(AP Photo)
BISMARCK, N.D. (North Dakota Monitor) – The Dakota Access Pipeline protests would not have mushroomed in size had law enforcement received better support from the federal government, a county sheriff tasked with managing the demonstrations testified.
Morton County Sheriff Kyle Kirchmeier said during a federal trial that U.S. agencies ignored multiple requests from North Dakota for assistance during the protests against the pipeline’s construction in 2016 and 2017.
North Dakota seeks $38 million from the United States as compensation for costs it claims it incurred while policing the demonstrations. A bench trial for the lawsuit, overseen by U.S. District Court Judge Daniel Traynor, began Feb. 15 in Bismarck. It’s expected to last until mid-March.
Attorneys representing the United States, meanwhile, have said North Dakota is overstating the cost of the protests and is asking the federal government to be held responsible for events outside its jurisdiction.
Environmental and Indigenous rights activists came to North Dakota from several states and countries to oppose the project, often referred to as DAPL. In court records, the state estimates the protest camps grew to thousands of people.
The state’s witnesses so far have largely been law enforcement personnel who have described responding to the protests and their experience with federal agencies.
“There was no time during the protests where I thought we had adequate resources,” Eric Pederson, a former North Dakota Highway Patrol captain, testified Wednesday.
The largest DAPL protest camp was north of the Cannonball River, on federal land managed by the U.S. Army Corps of Engineers. Demonstrators also camped on Standing Rock Sioux Tribe land and private property.
Attorneys for North Dakota and the United States disagree over who held primary responsibility for enforcing the law on the Corps’ land.
North Dakota has argued that the Corps gave mixed messages to protesters as to whether or not they had permission to camp on Corps land. This, combined with a lack of federal assistance, dragged out the protests and left state and local police with a crisis they did not have the resources to manage themselves, witnesses for the state have said.
The state also claims protesters never received proper authorization to demonstrate on Corps land. In a December order, Traynor appeared to side with North Dakota on this point.
Kirchmeier characterized communication from the Corps as inconsistent and unhelpful. At one point, a Corps official asked for federal law enforcement support for one protest area, only to later reverse course and rescinded the request — despite that state and local law enforcement still wanted the help, he said.
Traynor openly criticized the Corps during Kirchmeier’s testimony.
“The Corps of Engineers was playing with the law and they knew it,” the judge interjected.
State and local police were waiting for the Corps to take initiative — or at least cooperate with North Dakota, said Paul Laney, then-sheriff of Cass County, said on the witness stand Wednesday.
But the Corps never made it clear to the protesters that they were breaking the law by camping on federal land, he said.
Attorneys for the United States countered that state and local law enforcement knew they had jurisdiction to enforce state law on Corps land and could have stepped in if they wanted to.
Laney, who served as a senior commander during the monthslong protests, said he could not recall ever going onto private land to enforce the law without consent from the landowner.
Some witnesses also said they expected more from U.S. officials because the federal government routinely extends a helping hand to states during other emergencies, like natural disasters.
Attorneys for the U.S. said the federal government shouldn’t be expected to respond to protests the same way it handles natural disasters.
Kirchmeier said he took his pleas for help all the way to former President Barack Obama and some of his Cabinet members.
Letters Kirchmeier sent to Obama, then-Attorney General Loretta Lynch, former Secretary of the Interior Sally Jewell and former Secretary of Homeland Security Jeh Johnson were offered into evidence. Kirchmeier said at one point he spoke with Lynch over the phone, but received no follow-up.
In late 2016, he also sent a letter to President-elect Donald Trump.
Those requests for assistance never went anywhere, Kirchmeier said.
During cross examination, Kirchmeier, Laney and Pederson each said they had no prior experience working with the federal government on large protests. They also said they didn’t understand who within the federal government was withholding assistance or the reasons behind the decisions.
Another example of the federal government reversing course came from the Federal Bureau of Investigation. The FBI had deployed drones to provide surveillance of the protests but the drones were not used, according to a deposition played Thursday from Bob Perry, former assistant special agent in charge of the FBI in the Dakotas and northern Minnesota.
Perry said the drones were not used because of concerns within the FBI about surveilling First Amendment-protected activities and because there was no active FBI investigation tied to general surveillance of the protest camps.
The FBI was involved in investigating some criminal cases connected to the protests, Perry said. The FBI had five to 10 paid informants within the protest camp, he said.
The U.S. Customs and Border Protection Air and Marine Operations in Grand Forks provided aerial equipment including a drone during the protests, agent Douglas Walker said during a deposition played in court Thursday.
The drone flew when weather conditions allowed between August 2016 and February 2017 and provided surveillance through a direct link to the Morton County Sheriff’s Office Emergency Operations Center, Walker said.
The link was not provided to the Corps or other federal agencies, Walker said. He said that was because to his knowledge, the federal agencies did not request access to the drone footage.
The United States has not yet had time to call its own witnesses. Former Gov. Jack Dalrymple is expected to take the stand Friday. Gov. Doug Burgum also is expected to testify.
North Dakota has already received $25 million in compensation for the demonstrations; $10 million from the U.S. Justice Department and the other $15 million from pipeline company Energy Transfer Partners. Those dollars are not factored into the total North Dakota is seeking.
The pipeline has been operating since June 2017. The Corps continues environmental review of the project, with a final environmental impact statement expected at the end of the year.
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