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North Dakota’s Case for Damages Requires Non-confidential DAPL Papers

Attorney-client privilege prevented the publication of 1,068 documents, but a federal judge in the DC Circuit found that North Dakota made a compelling case for the release of those documents.

According to the state’s motion, the attorney-client privilege and the theory of work product do not cover the following types of records:

Non-attorney communications, communications not prepared by counsel, and emails in which counsel was included but did not respond are all examples of this.

Representative papers from both the United States Army Corps of Engineers and North Dakota have been submitted by both parties to the court for further review and consideration.

Even though some of the documents were properly withheld, Judge Alice Senechal concluded that many of them were not.

There were inconsistencies in the US government’s assertions of privilege, the judge remarked, after studying the documents behind closed doors.

The attorney-client privilege will be used to force the United States of America to turn over some of its records.

After Senechal’s decision, the court ordered the Corps of Engineers to produce the records that had been illegally suppressed.

This was done within seven days of the verdict. The Corps of Engineers is responsible for analysing the remaining documents and releasing any other data that have been unfairly withheld, according to the criteria she stated in her order.

In their lawsuit against the federal government, the attorneys for the state of North Dakota believe that the documents are essential to the state’s claim that the federal government owes $38,000 in damages for the eight months in 2016 and 2017 spent policing protests against the Dakota Access pipeline.


U.S. District Court Judge Daniel Traynor paved the groundwork for a lawsuit to be brought against the Army Corps of Engineers in 2020, saying North Dakota can seek damages for both policing and cleaning up after a rally that failed to follow its own mandatory permit process. The District of Columbia will file a federal lawsuit.

As Trainer noted in his opinion at the time, the enforcement of trespassing statutes on Corps-owned property is often delegated to the states.

The trainer also noted that the Corps had some leeway in how it dealt with permit violations. Before any licences could be awarded, a set of requirements had to be followed that could not be ignored.

The state of North Dakota was able to sue the federal government for damages after an agency blunder “tainted” all subsequent rulings on the state.

According to Trainer’s writing, this is a case of “you broke it, you purchased it.”

There is a possibility that the Corps may have obtained a performance bond to pay the costs of maintaining and repairing government infrastructure and structures under a more typical mandatory approval process.

A minimum of $1 million in liability insurance was also required for events with more than fifty attendees.

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Cleaning up the 21.48 million cubic feet of rubbish that protesters dumped into the Cannonball River would have cost a lot less money if these procedures had been taken ahead of time instead of afterwards.

Among the ruins were automobiles, improvised shelters, personal belongings, and a variety of other items.

The federal government has made amends to the state of North Dakota in some form. But in 2017, the Department of Justice’s Emergency Federal Law Enforcement Assistance Program granted $10 million in compensation.

Despite this, officials were quick to point out that there were not many more fees involved.

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