Months after the The Enbridge pipeline company has announced that it has completed its Line 3 pipeline, with hundreds of opponents of the project pending over arrests made during protests during construction last year.
Defense lawyers for water protectors, as members of the indigenous-led anti-pipeline movement are known, said many of the charges were too aggressive and should be dismissed. Defense attorneys cited examples such as criminal theft charges for protesters who chained themselves to equipment and misdemeanors assisting suicide attempts for those who crawled through sections of non-functioning pipe.
“These felony theft charges started to come out over the summer and this is very clearly an abuse of the prosecution function.”
“These criminal theft charges started to come out over the summer and it is very clearly an abuse of the prosecution function,” said Joshua Preston, a water protector lawyer. “It’s meant to send a message saying, ‘If you come into this property and chain yourself to something, we’re going to throw the book at you. “”
One of the county prosecutors pursuing criminal theft charges said the indictments were appropriate. “The theft of a criminal felony addresses the elements of the offense,” Hubbard County, Minnesota, attorney Jonathan Frieden told Intercept.
Criminal trials are the coda of a years-long battle over the Minnesota pipeline between water conservationists on the one hand, and the pipeline company and police on the other. Tensions erupted, with members of the Minnesota community pitting themselves against each other – in part because of what opponents of the pipeline have called a “corporate counterinsurgency” against their movement, a set of military-style tactics prohibited by oil company license.
In addition to aggressive legal tactics, new questions arise this week about the relationship between prosecutors in Minnesota, where opposition was concentrated, and the pipeline company. Documents released this week by the Center for Protest Law and Litigation of the Partnership for Civil Justice Fund, which represents opponents of the pipelines, show Frieden sought repayment of an Enbridge-funded state escrow account to prosecute opponents of the pipelines. the society. The requests were denied.
According to the documents, Frieden attempted to charge $ 12,207.14 to a special account created by the state of Minnesota to allow Enbridge to pay for law enforcement and public safety expenses related to the construction of the pipeline. Frieden was asking Enbridge to pay for the work of Deputy County Lawyer Anna Emmerling and three support staff in handling around 400 cases related to the construction of the Enbridge Line 3 pipeline.
“The hours are due to multiple arrests / summons / complaints and prosecutions for public safety costs for keeping the peace in and around the construction site,” the county attorney said in his bill.
He also asked the hired Minnesota state official to approve or deny invoices from Enbridge’s account if he would extend the period covered by the account. “I would like to speak to you over the phone about the 180-day deadline after the project is completed,” Frieden wrote in an email the Center for Protest Law and Litigation obtained through a public registration request. “I wonder if this might change in the future given the significant amount of resources that my office will devote over the next 6 months to the prosecution of criminal acts associated with Line 3.”
Rick Hart, the account manager of the Enbridge-funded escrow account, responded, “The prosecution costs are not an eligible out-of-pocket expense for the Line 3 public safety escrow account.”
Frieden seemed to respond in frustration. “I look forward to hearing why the multiple late nights and overtime by my staff to charge people endangering the public is not a matter of public safety. Guess the cost to stop them is covered, but not to prosecute them? How does this make sense in the language you provided below? “
Despite the refusal, the reimbursement claims themselves suggest that a county attorney responsible for prosecuting hundreds of cases related to the protests assumed Enbridge would cover its costs – a fact that defense attorneys believe may have legal significance .
“The fact that the prosecutor brought these charges under the belief that the lawsuits would be financed by the company Enbridge and the oil money raises real questions about the rights of the defendants to due process,” said Mara Verheyden-Hilliard, director of the Center for Protest Law. and Litigation and a lawyer representing opponents of the pipeline.
Frieden has denied any bias against opponents of the pipeline. “The idea that as a charge or a county sued the criminal law because we thought we would just never have to pay any money is not accurate. We tried to give money back to the taxpayers, ”he said. When the request was denied, the county went ahead with the criminal theft cases, he added, “We are still pursuing all cases, so any idea we were pursuing based on the fact that ‘being paid by Enbridge is not true. “
An Enbridge spokesperson said the company is leaving the police and prosecution to local authorities. “Community police and sheriff’s deputies are responsible for public safety. Officers decide when protesters break the law – or put themselves and others at risk, ”said Juli Kellner. “We support efforts to hold protesters accountable for their actions. “
The dates covered by the bill coincide with a period of aggressive law enforcement responses to the pipeline protests. On June 7, more than 100 people were arrested in Hubbard County as they tried to stop construction of a pipeline out of civil disobedience. During the protest, a US Customs and Border Protection helicopter raised a cloud of debris as it plunged low in an apparent attempt to disperse the protesters. Among the indictments brought by prosecutors was trespassing at a critical public service facility, a charge defense lawyers said should not apply since the pipeline was not functioning.
Preston, the water protector’s attorney, called Hubbard County a “ground zero” for arrests and prosecutions – with more than 300 cases still pending. Preston said the prosecution strategy was to send a message, “You get a few people who are charged with felony theft and they potentially have five to ten hanging over their heads, that’s going to deter other people. “
Later in June, Hubbard County Sheriffs blocked access to a small strip of county land between a public road and the driveway leading to land held and occupied by opponents of the pipeline, saying it s ‘was the property of the county. Prosecutors have filed dozens of misdemeanor charges against people who entered the driveway for driving on what they called the trail.
And on July 2, three women were charged with criminal theft after locking themselves at the door of a pipeline site in Hubbard County.
The Hubbard County attorney ultimately dropped the aisle cases, while some of the felony theft charges were dismissed. “In Hubbard County, at least, there have already been two cases where the judge dismissed two criminal theft cases for lack of probable cause,” Preston said. “The rationale being that this is in fact a misapplication of the law, it does not constitute a ‘take’.”
Activists have called on Minnesota Attorney General Keith Ellison to drop all charges. Ellison has signaled a reluctance to intervene in these cases. “My office has not brought any charges against the Line 3 protesters,” he tweeted. “Only county or city prosecutors who have brought criminal charges have the power to drop them. Anti-pipeline organizers argue that Ellison could file an amicus case for lesser charges or outright termination without directly intervening. The petition now has over 78,000 signatures.
Defense lawyers are eager to see some kind of intervention. As Preston said, “if the state can get away with this overload without repercussions, it will do it elsewhere.”
Tara Houska, an Ojibwe water protector, is among those charged in Hubbard County. “I am facing several serious trespassing charges which, as an Ojibwa person in Ojibway territory, is appalling,” she said. “We protect the drinking water of millions of people. We are not criminals.