Water Protectors march down sacred ground on the Standing Rock reservation in North Dakota to stop the Dakota Access Pipeline, on October 16, 2016. (Rob Wilson Photography)
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 at Standing Rock, 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 state legislators proposed laws making it illegal to wear a face mask; another law was proposed that gave drivers a pass if they hit or even killed someone who was blocking traffic on a public road. 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.
Water Protectors march down sacred ground on the Standing Rock reservation in North Dakota to stop the Dakota Access Pipeline, on October 16, 2016. (Rob Wilson Photography)
There were a lot of arrests; 800 or so people were charged with misdemeanors and felonies, and Energy Transfer Partners (now known as just Energy Transfer) put in the Dakota Access Pipeline. With President Trump’s ascension to power in 2016, the pipeline had no more blocks, it 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. Here are four cases that everyone should be paying attention to that could decide whether justice is dealt to the water protectors and the Standing Rock Sioux.
Energy Transfer v. Greenpeace USA
On February 24, be sure to show up at the North Dakota District Court in Mandan, North Dakota, where Judge James Gion will preside over a jury trial in the case of Energy Transfer v. Greenpeace. Energy Transfer is suing Greenpeace for $300 million, hoping to bankrupt the organization.
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. It 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 justice is carried out—as well as the recently named 12-person monitoring committee that will supervise the trial.
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,” says Deepa Padmanabha, Greenpeace’s senior legal counsel. “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 executive chairman and former CEO Kelcy Warren, a Dallas billionaire and Trump ally, who once said that protesters who damaged construction equipment should be “removed from the gene pool.”
In 2017, after the water protectors were cleared out of Standing Rock, Energy Transfer filed a $1 billion lawsuit against Greenpeace, EarthFirst! and BankTrack, under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), which was ultimately dismissed. “They’re going to pay for this,” Warren told CNBC that August. “This can’t be allowed to happen.”
I’d encourage you to watch the trial online, but unfortunately Judge Gion denied a motion to have the trial 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.
Last year, Morton County residents were also targeted with a right-wing, pro-fossil fuel mailer, raising concerns about attempts to influence the jury pool. In January, Energy Transfer launched a pre-trial public relations campaign, setting set up a website called “Take Back the Truth,” with a cute little oil drop on the logo. The website’s claims are an oily rewrite of history. Let me explain. and the implications for North Dakotans and the rest of us are big. Let me explain.
Claim One: “The Dakota Access Pipeline does not encroach on any tribal lands.”
Well, that depends if you are an oil company or a Lakota. A Lakota person will probably tell you that the pipeline traverses Unci Maka, and that the Missouri River is the lifeblood of the people—Mni Wiconi. The Dakota Access Pipeline is within the l868 and the l851 treaty territories, lands legally retained by the Lakota as confirmed by the U.S. Supreme Court. Let’s be clear, the pipeline was rerouted and moved to just north of Standing Rock, so that the city of Bismarck would not bear the risk of a big oil pipeline contaminating its water supply. The residents of Bismarck have political and voting power. Now, the pipeline impacts the land, water and Lakota people.
Claim Two: “Energy Transfer did not disturb culturally important sites.”
That’s not true. In 2016, on the Friday of Labor Day weekend, the Standing Rock Sioux Tribe’s Historic Preservation Office identified sacred and cultural sites in the path of the pipeline on the former Cannonball Ranch. The following day, Saturday, Energy Transfer bulldozed this area. I remember that because I was there in the camp that day. It bulldozed sacred sites.
Claim Three: “Neither Energy Transfer nor Dakota Access used extreme violence against protestors.”
North Dakota spent $38 million to protect the interests of a private corporation, Energy Transfer. Police forces used some “less than lethal” weapons, paid for by the state. A private security company, under contract with Energy Transfer, also bought less than lethal weapons, releasing dogs on water protectors, along with rubber bullets, water cannons and tear gas. Though no water protectors were killed, they were injured.
Ice formed on the razor wire as police spray peaceful Water Protectors with the water cannon from the Stutsman County Sheriff, in November, 2016. (Rob Wilson Photography)
Claim Four: “Energy Transfer’s lawsuit is not about free speech.”
It is. Because, when they sue people for so-called defamation, oil and pipeline companies like Energy Transfer send a clear message: If you stand up, you will be punished in a lawsuit. “To me, this is a freedom of speech case and freedom of association case,” attorney Sarah Vogel, former ND Assistant Attorney General and Agriculture Commissioner told the North Dakota Monitor. “As residents of a small state without a whole lot of power, we’d better be able to speak up. Who knows? I mean, this time, it’s Greenpeace, but who will it be next time?”
Greenpeace is a 50-year-old environmental organization that 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.
Should Energy Transfer succeed in its suit, implications for North Dakotans and the rest of us are big.
One specific provision in this case makes it particularly troublesome, says Charlie Cray, a senior strategist at Greenpeace USA: that is the notion of joint liability or collective liability. “In other words, Greenpeace could be held liable for the actions of unknown others at the Standing Rock resistance,” he says. “That is a very divisive claim that has serious implications for the movement as a whole. It would create serious risk for any organization that participated in a large protest if they could be held liable for the actions of others with whom they are not directly affiliated.”
In North Dakota, the message seems to be: No one should oppose a pipeline project, no one.
Greenpeace International v. Energy Transfer
On February 11, Greenpeace International, which is based in Amsterdam, filed a countersuit against Energy Transfer in a Dutch court under a new European Union law aimed at curbing lawsuits intended to silence political activists, which are known as SLAPP (Strategic Lawsuits Against Public Participation) suits.
In a statement, Greenpeace International said its suit, the first to test the new EU anti-SLAPP law, was seeking to recover “all damages and costs it has suffered as a result of ET’s back-to-back, meritless lawsuits.”
As of this year, 35 states in the U.S. have some kind of anti-SLAPP law on the books, but not in North Dakota. If successful in their countersuit, Greenpeace International could “show that there are effective ways to deter this weaponization of the law against free speech and the right to assemble,” says Cray.
When the European Commission first proposed the anti-SLAPP law in April 2022, Věra Jourová, the commission’s Vice President for Values and Transparency, said: “With these measures we are helping to protect those who take risks and speak up when the public interest is at stake—when they report … environmental and climate matters or other issues that are important to us all.”
For his part, Didier Reynders, the Commissioner for Justice, put it this way:
The active exercise of the fundamental right to freedom of expression and information is key for a healthy and thriving democracy. … Today, we are taking important steps to safeguard journalists and civil society who are increasingly under threat from SLAPPs.
North Dakota v. United States of America
It turns out that North Dakota still wants someone to pay for the $38 million they lavished on the police presence at Standing Rock, and Energy Transfer seems to want someone to say they are the nice guys and that pipelines are our friends.
In March of last year, I was a federal witness in the North Dakota v. United States , tried before U.S. District Court Judge Daniel Traynor in Bismarck, where North Dakota charged that the United States Army Corps of Engineers had encouraged the Standing Rock resistance by issuing a conditional use permit to the Standing Rock Tribe to use the flood plain for lawful free speech. The trial has finished but no decision has been rendered.
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.
Standing Rock Sioux Tribe v. United States Army Corps of Engineers
In October 2024, the Standing Rock Sioux Tribe filed a suit in Washington, D.C., against the U.S. Army Corps of Engineers, arguing that the Dakota Access Pipeline is operating illegally and must be shut down.
The tribe maintains the Dakota Access Pipeline violates the tribe’s sovereignty, endangers sacred cultural sites and threatens to pollute the tribe’s water supply. Among other alleged violations, the Standing Rock complaint argues the Army Corps defied federal regulations by allowing the pipeline to operate without an easement or sufficient study of possible environmental impacts and 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 announcing the lawsuit.
The Standing Rock Sioux Tribe has 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, i.e., trees, fish, mammals, birds, the little people and more. Although the pipeline crosses various waterways over 200 times, there was inadequate environmental review.
Since 2002, the Pipeline Hazardous Materials Safety Administration (PHMSA), the agency responsible for pipelines, has issued more than 100 safety violations to Energy Transfer , including in 2021 a Notice of Probable Violation over its safety regulations of the Dakota Access Pipeline. According to a 2018 report published by Greenpeace and Waterkeeper Alliance, between 2002-2017, Energy Transfer 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.
Standing Rock Sioux Tribe is not only facing the federal government but Energy Transfer and 13 Republican-led states who have intervened on the side of the Army Corps by joining the lawsuit. The states—Iowa, Georgia, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas and West Virginia—contend that stopping the pipeline would cause great harm to their “vital sovereign or economic interests.” Their brief puts it this way, “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.”
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 put at risk by Energy Transfer actions.
Winona LaDuke is Anishinaabe, a writer, an economist, a hemp farmer and a Barn Raiser Contributing Editor. LaDuke is a leader in cultural-based sustainable development strategies, renewable energy, sustainable food systems and Indigenous rights. She is a co-curator at the Giiwedinong Treaty Rights and Culture Museum in Park Rapids, Minnesota, and owner of Winona's Hemp.
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