Written By: Lachlan Loudon
In 2019, the state of North Dakota sued the federal government for $38 million in damages for the cost of policing protests against the Dakota Access oil pipeline.[1] The pipeline, which moves oil from North Dakota to Illinois, has been a subject of controversy for the past six years, as Native American tribes and environmental groups oppose the greenhouse gas emissions and risk of contamination for local drinking water, as the pipeline crosses underneath key rivers.[2] There have been 761 arrests in a six-month span between 2016 and 2017, as protestors would camp on federal land without a permit and leave behind garbage and waste that the state would have to clean up, which contributes to environmental concerns.
Allegedly, the U.S. Army Corps of Engineers (USACE) ignored an administrative claim filed in 2018, which led to North Dakota providing law enforcement to prevent deaths and protect property from unruly protests.[4] An administrative claim differs from a civil complaint in that an administrative claim notifies the agency of the problem and provides it an opportunity to settle out of court.[5] The claim sets a period of six months for resolution, and under the Federal Tort Claims Act, North Dakota reserves the right to sue after that period, which elapsed.[6]
In 2017, the state received $15 million in donations from the pipeline company, and $10 million from the U.S. Justice Department.[7] Despite this, the state still seeks the total $38 million cost of damages.[8] This is due to the collateral source rule set forth under common law, which “prevents the defendant from claiming an offset from compensation already received by the plaintiff from a different source when this source is collateral to the defendant.”[9] Thus, the state’s previous reimbursements do not preclude the total cost from being in controversy.
In December 2023, litigation on the issue progressed to a summary judgment motion by the federal government which the court denied.[10] Meanwhile, the court granted the state’s motion to find that the USACE “failed to follow its mandatory permitting procedures” for the protest activities on its land.[11]
This case is unique in how it ties together controversies of environmentalism and indigenous protectionism, while also implicating a free speech issue. Many who were arrested at the protests did not consider their actions to be illegal because they believe that the pipeline land actually belongs to Native American tribes.[12] The land that the protesters were on was acquired by the government via eminent domain.[13] The U.S. Army Corps of Engineers, under the federal government in litigation, is being sued in part for its refusal to maintain law and order on the premises.[14] However, the protesters were never evicted due to free speech reasons, as USACE spokesperson Eileen Williamson said, “[w]e don’t have the physical ability to go out and evict people—it gives the appearance of not protecting free speech.”
This presents a unique ultimatum for the federal government. In one scenario, they could mitigate the protests, and potentially risk violating the first amendment rights of the protestors with civil rights litigation. On the other hand, the federal government could stay out of policing (as they have) and face the damages currently at issue.
As a trial approaches, environmentalists will be eager to hear the outcome, as a potential precedent can be set regarding a landowner’s duty to mitigate protests on government land. If the state of North Dakota reaches a successful verdict, federal case law might lead the government to have more aggressive policing for permitting purposes, and even environmental purposes.
[1] James MacPherson, North Dakota sues feds over pipeline protest police costs, The Associated Press (July 18, 2019, 4:11 PM), https://apnews.com/general-news-461d5a08ce5049bea355406c0ef360e6.
[2] The Dakota Access Pipeline (DAPL), Energy & Environmental Law Program, Harvard Law School, https://eelp.law.harvard.edu/2017/10/dakota-access-pipeline (last visited Dec. 31, 2023).
[3] MacPherson, supra note 1.
[4] Id.
[5] North Dakota Files Claim Against USACE for Expenses During DAPL Demonstrations, Law Week (July 30, 2018), https://www.lawweekcolorado.com/article/north-dakota-files-claim-against-usace-for-expenses-during-dapl-demonstrations/.
[6] Id.
[7] Jack Dura, Trial set for North Dakota’s pursuit of costs for policing Dakota Access pipeline protests, The Associated Press (Dec. 18, 2023, 1:30 PM), https://apnews.com/article/north-dakota-access-pipeline-costs-lawsuit-a26b95b0534ed1627bac095f4bf6c697.
[8] Id.
[9] Fisher v. Baltimore Life Ins. Co., 235 F.R.D. 617, 627 (N.D.W. Va. 2006).
[10] Dura, supra note 7.
[11] Id.
[12] Adriadne S. Montare, Standing Rock: A Case Study in Civil Disobedience, The American Bar Association, https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2018/may-june/standing-rock-case-study-civil-disobedience/ (last visited Dec. 31, 2023).
[13] Id.
[14] MacPherson, supra note 1.
[15] Feds Say They Won’t Evict Growing Pipeline Protest Camp, CBSMiami (Oct. 1, 2016, 1:10 PM), https://www.cbsnews.com/miami/news/feds-say-they-wont-evict-growing-pipeline-protest-camp/.