A federal judge has rejected the federal government’s attempt to limit the state’s discovery in its effort to recoup $38 million in law enforcement and emergency response costs associated with the DAPL Pipeline protest in 2016-17.
The decision issued Thursday by US District Judge Daniel Traynor is a victory for the state, which seeks damages rom the US Army Corps of Engineers (USACE) for its unlawful decision to allow the protest encampment on land under the Corps’ jurisdiction, and its failure to enforce laws governing conduct on federal land. While the state is only seeking damages from the Corps, it argues that four other federal agencies share responsibility for allowing the protests to continue. Traynor’s ruling clears the path for state lawyers to depose officials from the FBI, Department of Interior, Department of Justice and the Bureau of Indian Affairs regarding their involvement in decisions that allowed the protests to escalate and continue for months.
Corps officials previously testified that the US involvement was an “interagency process under the direction of the DOI, DOJ and Department of Defense, and that by early October 2016 the Corps was essentially ‘out of the process.'” Legal documents reveal that top federal officials issued orders that enabled the protests to continue, and prevented the FBI, US Marshall’s Service and BIA law enforcement from assisting to quell riots associated with the protest.
“The USACE’s failure to follow the permitting procedure opened the gates to North Dakota being damaged by the United States, its agencies, and third parties,” Traynor’s ruling states. “The USACE created a liability mess. It let protestors and other hapless federal agencies exacerbate the damages and then left North Dakota to clean it up.”
The judge’s order goes on to state that the federal government has been on notice from the outset of the case that numerous other federal agencies were involved in North Dakota’s claims against the United States.
“In fact, the Court agrees with North Dakota that it appears the United States may be utilizing this motion to prevent discovery from the other federal agencies involved in this case or caused damage to the State of North Dakota that would not have occurred but for the USACE’s ineptitude,” Traynor wrote. “North Dakota is simply attempting to obtain discovery from the other federal agencies as to their role in piling onto the damages created by the USACE’s failure to follow the mandatory permitting procedures.”
Judge Traynor described the U.S. Army Corps of Engineers’ failures during the DAPL protests as “gigantic federally created mayhem.” He ruled that other federal agencies may have contributed to the damages incurred by the State of North Dakota and are relevant to the ongoing discovery process.
“Judge Traynor is right to deny the Department of Justice’s motion, which is based more on arrogance than facts. The coordinated efforts by several federal agencies to facilitate illegal and often violent activity to shut down a properly cited and permitted pipeline must be exposed,” said US Senator Kevin Cramer. “The State of North Dakota should not have to make its case with both hands tied behind their backs. Full access to witnesses and evidence from all of the participating agencies is important and appropriate. This is a promising win in our state’s vigorous fight to ensure the people of North Dakota are reimbursed fully for the federal government’s negligence. I look forward to seeing what this new avenue of discovery turns up.”
The Dakota Access Pipeline Protests, also called by the hashtag #NoDAPL, began in early 2016 as a grassroots opposition to the construction of Energy Transfer Partners‘ Dakota Access Pipeline in the northern United States. The pipeline runs from the Bakken oil fields in western North Dakota to southern Illinois, crossing beneath the Missouri and Mississippi rivers, as well as under part of Lake Oahe near the Standing Rock Indian Reservation.
Many members of the Standing Rock tribe and surrounding communities consider the pipeline to be a serious threat to the region’s water. The construction also directly threatens ancient burial grounds and cultural sites of historic importance.
In April 2016, youth from Standing Rock and surrounding Native American communities organized a campaign to stop the pipeline, calling themselves “ReZpect Our Water”. Inspired by the youth, several adults, including Joye Braun of the Indigenous Environmental Network and tribal historian LaDonna Brave Bull Allard, established a water protectors’ camp as a center for direct action, demonstrating spiritual resistance to the pipeline in both a defense of Indigenous sovereignty and cultural preservation. The #NoDAPL hashtag began to trend on social media, and the camps at Standing Rock gradually grew to thousands of people.
Conflict between water protectors and law enforcement escalated through the summer and fall. In September 2016, construction workers bulldozed a section of privately owned land which the tribe had claimed as sacred ground. When protesters trespassed into the area, security workers used attack dogs which bit at least six of the demonstrators and one horse. In October 2016, militarized police cleared an encampment which was situated on the proposed path of the pipeline. In November 2016, police used water cannons on protesters in freezing weather, consequently drawing significant media attention.
The pipeline was completed by April 2017, and its first oil was delivered on May 14.
In March 2020, a United States District Judge ruled that the government had not adequately studied the pipeline’s “effects on the quality of the human environment”, and ordered the United States Army Corps of Engineers to conduct a new environmental impact review. In July 2020, a District Court judge issued a ruling for the pipeline to be shut down and emptied of oil pending a new environmental review. The temporary shutdown order was overturned by a U.S. appeals court on August 5, though the environmental review was ordered to continue. The pipeline continues to operate.
When journalist Erin Schrode arrived to the Bakken she assumed she would be covering the protest for a number of media outlets. After a few days, Schrode went from telling stories to becoming a major one, one that went viral across social media, viewed by millions and picked up my many news outlets. More on that in a moment.
First, a bit of some background on Schrode and what brought her to North Dakota.
“I started my environmentalism when I was 13-years-old,” The Marin County (CA) resident said. “I have had a chance to work on a number of issues from environmental to social justice issues to lobbying legislators to boots on the ground activism.”
Since then Schrode has worked with a number of media outlets, from ABC News to Glamour to Cosmo.
After following the story in the news for a few months, Schrode saw a post on the Standing Rock/ Dakota Lakota Nation’s social media pages asking for numbers support with the Dakota Pipeline Protest. Schrode felt compelled to come to North Dakota and help out.
“They needed numbers, masses, solidarity. I literally was in Standing Rock two days later,” Schrode said. “There’s despicable human rights violation happening here. It’s a travesty.”
Schrode and Josh Fox, friend and film maker, arrived to the protest camp and quickly realized this was a complex issue. There are many fights converging with the DAPL protest.
“The transport of crude oil around the unearthing of burial sites, around construction of sacred objects, around water. It’s not just about one pipeline or one nation,” Schrode said. “To protect the watershed for generations to come and right now 17 million people from the Dakotas all the way to the Gulf.”
Schrode and Fox began interviewing people upon arrival. According to Schrode, the emotion and passion emitting from the people interviewed was authentic and raw. The forceful and aggressive tactics by the authorities have left scars with the people, both physical and mental.
“We interviewed a 32-year-old woman from Standing Rock and that was absolutely unbelievable, to use the word in its true form,” Schrode said. “To hear from her lips the experiences of being arrest, ripped out of a prayer circle, thrown into dog kennels, seeing people beaten, seeing elders taken from sweat lodges, being hit with an open end of an assault rifle.”
Schrode couldn’t believe this level of conflict was happening at the protest. What Schrode had observed was peaceful, civil protesters.
“We were humbled to be able to share the stories of the Standing Rock people,” Schrode said. “Josh’s piece on Flores (the 32-year-old woman) has over 23 million views, which is an amazing portrait and I also wrote a piece on her for Glamour Magazine.”
Schrode continued collecting stories and content for media and news outlets. Then the peaceful protest took a hard turn.
“Some of the water protectors were trying to cross a small river to hold a prayer circle on their sacred grounds on the other side,” Schrode said. “And in doing so were met with a full line of militarized police. Armed with assault rifles and with more cans of pepper spray and mace than I’ve ever seen in my life.”
Schrode stayed on the shore interviewing some protesters when the two philosophical sides met.
“ I was on the near shore interviewing a man when suddenly I felt a devastating blow to my lower back,” Schrode said. “I whipped my head around and saw there was two police boats very very close to the shore and they had fired a rubber bullet.”
Schrode said she doubled over in pain from getting shot with a rubber bullet.
“It was a very startling moment to realize I had just been shot by the police,” Schrode said. “But this is not about me. Yes they shot an innocent female white reporter, that fact is not lost on me”
Schrode reiterated this was a non violent action with no aggression by the protesters. The entire ordeal was recorded and later posted on social media.
“I watched myself get shot on camera which is an experience I wish on no one, I went into hysterics” Schrode said.
Schrode said the reason she posted the incident on social media was to squelch online harassment towards her regarding some media outlets reporting she was shot by the authorities. The media speculation was she provoked the incident, which was false. Many media outlets and social media posts have retracted their original position since the video footage was posted online.
“I inadvertently filmed myself when the police fired at me with a rubber bullet,” Schrode said. “And that was something I chose to put out, not to call my more attention to myself, but to highlight this indiscriminate use of excessive force.”
Schrode does realize she is now a part of the story, a part of the Bakken history that is being played out right before our eyes.
“It’s dangerous out there,” Schrode said. “There’s absolutely no cause for any such violence, any such hostile response to the prayerful people. I am grateful no one has been killed.”
Schrode said this is a fight the people are committed to. They are winterizing their camp, schooling children, organizing supplies and mentally preparing for below zero conditions.
“The bravery of the water protectors, the power of the non violent action, the people literally putting their lives on the line to defend the sacred grounds, to defend the future, to protect our climate is inspiring,” Schrode said.
To listen to Jason Spiess being interviewed by BBC World Service’s World Have Your Say, click here.
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