BISMARCK – The third week of trial in North Dakota v. United States has officially concluded, marking the halfway point in the state’s lawsuit to recover $38 million in damages the state was forced to front due to the Dakota Access Pipeline (DAPL) protests seven years ago. North Dakota’s lawsuit centers around claims the federal government allowed the illegal occupation of thousands of protestors on federal land, serving as a home base to engage in combative protests and soiling the environment they sought to protect.

This week, the courtroom heard from several key witnesses whose testimonies further solidified claims the federal government failed to enforce its regulations or adequately assist North Dakota as it endured 233 days of destructive protests.

“This week at the DAPL trial, testimony started digging into the details about the federal government’s lackluster and hands-off approach to managing the protests on its own land,” said Cramer. “North Dakota’s witnesses made it clear they vividly described the protests and asked, repeatedly, for assistance from the government. D.C. bureaucrats chose to ignore requests for help and the facts of what was really happening in Morton County and on Corps land.”

On Monday, the courtroom heard testimony from North Dakota Governor Doug Burgum, former Secretary of the Department of the Interior Sally Jewell, and Alan Dohrmann, head of the North Dakota Department of Emergency Services and the Adjutant General of the North Dakota National Guard.  

During Governor Burgum’s testimony, he expressed several concerns he had during the prolonged DAPL protests, including those pertaining to safety and the state’s ability to enforce the law. During the time of the protests, Burgum said for the first time ever, local residents felt the need to arm themselves and observed heightened numbers of people taking firearm concealed carry training due to fears of violence. He found it “bizarre” to have an armed occupation on federal land with the federal government doing nothing about it.

In 2016 and 2017, the state was in a budget crisis with a $1.7 billion budget deficit while expending millions to deal with the protests. Rather than trying to remove the trespassing activists, the federal government allowed them to remain on U.S. Army Corps of Engineers (USACE or Corps) land where they created a public health crisis and ecological disaster. Burgum said the Corps’ neglect of the situation was “shocking” given the history of how strictly it treats other activities on their land. 

Burgum said he directly asked Secretary Jewell to provide more Bureau of Indian Affairs (BIA) law enforcement officers. The request was ultimately denied, even though it was supported by the Standing Rock Sioux Tribe. Burgum also highlighted Secretary Jewell’s misunderstanding of the situation, including lack of awareness regarding the pipeline first crossing the Missouri River north of Bismarck and the Public Service Commission’s permitting process.  

Monday featured the continuation of a video deposition from Secretary Jewell, who claimed she directed her staff to follow and uphold the law with a primary focus on tribal consultation and National Environmental Policy Act (NEPA) environmental review. Jewell claimed she had no recollection of specific requests for law enforcement assistance and put an emphasis on her advising the state to not escalate the situation. In her deposition, she stated she believed this was a largely peaceful protest. An email of hers was entered into the record where she wanted to be kept informed about a false story of human remains being found on the DAPL construction site and suggested informing the White House.

“Intelligence from multiple sources indicated the protestors were misinformed and violent, yet Sally Jewell and her compatriots in Washington claimed ignorance, pushing misinformation and the false narrative of peaceful protests,” added Cramer.

Dohrmann also took the stand on Monday, where he compared his experience serving in Kosovo and its many similarities to the DAPL protests. According to his testimony, the option to remove people from the protestors’ main camp on Corps land was not made available until February 2017. During the protests, he noted the different reactions between the Obama and Trump administrations, stating the Obama administration was “just letting this play out” and advised restraint on the state’s response while the Trump administration tried to assist.

Colonel John Henderson, former USACE Commander of the Omaha District, appeared before the court on both Tuesday and Wednesday. He knew of protesters on Corps land without a permit as early as May and received warnings from his Oahe Project Operations Manager in late July and early August about safety concerns and environmental harm from protesters on Corps land. Henderson’s testimony claimed the Corps’ special use permit regulations were a “useless piece of bureaucracy.”

While the Corps issued a press release saying a special use permit had been granted, it was never administratively completed. In August, he verbally requested law enforcement assistance from the federal government, but the U.S. Attorney’s Office (USAO) stated there would be no federal law enforcement assistance provided to remove the protesters. He later requested federal law enforcement assistance in writing but received no response. Henderson felt he received more support from his chain of command during his tours of duty abroad than during the DAPL protests. He also believed the joint statements from September and October from the Department of Justice, the Department of the Army, and the Department of the Interior let protesters believe they had a chance to cancel the easement, emboldening and prolonging protest activity.

Major General Donald ‘Ed’ Jackson, former USACE Deputy Commanding General for Civil and Emergency Operations, testified the special use permit was never approved and the whole situation became politicized with the September joint statement.

On Thursday, Heath Kruger, a USACE employee called by the state as an adverse witness, testified the Corps does not have any policy, practices, or regulations concerning “free speech zones.” He had no knowledge of the agency ever establishing a free speech zone. His testimony also pointed out special use permit regulations include mandatory insurance requirements starting at $1 million for religious events with 50 people or more, something that was never executed for the DAPL protests on Corps land.

The court also heard testimony from Terry VanHorn, National Security Intelligence Specialist with USAO of North Dakota, Joe Morrisette, former Director of North Dakota Office of Management and Budget, and Michael Futch, former DAPL Project Manager and Vice President of Engineering for Energy Transfer Partners.

During the time of the protests, VanHorn worked at various operations or command centers established by Morton County and the State of North Dakota. In this role, he was responsible for gathering and analyzing intelligence from social media, video feeds from Customs and Border Patrol, sources in the camps, and individuals being arrested. In his testimony, he described a more violent Red Warrior section of the camp where firearm training took place and identified the American Indian Movement and extremists from the Oglala Tribe as primary instigators.

VanHorn said he believed the Department of Justice’s headquarters 2,000 miles away in D.C. had differing opinions and perceptions of the “peaceful” protests than what was happening on the ground, despite receiving intel he and others were providing, showing protesters, being paid, or reimbursed for protesting or getting arrested. In an email sharing the October joint statement at the time of its release, VanHorn said he was speechless, disagreeing with the departments that the protests were peaceful and going to allow them to carry on. Email evidence was also provided to the court, recounting an instance of DAPL protesters at West Acres Mall attempting to shut down the mall. Adults were to receive $50.00 and juveniles $20.00 to protest.

Joe Morrisette received questions about the loans provided by the Bank of North Dakota for the DAPL protests which have not yet been paid off.

The day concluded with testimony from Michael Futch who served as the DAPL Project Manager from June 2015 to May 2017. Futch described harassment of DAPL employees and their families with some eventually quitting. He also described extensive damage done to construction equipment and worries about holes being drilled in the pipe as miles of it sat in rural areas before being buried. Futch described millions of dollars in monetary gifts to North Dakota and other states along the pipeline’s route as typical and with no strings attached.

North Dakota plans to wrap up its record by next Thursday. Witnesses on behalf of the United States will then appear in court.

Click here to read the recap of week one. Click here to read the recap of week two.