Open records request info: disregard for state laws, citizens, and property
By C.S. Hagen
MANDAN – Trouble followed TigerSwan everywhere the security company went in the Peace Garden State.
Tasked with the mission to protect the Dakota Access Pipeline by Energy Transfer Partners, TigerSwan stepped into a messy scene — chaotic — but the well oiled former Army Delta Force-led security machine went straight to work, starting at the local airport.
Records obtained from a Freedom of Information Act request reveal that the security company signed leases not with Mandan Municipal Airport’s Authority, but with companies the airport leased to — which was a breach of contract.
Rectifying the issue was complicated, airport authorities said, and wasn’t cleared up until shortly before TigerSwan left North Dakota earlier this month, nearly a year after their arrival.
Before TigerSwan’s arrival, police were driven back repeatedly from front lines. Former Governor Jack Dalrymple declared an emergency state to seek federal funds and to bring in the North Dakota National Guard. Activists chaining themselves to sleeping tar dragons stopped pipeline construction, daily. Arrests hovered around 29. Days later, Ohio-based Frost Kennels employees were siccing attack dogs on activists defending water and land rights. Other security companies, some without proper licenses, also wanted a piece of Energy Transfer Partners protection budget. Morton County couldn’t keep up with the activists surging into the camps, which at its height became the state’s tenth largest community.
But it was TigerSwan that was chosen for the “fusion lead.” The international security company, known as a mercenary-for-hire agency with government contracts around the world, coordinated security companies such as Bismarck’s 10 Code Security, EH Investigations and Security, LLC, and Leighton Security Services, from Texas. They inserted their own liaison into the law enforcement’s “Joint Operation Command,” thereby fusing private and public intelligence operations, according to documents released by The Intercept.
“There were four different security companies involved,” Mandan Municipal Airport Authority Chairman Mike Wagner said. “And we lumped them into one and called them DAPL Security.”
TigerSwan, EH Investigations and Security, LLC, and Leighton Security Services, Inc., are all named in a civil lawsuit filed by the North Dakota Private Investigation and Security Board for working illegally in the state.
Additional law enforcement, the North Dakota National Guard, and TigerSwan’s arrival dramatically shifted the prairies into what was called a war zone by United Nations Chief Edward John. Organized police phalanxes began marching down Highway 1806. Law enforcement lines became impregnable, twisted with razor wire, cement blocks, and bolstered with water cannons and long range acoustic weapons. Helicopters flew like locusts, and never truly left.
DAPL Security came in wearing khakis and bulletproof vests. Lip sweaters and chin curtains painstakingly frayed as urban lumbersexuals, they stampeded into the Dakota plains in 4×4 pickup trucks and all-terrain vehicles.
They roamed the rolling hills freely, backed by law enforcement, tackling those who strayed too far on lands once owned by the Standing Rock Sioux Tribe. Activists practicing free speech became terrorists, jihadists, and the propaganda was disseminated to big-oil-trusted mainstream media outlets across the state, such as the Scott Hennen Show on AM 1100 “The Flag,” Rob Port’s “Say Anything Blog” owned by Forum Communications Company, and TigerSwan’s propaganda arm, Netizens for Progress and Justice, which according to its website is a “countering the leftist media propaganda nightmare” media outlet.
TigerSwan also “attempted to place undercover private security agents within the protest group to carry out investigative and surveillance activities against these groups on behalf of Energy Transfer Partner and others,” the civil lawsuit states. Security teams monitored vehicles, gathered intelligence, provided “around the clock protection” and security for the “resumption of construction” of the Dakota Access Pipeline, according to the civil lawsuit.
Where eagles and vultures once ruled, DAPL Security covered the skies using Double M Helicopters, testing software, spying on activists with long-range lenses.
Two months after TigerSwan’s arrival, arrests jumped to 410.
According to the civil action filings filed by the governor-appointed private security board, TigerSwan ignored warnings saying they were working only as consultants. In response to the lawsuit, a TigerSwan representative identified as TS Press said this week via email that “we were not providing security, but consulting services.”
DAPL Security’s arrival at the Mandan Municipal Airport set management on edge. Clear Sky Aviation, Inc. was under a 20-year contract with the airport authority, a contract signed on November 1, 2012, stipulating the company, which according to its website is managed by Double M Helicopters, did not have the authority to sublease.
The stated purpose of the lease was for Clear Sky to “use the premises solely for regular airport and aviation business purposes, including, but not limited to, aircraft charter or rental, aircraft repairs and maintenance, major or minor, aircraft sales, aircraft flight instructions,” according to the contract.
But Clear Sky Aviation violated its lease when it subleased a part of a hangar to TigerSwan’s John Porter, Energy Transfer Partner’s chief security advisor, according to airport records.
“On August 26, 2016, without the prior written approval of MAA, Clear Skies entered into a lease agreement with ‘DAPL Security,’” the Mandan Airport Authority reported.
The Mandan Municipal Airport also signed a 20-year lease with Mandan Aviation, LLC, on October 17, 2012, and on September 2016 struck an oral sublease agreement with TigerSwan, breaking section 21 of the original lease agreement, according to an April 23 letter written to owner David Barth from Wagner. Mandan Aviation subleased office space in the upper level of the south end of the Mandan Aviation hangar, according to a consent to sublease contract.
The subleases not only violated contracts, they put the airport’s future in jeopardy. Airport land and buildings can only be used for aeronautical purposes, according to airport authorities. Any additional use must be approved by the Federal Aviation Administration.
The Mandan Municipal Airport is publicly owned, and is a part of the National Plan of Integrated Airport Systems, which allows the airport to receive federal grants under the Airport Improvement Program. The airport’s grants came into question when TigerSwan arrived, as according to Federal Aviation Administration regulations Airport Compliance Program all airport property must be available for aeronautical use, and not available for non-aeronautical purposes unless approved by the FAA.
Clear Sky Aviation, Inc. was established on June 22, 2012, and is registered to Cindy Becker; Double M Helicopters was registered on September 3, 2009 to Monte Myers, and Mandan Aviation, LLC was registered on June 14, 2006 to Barth, according to North Dakota Secretary of State records. No records exist for Clear Skies Aviation in the North Dakota Secretary of State.
According to emails, contracts, and recorded meeting minutes obtained by a Freedom of Information Act request, airport management pondered whether or not to kick DAPL Security out of the airport, or to require payments from the companies involved if the airport lost federal grant monies needed for a perimeter fence next year. If FAA permission was not granted, the airport stood to lose upwards of $2 million, airport records state.
Although DAPL Security entered the airport after county, state, and federal law enforcement set up a headquarters, TigerSwan stayed after law enforcement left, posting guards and interfering with air traffic and personnel, according to airport records.
“You can’t get answers. They won’t talk,” Mandan Municipal Airport Manager Jim Lawler wrote in an email on October 27. “I would like to see them gone.”
Wagner pointed out the issues in a response to Lawler’s email.
“There are a couple of things affecting the airport wastewater system, parking, driving on the airside, parking equipment on the airside without permission, complaints from users of feeling intimidated when entering the airport and living at the airport,” Wagner said. “They continue to guard the entrance. Would we be a target if they weren’t here, and are we a target after they leave?”
“Also, no contact from the people that promised to be in my office everyday,” Wagner wrote. “Just because they are chartering the helicopters is not a reason to allow use of office space and living quarters to non-aviation businesses. All of this is also part of the grant assurances which we sign as part of the FAA AIP funding, and could jeopardize that funding.”
TigerSwan operatives left messes behind, documents report. Bathrooms weren’t cleaned. Septic tanks were filled. Six chairs went missing.
“In a general sense it was them becoming acclimated to being on airport property,” Wagner said. “I think a lot of it was misunderstanding. As soon as they were instructed, they were good about correcting it.”
Nearly three months after TigerSwan arrived, negotiations began over lease pricing, and the issue came up during the airport authority’s board meeting on November 21, 2016. The Mandan Municipal Airport Authority decided to first obtain FAA approval, develop a security plan, a code of conduct, and then charge a fair market rate, not aeronautical rates, which are cheaper.
Later that same night, while law enforcement sprayed hundreds of activists with a water cannon in freezing temperatures, Myers, owner of Double M Helicopters, was still attempting to obtain signed sublease agreements from TigerSwan, according to a November 22, 2016 email.
The morning after, TigerSwan director, Al Ornoski, congratulated a list of people ranging from TigerSwan operatives, airport and Fusion Center personnel, 10 Code Security, and others.
“Outstanding job, thanks to everyone for your dedication, support and work during last night’s critical event,” Ornoski wrote.
Three days after the “critical event,” Myers wrote Lawler an email, which included the sublease agreement.
“I think the one point that was missed on this whole deal at the board meeting was the end result of all this is the Mandan Airport now has 24-hour security at no cost to the airport itself,” Myers wrote. “Without a security fence and some sort of restricted access gate, all are extremely vulnerable at the Mandan Municipal Airport. With the situation as it is in Morton County, this seems a win/win for the airport.”
Myers also reported that activists used the FAA database to determine owners of the airplanes involved against the Standing Rock camps, and that he was being threatened.
“Don’t believe much of what you read on Facebook, or some of these other publications. The comments about tail numbers, using the helicopters as weapons, dropping objects on them, spraying them with mustard gas, flying over them at night with all our lights off and spraying them with pesticides is obviously crazy.”
True reports included a Double M Helicopter herding more than 200 buffalo away from police lines, and activists shooting at helicopters with arrows, or flying drones toward them, according to Myers.
“The helicopter was a very effective tool to direct the buffalo back into the pasture that the protesters had knocked the fence down earlier that day,” Myers said.
After Myers’ email, the Mandan Municipal Airport Authority became worried about their own safety, asking if TigerSwan, had completed a threat assessment of Mandan Airport.
Nearing Christmas, arrests jumped again to 571.
The leasing dispute lasted more than nine months, until an April 3 airport executive session meeting, when the board decided if FAA permission was not granted, then eviction notices would be sent out.
The issue became an ask for forgiveness or permission, and it was already too late to ask for permission. Airport authorities feared “potential adversarial administrative proceedings with the FAA,” which could “have an adverse fiscal effect on the bargaining or litigation position of MAA.”
“Beg for forgiveness [to the FAA] that we weren’t even aware of this, and now that we are, we’re trying to remedy,” Lawler said during the 30-minute board meeting. Breach of the original lease agreement “put the board in the awkward position of trying to figure out what our duties and obligations were as board members.”
In April, the airport authority agreed to proceed as if they had been approached before the sublease agreements were entered, rather than as a breach of the original lease, according to Wagner.
FAA Program Manager Donald Phillips was contacted by airport authority in April, approximately six weeks before TigerSwan left the state to continue protecting oil pipelines in Ohio, Pennsylvania, and West Virginia. On May 26, emails indicate that the FAA did not object to the temporary non-aeronautical use of airport property “during the DAPL protest.”
The reason the issue took more than nine months to resolve is because Mandan Municipal Airport has seen enormous change in the past few years, Wagner said. Airport authorities have been scrambling to study a 600-page FAA rulebook.
“It took some time to get up to speed and get educated,” Wagner said. “The FAA’s primary role in the whole thing was to make sure we weren’t going to violate grant assurances and that included making sure a non-aeronautical rate was applied rather than aeronautical.” Aeronautical rates are cheaper, Wagner said.
By the end of the leasing controversy, long after the last tents and trash were cleared from along the Cannonball River, airport authorities agreed to accepting 10 percent of all payments made by DAPL Security to the aeronautical companies. Mandan Aviation charged $1,300 a month, and Clear Sky Aviation received checks for their sublease agreements worth $35,000, of which $3,500 was to be given to the airport authority. On June 19, Lawler said he received a check for $2,100 from Clear Sky Aviation.
Official records indicate 761 people were arrested during the DAPL controversy, and already 114 cases have been dismissed by the state. Eleven people received guilty verdicts; 50 pled guilty – primarily on lesser charges, and three have been acquitted, according to the Water Protector Legal Collective. Numbers from the legal firm report a total of 854 people were arrested.
TigerSwan and Co. responses
Early morning, February 17, 2017, site security advisor for TigerSwan, Stuart Kortus, alerted airport authorities that he would be flying at 250 feet.
“I will be conducting a test flight to test new software,” Kortus said. “I will be near the field to the west between hangars and Highway 6.”
Kortus did not reply to requests for more information pertaining to what kinds of software TigerSwan was testing near Standing Rock.
A TigerSwan representative, identified only as TS Press, replied to a request for information, saying the claims made in official Mandan Municipal Airport documents were, in essence, fake news.
“Your questions are rooted in speculation and heresy [hearsay] and show that you seem interested in perpetuating the same false narratives about our work that have been manufactured by groups that seek to malign a service-disabled, veteran-owned small business,” TS Press stated in an email. “We appreciate your inquiry, but until you take a more objective view of the facts, we will not respond to your questions and will continue working with the North Dakota Private Investigation and Security Board to convey the realities of our work in North Dakota.”
A second email from TS Press stated that TigerSwan “never had a contract at the airport.”
Ornoski, listed as a director of DAPL Security ND, or TigerSwan, hung up the phone when contacted. Myers was contacted by telephone and email, messages were left, but Myers did not reply for comment.
When Barth of Mandan Aviation was contacted, he said the situation was complicated.
“We have attorneys involved, and what you may or may not write may or may not be the truth,” Barth said. “So, if I were you, I would just keep my nose out of it.”