North Dakota bill could permanently seal police, government records on pipeline protests

Years after first oil pipeline protests broke out, North Dakota lawmakers are set to vote on a bill that would permanently seal public records involving the police response. The records are critical to ongoing lawsuits.

The Dakota Access Pipeline (DAPL) was met with resistance from the moment it was announced in 2014. Transporting shale oil through four states, the $3.78 billion project drew the fury of environmental activists and Native Americans, whose reservation it ran through. Nearly 800 protesters were arrested and 300 injured between April 2016 and the project’s completion a year later.

Documents obtained through Freedom of Information Act (FOIA) requests, as well as several leaks, aided in the legal defense of protesters and in class-action lawsuits against North Dakota police and TigerSwan, a private security company brought in to crack down on the protests. All in all, more than 800 criminal cases have resulted from the demonstrations.

Those publicly available documents might not be available much longer. State representatives in North Dakota are preparing to vote on a bill that would restrict the release of records pertaining to security operations around “critical infrastructure” – such as the Dakota Access Pipeline.

The bill would bar the release of records – including photos, videos, “information” and “communications” – regarding “security planning, mitigation, or threats” to the infrastructure. The term “infrastructure” is defined broadly, and includes “telecommunications centers and computers, power generation plants, dams, bridges, and similar key resources, and systems related to utility services, fuel supply, energy, hazardous liquid, natural gas, or coal.”

The North Dakota Senate has already voted in favor of the bill. If approved by the state House and signed by Republican Governor Doug Burgum, it will become law.

The bill’s proponents argue that it is vital to protect infrastructure from cyber attacks. Opponents say this argument is a “distraction.” Civil rights activist Chip Gibbons told The Intercept that “instead of having a conversation about protecting the public right to know about law enforcement responses to protests,” the cybersecurity justification “focuses the conversation on something more people can agree on.”

While most of the 800 criminal cases involving protesters have been settled, a handful of civil cases are still pending. The Standing Rock Sioux tribe are suing the US Army Corps of Engineers for failing to take into account the risk of oil spills along the pipeline during construction.

Meanwhile, a group of protesters is suing the state government for closing a stretch of highway leading into the Standing Rock reservation in 2016, claiming that the closure was meant to extort the reservation’s residents into complying with demands to leave the area. They claim that publicly available documents detail a government pressure campaign against the Sioux. Many of these files were published by the Intercept.

In some of the documents, law enforcement complained about having to divulge their communications to FOIA requests. However, leaked emails revealed that they also actively tried to avoid releasing these communications in the first place.

“I’m still doing some checking on the legality of everything, and what I am forced to release,” one police lieutenant wrote to the FBI.

“Is there a preemptive way to prevent the city of Bismarck from disclosing any law enforcement product produced by BIA personnel?” asked Bureau of Indian Affairs analyst Barry Cossey.

The leaked documents also proved embarrassing for private security firm TigerSwan. The firm referred to the protests as following the “jihadist insurgency model” and predicted that demonstrators would adopt a “post-insurgency model” once they had been broken up. The demonstrators, one TigerSwan memo noted, are "an ideologically driven insurgency with a strong religious component."

Describing American citizens in language most commonly used to describe Taliban militants in Afghanistan or Fedayeen guerillas in Iraq is alarming but not surprising, considering TigerSwan was established by a former Army colonel and Delta Force operator. In addition, many of its employees cut their teeth in the world of special operations in Iraq, Afghanistan, and beyond.

While the bill may prevent the full story from ever emerging in North Dakota, it might also keep the shady actions of law enforcement completely under wraps when it comes to future infrastructure projects in the state.

Beyond North Dakota, more than a dozen states have introduced or passed bills aimed at clamping down on fossil fuel protests. Oklahoma was the first state to adopt such a bill in 2017, and carbon copies of the Oklahoma legislation have since been pushed by the American Legislative Exchange Council (ALEC), a corporate lobby group.

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