Facing a national election and the wrath of environmentalists and Native American tribes if it intervened, the Obama administration stalled any response to increasingly violent protests over a pipeline on land controlled by the Army Corps of Engineers, North Dakota claims in a lawsuit seeking tens of millions of dollars in damages.
Corps staffers, including Army generals, said in depositions they were sidelined by political appointees within the Corps as well as officials in the White House and Interior and Justice Departments as thousands of protestors descended upon federal property to protest the Dakota Access Pipeline.
As early as August 2016, North Dakota Governor Jack Dalrymple declared a state of emergency after protesters left Corps-controlled property to vandalize nearby sites. Yet the federal government did nothing to control or evict the protestors from its land, said former Lieutenant General Todd Semonite, the Corps official in charge of the permitting process for the Dakota Access Pipeline.
“We didn’t do anything in a vacuum,” said Semonite in a deposition. “This was much more of an interagency and Administration decision.”
North Dakota has sued the federal government to recover some $38 million in costs for police and emergency responses by state and local authorities during the protests, which lasted from summer 2016 until April the following year. The state’s costs include more than 33,000 hours of overtime and reimbursements to Morton County and other municipalities.
The state says the Corps did nothing despite repeated requests for help or permission to clear the protest encampments itself. Testimony by multiple administration officials supports the claim the Obama administration was deeply involved in the decision not to intervene, even as protestors erected structures and caused widespread environmental damage including digging pits to contain human waste.
A central figure was Jo-Ellen Darcy, a onetime teacher and lobbyist who was appointed Assistant Secretary of the Army for Civil Works by President Obama in 2009. Darcy was the ultimate official in charge of permitting the Dakota Access pipeline and regular communication with counterparts at the Interior and Justice Departments as well as White House staffers like Rohan Patel, head of intergovernmental affairs.
It was Darcy who made the controversial decision to override the recommendation of Corps engineers and delay issuing an easement to allow the pipeline to cross Corps-controlled lands in September 2016. North Dakota says that move encouraged thousands more people to join the protests.
In a deposition, Darcy said she couldn’t recall key details of her tenure, including when protestors entered Corps-controlled land (“I believe it was in the fall time frame,” she said) and how she responded to a direct request for assistance from Gov. Dalrymple. She acknowledged signing a letter around the time of the presidential election setting a timeline for discussions with Indian tribes about the pipeline and halting construction pending the Army’s final decision. She couldn’t explain why the Corps never issued a single citation to protestors who were breaking the law by occupying and building structures on federal land.
“The protesters were exercising their free speech,” Darcy testified.
The state’s lawsuit went before U.S. District Judge Daniel M. Traynor in a bench trial earlier this year. North Dakota recently filed its proposed findings of fact, triggering a 45-day deadline for the federal government to respond. In its filing, the state says the Corps, and by extension, the federal government, had a duty to clear its land of protestors after the demonstrations became violent and spread beyond federal property. The Corps never imposed any controls on disposal of human waste, construction of structures, or environmental damage, the state says. The Obama administration did encourage the protestors by dispatching a Justice Department “conciliation specialist” in September 2016 who sought donations and aid for them, North Dakota says.
By early fall the protestors were fanning out from Corps-controlled land, mounting a demonstration in Bismarck and shutting down an intersection in a nearby town with a parade that included a pig’s head on a stick. Protestors also repeatedly damaged Dakota Access construction equipment and used a semi-truck to yank Jersey barriers off a bridge.
“From the encampment on the Corps-managed lands, DAPL Protestors regularly assembled and advanced from Corps-managed lands to state and private land to conduct their often violent and unlawful activities,” the state says.
The protests escalated after a federal judge issued a ruling on Sept. 9, 2016 denying the Standing Rock tribe’s request for an injunction to stop pipeline construction near their reservation. The same day, the Corps issued a joint statement with the Justice and Interior Departments ordering a halt to construction. The release stated the agencies “fully support the rights of all Americans to assemble and speak freely.”
“In recent days we have seen thousands of demonstrators come together peacefully, with support from scores of sovereign tribal governments, to exercise their First Amendment rights and to voice heartfelt concerns about the environment and historic, sacred sites,” the release said. “It is now incumbent on all of us to develop a path forward that serves the broadest public interest.”
A few days later, the Corps issued another news release stating it had granted a special use permit to the Standing Rock Tribe authorizing its encampment. That permit had several requirements, including insurance and a bond, that the tribe never met and the permit was never actually issued. North Dakota says the Sept. 9 release and false statement that a permit had been issued encouraged the protestors to continue to occupy federal land and cause damage in the community. Federal law required the protestors to obtain a permit before occupying the land, the state says.
Another political appointee to the Corps, a former Obama campaign attorney named Lowry Crook, testified he was in regular communication with the White House and Standing Rock throughout the protes. He said he started “hearing concerns” about the pipeline route in the summer of 2016 “from friends of mine in the White House” including Patel and kept them informed about the pipeline permitting process.
When two U.S. Senators, a Congressman and North Dakota’s governor requested a meeting with top Corps officials to discuss how to manage the protest, it was Crook, not Darcy, who attended. (Darcy testified she couldn’t recall why she didn’t meet with the elected officials.)
On Oct. 13, Lieut. Gen. Semonite said in an email to Crook and others the “current plan is not working.”
“If there is a Master Strategy would like to know it. I see a high potential for increased conflict. When is the Corps going to do something to get this under control? Is there some event that will cause us, the Corps, to ask the sheriff to enforce the law?”
President Obama himself confirmed the strategy was to delay as the protests escalated, telling MSNBC on Nov. 1 his administration was looking into ways to reroute the pipeline.
“We’re going to let it play out for several more weeks and then determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the First Americans,” he said.