By WPLC Members and Staff
The Water Protector Legal Collective (WPLC) is the on-the-ground legal team working in partnership with the NLG to provide representation for Water Protectors engaged in resistance to the Dakota Access Pipeline (DAPL) at Standing Rock. WPLC provides emergency legal support on a daily basis, is coordinating the criminal defense effort for the over 750 arrests to date, and has filed a federal civil rights lawsuit challenging law enforcement excessive force toward Water Protectors.
Police repression escalated throughout the fall. In September, DAPL private security used attack dogs to bite peaceful Water Protectors. Following that incident the Morton County Sheriff took over, calling in law enforcement agencies from all over North Dakota and surrounding states who responded in an increasingly militarized and violent fashion.
On October 22, police, sheriffs and National Guard surrounded a peaceful prayer march and arrested more than 100 people, including two Legal Observers, without any warning or opportunity to disperse. The arrestees were bused to jails all over North Dakota where they were strip-searched and otherwise treated in an inhumane manner. On October 27, law enforcement attacked a camp that had been set up on the pipeline route using Humvees, helicopters, an LRAD sound weapon, a directed energy device, impact munitions and chemical agents. They again arrested over 100 people.
Law enforcement’s response to a November 20 protest on Backwater Bridge was the most violent yet, resulting in many serious injuries. Officers used a water cannon and fire hoses to spray hundreds of Water Protectors despite sub-freezing temperatures. At the same time, chemical agents were used, including explosive teargas grenades, and impact munitions such as lead-filled “beanbags” and rubber and plastic impact rounds were fired indiscriminately into the crowd. A 21-year-old woman lost part of her arm as a result of one of the explosive grenades. Dozens of people were hospitalized and hundreds more treated by medical personnel at the camp.
On November 28, 2016, WPLC filed Dundon v. Kirchmeier, a federal civil rights class action lawsuit challenging law enforcement excessive force. Navajo lead plaintiff Vanessa Dundon, who was attempting to aid another person, was struck in the face and eye by a teargas canister and may never regain vision in her right eye. The lawsuit seeks damages and injunctive relief against further indiscriminate use of dangerous weapons such as impact munitions, explosive teargas grenades and canisters, and water cannons and hoses, for crowd dispersal.
On February 7, 2017, the same day that the Trump administration granted the easement for DAPL to drill under Lake Oahe, the federal district court summarily denied the preliminary injunction without a hearing. Illustrating the enormous bias the Water Protectors are facing in the local North Dakota courts, U.S. District Presiding Judge Daniel Hovland acknowledged that the weapons were used indiscriminately against people who were entirely peaceful but that he had formed opinions about the facts based on local television and other media coverage which led to his conclusion that the force was justified.
The Dundon legal team, which includes NLG attorneys Rachel Lederman, Melinda Power, Janine Hoft, Lauren Regan, and Carol Sobel, has filed an interlocutory appeal to the Eighth Circuit. In the meantime, we are fighting a motion to dismiss the case.
In the criminal cases, WPLC is working closely with several North Dakota admitted attorneys, including NLG members Chad Nodland and Bruce Nestor, as well as coordinating the effort to bring in and support volunteer attorneys, law students and legal workers from out of state to work on the criminal defense representation.
Despite a jury survey that shows 88% of jurors in Mandan (Morton County) are biased against Water Protectors, Mandan judges have thus far summarily denied motions for change of venue, jury questionnaires to pre-screen jurors, sequestered voir dire and any in-depth probing of prospective jurors for their attitudes about Water Protectors and any inclination to pre-judge these cases.
While there are a few Water Protectors who had their charges dropped entirely or who have taken deferred judgment deals, we have over 700 cases still pending that continue to move towards trial, including approximately 40 felonies.
Of the approximately one dozen misdemeanor cases that have gone to trial so far, we won three upon motions for a directed verdict at the close of the State’s case and the remainder were found guilty of either disorderly conduct or trespass. After convictions, the court has been imposing high fines and court costs and Water Protectors who had public defenders are being billed for those services and informed that any appeals will also be charged to them. Meanwhile the North Dakota legislature has greatly increased the potential length of prison sentences and fines that Water Protectors and other protestors will face in the future.
In December, WPLC filed a Petition in the North Dakota Supreme Court. Led by NLG attorney Bill Tilton, the request sought to amend the state’s onerous rules governing pro hac vice admission for out of state attorneys in order to allow us to meet the urgent need for quality criminal defense lawyers to represent Water Protectors who have been arrested. On January 18 the Court ruled largely in our favor, and WPLC began to recruit experienced criminal defense attorneys willing to travel to North Dakota to take on pro bono criminal representation pursuant to these new rules.
NLG members Sandra Feeman, Bruce Ellison and Jeff Hass are leading WPLC’s pro hac vice recruitment effort and are assigning these new volunteers to represent Water Protectors who either have no attorneys or are not happy with their court appointed lawyers. Indigenous people are being prioritized to receive new volunteer lawyers, as are people facing the most serious charges. Lawyers with criminal defense experience who would like to join this effort as a volunteer in our pro hac program please apply by sending an email to: firstname.lastname@example.org.
We are also experiencing increased efforts by federal authorities to interview, investigate and charge Water Protectors. We are aware of a sitting federal grand jury that is investigating water protection activities and has subpoenaed at least one Water Protector to testify. Steve Martinez has made public his intention to resist the grand jury and is being represented by NLG attorneys.
On February 8, DOJ unsealed a federal indictment charging five Water Protectors with felony civil disorder and use of fire to commit a federal crime, allegedly connected to incidents on October 27, when riot police violently cleared the “1851 Treaty Camp.” If convicted, they face up to 15 years in prison.
Water Protectors are being subjected to increased harassment from local and federal law enforcement agencies, experiencing police use of excessive force, wrongful arrests and groundless felony prosecutions as 700 criminal cases move towards trials in hostile courts and with a deeply prejudiced jury pool. We can expect that this situation will only worsen as Trump sends in additional federal officers and work on the pipeline continues.
For information about how to support WPLC’s work, please visit our website at: https://waterprotectorlegal.org/ways-support-us ■
Image: A scene from the Oceti Sakowin camp at Standing Rock, November 2016. (Shanna Merola)