As Tar Sands Flow Through Line 3, Water Protectors Fight Trumped-Up Felonies

After nearly seven years of resistance from Indigenous communities and allied climate activists, Canadian tar sands began flowing through Alberta-based Enbridge Energy’s Line 3 pipeline this month. Native Anishinaabe leaders have nevertheless vowed to continue their struggle against the pipeline, a 1,097-mile, 36-inch diameter expansion and replacement to a 1960s-era line now bringing 760,000 barrels of tar sands per day from Edmonton, Canada, to Superior, Wisconsin.

The fight is shifting to Washington, D.C., this week as Indigenous communities and climate activists escalate pressure on the Biden administration to declare a climate emergency, stop all new fossil fuel projects, and crack down on existing production and extraction, including Line 3 and the Dakota Access Pipeline, during the “People vs. Fossil Fuels” mobilization. More than 500 Indigenous leaders and climate activists marched from Freedom Plaza to the White House on Monday, where at least 135 were arrested and blasted with sound weaponry after sitting-in at the White House fence.

On Tuesday, Native leaders delivered nearly 1 million petitions to the U.S. Army Corps of Engineers North Atlantic Division Office demanding Line 3 receive a full Environmental Impact Statement. Two Water Protectors climbed a flagpole outside the office and replaced its U.S. flag with a flag reading, “Consultation is not consent.” Native leaders will continue to risk arrest in D.C. throughout the week to call out President Joe Biden’s failure to stop the pipeline and respect Indigenous treaty rights.

But one Water Protector from Minnesota who planned on attending this week’s events in D.C. is being forced to stay behind: Scout is one of more than 80 people facing at least 90 felony-level charges, with all but one stemming from protests against the pipeline over the course of the summer, according to the Line 3 legal support collective Pipeline Legal Action Network (PLAN). Scout, who asked to be identified with a pseudonym because of the legally sensitive nature of his case, is forbidden from traveling across state lines under the conditions of his release from a northern Minnesota jail in June.

Scout told Truthout that his charges may escalate even further, as the prosecuting attorney may seek to up his charge from felony second-degree assault to three charges of felony first-degree assault. The current second-degree charge stems from an alleged incident in July in which Scout allegedly drove through an Enbridge work site while scouting for drilling fluid spills called “frac outs” and sites where the company was actively drilling underneath water bodies.

There at the work site, on a small dirt road, he says three Enbridge employees are alleging he swerved at them from behind the wheel of his SUV as they sat in two separate trucks. This, Scout says, simply never happened. About 20 minutes later, after he allegedly left the work site, he was pulled over by a sheriff’s deputy, who took down his driver’s license and insurance information but soon let him go.

Then, about five miles later, Scout says, the same sheriff’s deputy, now joined by a county sheriff, pulled him over again. This time, they told him he was being detained for reckless driving. He was taken to a jail in northern Minnesota, where he was booked and held for the night. He was served papers for the felony second-degree assault charge the next day, he says, about a half-hour before his arraignment. He was bonded out on a $5,000 conditional release after his unconditional release was set at $30,000 — a much higher rate than the most commonly set bail for unconditional release on a felony charge, typically $10,000.

“It’s just three people against my one person, so yeah that’s just kind of where it stands. It’s just kind of absurd and baffling and very trumped up,” Scout told Truthout. “It just seems weird how it actually played out. It’s almost as if I was being targeted specifically for being a Water Protector. I had bumper stickers on my car. The dust in my car, someone wrote ‘Stop Line 3’ in it, so it was like they knew who I was.”

Scout and other Water Protectors facing harsh state repression and accelerating felony charges say state prosecutors are coordinating ways to throw the book at them in an attempt to intimidate activists and further suppress dissent — especially now that tar sands bitumen is flowing through the pipeline. “It’s just their scare tactic, right? They want us too scared to go out and act,” Scout says. “They’re trumping up all these charges in order to scare us.”

Police and prosecutors have steadily escalated tactics against Water Protectors, including the use of heavy helicopter and drone surveillance, tear gas, rubber bullets, pain-compliance techniques that have given several Water Protectors partial facial paralysis, and slapping them with additional felony charges. The tactics display more than a year’s worth of training in which the 16-county Northern Lights Task Force carried out extensive preparations, including “field force” training and helicopter and drone operations in the year leading up to Line 3’s construction.

Organizers with PLAN say the felony charges are an organized effort across the counties involved in the Northern Lights Task Force, especially as Minnesota state legislators have continually tried and failed to pass anti-protest legislation known as “critical infrastructure” bills designed to slap anti-pipeline protesters with harsher felony sentences. At least 17 states have passed the American Legislative Exchange Council-model bills since 2017 in response to the Standing Rock protests against the Dakota Access Pipeline.

According to PLAN legal support organizer Marla Marcum, who also directs the Climate Disobedience Center, the legal collective is tracking at least 948 arrests at frontline protests against Line 3 in Minnesota since November 2020, when the Minnesota Department of Natural Resources and the Minnesota Pollution Control Agency approved the Line 3 permit, with the vast majority of arrestees facing misdemeanor or gross misdemeanor charges. About 327 of the 750 still open misdemeanor cases are gross misdemeanors, which carry a maximum penalty of a year in jail. Moreover, Marcum says a little less than half of the 90 open felony charges PLAN is tracking originate from alleged actions in Hubbard County.

The charges are also partly an attempt to dissuade defendants from taking their cases to trial, PLAN organizers say, since county courts aren’t equipped to handle so many hundreds of trials. At least 123 Water Protectors have signed a pledge to refuse plea deals.

Marcum says the felony-level charges being piled onto Water Protectors include theft, fleeing in a motor vehicle, assault, obstructing legal process and, most bizarrely of all — aiding attempted suicide. This last charge, especially, activists say, reveals the extent to which prosecutors are desperately seeking to up charges.

The charge stems from an alleged incident on July 25 in Aitkin County in which two Water Protectors allegedly climbed inside a pipe segment and locked themselves together as well as to the pipe with a locking device made of PVC known as a “sleeping dragon.” The state is alleging that the Water Protectors “did intentionally advise, encourage, or assist another who attempted but failed to take the other’s own life” since the pipe segment was hot and lacked oxygen. Felony assisting attempted suicide carries a seven-year prison sentence and/or a $14,000 fine.

This charge, the defendants’ attorney Jordan Kushner says, is “ridiculous,” since even the complaint itself notes that the two had respirators. “It looks to me like a creative use of the statute, a way to try to figure out a way to go after people as hard as possible,” he tells Truthout. “It’s not what I think someone with basic common sense would imagine the charge being used for.”

Kushner, who is handling about eight felony Line 3 Water Protector cases, notes that body-worn camera footage of the alleged incident also shows an officer saying he would try to find the most serious charge he could for the Water Protectors allegedly involved. “That kind of sums up what I think the approach is,” he says.

Still, Kushner says, he’s uncertain how a judge and jury in conservative northern Minnesota might react to the prosecution’s arguments. Pre-trial hearings in which the charges can be challenged in the case have yet to be scheduled, he says, and a trial is likely more than a year out.

“I can’t be confident [the charges are] not going to stick because judges tend to be rubber-stamped for the prosecutors. Most judges will not go out on a limb and say, ‘This is nonsense. I’m throwing this out,’ so you need a judge who’s going to have some spine,” Kushner says. “The political atmosphere [in Aitkin County] is terrible. It’s overwhelmingly Trump supporters, and they carry the kinds of views in favor of oil and against environmentalists that you would anticipate, so yeah, it’s not the best atmosphere to try and contest charges, even ridiculous ones.”

Indeed, attorneys are already prosecuting Line 3 defendants in front of all-white juries in some lower-level misdemeanor trials that are moving forward at a quicker pace. In August, Assistant Hubbard County Attorney Anna Emmerling excluded a Native juror during jury selection with a “peremptory challenge,” which can be used to dismiss a potential juror without explanation.

According to PLAN’s Marcum, about 79 felony-level charges against Water Protectors, the vast majority, are felony “theft – indifferent to owner rights” charges. PLAN has coordinated a group of attorneys working on legal motions for the felony theft cases, many of which look to contest issues of fact as it applies to the statute. The state statute allows for prison sentences of up to 10 years if the value of the property “taken” is more than $5,000. The state is alleging in many cases that Water Protectors deprived companies of access to property by locking themselves to pipeline construction equipment.

Mel, a defendant who likewise asked to be identified with a pseudonym, is one of the dozens of Water Protectors facing a felony theft charge after allegedly halting work for several hours on the morning of June 23 after allegedly locking themself to a drill pad. They also face a gross misdemeanor charge of “trespass on critical infrastructure.” They were jailed overnight and released on a $5,000 conditional bond.

They were originally unrepresented during an initial hearing in which they were formally charged but have since been assigned a public defender. They are hoping to have their next hearing, currently scheduled for the end of the month, pushed back so that they may again go through that initial hearing — this time, with representation. Moreover, Mel tells Truthout that based on the evidence they have received so far, the state is seeking to hold them responsible for at least $30,000 in costs for occupying construction equipment. The charges, they say, are simply an insult to Native and allied Water Protectors defending treaty territories.

“On a fundamental level, the idea of felony theft against Water Protectors, not only on stolen land but on unceded territory — it really blows my mind the way that it’s just a clear continuation of this longstanding historical theft and ongoing cultural and literal genocide,” Mel tells Truthout. “And then to talk about ‘critical infrastructure’ … is also really absurd because when I think about critical infrastructure, what I’m thinking about is waterways, airable land, lands and ecosystems that actually sustain life — all the things Line 3 threatens to destroy and has already begun to destroy.… Another tar sands to nowhere is laughably far from ‘critical.’”

As Truthout has extensively reported, a number of federal treaties with Chippewa nations in what is now Minnesota, including that of 1837, 1854 and 1855 guarantee tribal access to ceded lands in order to hunt, fish and gather, including rights to do so off reservation. Line 3 and other pipelines violate the White Earth Band of Ojibwe and other tribes’ 1855 Treaty Authority rights to travel use and occupy traditional lands and engage in activities “to conserve, manage, or protect the resources utilized by the Chippewa people” as well as the “Rights of Manoomin” code. Manoomin, or wild rice, is a sacred and life-sustaining food for the Anishinaabe peoples. A tar sands spill could potentially contaminate 389 acres of wild rice in 17 wild rice waterways.

In D.C. this week, Water Protectors opposing Line 3 argue that the pipeline contradicts President Biden’s stated goals to mitigate climate disruption, as it is expected to add the equivalent of more than 50 new coal-fired power plants worth of additional greenhouse gas emissions into the atmosphere, while also threatening to contaminate more than 800 wetlands and 200 bodies of water. They are also arguing Biden has broken his campaign promise to “make tribal sovereignty and upholding our federal trust and treaty responsibilities to Tribal Nations the cornerstones of federal Indian policy,” as well as spotlighting the link between fossil fuel extraction, sex trafficking and the crisis of Missing and Murdered Indigenous Women.

The mobilization in D.C. comes as the Guardian revealed new details last week about Enbridge’s funding of the Northern Lights Task Force via a Minnesota Public Utilities Commission public safety escrow account. According to documents obtained through a public records request, Enbridge has reimbursed northern Minnesota sheriff’s departments $2.4 million for arresting and surveilling Line 3 Water Protectors, including paying for officer training, surveillance, officer wages, overtime, benefits, meals, hotels and equipment. The records show the company meets daily with police to discuss intelligence gathering and patrols, and puts in requests when it wants Water Protectors removed.

“It is literally private security. That’s what the cops are at this point is private security for big companies,” felony theft defendant and Water Protector Mel says. “There has literally never been a moment in this country where policing has not been in the service of property.”

More than that, though, the repressive policing and prosecution reveals something else, they say — the true power that Indigenous and allied Water Protectors have amid the unfolding climate disaster.

“Enbridge was fearing the massively growing resistance and attention on Line 3. They started using mass arrests, including arresting those that were just attending support rallies, and then they starting using these unreasonable felony charges. Then a couple months later, they started using pain compliance,” Mel says. “All this is just evidence that Enbridge and the state of Minnesota are just scared of the power Water Protectors were collectively wielding.”