Federal court tossed lawsuit targeting Dakota Access pipeline protestors

In a victory for freedom of speech and association, a federal court last week “dismissed a $1 billion racketeering lawsuit that the developer of the Dakota Access oil pipeline filed against environmental groups and activists, saying he found no evidence of a coordinated criminal enterprise,” Blake Nicholson reported for the Associated Press on February 14.

Two of the named defendants, Jessica Reznicek and Ruby Montoya, lived in Iowa when they repeatedly lit fires and used cutting torches to damage the Dakota Access pipeline. They later went into hiding, and Bleeding Heartland’s attempts to reach them for comment were unsuccessful.

Energy Transfer Partners filed suit in 2017, alleging that “rogue environmental groups” (Greenpeace, BankTrack, and EarthFirst!) had formed a criminal enterprise with “militant individuals,” using “misinformation for purposes of increasing donations and advancing their political or business agendas.” Greenpeace characterized the lawsuit as part of “a pattern of harassment by corporate bullies” seeking “to silence free speech through expensive, time-consuming litigation.” The case was heard in federal court in North Dakota, home to the Bakken oil fields and the northernmost segment of the pipeline.

U.S. District Court Judge Billy Roy Wilson dismissed BankTrack and EarthFirst! from the case last year. But Greenpeace and a group of activists, including Reznicek and Montoya, remained defendants.

Reznicek was “the founder of Mississippi Stand,” while Montoya was that group’s “press representative.” The plaintiffs charged that EarthFirst! “provided training and manuals” to Reznicek and Montoya, who later relied on that training to cut holes in the pipeline at various Iowa locations. (The women publicly acknowledged those actions before being arrested in July 2017, but they were not prosecuted.)

Federal racketeering laws (RICO) were designed to facilitate prosecution of organized crime. In a February 14 decision, Wilson determined that the oil company had failed to establish the elements required under RICO: “that an enterprise existed; each Defendant was associated with the enterprise; each Defendant participated in the conduct of the affairs of the enterprise; and each Defendant’s participation was through a pattern of racketeering activity.”

Greenpeace’s claims about the pipeline and fundraising activities to support protestors did not constitute “an ongoing organization,” the court held. No evidence indicated that Greenpeace controlled protestors or had directed them “to perform specific illegal acts.” “Donating to people whose cause you support does not create a RICO enterprise,” Wilson wrote. Nor does “Posting articles written by people with similar beliefs.”

As for claims that EarthFirst! associates trained Reznicek and Montoya to engage in “criminal sabotage,” Wilson wrote,

Notably, there’s no connection between EarthFirst!, Ms. Reznicek, and Ms. Montoya and the other Defendants, other than they all opposed the DAPL [Dakota Access pipeline] and engaged in similar techniques to protest the building of the DAPL. Ms. Reznicek and Ms. Montoya are connected only to EarthFirst! (which allegedly trained them) and Mississippi Stand. As mentioned earlier, one is no longer a defendant (EarthFirst!) and the other (Mississippi Stand) never was a named defendant. Even if they were parties, there’s nothing connecting these Defendants to Greenpeace, Cody Hall, and Krystal Two Bulls, other than similar interests and tactics.

On several occasions, Jessica Reznicek and Ruby Montoya burned “heavy construction equipment” and used a blow torch to “cut holes into segments” of the DAPL–acting in a manner similar to others, without any sort of agreement or understanding, does not make you part of a RICO enterprise. Even assuming there was an enterprise, RICO requires each person’s predicate RICO acts to rise to the level of participation in the management or operation of the enterprise. The allegations against these two Defendants falls short.

Mississippi Stand members stopped DAPL construction in Iowa on an almost daily basis in September and October 2016–Again, isolated events by individuals does not connect them to “continuing unit” that would amount to a RICO enterprise. […]

RICO is a “unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.” While there is a common purpose among Defendants–they all oppose the DAPL–there is no ongoing organization, no continuing unit, and no ascertainable structure distinct from the alleged RICO violations. This case involves several groups/individuals with similar interests who happened to allegedly engage in unlawful activity around the same time. This is far short of what is needed to establish a RICO enterprise.

Most people in the environmental community, including myself, did not support arson or torching equipment as a method of protesting the pipeline. You don’t need to admire Reznicek or Montoya to understand that isolated acts of vandalism should not become a pretext for a deep-pocketed corporation to bankrupt an entire movement. Judge Wilson rightly shut down this misuse of RICO and the court system.

UPDATE: Wilson’s ruling did not address any of Energy Transfer Partners’ claims under state law. The company sued Greenpeace and other defendants in North Dakota on February 21, Amy Dalrymple reported for the Bismarck Tribune. It appears that Reznicek and Montoya are not among the individual activists named in the new suit.

February 14, 2019 decision by U.S. District Court Judge Billy Roy Wilson of North Dakota.

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