Tuesday, December 6, 2016

Ambulances and Free Speech - Understanding the Governor's Evacuation Order

Photo by Rob Wilson

North Dakota Governor Jack Dalrymple has issued a sweeping executive order to immediately evict people from the Anti-Dakota Access Pipeline Water Protector camp near the Standing Rock Sioux Reservation and deny basic emergency services like ambulances to the camp. The order also criminalizes supporting the camp or its residents. The eviction is labeled an evacuation and is justified as a safety measure to protect the camp’s residents from the harsh North Dakota winter.

Setting the State:

The largest Water Protector camp, Oceti Sakowin, is on contested land of which the Army Corps of Engineers and the Sioux both claim ownership. On November 25, the Army Corps of Engineers issued an order to close the camp and evict the residents on December 5, 2016. It requires residents to leave, and the property be closed to the public. They suggest moving the camp to a free speech zone less than a mile away in Cannon Ball, North Dakota. It was justified as an emergency evacuation order to protect residents of the camp from the North Dakota winter.

On November 27, the Army Corps of Engineers announced in a letter that they have no plans to use force to get Water Protectors out of Oceti Sakowin Camp stating, “The Army Corps of Engineers is seeking a peaceful and orderly transition to a safer location, and has no plans for forcible removal.” 

In response to the Army Corps of Engineer’s follow up statement, Governor Dalrymple said, "When you put out a pronouncement that people must leave your land by a certain date, I think you take on a responsibility to somehow bring that about."

On November 28, Governor Dalrymple issued his executive order.

The Order:  


According to the order, effective immediately all people residing in the camp are considered trespassers, even if the Army Corps rescinds its order, or changes the parameters of the order.

This definition [the land the Army Corps of Engineers specified in its order] of the evacuation area shall remain in effect even if the United States Army Corps of Engineers redefines or removes these prohibited areas,reads North Dakota Governor’s Executive Order 2016-08.

The Army Corps of Engineers as the property owner can no longer say Oceti Sakowin Camp residents are not trespassing, because the state will still consider them trespassers in spite of the land owners assertion.

The order continues, “These persons are ordered to leave the evacuation area immediately, and are further ordered not to return to the evacuation area. All persons in the evacuation area shall take all their possessions with them upon their evacuation.

The governor’s executive order moves the date up for evacuation an entire week. It also gives residents no time to arrange other housing or to move their housing without already being considered a trespasser.

Many of the homes and camps in Oceti Sakowin Camp require trucks to move out and sufficient access to trucks at a moment’s notice does not exist.

Any action or inaction taken by any party which encourages persons to enter, reenter, or remain in the evacuation area will be subject to penalties as defined in law,” reads the order.

Anyone entering or helping someone enter the camp is subject to criminal prosecution.

Hundreds of veterans have committed to self deploy on December 4 to Standing Rock as an unarmed, peaceful militia to defend the Water Protectors.

I direct state agencies, emergency service officials, and nongovernmental organizations to reduce threats to public safety by not guaranteeing the provision of emergency and other governmental and nongovernmental services in the evacuation area, unless otherwise approved on a case by case basis by the Morton County Sheriff or Superintendent of the Highway Patrol,” states the order.

Since the establishment of the Water Protector camps, hundreds of people have been injured by police in actions in and around the camps. In just one action on November 20, over 300 Water Protectors were injured by police when police used fire hoses to soak them in subfreezing 22 degree temps. They also employed pepper spray, tear gas, concussion grenades, rubber bullets, and bean bags.

The Standing Rock Medic & Healer Council, the collective of medical and healing professionals in the camp, explained the scope of just one night of interaction with police being directed by Morton County Sheriff in a statement issued on November 21, “ At least 26 seriously injured people had to be evacuated by ambulance to 3 area hospitals. … Projectiles in the form of tear gas canisters, rubber bullets, and concussion grenades led to numerous blunt force traumas including head wounds, lacerations, serious orthopedic injuries, eye trauma, and internal bleeding. ...

Other injuries listed in the statement were 300 hypothermia victims, an elder who lost consciousness at the scene and had to be revived, a grand mal seizure, potential blinding from a rubber bullet, internal bleeding from a rubber bullet, blunt force trauma to spine, lacerations to head, and multiple fractures.

A woman was hit by a concussion grenade and her arm was blown open. She has had to have multiple surgeries and remains in critical care. She may lose her arm.

Under the governor’s order, the Morton County Sheriff has authority to deny ambulances to the people they injure.

Moreover, the governor is arguing that people are safer if they do not have access to emergency services like ambulances and if those ambulances are allocated on a case by case basis by the police.

The general public is hereby notified that emergency services probably will not be available under current winter conditions,” affirms the order.

The geographic location of Oceti Sakown camp is not experiencing unusual snow, nor a special amount in relationship to other areas of North Dakota. Other areas of North Dakota are not losing access to their emergency services due to exactly the same weather conditions.

The new free speech zone in Cannon Ball, North Dakota is less than a half a mile away from the current Oceti Sakowin Camp.

Meteorologist Allen Becker looked into the two different locations to see the potential differences between the two camp locations.

Becker found,“A preliminary review of the two locations shows no significant difference in air temperature between the two locations, at most one or two degrees."

Governor Dalrymple justifies his order using statutes Emergency Services statues North Dakota Century Code and Chapter 37-17.1 and 37-17.1-05(6)(e):

Chapter 37-17.1 reads, “The purposes of this chapter are to: 1.Reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or manmade disasters or emergencies, threats to homeland security, or hostile military or paramilitary action.

Chapter 37-17.1-05(6)(e) reads, “Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if the governor deems this action necessary for the preservation of life or other disaster or emergency mitigation, response, or recovery.

Also relevant to the conversation about the legal issues around designating a disaster is how the statue defines disaster.

Chapter 37-17.1-04 (1) defines disaster as, “...the occurrence of widespread or severe damage, injury, or loss of life or property resulting from any natural or manmade cause, including fire, flood, earthquake, severe high and low temperatures, tornado storm, wave action, chemical spill, or other water or air contamination, epidemic, blight, drought, infestation, explosion, riot, or hostile military or paramilitary action, which is determined by the governor to require state or state and federal assistance or actions to supplement the recovery efforts of local governments in alleviating the damage, loss, hardship, or suffering caused thereby.

The only issues covered in the executive order also in the definition of disaster are “low temperatures” and “any manmade disasters.”

In order for a manmade disaster to actually exist, it has to actually have happened, not speculate it might happen in the future. The governor listed some things which imply that there could be a problem in the future but fails to actually describe a problem which has already occurred which meets the “manmade disaster” criteria. Since there has been no manmade damage, injury or loss of life or property at Oceti Sakowin, the manmade cause fails.

Even though many other areas of the state are experiencing identical weather, the people in those areas are not being evacuated from their homes.

The executive order states that Water Protectors are living in “in tents, vehicles, temporary and semi-permanent structures which have not been inspected and approved by Morton County as proper dwellings suitable for winter habitation;” and “the aforementioned areas of Morton County are not zoned for dwellings suitable for living in winter conditions, and also do not possess proper permanent sanitation infrastructure to sustain a living environment consistent with proper public health

Governor Dalrymple’s potential sanitation issue justification fails to meet the legal burden of a disaster, even if it is coupled with the cold.

He is left with a justification of fear of loss of life or injury do to inadequate housing to stand up to the cold.

Dalrymple’s executive order attempts to deny medical treatment and emergency services to people he defines as vulnerable to death or injury due to their housing situation.

The most direct example of his failure to consider cold a serious threat to life was his total inaction when police used a water hose to soak hundreds of Water Protectors in freezing temperatures.

Governor Dalrymple was elected to office in 2010 and has held office since. In 2013 and 2014 North Dakota experienced a 200% jump in homelessness. As jobs flooded into the state, housing did not increase and rents skyrocketed. People were forced to find housing in usual places, including inadequate recreational vehicles and tents. Homeless people, by definition, do not have adequate housing and often live in unsanitary conditions.

No executive orders were issued by Governor Dalrymple to mandate moving the homeless to another location, nor did he order local agencies to deny them emergency services.

Tipis, one of the most common housing types in Oceti Sakowin, have been used by Lakota, Dakota, and Nakota as well as other plains Native American nations for over 10,000 years. Their design stands up to the harsh wind, and bitter cold.

When previously presented with similar threats of harm by cold and inadequate housing, the Governor did not issue an executive order of the same nature.

The Motive:

Any motivation offered for the governor’s executive order – race, political view, financial gain, religion - would be speculation. What is not speculation is the justifications for denying emergency care for people the governor defines as vulnerable to death or injury are not stated in the executive order.


Emergency Services Statutes: http://www.legis.nd.gov/cencode/t37c17-1.pdf





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