BISMARCK — Thursday marked the first day of trial in North Dakota’s lawsuit against the federal government in which it seeks reimbursement for emergency costs the state was forced to front in response to the unlawful Dakota Access Pipeline (DAPL) protests. These illegal protests, which spanned nearly eight months in 2016 and 2017, inflicted more than $38 million in damages on North Dakota.

“Rather than just accept federal wrongs as so many states have, North Dakota is exercising its Constitutional muscle. Our Attorneys General Wayne Stenehjem and Drew Wrigley have wisley spent the seven years since the protests preparing for this case. The state’s case against the government will be illuminating – finally telling the full story of what really happened,” said Cramer.

“I can hardly wait to watch more as Team Obama hides behind their obviously conflicting narrative of the actions they took outside the bounds of regulation and statute. Other states and the public should closely follow this historic fight,” continued Cramer.

The trial began with opening statements from attorneys for North Dakota and the United States, meant to provide Judge Traynor a preview of the case and the evidence which will be presented. Building off of Judge Traynor’s pretrial determination that the United States violated its non-discretionary duty by failing to follow its own special use permitting process, North Dakota informed the Court it intends to prove:

• The United States invited the protestors on to federal land;
• Once on the land, the United States attempted no restraint over the protestors – rather, the federal government’s actions encouraged them – creating a base camp from which they could export their violent and illegal activity;
• Harm was inflicted upon North Dakota’s citizens, first responders, and public safety officials, which the United States was fully aware of;  
• North Dakota acted reasonably and necessary to deal with the crisis the United States helped to create, including futile efforts to persuade the federal government to assist them; 
• North Dakota suffered approximately $38 million in damages as a result of the failures of the United States.

The Court first heard testimony from Cody Schulz, who at the time of the protests served both as a member of the North Dakota Department of Emergency Services and as a Morton County Commissioner. Schulz expressed frustration regarding the repeated unmet federal resource requests, and was the recipient of hundreds of death threats, requiring local law enforcement to monitor his home.

Schulz was followed by Chief Pilot Dennis Gallagher of the North Dakota Highway Patrol. Trooper Gallagher piloted the North Dakota State Patrol airplane during the protests, providing several hundred hours of live reconnaissance to law enforcement and the Federal Government. As with Schulz, Trooper Gallagher likewise faced harassment as a result of his service to North Dakota during the protests, including the dangerous operation of drones and laser lights to thwart his duties. 

Friday’s trial resumed with Gallagher’s testimony and was followed by testimony from Sean Johnson, former Planning Section Chief of the North Dakota Department of Emergency Services. Johnson testified to U.S. Marshall Paul Ward apologizing at a command center meeting for the lack of federal support provided. Johnson believed he and many other local federal officials did everything they could but were severely “handcuffed.” 

Morton County Sheriff Kyle Kirchmeier then testified. Kirchmeier detailed federal actions furthered protest activity, including a September 9, 2016, joint statement from the Department of Justice, Army, and Interior stating the Corps would not authorize constructing the pipeline despite the District Court’s opinion to the contrary earlier that day and requesting construction to halt 20-miles on either side of the reservoir. He also testified to the Corps requesting law enforcement at a single location, not including the main protest camp, and later rescinded their request. Continued frustration by North Dakota law enforcement leaders resulted in a letter to President Obama on December 9, 2016, which again fell on deaf ears.

On Thursday, U.S. Senator Kevin Cramer (R-ND) penned an op-ed in Fox News where he highlighted how the Obama administration enabled lawlessness and appeased extremists by neglecting to assist North Dakota during the DAPL protests by failing to assist law enforcement and refused to abide by standard USACE protest permitting procedures.  

Things to Come:

According to the preview presented on Thursday, North Dakota will be providing testimony from John Voeller, a civilian employee of the United States Army Corps of Engineers (USACE). Shockingly, the state’s opening statement identified Mr. Voeller towed a group of protestors in a boat to a location on USACE property closer to key pipeline infrastructure.   

Former Agent Jacob O’Connell of the Federal Bureau of Investigation will also be called. As the agent in charge, he had significant access to all federal agencies charged with monitoring the protests. Agent O’Connell may classify the DAPL protests as North Dakota having been under siege and provide detail about the federal government’s removal of vital federal law enforcement resources.  

Former United States Marshall Paul Ward will further the narrative, testifying he made multiple requests for federal resources which fell on deaf ears. 

Further state witnesses will include Governor Doug Burgum, former Governor Jack Dalrymple, former Cass County Sheriff Paul Laney, former Colonel Michael Gerhart of the North Dakota Highway Patrol, North Dakota Adjutant General Alan Dohrmann, former Commander of the USACE Omaha District John Henderson, Lt. General Scott Spellmon, Retired Lt. General Todd Semonite, former Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, former Secretary of the Interior Sally Jewell, among others including expert witnesses.