What is the ‘Necessity Defense’? Updates on DAPL and Keystone XL

File photo.

News reports about the Dakota Access Pipeline (DAPL) and Keystone XL have faded into the background locally, but resistance continues from Standing Rock to Louisiana.

Here are a few updates:

  • North Dakota prosecutors dropped felony charges against Chase Iron Eyes for criminal trespass and incitement of a riot. The charges stem from DAPL events in early 2017. Iron Eyes was ready to put on a ‘Necessity Defense.’
  • A federal judge sided with water protectors who challenged the Trump administration’s fast track approval of a reroute of the Keystone XL pipeline through Nebraska.
  • Louisiana authorities are using harsher trespass laws to prosecute water protectors opposing construction of the Bayou Bridge Pipeline, DAPL’s southern extension. A fund-raising concert is planned in Duluth for Saturday, Oct. 13 to raise money for these water protectors.

Details follow.Chase Iron Eyes and the Necessity Defense

Chase Iron Eyes faced felony charges for opposing DAPL, and the Lakota Peoples Law Project was ready to argue the “Necessity Defense” — that actions against the pipeline resulting in a relatively minor harm were justified to prevent the greater harm of climate change.

Tar sands mining and processing adds significantly to climate change. (Photo: Alberta, 2008 Howl Arts Collective/Wikimedia Commons)

The Necessity Defense is a new legal argument for water protectors. For background, check out this June 7 Star Tribune Op/Ed: Why public should hear our ‘necessity defense’. Author Emily Johnston is a “Valve Turner,” a term referring to advocates who turn the shut off valves on crude oil pipelines in opposition to the oil’s climate change impacts. Johnston was arrested on Oct. 11, 2016 for participating in a valve turner action on Enbridge pipelines 4 and 67 in Leonard, Minn. Here is a snippet from her Op/Ed:

We might even get to use the legal “necessity defense,” which would allow us to bring expert witnesses (scientists, mostly) to testify not only to what we did (which we’ve never denied) but also why we did it and why our actions were a reasonable response to an unreasonable crisis.

(For more on the Necessity Defense, click here.)

In Iron Eye’s case, he and the Lakota Peoples Law Project submitted 132-page response outlines five key beliefs that supported his “Necessity Defense” in his actions opposing DAPL. They are:

  1. DAPL Posed an Existential Threat to Lakota People’s Drinking Water: The pipeline under Lake Oahe and the Missouri River threatened “the sole source of fresh drinking water for him, for his Lakota family of his Lakota wife and five Lakota children, for his entire Standing Rock Sioux Reservation Clan of Hunkpapa Lakota Native People and his entire Lakota Band of Sioux Indians who live on the nine Sioux reservations immediately downstream …”
  2. An Anti-Native American Animus and Racial Discrimination Affected the State’s Route Decision: Energy Transfer Partners and the DAPL Corporation “had actively and intentionally concealed the objective results” of its own internal analysis showing that DAPL’s “preferable” route would run near the predominantly white city of Bismarck. State officials knew they would get push back from Bismarck, choosing the route near Standing Rock because of a broad public “animus” against Lakota people.
  3. DAPL’s Private Security Firm Actively Promoted An Anti-Native American Animus and Racial Discrimination: Tiger Swan, a private military/security corporation hired by the Energy Transfer Partners and the DAPL Corporation, created an anti-Lakota civil rights conspiracy. It undertook to “racially profile” the Lakota People as “religiously-driven Indigenous Jihadist Terrorists” and promote this narrative with law enforcement and the media.
  4. Tiger Swan’s Racial Profiling and Prejudice Infected Law Enforcement, Affecting the Constitutional Rights of both Native and non-Native Water Protectors: Tiger Swan’s activities drew law enforcement agencies what had been their purely private actions of racial discrimination — transforming them into state-sponsored discrimination. This discrimination was “directed against not only Indigenous Lakota People but also against NON-Indigenous People because of their engagement in the ‘unpopular’ exercise of their FIRST AMENDMENT RIGHTS…”
  5. DAPL Will Not Benefit U.S. Energy Security and Only Serve to Increase Climate Change: The pipeline would carry 910,000 gallons of crude oil and hour (600,000 gallons of refined projects an hour) “to be sold almost-exclusively to foreign purchasers,” the brief said. The resulting greenhouse gas emissions would result in the “reckless endangerment of the entire eco-system of our planet.”

Iron Eyes and the Lakota Peoples Law Project issued the following update on his court case:

With these charges behind me, I am looking forward to working with my colleague Madonna Thunder Hawk—who stands ready to oppose the Keystone XL pipeline at her home on the Cheyenne River Reservation—and my fellow Standing Rock tribal member Phyllis Young, who is leading our charge to bring renewable energy to Standing Rock as part of our #GreenTheRez campaign.

Court Requires EIS for Keystone XL Pipeline in Nebraska

The following is from an August Sierra Club press release:

GREAT FALLS, Mont.– A federal judge today sided with environmental, landowner and Tribal plaintiffs in their challenge to the Trump administration’s approval of the Keystone XL tar sands pipeline.

The State Department had attempted to fast-track its environmental review of the pipeline’s new route in Nebraska, and … U.S. District Court Judge Brian Morris ruled that this sham review process was not legally sufficient.

[The] ruling mandates that the State Department go back and conduct a more robust supplemental Environmental Impact Statement for the “Mainline Alternative” route, which was approved by the Nebraska Public Service Commission in November 2017.

Click on the link above for the full statement.

Duluth Benefit Concert for Bayou Bridge Water Protectors

Local water protectors are holding a Duluth fundraiser for water protectors in Louisiana. The event is Saturday, Oct. 13, at the American Indian Community Housing Organization, 202 W. Second St., Duluth. Doors open and dinner served at 6 p.m. Concert starts at 7 p.m. Performers include: Korii Northrup, Jada Brown, La Marea, and Big Wind.

Here’s the background: The southern end of the DAPL pipeline network runs through Louisiana’s Atchafalaya Basin, which a news report from WGNO describes as ” the largest river swamp in the country, larger than the Florida Everglades, with more than one million acres of cypress trees, alligators, snowy egrets, and wild bushes of white hibiscus. The Basin is home to more than 200 species of birds and fish, and it is the nation’s largest nesting area for bald eagles.”

This section of pipeline is known as Bayou Bridge.

Water protectors, known as “L’eau Est La Vie” (French for “water is life”), have chained themselves to backhoes and taken other actions to stall the project and protect this region. More recently, they’ve “erected platforms, called ‘sky pods’ that are suspended between the cypress trees. Using ropes and pulleys, the water protectors are able to hoist themselves onto the platforms and stay there, for hours or more at a time,” the WGNO story said.

Because of a new Louisiana state law, penalties for such direction action are much stiffer. (Similar state laws around the country have been passed to protect so-called “critical infrastructure.” That proposal was turned back in Minnesota.)

Please spread the word about the fundraiser.

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