By Winona LaDuke
It’s eight years since the Water Protectors were cleared off the banks of Cannonball and Missouri River. It was a bitter ending to a battle to protect the water, and for most of us Water Protectors, we have not seen a lot of justice, particularly in North Dakota.
The winter of 2016-17 was a mean one. North Dakota proposed laws making it illegal to wear a face mask, another law was proposed that if someone was standing in the road holding a sign, you could hit them with a car. They didn’t even want us to use the phrase Water Protector.
And there were a lot of charges; 800 or so people were charged with misdemeanors and felonies, and Energy Transfer Partners put in a pipeline. With President Trump’s last accension to power, Energy Transfer Partners Dakota Access Pipeline had no more blocks, the pipe was operational within months. The Indians lost once again. That’s the North Dakota playbook for sure.
You can still catch the Standing Rock story in court. Be sure to show up in Mandan, North Dakota in early March for some history in the making. It turns out that North Dakota still wants someone to pay for that $38 million that they lavished on the military presence at Standing Rock, and Energy Transfer Partners seems to want someone to say that they are nice guys, and that pipelines are our friends.
North Dakota V. US Army Corps
In March of last year, I was a federal witness in the North Dakota v. US Army Corps, in Bismarck. In that case, North Dakota charged that the United States Army Corps of Engineers had caused the Standing Rock resistance by issuing a conditional use permit for the flood plain. Attorneys asked if I went to Standing Rock resistance camp because the Army Corps issued a permit. My response: No. I came for the water, and I came because LaDonna Brave Bull Allard asked me to come. I came because Enbridge, the Canadian pipeline company had proposed a Sandpiper pipeline across our territory and we defeated them, only to find that they financed 28% of the Dakota Access Pipeline. I came for the water.
Energy Transfer Ptnrs v Greenpeace USA
There’s another big trial starting at the end of February in Mandan, at the Morton County Courtroom. There, Judge James Gion will preside over a jury trial in the case of Energy Transfer Partners V. Greenpeace. Energy Transfer Partners charges that Greenpeace effectively orchestrated the Standing Rock resistance. That allegation is pretty surprising to the tens of thousands of people who came to Standing Rock without even hearing about Greenpeace. Deepa Padmanabha, Greenpeace’s leader pushed back in an interview, “This is a ludicrous accusation. Standing Rock was one of the largest tribal gatherings in history. It was a grassroots resistance, and the idea that Greenpeace orchestrated it is an attempt to erase Indigenous history.”
Energy Transfer Partners is suing Greenpeace for $300 million, in defamation claims, “tortious interference” (that means that Greenpeace along with other groups talked to banks about divesting, and allegedly orchestrating the protest).
Kelsey Warren, a big Trump pal, and CEO of Energy Transfer Partners is looking to bankrupt the organization, in what’s known as a SLAPP Suit. (Basically this same lawsuit was thrown out of federal court a few years ago, but refiled in Morton County). These SLAPP suits (Strategic Litigation Against Public Participation) are intended to silence opposition. They have been used in many cases, and today are illegal in 33 states, and the European Union. North Dakota is not one of those states. Greenpeace is the fifty year old environmental organization which has been part of opposing nuclear testing in the Pacific, saving whales from factory trawlers and, challenging big oil. That’s something you are not supposed to do in North Dakota, it seems, where oil money slicks through all the systems. “If they can succeed in silencing an organization like Greenpeace USA.” Padmanabha, asks, “Who is going to speak out?”
That case will be heard in a small courtroom, with no live streaming and somehow, a judge without a law clerk will make sure the justice of a jury trial is carried out. That’s a challenge. In North Dakota, the message is, no one should oppose a pipeline project, no one. With a slew of new pipelines proposed for North Dakota, and lots of opposition by farmers, this lawsuit may have broad implications.
Wilansky v. Kirchmieir, Moll and Dvorak
In April of 2024, North Dakota Federal Judge Daniel Traynor dismissed Sophia Wilansky’s case against North Dakota law enforcement, on the grounds that law enforcement had “Qualified Immunity.”
Let me explain. The November 20, 2016 Backwater Bridge battle was an epic one, as Water Protectors faced water cannons and “less than lethal weapons” on a blockaded Highway 1806. Twenty one year old Sophia Wilansky was there and in trial told the court, ‘Law enforcement demanded she and others move away …Officers didn’t believe them and proceeded to intensify the situation, firing what they called less-lethal munitions toward Wilansky and another person.
The two attempted to shield themselves …when Morton County Deputy Adam Dvorak threw a pair of Stinger ball grenades toward them. The grenades landed a few feet away from Wilansky who said she “began running as fast as she could south, away from the barricade and truck” yelling, “I’m leaving. Please don’t shoot.”
That’s when Morton County Deputy Moll positioned himself on the turret of a Humvee with his 12-gauge shotgun to better aim at Wilansky. Deputy Johnathon Moll shot an aerial signal warning munition that hit her, according to the legal case.
The explosion on her left forearm caused significant damage. Her complaint stated the “blast destroyed almost all of the arteries, skin, tissue, muscles, nerves, tendons, and bone in her left forearm.” Wilansky filed suit in federal court, with seven original claims for relief including excessive force under the Fourth Amendment and Fourteenth Amendment. The Court ruled against her.
“At 21-years old, I lost the use of my arm because a police officer shot me from a gun turret with an exploding grenade at a protest. My life will never be the same, but I will also not be scared away from fighting for what is right,” Wilansky said in a Civil Liberties Defense Center media release . An additional statement read, “The doctrine of Qualified Immunity is repulsive in that it allows police officers to … shoot protestors with anything they want without repercussions,”
Dundon v. Kirchmeier was a federal lawsuit, also stemming from the November 20, 2016 Backwater bridge conflict. On December 29, 2021, after five years of litigation, the Court found in favor of law enforcement and dismissed the entire case, again on the grounds of “qualified immunity”. Rachel Lederman, Water Protector attorney said, “ Qualified immunity’ serves to allow a court to dismiss civil rights cases against law enforcement….” “This has led officers to think that they can “shoot first and think later” with no accountability,” said Janine Hoft, another attorney on the Water Protectors’ Legal Collective.
Standing Rock v US Army Corps
On October 13 of this past year, the Standing Rock Sioux Tribe filed a new lawsuit against the U.S. Army Corps of Engineers arguing that the Dakota Access Pipeline is operating illegally and must be shut down. The case was filed in Washington DC. This has been an ongoing challenge of the tribe in the federal courts.
The tribe has maintained the Dakota Access Pipeline, and the federal government violated the tribe’s sovereignty, endangers sacred cultural sites and threatens to pollute the tribe’s water supply. The Standing Rock complaint argues the Army Corps flouted federal regulations by allowing the pipeline to operate without an easement, sufficient study of possible environmental impacts or the necessary emergency spill response plans, among other alleged violations. “We are fighting for our rights and the water that is life for Oceti Sakowin tribes,” Standing Rock Sioux Tribe Chairwoman Janet Alkire said.
The Standing Rock Sioux have tried many legal challenges to the Dakota Access Pipeline, largely based on procedural violations, including a basic lack of an Environmental Impact Statement. That draft Environmental Impact Statement finally came out six years after the pipeline became operational. Minimally, federal law (in a pre-Trump era, and hopefully a Post Trump Era) has some provisions for the silent ones, the water, the air, the little people and more. Although the pipeline crossed the water over 200 times, there was no environmental review.
The Pipeline Hazardous Materials Safety Administration (PHMSA), the agency responsible for pipelines, has issued 106 safety violations to Energy Transfer Partners since 2002, including failures to conduct corrosion inspections, to maintain pipeline integrity, and to repair unsafe pipelines in a timely manner within five years. According to a report published by Greenpeace and Waterkeeper Alliance, over the span of 15 years, ETP had 527 pipeline incidents that spilled 3.6 million gallons of hazardous liquids. Of these incidents, 275 contaminated soil and 67 sullied water resources. Seems like oil doesn’t mix with water.
Standing Rock is not only facing the federal government, but now, 13 states and Energy Transfer Partners intervened on the side of the Army Corps. The states contend that stopping the pipeline would cause them great harm. Their Amicus brief decries: “DAPL plays a vital role in ensuring the nation’s crops can come to market – not because DAPL itself transports agricultural products, but because every barrel of oil that DAPL transports is a barrel that does not take space in a truck or a train that does. …. Now, crops, livestock, and oil can flow to where they need to go so that Americans can live with cheap energy and healthy food…” On those grounds, Iowa, Georgia, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia (all states with Republican governors) intervened to protect their “vital sovereignty and economies”.
I am so glad those states have vital sovereignty and economies. I guess that the Indian people don’t have the same rights. And, well, it looks pretty much like North Dakota is committed to punishing water protectors, not polluters. But you can get a front row seat to see it all go down in Mandan in late February and early March, where Water Protectors will again be on trial.
