Parties in the federal lawsuit State of North Dakota v. United States of America are awaiting the outcome of a bench trial held earlier this year in a case that will clarify liability issues arising from illegal conduct and clashes during the Dakota Access Pipeline protests.
The North Dakota Attorney General’s Office argues the state should be reimbursed $38 million in damages resulting, in part, from having to source law enforcement from other states to respond and mitigate the pipeline protests that took place from August 2016 through March 2017. The protests led to encampments on land managed by the Army Corps of Engineers, according to court testimony, as well as property damage, equipment costs and loan interest that the state had to deal with.
“The AG has no comment at this time, but will provide a public comment when the court issues an opinion,” a spokeswoman for state Attorney General Drew Wrigley said in an email to Legal Newsline.
The attorney general’s lawsuit in the District of North Dakota parallels a state lawsuit brought by pipeline builder Energy Transfer, which is seeking $300 million in damages in litigation filed against Greenpeace International and its U.S. affiliate. That lawsuit argues that Greenpeace is liable for violent attacks on the energy company’s employees, property and infrastructure after it incited protests to disrupt the construction of the pipeline, which now transfers oil from the Bakken region of North Dakota to Illinois.
“Defendants’ unlawful acts include violent attacks on Energy Transfer employees and property, soliciting money for and providing funding to support these illegal attacks, inciting protests to disrupt construction and a vast, malicious publicity campaign against Energy Transfer,” the Energy Transfer complaint filed in Morton County, N.D., states.
In the federal case, attorneys representing the federal government contend that the state has already received $25 million for the majority of their costs, including $10 million from the federal government. In addition, the defendants say there is insufficient evidence to prove that the Corps breached its legal duty during the protests—or that the state is entitled to recover protest-response costs.
“To the extent anyone is liable for the state’s protest-response costs, it is the people who caused those costs to be incurred: the protestors,” a court document filed this month in the federal court states.
The suggestion that state officials should have sued protest groups illustrates the different legal strategies that have been taken by different parties in the Dakota Access Pipeline litigation. Greenpeace has argued that it is not liable for property damage that occurred during the protests.
“Our position is simply that the Greenpeace defendants in ET’s suit have nothing to do with the property damage that ET is alleging,” Daniel Simons, Greenpeace International’s senior legal counsel for strategic defense, told Legal Newsline in an email. “We haven’t taken any position on whom ET should be suing instead to recover any damage to equipment, if anyone.”
The state and Corps officials tried to emphasize that protesters’ free-speech rights were important to uphold, and they tried to work with protest leaders to avoid injuries and de-escalate tensions, according to the federal government’s position.
Energy Transfer, meanwhile, emphasized that its lawsuit against Greenpeace does not challenge First Amendment rights.
“Our lawsuit against Greenpeace is not about free speech as they are trying to claim,” the company said in an email to Legal Newsline. “It is about them not following the law. We support the rights of all Americans to express their opinions and lawfully protest. However, when it is not done in accordance with our laws, we have a legal system to deal with that. Beyond that we will let our case speak for itself in February.”
North Dakota officials blame federal officials for letting the situation get out of hand.
“The United States stood idly by while the [Dakota Access Pipeline] protests grew in size and ferocity, leaving it to North Dakota to maintain the rule of law,” state officials argued in court documents. “For months, North Dakota dealt with DAPL protest activity that originated from the Corps-managed lands, emanated to other areas of North Dakota and endangered the health and safety of North Dakota, its citizens, property and law enforcement tasked with keeping the peace.”
The task of trash pickup and cleanup of protest camps also fell to state and local officials, they argued.