A federal judge admonished U.S. Army Corps of Engineers officials for allowing Dakota Access Pipeline protesters to camp on Corps land without a permit, arguing that the agency could have prevented significant costs to North Dakota had it followed its own regulations properly.

“Permits are required for a reason,” U.S. District Court Judge Dan Traynor said in a Friday hearing in Bismarck.

The comments came as North Dakota concluded three weeks of witness testimony in a bench trial examining the United States’ actions during the 2016 and 2017 protests against the pipeline, commonly referred to as DAPL.

Dakota Access Pipeline protest costs debated during federal trial

The protests were organized in support of the Standing Rock Sioux Tribe, which opposed the  project over concerns it intruded on tribal land and threatened its water supply.

The state of North Dakota seeks to recoup $38 million from the United States for costs it claims resulted from the demonstrations. The state says the federal government not only withheld necessary assistance from North Dakota during the protests, but also acted in ways that encouraged protesters.

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

Timothy Jafek, special attorney to the United States, argued Friday that North Dakota has not demonstrated that the Corps was at fault for most of the damages caused by protesters.

Jafek also claimed that during the protests, Corps officials and North Dakota law enforcement both favored allowing campers to remain on Corps land rather than trying to evict them.

North Dakota never asked the Army Corps of Engineers to remove the protesters because the state “knew it was a request they couldn’t fulfill,” he said.

200,000 comments submitted on Dakota Access Pipeline environmental review

Traynor denied the motion, arguing that the Corps should have never allowed protesters to remain on its land without a permit — not only because its own regulations appear to require it, but also because Corps officials knew the demonstrations posed a significant risk.

A permit would have given the Corps an opportunity to secure compensation for any damage by protesters, as well as leverage to require demonstrators to comply with safety and sanitation regulations, he said.

“The failure to require a permit is unreasonable under the circumstances,” Traynor said.

The largest protest camp was located on Army Corps of Engineers land in Morton County. Thousands were estimated to be living in the camps at the protest’s peak.

Early on in the demonstrations, former Standing Rock Chairman Dave Archambault sought a special use permit from the Corps so protesters could demonstrate on Corps property legally, according to witness testimony.

Archambault is not expected to appear as a witness in the trial. He declined a request for comment through an attorney.

While the Army Corps of Engineers supported the idea of a permit, state officials — including former Gov. Jack Dalrymple — urged the Corps to deny it for fear a permit would prolong the protests.

The Standing Rock Sioux Tribe never completed its application for the permit, Corps witnesses testified in court.

Nonetheless, the Corps allowed protesters to remain on Corps land for several months. The Corps also went on to issue a press release that falsely stated the tribe had successfully obtained a permit.

“The Corps needed to be on the record saying we do support constitutional rights to protest,” Col. John Henderson, who served as commander of the Corps’ Omaha District during the protests, testified Feb. 27.

Federal agencies had an unusual level of involvement with the permit and other decisions related to the pipeline, Lt. Gen. Scott Spellmon, Henderson’s immediate superior during the protests, told the court on Wednesday.

In September 2016, the Department of Justice, Department of the Interior and Department of the Army published a statement asking pipeline company Energy Transfer Partners to voluntarily halt construction of the pipeline for additional regulatory review. The Corps has authority over a segment of the pipeline that crosses under the Missouri River north of the Standing Rock Sioux Reservation.

Henderson and Spellmon both said they were not aware of the statement before its release.

“Normally guidance and direction of this nature, we would have input,” Spellmon, who now serves as the Corps’ chief engineer and commanding general, said in court on Wednesday.

The Department of Army required the Corps to answer a series of additional technical questions about its assessment, which Spellmon said took three to four months.

Spellmon said he wasn’t aware of any other time the department had asked the Army Corps of Engineers to conduct additional analysis of this depth after the Corps had already reached a final decision on an easement.

The pipeline has been operating since June 2017. A judge in 2020 revoked the easement for the pipeline crossing north of Standing Rock, requiring a full environmental impact statement. The Corps is reviewing public comments submitted on the project and is on track to issue a final environmental impact statement this fall, a Corps official said last week during a hearing in Washington, D.C.

The trial is expected to continue for another week.