SLAPP’d: An Indigenous Nation Fights for Its Water

 [00:00:00] I'm sitting in the courtroom in Morton County, North Dakota. Jury selection wrapped up yesterday and today the Energy Transfer versus Greenpeace trial has officially begun. Energy Transfer's lawyer Trey Cox delivers his opening statement.

"Energy Transfer did everything right as it prepared to build the Dakota Access pipeline," Trey assures the jury. "There were protests. They were small, they were quiet," he says. "Now enter Greenpeace."

Several photos pop up on screens throughout the courtroom. "Here they are," Trey explains. "These are the 'Greenpeace Six,' not a single one of them lives in this community. These people are professionals. They embed in a location, then they escalate. They are trained in how to teach people how to protest."

Trey says he's gonna prove that the environmental nonprofit secretly [00:01:00] planned, organized, and funded a game plan to stop construction of the Dakota Access pipeline. "Greenpeace attempted to make energy transfer look like Satan himself," he says. "Shame on them!" He exclaims.

"They thought they could do it in secret. They thought that we wouldn't be smart enough to figure out what they did," he concludes. "Today, starts the day of reckoning."

I'll admit it. The vibes are fiery and I say, let's go. If Energy Transfer is finally about to show us the dirt they say they have on this huge nonprofit, my pen and notebook are ready.

This season of Drilled, we bring you SLAPPP'd the story of an Indigenous nation fighting for its water, an environmental nonprofit facing extinction, and an energy giant using the courts to punish protestors. I'm Alleen Brown.[00:02:00]

The idea of Greenpeace as a radical boogieman is something oil companies and their lawyers trot out a lot.

 If I were an evil corporate lawyer, I too would go after Greenpeace.

 Frank Zelko is a historian at the University of Hawaii. He wrote a big book on Greenpeace. It's called Make It a Greenpeace. He says, Greenpeace has a very particular history.

It was founded just as the contemporary environmental movement was taking off in the 1970s. They started out fighting nuclear testing and then moved on to protecting marine life. But what set them apart from any other environmental organization at the time were these dramatic protest actions at sea.

 They were discussing what they would do once they found some whaling ships in the Pacific. [00:03:00] They decided they needed to put their bodies on the line in some way. That evolved into, well, let's, like, you know, put ourselves between the whales and the, the harpoon boat

 We started off by conducting a series of very grueling zodiac exercises.

 Sensational direct action became Greenpeace's brand. And Greenpeace was media savvy. In fact, the original group included journalists. These were people that knew how to tell a story. Also, they weren't just a North American organization, they were international.

 They became probably by the eighties, the most kind of well-known environmental organization in the world. Not the richest or the biggest, but certainly the one that drew the most headlines.

 For the purposes of our story, it's also helpful to know that greenpeace's relationships with Indigenous people were spotty.

Greenpeace's efforts to save sea creatures [00:04:00] sometimes took aim at indigenous practices. For example, an anti-seal hunting campaign, Greenpeace launched in the 1970s, destroyed a major income stream for indigenous nations.

 First seal harvest is, is the only economic source we have here on, on St. Paul. It's uh, the way the people earn their, earn their money.

But I'm not sure that's a good enough argument anymore with all the environmentalists attacking the the first harvest.

 But in recent years, the nonprofit has really tried to make amends. They made working closely with Indigenous people a big part of their strategy. But one thing Greenpeace has done all along is commit to avoiding violence or property damage.

 Early on in Greenpeace's history, uh, they made it very clear that, you know, nonviolence was key and they've, you know, drawn the line ever since. Um, that, uh, we'll never endanger people in our protest. And, uh, [00:05:00] we won't deliberately destroy property. Still, companies and governments began to label their actions as ecoterrorism.

I don't think there's any credible examples of anything remotely like. Something you could describe as ecoterrorism in Greenpeace's past, unless, you know, you reframe ecoterrorism as a bunch of people just blocking bulldozers or, or hanging a banner between, you know, a couple of chimneys or under a bridge or something like that.

 But criminalizing environmental activism has long been a corporate strategy to get critics off companies backs, so have lawsuits.

 Can you kind of just take me back to when you first heard about, um, you know, the federal, uh, Rico suit that energy transfer filed?

 Deepa Padmanabha is a senior legal advisor for Greenpeace.

I talked with her before the trial began.

 I was about six and a half months pregnant with my first child. [00:06:00] Um, so my memory is a little, uh, hazy from that point. This one came at a very big surprise just because the Greenpeace entities had such little involvement with anything associated with Standing Rock from communications to on the ground presence.

 But as Deepa tried to figure out why Energy Transfer had targeted them, one thing stood out.

 At that time, we were already dealing with another massive SLAPP suit filed in federal court.

Again, SLAPP stands for Strategic Lawsuit against Public participation. SLAPP suits are about using the court system to silence powerful people's critics.

 Just before the Standing Rock movement took off in 2016, a law firm called Kasowitz Benson Torres had filed a separate RICO suit against Greenpeace. It's a firm that Donald Trump has hired [00:07:00] repeatedly. This RICO suit was on behalf of a timber company called Resolute Forest Products. They claimed that Greenpeace Canada's anti logging campaign, which targeted Resolute, amounted to racketeering, defamation, and tortious interference, which is just what Energy Transfer would accuse Greenpeace of about a year later.

 And as we forward to August of 2017, the complaints looked very similar. It was the same attorneys, it was the same allegations of a RICO conspiracy. Um, and it was, you know, the same attempt to just scare us into silence and, and bankrupt us.

 Energy Transfer's arguments seemed to be cut from a pattern created by Kasowitz.

The Gibson Dunn firm was involved in developing the lawsuit early on. And then took over the suit again years later. These two firms with histories of using RICO to go after environmental defenders apparently tag-teamed the lawsuit against Greenpeace. A Kasowitz [00:08:00] spokesperson emailed Drilled a statement.

It read: "The firm spearheaded Energy Transfer suits against those who wrongfully targeted these projects, and we are gratified that Energy Transfer ultimately achieved such a successful result."

I tried to get Energy Transfer and their lawyers at Gibson Dunn on the phone to talk me through their legal fight.

They all said no to multiple interview requests. So Deepa walked me through the claims in detail. Remember, Energy Transfer's initial Federal RICO suit against Greenpeace was dismissed in 2019 because the pipeline company didn't have the evidence to prove racketeering. The case was refiled in North Dakota State Court. This new case alleged a conspiracy rather than RICO.

North Dakota is a major oil and gas state, experienced some of the Standing Rock protests firsthand, and happens to be one of the 15 states in the country that does not have an anti-SLAPP law on the books.

 The claims in that lawsuit really fall [00:09:00] into three, um, ma what I call three major buckets. So one is a set of defamation claims, you know, claims that they said we spread these false statements that cause them harm.

Energy Transfer says Greenpeace committed defamation by accusing them of deliberately desecrating sacred sites by accusing them of putting the pipeline on the standing rock Sioux Tribe's land, and by accusing police and private security of being violent toward nonviolent protestors.

 I can tell you these statements have been repeated far and wide over the past decade and no evidence I've seen indicates they originated with Greenpeace.

But Energy Transfer is saying that Greenpeace used these statements to convince people to go to Standing Rock and protest the pipeline.

 The second, um, big bucket are tortious interference claims.

 This is a money thing. The Standing Rock movement included a big effort to get banks that were funding the Dakota Access Pipeline to divest.

 So they claim we made all these statements to banks [00:10:00] and those statements caused banks to either pull out of the Dakota Access Pipeline project. Cause them, you know, refinance, huge refinancing costs, things like that. And then the third bucket of claims are, um, on the ground claims. So those are things like conversion and trespass, um, where they allege huge, huge amounts of damages for, um, delays and for, you know, direct damages related to construction equipment and things like that.

 The Standing Rock movement is best known for protests that attempted to physically block construction. Energy Transfer is arguing in that those actions were orchestrated by Greenpeace. The conspiracy charges tie all this together to prove a conspiracy. You need people or groups to be plotting together to do something unlawful.

It's boring, but important to understand that Greenpeace is actually a network of independently run organizations based around the world. I'm gonna spare you all the details, but you should know that the Greenpeace organizations Energy [00:11:00] Transfer is targeting are Greenpeace International, which coordinates some of the things Greenpeace national and regional organizations do; Greenpeace Inc, which does activism in the US; and Greenpeace Fund, also based in the US, but exists to fund certain Greenpeace activities. Energy Transfer by now had already dropped half of the supposed conspirators from the case. That's Cody Hall, Krystal Two Bulls and Red Warrior Society.

The conspiracy theory they're going with at this point involves just the different Greenpeace organizations conspiring with each other.

Energy Transfer calls their first witness and lucky me, he is a celebrity of my imagination. Mike Futch. This dude's name has come up about a bazillion times as I've investigated the pipeline company's activities during the Standing Rock movement.

He's a towering bald man with broad shoulders and an American flag pin on the lapel of his suit. Mike was the project manager for the North Dakota [00:12:00] section of the Dakota Access Pipeline. Remember that incident where the private security dogs attacked water protectors?

Are you telling the dogs to bite the protestors

 Mike says it was the protestors, not private security and their dogs that were violent. "The only violence was when protestors came onto private property and attacked us. We were always in retreat." He says he counts property damage as part of that violence. He talks about how the pipeline opponents cut hydraulic hoses, booby trapped equipment, filled gas tanks with sand and gravel spray painted cabin windows and busted up equipment gauges.

And in the trial days that follow five law enforcement officers take the stand and back him up. All of them seem to agree that the protestors were the violent ones, but [00:13:00] some of the things that they're describing don't totally seem like violence to me. Here's Jason Dougle Meier, Deputy Chief of the Bismarck Police Department.

 It's not peaceful when you block a highway whenever you want and without warning, and they did that all the time.

 Jason declined my request for an interview, but he spoke with Rob Rice, that propaganda guy hired by Energy Transfer's private security contractor, Tiger Swan. The interview was included in a documentary they posted on Facebook back when the protests were still going on.

 We didn't even wanna arrest anybody, anybody that day. We just got in a line and systematically just push forward and tried to be as nice as we could about it. Then it turned into, they started burning vehicles in our way. They started throwing small top cocktails at us. They were throwing logs, rocks, whatever they could at us.

We had no option, um, other than to move forward. And we did have to use some amount of force. But in my opinion, [00:14:00] it was a minimal amount of force.

 Jason and the other police officers did share some firsthand accounts of what I think falls under a more typical definition of violence. Jason testifies that he and his family received threats from pipeline opponents.

They feared for their lives and left their home for a few days at the FB i's suggestion. Another officer Lieutenant Brian Steele, says that during one protest he got hit in the back with a big rock. Cy Wagoner was one of the Greenpeace staffers who went to Standing Rock. He was called to testify too, and heard testimony from Energy Transfer's public relations executive, who said she also dealt with threats during the protests.

 And it was powerful that they received threats. It's a real thing. They were, they were harmed in this way.

 He was sympathetic, but he felt the testimony was missing a big part of the story, the tactics and tools used against water protectors, like rubber bullets.

 We didn't even talk about the, the, the dog [00:15:00] bites, the bullets that people took to the face. People lost their hearing from all the equipment that was brought, the military equipment that was brought to there. People were sprayed in freezing temperatures like the, the, the, the, the trauma that people felt in that space.

We didn't talk about that. We didn't talk about the harm that was done on people who were, who were there on the frontline vi um, nonviolently.

 After that night where police sprayed water hoses, at least 26 people were hospitalized with dozens more injured. According to the water protectors medic group, multiple journalists were hit with rubber bullets throughout the protests, and on a lot of days, police had guns loaded and ready to fire on demonstrators.

 Uh, they're all holding batons and guns, as you can tell. Uh, and they started, they stopped us up at the top up there and started spraying and beating everybody on the front line, and that's what's happening.

 Remember, Energy Transfer says they're gonna prove that it was defamation for Greenpeace to say that police and private security [00:16:00] used violence against nonviolent protestors.

I'm not seeing proof that no nonviolent people got hurt by dogs, rubber bullets or water hoses.

Another Gibson Dunn lawyer, whose name also happens to be Cox, comes up to question Mike Futch. And Cox number two carries to the stand stack after stack of brown accordion folders. Mike Futch confirms that each of these stacks are invoices from a different security contractor. At one point, Cox number two struggles to carry over one of the teetering piles.

Energy Transfer wants Greenpeace to pay them back for all these invoices. When they tally it up later, it'll be over $50 million. Some of them date to early August before Greenpeace employees arrived at Standing Rock and others date to 2018, literally years after they left. With all this paper stacking up, there's something I'm wondering.[00:17:00]

I had looked through Energy Transfer's daily private security reports from Standing Rock where they were gathering intel on the movement's leaders. Greenpeace was hardly mentioned in those at all.

 What you'll see, your Honor, is those situational reports, which were done every single day. Do not reference Greenpeace involved in any activity at or around the protest sites at all.

 This is Greenpeace's lawyer, Everett, Jack. No, I didn't secretly record him in the trial, but he did say basically the same thing during a pretrial hearing that I was actually allowed to record.

 The only place where those reports referenced Greenpeace is that they also tracked what was happening online and traffic online.

 Here in the courtroom, none of the people on the stand seem to know much about Greenpeace being involved at Standing Rock, which seems like a huge [00:18:00] problem for Energy Transfer's case against them. Everett Jack brings that up again when he cross examines Energy Transfer's Project manager Mike Futch. He says, "For any of the security reports that you saw or had access to, none of them had any reference to any of the Greenpeace entities being on the ground in North Dakota and running the show in the main camp. Do they?"

"I don't recall seeing that," Mike replies.

"And if I told you that none of those reports from any of those contractors said that you wouldn't have any reason to dispute that, would you?" Everett Jack asks. I.

He also says that it wasn't his job to keep up with the daily reports.

If Greenpeace was actually the mastermind of Standing Rock, wouldn't security have been tracking them? Here's Everett Jack again, from the pretrial hearing:

 they were filming and recording, taking pictures of everything that was going on, if there was something going on [00:19:00] there. It's the testimony of their witness.

They, they looked at web postings. They looked at movements of people activities in the camp, and that was doable in part because people were infiltrating the camp to find out what was going on.

 None of the police officers who testify seem to remember much about Greenpeace, either. Energy Transfer's lawyer, Cox number two is able to point to a single police record that describes a group from Greenpeace headed to stage a protest with gas masks. But Sheriff Kyle Kirkmeyer says he doesn't remember it.

Sheriff Kirkmeyer does remember the reasons he believed thousands of people were showing up to protest.

He says it was because the Standing Rock Sioux Tribe's chairman invited them there. And because of the dog attacks and the explosion of social media at the time. The sheriff says people came because of the controversial nature of the pipeline itself. And because they believed the area was the tribe's unceded territory.

"It's part of the treaty," the sheriff says. He makes [00:20:00] no mention of a Greenpeace campaign. The next witnesses Energy Transfer's lawyers call up are Greenpeace people who couldn't be at the trial in person. They're pre-taped video depositions. It's from them that we finally hear what Greenpeace actually did do at Standing Rock.

First is a Greenpeace employee named Davey Corey. He's thin with whitish hair and icy blue eyes. Davey drove a trailer called the Rolling Sunlight from Greenpeace's headquarters to Standing Rock. The rolling sunlight was equipped with solar panels to provide electricity for media and legal people.

Davey says he spent many hours on back roads in the country following the right of way of the pipeline. He was scouting, he says, collecting information about what was happening with construction and passing it along to indigenous activists in the camp.

 He then sent all of that information, the diagram of exactly, along with a [00:21:00] plan of how we could blockade.

 That's Energy Transfer's lawyer Trey Cox. Again, not a recording from the trial, just the pretrial.

 How we could blockade and attack and vandalize these toys, airplanes, bulldozers equipment to disrupt and prevent energy transfer from conducting the DAPL pipeline.

 He was referencing emails Davey sent, including one that now flashes on the screen.

It's from Davey to another Greenpeace employee dated October, 2016. The company has a place where all their toys are stored near the Bismarck area. He writes, he suggests a protest strategy. If the entrances were blocked, it would be very hard for them to get to the job sites. Another Greenpeace employee replies, I just sent 30 straight boxes down, meaning lock boxes, plumbing pipes that protestors can use to lock themselves to each other.

As the video deposition [00:22:00] plays, the jurors are watching intently. Two of them have a hand to their mouths. I imagine what they must be thinking, that this is the guy. This is the outside agitator, the professional protestor. Trey Cox, again, from the pretrial hearing,

 He was paid by Greenpeace to travel to Standing Rock. He was not on vacation. He received his salary. Greenpeace reimbursed him for all of his expenses.

 Greenpeace lawyers point out that there's no evidence that this protest Davy suggested ever even happened, and Davy later told me over text that he did not supply a diagram of how water protectors could do a blockade.

He also denied sharing ideas about how to attack and vandalize equipment. He said doing so would not fit into a nonviolent campaign. We learned that in total six Greenpeace employees visited Standing Rock, some for a few days, others for a few weeks. These are the guys, tra Cox calls the [00:23:00] Greenpeace six.

For what it's worth, they all worked for Greenpeace Inc. No one from Greenpeace Fund or Greenpeace International visited Standing Rock Greenpeace, Inc also donated some supplies. They provided about $15,000 to a group called Indigenous Peoples Power Project, or IP3 and some of the six Greenpeace employees helped IP3 run Nonviolent Direct Action trainings.

Transcription

By this point, Energy Transfer has quietly dropped both Cody Hall and the other Indigenous activist initially named in the suit, Krystal Two Bulls, from the case and is focused solely on Greenpeace. So what exactly is Energy Transfer accusing them of? And what evidence do they have?

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SLAPP’d: An Indigenous Nation Fights for Its Water