Dakota Access trial over protests set to begin

A group of lawyers, activists and academics will be monitoring an upcoming trial between the developer of the Dakota Access pipeline and Greenpeace to evaluate whether the proceedings comply with human rights standards.

In the lawsuit, filed in 2019, developer Energy Transfer accuses Greenpeace of defamation and orchestrating criminal behavior by Dakota Access pipeline protesters.

Thousands of people traveled to south-central North Dakota in 2016 and 2017 to protest the pipeline in solidarity with the Standing Rock Sioux Tribe. The tribe asserts the pipeline is a violation of its sovereignty, poses a contamination threat to its water supply and has disrupted sacred cultural sites. Greenpeace was one of many activist groups that supported the protests at the time.

Energy Transfer seeks to recoup financial losses it claims it suffered as a direct result of Greenpeace’s actions during the demonstrations. The underground Dakota Access pipeline also cuts across 18 counties in Iowa as sites along the way were also scenes of protest as work progressed.

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Roughly six years and thousands of court filings after Energy Transfer filed suit, the case is scheduled to begin a five-week jury trial on Feb. 24 in Mandan, N.D.

Greenpeace says the lawsuit is a sham meant to put its U.S. branch out of business, and that it didn’t have a prominent role in the protests against the pipeline.

Scott Badenoch, a California attorney, said he has similar concerns about the case. A loss for Greenpeace could have a chilling effect on other advocacy groups, he said.

Badenoch is coordinating a 12-person monitoring committee to supervise the trial. Law students at Georgetown and Columbia also will support the effort.

Given the stakes of the case, public scrutiny is needed to keep the trial fair, Badenoch said. “The smaller the audience, the more likely that something will slip through the cracks,” he said.

The team includes attorney Marty Garbus, who has represented numerous high-profile figures in civil rights cases, including Leonard Peltier, Nelson Mandela and Daniel Ellsberg.

“In my six decades of practice, I’ve seen many abuses of the legal system, and this case raises serious concerns,” Garbus said in a recent statement announcing the committee.

The watchdog group says it already has identified potential transparency and due process issues in Energy Transfer’s case against Greenpeace.

The committee questions how the court would be able to seat a fair jury, for one. Morton County is overwhelmingly Republican, with roughly 75 percent of voters backing President Donald Trump in the 2024 election. Trump during his first term supported the construction of the Dakota Access pipeline and ordered an expedited review of the project after it had stalled under the Obama administration.

Attorneys for Greenpeace previously asked Southwest Judicial District Judge James Gion to move the case to a different court. Gion denied the request, finding their evidence inconclusive.

Multiple judges were assigned to the case before Gion. Some recused because they were acquainted with one of the parties, court records show.

In a news release, the monitoring committee also pointed to right-wing, pro-fossil fuel mailers that have recently shown up in mailboxes around the Mandan and Bismarck, N.D., area.

The mailers, called Central ND News, contain some material complimentary of Energy Transfer and critical of Dakota Access pipeline protesters, leading Greenpeace to argue they’re an intentional effort to taint the jury pool.

Gion recently denied a request by Greenpeace to investigate the origins of the mailer, though he agreed it may be targeted at potential jurors. Gion said he may reconsider the matter at a later date.

The monitoring committee asked Gion to reconsider his decision not to allow the trial to be publicly livestreamed. Many who want to view the trial will not be able to attend in person, Gion’s letter noted.

Gion previously denied a request from Greenpeace to livestream the trial, saying it could make it difficult to sequester witnesses before they testify.

“The court expects this case to be tried in the courtroom, not on social media,” he wrote in an order.

Attorneys for Energy Transfer also opposed the request, expressing fears that a livestream would invite too much public attention and could lead to the harassment of attorneys, witnesses and jurors.

Energy Transfer has pushed back against some requests for media access to court hearings in the case, citing confidentiality concerns.

Energy Transfer and Greenpeace have designated thousands of documents as confidential under a protective order approved in 2021. Some of these records are related to pipeline safety, attorneys have indicated in court hearings and records.

This article first appeared in the North Dakota Monitor.