A federal judge for the DC Circuit has concluded that the state of North Dakota has, at the very least in part, presented a compelling argument in its effort to compel the release of 1,068 papers that have been suppressed due to attorney-client privilege.
North Dakota contends in its motion that the attorney-client privilege and the work product doctrine do not provide any protection for the records that fall into the following three categories:
These include conversations between non-attorneys, communications that were not prepared by counsel, and communications in which counsel was included in the email chain but did not react.
Both the United States Army Corps of Engineers and the state of North Dakota have provided the court with 28 representative papers for in-depth analysis.
The judge noted that after reviewing the records behind closed doors, the court found that certain of the assertions of privilege made by the United States was in violation of the law.
The United States of America will be ordered to reveal some of the records it claimed to be protected by the attorney-client privilege.
Within seven days of Senechal’s ruling, the court ordered the Corps of Engineers to produce the records that had been directly identified as having been wrongfully withheld.
According to the criteria that she outlined in her order, the Corps of Engineers is responsible for reviewing the remaining documents and releasing any other records that have been unjustly withheld.
The attorneys for the state of North Dakota believe that the documents are essential to the state’s lawsuit against the federal government, which seeks to compel the federal government to repay $38,000 in damages related to policing the protests against the Dakota Access pipeline for eight months from 2016 to 2017.
U.S. District Court Judge Daniel Traynor cleared the way for the suit to be filed in 2020, saying that the failure of the United States Army Corps of Engineers to follow its own mandatory permitting process has set the stage for North Dakota to seek damages related to both policing the protest and cleaning it up afterwards.
The suit will be filed in the United States District Court for the District of Columbia.
Trainer acknowledged in his ruling at the time that the enforcement of trespassing laws is typically left up to individual states when it comes to Corps-managed lands.
However, Trainer also stated that the Corps did have some discretion in how it enforced permit violations. However, he insisted that the Corps couldn’t just skip its prerequisite step of obtaining the necessary permits.
This failure “tainted” all of the other choices that the federal agency made, and it generated a “lawless free-for-all” that enhanced the damage to North Dakota, which made it possible for the state to file a lawsuit.
According to what Trainer wrote, “the adage that fits here is, You broke it, you purchased it.”
The trainer pointed out that under the more typical mandatory permitting process, the Corps may have demanded a performance bond to pay the expenses of maintenance, repairs, and restoration of government resources and buildings. For gatherings with more than fifty persons, obligatory liability insurance of at least one million dollars was also going to have been required.
These preventative measures would have significantly reduced the expenditures associated with cleaning up the 21.48 million cubic feet of debris that was left behind by demonstrators along the Cannonball River. This debris consisted of automobiles, improvised houses, personal possessions, and a variety of other items that had been left behind at the location.
The federal government has provided some form of compensation to the state of North Dakota. As a kind of partial recompense, it did get $10 million in 2017, however, from the Department of Justice’s Emergency Federal Law Enforcement Assistance Program. However, state officials noted that this did not account for a significant number of other costs.
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Since Traynor made her judgement, there have been attempts to reach a settlement, but those efforts appear to have been unsuccessful.
