Court to hear challenge to biased policing of water protectors during Line 3 construction

Corrections: An earlier version of this post misidentified Winona LaDuke’s attorney. She is being represented by Frank Bibeau and Claire Glenn. It also failed to list all of the open cases against LaDuke, which have been added.

One of the hallmarks of this country’s democratic experiment is our aspiration for an impartial justice system, so it’s inexplicable how Minnesota leaders deployed law enforcement against water protectors who opposed the Enbridge Line 3 tar sands pipeline in the manner that they did.

The problem started with the Minnesota Public Utilities Commission (PUC), but other leaders remained silent.

The PUC approved a scheme allowing Enbridge — a multi-billion dollar, multi-national Canadian company — to fund state and local law enforcement agencies to monitor and police water protectors who opposed the pipeline.

The PUC created a Public Safety Escrow Account. Enbridge funded it. Law enforcement agencies submitted bills for their Line 3-related expenses.

It created bias in the justice system, giving law enforcement financial incentives to focus on, and go after, water protectors.

The scheme finally is getting challenged in court.

Law enforcement responds to Line 3 action near the Mississippi River Crossing in Aitkin County, near the Water Protectors Welcome Center. Dec. 16, 2020.

Forging bonds

Enbridge’s Public Safety Escrow Account ultimately paid $8.5 million to various law enforcement agencies around the state for such things as new equipment, training, proactive patrols of construction sites, and protest responses (staff time, food, lodging, and mileage).

Enbridge also got the intangible benefit of buying good will with law enforcement, the kind of bias that should have no place in our justice system.

More than 1,000 water protectors were arrested or cited by law enforcement for Line 3-related incidents. Some 89 people faced felony charges.

Attorneys Frank Bibeau and Claire Glenn represent Winona LaDuke, co-founder of Honor the Earth, who has two open cases in Aitkin County with seven total charges for Line 3 resistance. Two of the charges are gross misdemeanors for alleged trespass and harassment, the rest are misdemeanors. She also has an open case in Wadena County, the last defendant of the Shell River Seven.

Bibeau and Glenn are arguing in District Court in Aitkin County that the escrow account payments created such an institutional bias against water protectors that LaDuke’s charges should be dismissed, according to court documents. The escrow account led to selective prosecution, and violated free speech and due process guarantees.

Bibeau and Glenn filed a “Motion to Compel” information from Aitkin County to learn more about the financial and working relationships between Enbridge, the Aitkin County Sheriff’s Office and Sheriff Dan Guida, information that goes “to law enforcement incentives, motives, and biases against water protectors …”

Two other defendants face similar changes and have filed similar motions.

Out of thin air

The PUC’s Public Safety Escrow Account never got the public scrutiny it deserved. It got slipped in at the last minute.

PUC Commissioner John Tuma

Line 3’s regulatory review spanned several years, including testimony from Enbridge, affected communities, unions, and water protectors. It was well known that local governments had concerns that Line 3 protests would unduly burden their police budgets.

The escrow account proposal could have, and should have, been brought forward much earlier in the process. Something this consequential deserved more attention. Waiting until the 11th hour suggests an attempt to avoid serious discussion of a controversial plan.

The escrow account proposal didn’t come up until the second to last day of the PUC’s final Line 3 deliberations. PUC Commissioner John Tuma proposed it six hours and 42 minutes into a nearly eight-hour PUC meeting on June 27, 2018. Commissioners were tired.

Tuma’s bias was obvious.

“This whole idea came to me thanks to Enbridge,” he said, citing an Enbridge blog on how the city of Minneapolis sought public safety reimbursement from the NFL for the Super Bowl earlier that year. “This is nothing new.”

It’s a deeply flawed comparison. Law enforcement’s presence at the Super Bowl lasted a few days. Line 3 construction lasted nearly a year. The Super Bowl didn’t face organized resistance. It didn’t raise treaty rights issues. It didn’t raise constitutional issues of due process. It didn’t pose the massive environmental and climate risks that Line 3 did and does.

For no apparent reason, Tuma felt called to defend the honor of Enbridge attorney Eric Swanson. Tuma was talking about how Minnesota wanted to avoid a repeat of violence at Standing Rock. He said he knew Swanson would agree with him.

“I know you don’t want that,” Tuma said. “I know you, Mr. Swanson, your style of lobbying and how you work with people. I know you would never work with someone who would call for that in our state.”

Swanson supported the escrow account plan. “I don’t see anything that you said that should be a problem,” he told Tuma.

Winona LaDuke speaks at the PUC. Eric Swanson at right. Screen grab.

When Honor the Earth attorney Paul Blackburn urgently tried to be recognized, Tuma mocked him: “Mr. Blackburn has something to say, I don’t want his bicep to burst.”

Blackburn asked that LaDuke be allowed to speak, which she did.

“I am under great duress listening to this discussion,” LaDuke said. “The proposals that you are discussing here would put the citizens of Minnesota at great risk. … I do not see any other message that is coming out of the commission.”

The PUC approved the escrow account.

Aitkin County, where LaDuke is on trial, received more than $350,000 from the Enbridge escrow account.

Alleen Brown, a reporter with The Intercept, asked Sheriff Guida in 2021 about criticism that the fund biased policing decisions. He said the PUC appointed an independent, third-party manager to handle the escrow account, and he had to approve every payment.

“There’s a good separation,” Guida told Brown.

Aitkin Co. Sheriff Dan Guida. Image: Aitkin Co. website.

However, the Intercept obtained documents showing behind-the-scenes influence peddling in selecting the escrow manager.

In 2020, law enforcement leaders wanted a say in who the PUC selected as escrow manager, according to emails The Intercept got through Data Practices Act requests.

Kanabec County Sheriff Brian Smith wrote other sheriffs along the pipeline route, the Intercept story said. “I think we need to let the PUC know that the person [escrow account manager] selected needs to be someone we can all agree on,” someone who “understands rioting.”

Guida was on the email chain and replied to reassure his colleagues. “I had a discussion with Troy Kirby (Enbridge Chief of Security) this morning, and expressed concern over that position and the escrow account,” Guida wrote June 6, 2020. “He indicated they have some influence on the hiring of that positon [sic.] and he would be involved to assure we are taken care of, one way or another.”

It’s exactly this kind of information Bibeau and Glenn are seeking with her Motion to Compel information from the Aitkin County Sheriff’s Office. What other kinds of communication and coordination occurred between Guida and Enbridge, and what does that say about systemic bias against water protectors like LaDuke?

Guida’s claim of neutrality not born out by the facts

Guida said that he and his office stayed neutral in the Line 3 conflict.

Water protectors don’t buy it. They knew Guida was serving on the state’s Northern Lights Task Force, created in 2018 to “coordinate planning, resources and response” to Line 3 protests. The Task Force was coordinating communications and resources with Enbridge.

In November 2020, Guida “copied Enbridge public information officers on an email about the task force’s public messaging strategy,” an Intercept article said. Guida told The Intercept he did it “so that law enforcement and the company could avoid mixed or duplicate messages.”

Guida’s discretionary use of power showed bias.

The Water Protector Welcome Center was located in Aitkin County on River Road, near where Line 3 would eventually tunnel under the Mississippi River.

Shortly after Line 3 construction started in early December, 2020, Guida created a “No Parking” zone on River Road next to the Welcome Center. It required visitors to park at least a quarter mile away and walk on the shoulder of the road to get to the center.

Guida said it was a safety issue, given the road’s configuration. To water protectors, it was harassment.

Here’s a picture of part of the “no parking” zone.

Sheriff Guida created a “No Parking” zone near the Water Protector Welcome Center (located behind the photographer). No parking extended over the hill. June 2021.

Water protectors felt that law enforcement overcharged Line 3 offenses, too. For instance, Aitkin County charged Welcome Center organizer Shanai Matteson with a gross misdemeanor for “aiding and abetting trespass.” The penalty included up to a year in jail.

The charge was based on a 90-second talk Matteson gave to a group of people who had just arrived that day and were planning a direct action at a Line 3 construction site. She welcomed them, asked them to consider getting arrested, and explained how jail support worked.

Someone videotaped the event and posted it on Facebook. Aitkin County law enforcement monitored the water protectors’ social media and saw her brief appearance.

Matteson hadn’t organized the group. She wasn’t part of the group. She didn’t attend the action. Later, she received the gross misdemeanor charge in the mail for “aiding and abetting.”

The case went to trial. The judge dismissed it before it went to the jury.

It took Enbridge a year to fix the aquifer breach in Clearwater County. Photo: Ron Turney.

In contrast, the state showed lax oversight of Line 3 construction.

Line 3 workers broke through at least three aquifer caps releasing more than 300 million gallons of groundwater, a violation of state law and its permits.

The first breach occurred in Clearwater County in late January 2021. Enbridge didn’t follow its own construction plan and dug too deep, causing the breach. Enbridge also failed to report the problem immediately, as required.

The Minnesota Department of Natural Resources (DNR) wouldn’t learn about the aquifer breach for more than four months. It took Enbridge a year to fix it. In the end, Enbridge had to pump 547,692 gallons of grout (think cement) into the ground. The long-term environmental impacts are unclear.

In addition to monitoring Line 3 construction, the DNR also was the single-largest recipient of the Enbridge-funded Public Safety Escrow Account: $2.2 million.

Enbridge also hired, trained, and paid for the “Independent” Environmental Monitors who worked for the DNR to monitor Line 3 construction, another example of the bias baked into the system.

LaDuke could do a year in jail for her alleged crimes. Enbridge and its workers don’t face the possibility of jail time, even though the Clearbrook breach resulted either from willful actions or gross incompetence.

The state-imposed financial sanctions were a slap on the wrist, given Enbridge’s substantial resources.

One thought on “Court to hear challenge to biased policing of water protectors during Line 3 construction

  1. Minnesota state government’s violation of human and tribal rights is immoral. Indigenous people are terrorized and brutalized, their water and soil poisoned, their sacred land desecrated. It shames the state and the United States. I am sick and furious that under a Democratic President and so far a Democratic-controlled Congress this evil continues to be perpetrated. No wonder so few young adults vote.


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