On Monday, August 28, a Water Protector arrested and charged with a felony for participating in a nonviolent direct action against the Line 3 pipeline will head to trial.
Legal experts have called the arrests of Water Protectors and protesters over the course of the pipeline’s construction an “effort to punish the underlying political expression.” This crackdown on pipeline opponents was funded by the private Canadian oil and gas corporation Enbridge Inc. Indigenous Land Defenders and tribes have opposed the 1,097 mile-long tar sands oil pipeline since 2014, when the corporation initiated Minnesota’s permitting process.
Lawyers for Mylene Vialard, the 54-year-old protester who is charged with felony obstructing legal process for blockading an Enbridge pump station on August 21, 2021, will ask the jury to render a “not guilty” verdict.
“I’m just a regular person, but I feel it’s our responsibility to take on this fight because otherwise large corporations are going to keep raping the planet and not caring about the consequences,” Vialard told Truthout.
Throughout the pipeline’s active construction, which began in December 2020 and concluded in September 2021, more than 1,000 Water Protectors were arrested. Many were charged with misdemeanors. Most Water Protectors’ cases ended in acquittal, said Claire Glenn, a member of Vialard’s legal team.
Vialard’s is one of 23 remaining open cases relating to Line 3 arrests, and she is the second protester charged with a felony to go to trial. Bernie Santa was the first to go to trial in July for a felony charge of fleeing a police officer by car. The case remains in litigation. A felony conviction bears a maximum prison sentence of five years, though it’s within the judge’s discretion to hand down a lesser sentence of probation with no jail time or time served.
Though it’s Water Protectors who are being charged, Indigenous-led groups emphasize that Enbridge and the state agencies that granted its permits continue to violate the 1854, 1855 and 1863 treaties agreed to by Anishinaabe tribes and the United States federal government by building on unceded territories without Tribal permission.
In a video of the action Vialard participated in, the Boulder, Colorado, resident can be seen suspended in an Extinction Rebellion UK-created structure made of bamboo and metal suspension cables made to look like a helix spiral. She and another protester sat in hammock-like nests attached to cables. Hanging from the helix was a sign that read, “RESISTANCE IS LOVE.” That day, the Aitkin County Sheriff’s Office arrested seven Water Protectors and charged two with felonies, including Vialard.
“I think that a lot of white people forget, or a lot of people like me forget, that we need to protect our planet and each other,” Vialard told Truthout. Prior to answering the call of Indigenous leaders to go to Line 3, she thought to herself, “I can’t hide anymore. I need to be involved and actually put my body where my mouth is. I can say all this, but unless I act, I’m just like everybody else.”
Funding for the arrests of Vialard and others came from a “Public Safety Escrow Trust” established between Enbridge and the Minnesota Public Utilities Commission (PUC) in May 2020, which reimbursed state police for lodging, meals, gas masks, shields, gloves, and other materials associated with repressing opposition to Line 3.
By the end of September 2021, just before Line 3 began operation in October, the PUC had paid out $2.9 million from the trust to Minnesota police. The PUC is also the state agency responsible for approving permit applications and reviewing environmental concerns throughout the Line 3 construction process.
Fossil fuel companies frequently hire and deploy private police to surveil, stalk and intimidate Indigenous Land Defenders and non-Indigenous protesters, as was well documented in the case of the Dakota Access Pipeline (DAPL). On a number of occasions, private police forces violated federal rules with impunity, including by flying a surveillance drone through a Federal Aviation Administration “no-fly” zone.
But the Minnesota PUC fund was the first time that Mara Verheyden-Hilliard, director of the Center for Protest Law & Litigation, had seen this kind of public-private financial partnership between law enforcement and a fossil fuel corporation. By establishing the trust, Enbridge leveraged private funds to incentivize a taxpayer-supported state entity to target protesters, all under the guise of saving public funds. “When in reality, what it really means is that they’ve now purchased a police department in a way that allows the direction of those law enforcement resources against the political opponents of the corporation.… That’s where the money is,” Verheyden-Hilliard said.
She added that the Center for Protest Law & Litigation is preparing to launch a legal challenge to the constitutionality of the funding structure piloted in the state.
The stark legal threats against Line 3 protesters, as well as legal police torture methods known as “pain compliance” that resulted in multiple Water Protectors being diagnosed with Bell’s Palsy, are part of a wave of escalating state responses to environmental protests across the country.
Since January 2021, 42 states have approved so-called critical infrastructure laws, which threaten harsh punishments for actions associated with environmental protests. Many of these laws specifically target pipeline protests, said Elly Page, a senior legal adviser who tracks these anti-protest laws at the International Center for Non-Profit Law.
These laws “criminalize and chill” protests simply with the threat of legal prosecution, hefty fines and legal fees. Many of the laws are vaguely written, which “gives police and prosecutors greater discretion to apply the law in a targeted way,” Page said.
Minnesota currently has one such law on the books and considered two more in the most recent legislative session, according to the protest law tracker. The difference between Minnesota’s law and other states’ is how thinly it’s veiled not to look like a law attempting to quash protest, Verheyden-Hilliard said.
Research conducted by Greenpeace and published in 2018 concluded that the American Legislative Exchange Council — the corporate-backed right-wing think tank that wrote the anti-protest model legislation adopted by states — along with Energy Transfer Partners, the oil company behind DAPL, spent millions lobbying state lawmakers to back these repressive bills at the same time pipeline construction or permitting was underway.
Still, the threat of prosecution didn’t deter Vialard. Now that oil is moving through Line 3, she’s more motivated than ever. “If we want to be heard [and] if we want to have a chance as a species, Line 3 is just one of many fight fights that need to be fought.”
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