Via Jack Dura/Bismarck Tribune
More than half the criminal cases from the Dakota Access Pipeline protests have closed, but hundreds more await their fate.
2018 may be the year to end them all.
This year saw a crescendo of cases related to the monthslong pipeline protests, as law enforcement cleared the protest camps in February, numerous cases went to trial and hundreds of charges have been dismissed.
Trial court administrator Donna Wunderlich, of the South Central Judicial District, said Thursday that 499 state-level cases have closed. Over 300 more await dispositions, either still open or inactive with warrants. Six related federal cases also are open, according to the Water Protector Legal Collective.
Defense attorneys say the new year may see all the state-level cases close at some point, but that’s dependent on prosecution and appeals.
The Morton County State’s Attorney’s Office appeared to adopt a strategy this year in dismissing protest defendants’ charges, then newly recharging them soon afterward in a perceived effort to entice guilty pleas.
Morton County State’s Attorney Allen Koppy did not return two phone messages and an email requesting an interview. Neither did assistant state’s attorneys Gabrielle Goter and Brian Grosinger.
South Central District Presiding Judge Gail Hagerty declined to comment on the court’s impact from the protest cases.
Year in review
Several notable defendants and dispositions came to pass this year, including actress Shailene Woodley and 2016 Green Party presidential candidate Jill Stein, who both reached deferred impositions for their respective misdemeanor charges.
Former Standing Rock Sioux Tribal Chairman Dave Archambault II and Councilman Dana Yellow Fat were acquitted in May of their protest charges.
Photojournalist Sara Lafleur-Vetter, of The Guardian, was acquitted in October as the first journalist to go to trial from the protests.
Chase Iron Eyes, North Dakota’s 2016 Democratic House candidate, awaits a discovery process to conclude for him to prepare and present his request to use a “necessity defense” at trial next summer. He will potentially argue that the perceived threat of the Dakota Access Pipeline left him no choice but civil disobedience.
HolyElk Lafferty awaits a similar process to conclude for her to mount a likewise defense.
Red Fawn Fallis, charged with perhaps the most serious offenses from the protests, is set to stand trial next month in Fargo on federal charges for firing a handgun at arresting officers. Her attorneys filed Wednesday to continue her trial, citing discovery and factual issues.
The North Dakota Supreme Court heard its first appeal in November from the protest cases. Two more are on appeal, filed by Mary Redway and Alexander Simon, the first protest defendants convicted and sentenced to serve incarceration.
This fall, South Central District judges sought to end legal provisions for out-of-state attorneys assisting protest cases, but the North Dakota Supreme Court denied their petition.
And since June 1, the contentious Dakota Access Pipeline has been flowing crude oil from the Bakken oilfields to a facility in Illinois.
‘Clogged’ court docket
Sam Saylor has represented a number of protest defendants and said 2018 may see more trials, particularly for felony charges.
He said January and February may see cases from when protesters demonstrated in November 2016 at a rail yard near Mandan to bring awareness to missing indigenous women as a result of man camps.
April, May and June 2018 are likely to see cases, including those of Iron Eyes and Lafferty, from charges related to arrests at the Last Child Camp in early February 2017.
With hundreds of charges dismissed, many plea agreements and few convictions, Saylor said gathering those involved has been hard for attorneys.
“In some instances, people, either defendants or witnesses, don’t live locally in Bismarck, and that’s a challenge we’re continuing to face,” he said. “On the other hand, I do think the courts, Morton County and Burleigh, have done a pretty good job of trying to get these cases going, and by and large when either the state or defense has requested continuance or needs more time, I think they’ve allowed that, but they’ve had a busy year.”
Erica Shively has represented protest defendants as well and said she has about five or six cases left.
“We’re kind of winding down, but we are hitting the more serious felony cases,” she said.
2018 should close the book on the protests’ criminal cases, she added, but 2019 could possibly see appeals. Three are active now with one already heard.
Shively also said the prosecution’s recharging of defendants demonstrated a “financial warfare” against people headed to trial.
“What we were seeing is they would wait until our client had purchased their plane tickets, flown to North Dakota, the attorneys had spent all their time preparing for trial and then they would dismiss,” she said, only to be recharged soon after or later.
“I’m fundamentally against that kind of coercion,” she said of the perceived effort to land guilty pleas through recharging. She added she hasn’t seen any recharging since the summer.
Saylor said the recharging also put warrants out on people who weren’t even aware they had new charges, opening them up to being searched whenever, wherever.
“It’s not like they were charging it on a more correct charge,” he said. “They were trying to drag this out, and I found this an abuse of the power of the state in a way that I didn’t think was aboveboard.”
Saylor said prosecutors could focus on major charges rather than everyone arrested at a protest event in a single day and “clogging” the court docket.
“Taxpayer dollars, this may not be the best use of them: Bringing people to court randomly without really examining what was done,” he said.
The next protest-related trial in Morton County is set for Thursday. Others are scheduled out to early July 2018.
