S. Army Corps of Engineers failed to enforce the law—including its own regulations—and to maintain public order during protests over the completion of DAPL.

Congressman Keven Cramer, R-N.D., who’s running against incumbent U.S. Sen. Heidi Heitkamp, D-N.D., said he supports the state’s claim against the Corps.

“Rather than provide security and safety for our citizens, the Obama administration’s refusal to execute their legal obligations during the entirety of the Dakota Access Pipeline protests helped introduce and proliferate environmental terrorism throughout North Dakota,” he said.

The attorney general’s office said that beginning in August 2016, activists for eight months engaged in prolonged—often combative and violent—protests on federal, state and private lands in Morton County, North Dakota. Stenehjem said, “Those organized protests, launched from large makeshift encampments illegally located on federal lands, involved frequent outbreaks of dangerous, unsanitary and sometimes life-threatening activity.”

In its claim, the state alleges that the protests were “aggravated by the negligent and unlawful conduct by the Corps, including the Corps’ complete failure to enforce mandatory legal requirement governing private conduct on federal lands under its jurisdiction, which, if enforced, would have prevented or minimized the civil unrest and resulting damages to North Dakota.”

Because the Corps failed to enforce the law and maintain public order on land under its control, the state of North Dakota claims it was forced to provide a sustained, large-scale public safety response to prevent deaths and protect public safety, health and property, including that of the protesters.

The events resulted in thousands of days of law enforcement and first-responder time being used, in addition to the use of considerable amounts of equipment. Stenehjem said, “This cost North Dakota $38 million, which the state maintains the federal government should reimburse because the Corps’ failures directly caused the state to incur these costs.”

Cramer said President Donald Trump acted in North Dakota’s best interest almost immediately after assuming office. “I urge the administration to immediately negotiate a fair and just settlement with Attorney General Stenehjem, and stand ready to assist however and whenever appropriate,” he said.

North Dakota’s claim was filed under the Federal Tort Claims Act, which makes the federal government liable for negligent and other wrongful conduct. Stenehjem explained that under North Dakota law, a private person or company that engaged in the same conduct would be liable for all damages caused by the trespass, gross negligence and nuisance resulting from the conduct. “The whole purpose of the federal Tort Claims Act is to make the federal government liable just like any private person would be,” he said.

The federal government has six months to respond to North Dakota’s claim. If the claim is not paid or settled by then, the State can file suit to recover its damages in federal court.