Standing Rock v. U.S.

By Winona LaDuke

winona@winonaladuke.com

It’s been eight years since the Water Protectors were cleared off the banks of the Cannonball and Missouri Rivers. 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 were standing in the road holding a sign, you could still hit them with a car. And they didn’t want us to use the phrase “Water Protector;” instead the intention is to use the term “protestor,” which has a very different meaning.

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 ascension 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.

Despite all that, you can still catch the Standing Rock story in court. Be sure to show up in Mandan 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. U.S. Army Corps

In March of last year, I was a federal witness in the North Dakota v. U.S. Army Corps in Bismarck, where 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 came 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 in northern Minnesota and we defeated them, only to find that they later financed 28% of the Dakota Access Pipeline. I came for the water.

Energy Transfer Partners v. Greenpeace USA

There’s another big trial starting at the end of February in Mandan too, in 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 and was a force driving 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 being there. That case will be heard behind closed doors, no live streaming — and yet somehow, a judge in a small county without a law clerk will make sure the justice of a jury trial is carried out. The case, with a multitude of pre-trial motions, is described as the largest in North Dakota history, so carrying out justice…well, that’s a challenge.

Energy Transfer’s core argument is that Greenpeace orchestrated the Standing Rock resistance, which will be a surprise to the tens of thousands of people who came to Standing Rock. “This is a pretty ludicrous accusation,” Deepa Padmanabha, Greenpeace’s senior legal counsel, responded. “Standing Rock was one of the largest Indigenous-led protests in history. It was a grassroots-led resistance, and the idea that Greenpeace orchestrated it is a racist attempt to erase Indigenous history.”

But it might be what you’d expect from a company whose CEO once said that protesters who damaged construction equipment should be “removed from the gene pool.”

I’d encourage you to watch the trial online, but unfortunately, Judge Gion denied a motion to arrange for the trial to be streamed online. As the Wall Street Journal reported in September, “both sides expect a fossil-fuel-friendly jury.” Check out the “community” page on the company’s DakotaPipelineFacts.com website and you’ll understand why. There’s a picture of Mandan town employees appreciatively holding up a giant check representing Energy Transfer’s $3 million donation to upgrade the town’s library and other infrastructure.

Energy Transfer Partners is suing Greenpeace for $300 million, hoping to bankrupt the organization. Greenpeace is the 50-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. In North Dakota, the message seems to be,no one should oppose a pipeline project. No one.

Wilansky v. Kirchmeier, 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.” That’s an evolving legal doctrine which poses some serious constitutional risks.

Let me explain.The November 20 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 court told the court that “Law enforcement demanded she and others move away …” Officers then 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 allegedly threw a pair of Stinger rubber 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 Jonathon Moll reportedly positioned himself on the turret of a Humvee with his 12-gauge shotgun to better aim at Wilansky. Deputy 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

“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 on April 6. 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 similar 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, a Water Protector attorney said, “Qualified Immunity serves to allow a court to dismiss civil rights cases against law enforcement.”

Janine Hoft, another attorney on the Water Protectors’ Legal Collective, accurately noted, “This has led officers to think that they can shoot first and think later with no accountability."

Standing Rock Tribe v. U.S. 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, D.C. 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, endangered sacred cultural sites and that the pipeline threatens to pollute the tribe’s water supply. Among other alleged violations, 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: “We are fighting for our rights and the water that is life for Oceti Sakowin tribes,” Standing Rock Sioux Tribe Chairwoman Janet Alkire said in a statement.

The Standing Rock Sioux have tried many legal challenges to the Dakota Access Pipeline, largely on the basis of procedural violations, including a lack of an Environmental Impact Statement (EIS). That draft EIS 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: trees, fish, mammals, birds, 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 (ETP) 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. This is not a good track record. If you’re keeping track.

Standing Rock is not only facing the federal government — 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 that “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.”

It’s nice to see distant states recognizing the importance of “vital sovereign and economic interests.” Maybe they ought to consider the “vital sovereign and economic interests” of Standing Rock and other tribes whose traditional territorial lands and waters are contaminated and risked by Energy Transfer Partners actions.

As the new year rises, 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 early March, where Water Protectors will again be put on trial