Testimony takeaways: 4 highlights from the 4-week DAPL protest trial

BISMARCK — A marathon trial on the Dakota Access Pipeline protests featuring testimony from over 30 witnesses wrapped up Thursday, March 14.

Over the span of 18 days, law enforcement, government officials, protesters and outside experts took the court through virtually every part of the demonstrations that drew national attention.

Here’s a recap of the case and four key takeaways from the trial.

North Dakota is asking a judge to order the U.S. to pay $38 million for costs it says it suffered policing protests against the Dakota Access Pipeline, also known as DAPL, in 2016 and 2017.

Protesters came to south-central North Dakota in solidarity with the Standing Rock Sioux Tribe, which opposed construction of the pipeline out of concerns the project intruded on tribal land and could contaminate the tribe’s water supply.

The largest camp of protesters was on federal land managed by the Army Corps of Engineers. The Corps has authority over a segment of the pipeline that passes under the Missouri River, just north of the Standing Rock Reservation.

Attorneys for the state argued that the Corps allowed protesters to occupy its land despite knowing they were not authorized to be there, creating a safe haven for the protests against the wishes of North Dakota leaders. The state also claimed federal agencies refused to dispatch law enforcement and other resources to North Dakota, despite multiple calls for help from local, state and federal officials.

The United States countered that the state exaggerated its policing expenses, that the Corps handled the protests the best it could and that North Dakota police retained jurisdiction to enforce state law on Corps land.

North Dakota has already received $10 million from the U.S. Justice Department in compensation for the demonstrations. The state also received a $15 million donation from pipeline company Energy Transfer Partners.

U.S. District Court Judge Daniel Traynor is expected to rule after staff finalize an official transcript of the trial and attorneys file additional summary documents, which could take a few months. Traynor’s decision may be appealed to Eighth Circuit judges for review.

The Dakota Access Pipeline, which carries oil from northwest North Dakota to Illinois, has been operating since 2017.

A former Army Corps official who oversaw land occupied during the protests characterized the agency’s response as the best of several bad options.

“If there was an easy right answer, we would have made it,” said Col. John Henderson, former commander of the Corps’ Omaha District.

Around August 2016, former Standing Rock Chairman Dave Archambault sought a special use permit so protesters could legally gather on Army Corps land, according to Henderson and other Corps officials who testified in court. Archambault did not appear as a witness in the trial.

The Corps in September 2016 published a statement that falsely announced the tribe had successfully obtained the permit.

Henderson said the statement was merely meant to express the Corps’ general support for the permit — not claim that it had already been issued.

“The Corps needed to be on the record saying we do support constitutional rights to protest,” Henderson testified.

Standing Rock never completed its application for the permit, Henderson said. The Corps’ statement was never publicly corrected or clarified.

Henderson also disputed claims by the state that North Dakota leaders wanted the Corps to ask for a forced removal of protesters from federal land.

“None of us thought that was a good idea,” Henderson said, adding that such a move would have only led to conflict.

The Army Corps’ handling of the permit drew repeated criticism from Traynor, who said during the trial that the Corps should have never allowed protesters to camp on its land without proper authorization.

The comments came after attorneys for the United States made a motion for a directed judgment after North Dakota rested its case. A directed judgment is a request for ruling in favor of the defense on the grounds that the evidence presented by the state is insufficient to continue the trial.

“Permits are required for a reason,” he said as he denied the motion.

The agency could have kept the demonstrations under control and avoided significant costs to North Dakota had it required a permit, Traynor explained.

Chase Iron Eyes, director and lead counsel for the Lakota People’s Law Project, said given the federal government’s history of violating agreements with Indigenous tribes, many Native people feel direct action is their only recourse.

“We don’t like our chances in court,” he said after his testimony as a witness for the United States.

He pointed to an 1851 treaty between the Sioux Nation and the United States government, which suggests that land north of the Cannonball River occupied by protesters belongs to the Sioux Nation.

“We signed a treaty with the Americans and we didn’t forget,” Iron Eyes, who grew up on the Standing Rock Reservation, said. “Some people act like it’s ancient history, but we didn’t forget.”

The United States also called environmental activist Winona LaDuke, former executive director of Honor the Earth, as a witness.

LaDuke was critical of the lawsuit, arguing the state of North Dakota should pay the expenses.

“I think it’s ridiculous,” LaDuke, a member of Minnesota’s White Earth Reservation, told the North Dakota Monitor. “No one told them to spend $38 million. I think they should pay.”

She also faulted the Corps for not initially conducting an environmental impact statement on the pipeline.

An environmental impact statement is now in the works after an order from a judge in 2020. The Corps is expected to release the statement later this year.

In court testimony, Gov. Doug Burgum and his predecessor, Gov. Jack Dalrymple, both blamed mismanagement by federal agencies for the outcome of the DAPL protests.

Actions by federal officials lengthened the protests while leaving North Dakota on the hook for managing them, Dalrymple said.

“If the federal government was going to ask us to put this project on pause,” he said, “we now considered it their responsibility to help us.”

Burgum, who succeeded Dalrymple in December 2016, testified he opposed removing DAPL protesters by force for fear it would escalate tensions between demonstrators and police.

According to an email presented in court, Burgum told Henderson, the Army Corps official, he didn’t want to evict protesters from Corps land for fear it could cause “another Wounded Knee” — referring to the 1890 massacre of between 150 and 300 Lakota people by American soldiers, as well as the 1973 demonstrations on the site of the massacre in South Dakota. Those demonstrations resulted in an armed standoff and the killing of two Native Americans by federal police.

Still, Burgum testified that he believed “a lack of action by the federal government” exacerbated the demonstrations.

This story was originally published on NorthDakotaMonitor.com