SLAPP’d Episode 3 | The Charge

Alleen Brown: I'm sitting in the courtroom in Morton County, North Dakota. Jury selection wrapped up yesterday, and today the Energy Transfer vs. 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 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.

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

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

Alleen Brown: 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.

Frank Zelko: They were discussing what they would do once they found some whaling ships in the Pacific. 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

Archival video: We started off by conducting a series of very grueling Zodiac exercises.

Alleen Brown: 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.

Frank Zelko: 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.

Alleen Brown: 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 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.

Archival video: Fur 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 fur seal harvest.

Alleen Brown: 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.

Frank Zelko: 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.

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

Alleen on tape: 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: Yeah, I remember it well.

Alleen Brown: Deepa Padmanabha is a senior legal advisor for Greenpeace.

I talked with her before the trial began.

Deepa Padmanabha: I was about six and a half months pregnant with my first child. 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.

So this one perplexed us.

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

Deepa Padmanabha: 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.

Alleen Brown: 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 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.

Deepa Padmanabha: 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.

Alleen Brown: 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 they 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 spokesperson emailed Drilled a statement.

It read: "The firm spearheaded Energy Transfer’s 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.

Deepa Padmanabha: The claims in that lawsuit really fall into three, um, 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.

Alleen Brown: 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.

Deepa Padmanabha: The second, um, big bucket are tortious interference claims.

Alleen Brown: 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.

Deepa Padmanabha: So they claim we made all these statements to banks 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.

Alleen Brown: 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 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 section of the Dakota Access Pipeline. Remember that incident where the private security dogs attacked water protectors?

Amy Goodman, Democracy Now!: Ma'am, your dog just bit a protestor. Are you telling the dogs to bite the protestors?

Alleen Brown: 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 some of the things that they're describing don't totally seem like violence to me. Here's Jason Stugelmeyer, Deputy Chief of the Bismarck Police Department.

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

Alleen Brown: 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.

Jason Stugelmeyer: We didn't even wanna arrest anybody that day. We just got in a line and systematically just pushed 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 Molotov 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, it was a minimal amount of force.

Alleen Brown: 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 FBI'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.

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

Alleen Brown: 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.

Cy Wagoner: We didn't even talk about the, the, the dog 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 nonviolently.

Alleen Brown: 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.

Archival video: 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.

Alleen Brown: Remember, Energy Transfer says they're gonna prove that it was defamation for Greenpeace to say that police and private security 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.

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.

Everett Jack: 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.

Alleen Brown: 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.

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

Alleen Brown: 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 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.

‘As I sit here right now today, no.’

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:

Everett Jack: they were filming and recording, taking pictures of everything that was going on, if there was something going on 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.

Alleen Brown: 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 Kirkmeier says he doesn't remember it.

Sheriff Kirkmeier 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 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 Davy Khoury. He's thin with whitish hair and icy blue eyes. Davy 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.

Davy 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.

Trey Cox: He then sent all of that information, the diagram of exactly, along with a plan of how we could blockade.

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

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

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

It's from Davy 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 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,

Trey Cox: 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.

Alleen Brown: 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 Trey Cox calls the 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.

Nonviolent direct action is basically civil disobedience, protest actions meant to disrupt an activity that the demonstrators view as unjust. At times, those actions involve trespassing or disregarding police orders. But Energy Transfer is saying that those trainings supported actions that caused expensive construction delays and property damage. They're basing this in part on internal emails where Greenpeace employees congratulate each other for their role in the movement.

Here's one of Energy Transfer's lawyers at a pretrial hearing describing a Greenpeace email also displayed during the trial.

Lawyer for Energy Transfer: So then what Ms. Lambert says is, these trainings reached thousands of people and the peaceful and prayerful direct actions that resulted in them were crucial for the Army Corps of Engineers to reach, to deny the permit to Dakota Access to cross the Missouri and Lake Hawaii.

Alleen Brown: Greenpeace's Everett Jack said in the pretrial hearings and in the trial that emails like this are not solid evidence.

Everett Jack: If I put on my game jersey and my team wins and I say, ‘Geez, I put on my game Jersey and my team won — that must be why they won,’ that is not the reason why they won.

Alleen Brown: Energy Transfer's lawyers say that Greenpeace's total funding for Standing Rock amounted to $55,000, though it isn't clear how they got that number. They also show that Greenpeace's executive director at the time convinced several foundations to donate a total of $90,000 to the Standing Rock movement. It's not nothing, but the TigerSwan spreadsheets I'd previously reviewed showed that over $8 million had come into the camps from crowdfunding alone.

So yeah, Greenpeace definitely contributed money to Standing Rock, but not much compared to all the cash flowing in. And yes, they sent six employees, but that's compared to a movement that included tens of thousands of people.

But let's put money and people aside. Energy Transfer is also saying that Greenpeace launched a communications campaign that was full of lies, and those lies got people to show up and also got banks to back away from the pipeline company.

Except that the very first defamatory statement, Energy Transfer claims Greenpeace made didn't happen until two months after those dog attacks went viral. Honestly, Greenpeace's posts about Standing Rock never crossed my radar. There were just so many other social media posts from people who were there.

The thing that is blowing my mind is the scale of what Energy Transfer wants Greenpeace to pay for. Here's Greenpeace's Everett Jack from a pretrial hearing.

Everett Jack: What plaintiffs wanna do is attribute the actions of every single one of them to Greenpeace. That is not supported by the law. Energy Transfer doesn't just want Greenpeace to pay for its security expenses.

Alleen Brown: Trey Cox tells the jurors that the pipeline company had to spend $7 million on PR firms to deal with the protests. They spent eight and a half million on the ranch the most controversial part of the pipeline passed through. They paid contractors 14 and a half million extra due to changes in construction plans, and they lost almost a hundred million when they had to delay the refinancing of their loan.

They want Greenpeace to pay back what looks like nearly every penny they spent to respond to the protests as if Greenpeace was alone in making all of this happen. As the days tick by and we get into week two of the [00:27:00] trial, I'm still sort of waiting for the smoking gun. It's clear that some of the Greenpeace people participated in a few protests, but Energy Transfer hasn't shown evidence connecting Greenpeace trainings or funding to the waves of protests that were happening almost every day, nor has it really tied Greenpeace to any major property destruction. The math is not adding up for me, and I start to wonder if Energy Transfer actually might lose, but then something happens that makes me question my sense of reality.

I've started to figure out who all the people in the room are, especially those of us working in media. The first few days I meet reporters from national outlets like The Guardian and the New York Times, and even an international reporter from The Financial Times. But by week two, it's down to me and a local reporter from the North Dakota Monitor.

And then there are the people that I thought were reporters but aren't. [00:28:00] There's Will Fuhr. He's young and very formally dressed in a blue suit. When I chat him up, he's a little vague about what he's actually doing here. I Google him later and realized that he works for DCI, a notorious public relations firm and one that has worked for Energy Transfer for a long time.

And then there's another DCI guy Craig Stevens. He's been sitting in a corner of the courtroom reading a copy of the Age of Innocence when things get dull. He serves as a spokesperson for a group called Grow American Infrastructure Now, which advertises itself as a coalition of businesses and labor leaders who want pipelines to be built, but it's been paid for by Energy Transfer.

Legal filings I reviewed before coming here confirmed that as of 2023 Energy Transfer was paying the PR firm around $100,000 per month to keep Grow American Infrastructure Now going. And then there's Evan Herman. He's sort of [00:29:00] nondescript. He wears fitted sweaters sometimes over a button-up shirt, and he's here every day scribbling down notes.

Evan tells me he's working for journalists with an outlet called Legal Newsline. And at first I don't think anything of it, but when I look up Legal Newsline, I realize it's connected to Central North Dakota News, those weird newspapers that showed up at the homes of Morton County residents, central North Dakota News and Legal Newsline.

Are part of a murky network of news like outlets that are really fueled by right wing interests. Seriously. A New York Times investigation found that some outlets in this network were allowing corporate executives and republican political operatives to order up articles. The times called it a pay to play network.

Sites like the Central North Dakota News are replacing serious journalism in a lot of communities, and that seems to be playing out in this courtroom. I figure I'd better invite [00:30:00] Evan to lunch and see what he'll tell me. And at a certain point, I start recording our conversation on my phone. Evan calls himself a freelance investigative journalist on his LinkedIn page, but at lunch he admits to me that he's not really here doing journalism.

Evan Herman: I hardly call what I do journalism, but it's facilitating articles.

Alleen Brown: He tells me his first job for the network involved talking to regular people from cities in the organization's coverage area. He got them to comment on political topics of the day. In one case, he says that meant interviewing a local person from Mandan about their experience with the Standing Rock protests.

Evan Herman: The stories I heard of like Right, the, like nothing to do with green bes, but the, yeah, it's like my daughter was traumatized. Uh, they, they brought a pig's head and were Oh yeah. You brought down Main Street. Yeah.

Alleen Brown: Evan is talking about this Thanksgiving protest in Manan where someone decided to carry around a pig's head on a stick.

It comes up all the time when I talk to local residents about how [00:31:00] they feel about the protests. Evan says one of his interviews was published in the Central North Dakota News.

Evan Herman: Yeah, I think one went in there. Oh, interesting. All right. Nothing to do with that. Evan says, for this trial, he's simply sitting in the courtroom and taking notes.

Alleen Brown: He hands them over to his bosses and they turn the notes into articles for legal newsline, which run without a byline. Sometimes I notice Central North Dakota News cross posts, the legal newsline pieces. Kevin acknowledges that the outlets he works for are backed by Dick Uihlein, the billionaire behind the box company.

Evan Herman: He is very privately the biggest donor to conservative and Republican causes in the country.

Alleen on tape: Oh, interesting. So he's kind of guided by his. Politics? Yeah. In funding the outlets. Yeah. Yeah.

Alleen Brown: It's definitely true that Uline is a big political donor and past reporters have connected the dots between him and these weird media [00:32:00] outlets.

But I think what was most fascinating about talking with Evan was realizing that his sense of how this trial was going was totally different from mine.

Evan Herman: No, they're making a great case. Uh, Cox I think is really good, like. Look, forget everything else. Like to make it real simple for you. Yeah. Uhhuh look at their emails.

Yeah. And that's what made it to like the openings. Yeah. He's kind of delivering on that. So what I suggested the title for the next article is A Nexus is starting. Oh,

Alleen Brown: to me this case is a mess. But for Evan, the story is becoming clear.

Evan Herman: So now I'm like, here's the nexus. It's always been right. Violence, uhhuh, uh, physical damage, uh, defamation.

So now, yeah,

Alleen Brown: but after a second lunch with Evan, a few days later, our conversation takes a turn.

Alleen on tape: You're, you don't totally believe that humans cause climate change. No. Um,

Alleen Brown: he tells me that the earth, like our bodies has a self-healing mechanism and I can't help but start to [00:33:00] argue with him.

Evan Herman: Just like our bodies, like we take an alcohol, I believe the earth is kind of like an organism.

Mm-hmm. And just like, you know, hey we drink too much and like we have our liver and detox and straight it out I think. Right. I think there some people, I think even there is, I think there is an earth like self-healing me well, but what about people who die of alcohol? Right. No, I, well, exactly.

Alleen Brown: But it's not just that he's wrong that bothers me. It's that he feels so comfortable saying this to me, like it's normal to not believe in the climate crisis. And hearing this come from someone who's positioning himself as a journalist feels dangerous.

When I keep trying to fight with him, Evan starts to get suspicious. He asks if I'm working for Greenpeace.

Evan Herman: You're not talking to Greenpeace, are Greenpeace? No, I'm here as a reporter.

Alleen Brown: But what I should have said is, of course, I'm talking to Greenpeace because I'm a reporter. Regardless, Evan helps me realize that my understanding of this trial is not shared by everyone in that courtroom. [00:34:00] And those jurors might be closer in perspective to Evan Herman, the right-wing article facilitator than to me.

It's becoming clear that Energy Transfer is about to wind down their side of the case a few days early. One of the last video depositions they pull up is Nick Tilsen. Nick runs an organization called Indian Collective. He's a citizen of the Ogallala Lakota Nation. In fact, he's the first Oceti Sakowin person that we hear from since this trial began.

He's a founding member of the group that Greenpeace worked with at Standing Rock Indigenous People's Power Project. Up until this point, it's felt like we're talking around what really happened at Standing Rock, but when Greenpeace presents its cross-examination of Nick, the dots start to connect for me.

I talked to Nick on the phone afterward.

Nick Tilsen (2): The story of Standing Rock and what happened at Standing Rock. Is a thousand times more compelling than [00:35:00] this bullshit lawsuit.

Alleen Brown: He says during his testimony that the first nonviolent direct action training he ever participated in was when he was nine years old, and it came from the American Indian Movement.

He received another 40 or 50 nonviolent direct action trainings since then, he adds, none from Greenpeace. And he was involved with establishing protest strategies at Standing Rock.

Nick Tilsen (2): We made a conscious, deliberate decision and, and, and, and prayed on those decisions that this was going to be nonviolent. Um, and I'll say we maintained that throughout this entire process.

And the ones who had the guns on the front line was the police and the military, not us.

Alleen Brown: Nick and the Indigenous People's Power Project worked with the Standing Rock Sioux Tribal Council to develop nonviolent direct action principles. They were handwritten on a big sign and hung in the middle of camp.

Among them, "we are [00:36:00] nonviolent." Also: "property damage does not get us closer to our goal."

Nick Tilsen (2): The only reason Greenpeace and any allies were there is that they're there upon invitation. Why some of us even felt comfortable inviting Greenpeace in the first place is that some of our comrades and relatives worked in that organization and we trusted those individual people.

Alleen Brown: Nick was one of the people who invited Greenpeace to come to Standing Rock. He was close with that Greenpeace guy, Cy Wagner, who was also an Indigenous People's Power Project member. Another Greenpeace employee was also a member.

Nick Tilsen (2): We asked them to help us with scouting. We asked them to help train people.

Alleen Brown: I asked him, why would nonviolent direct action training be important?

Nick Tilsen (2): The training that we're talking about is not some crazy trainings. Some people think that Martin Luther King and Rosa Parks just one day sat on a bus and launched a movement. But the reality is, [00:37:00] uh, they went through training, you know, and that training helped them be disciplined and help them be effective and help them change the course of history.

Alleen Brown: It is true. Rosa Parks attended a two week workshop on putting desegregation into action at the Highlander Research and Education Center. Soon before she refused to get up from her bus seat. Nick sees the protest to stop pipeline construction as an extension of the civil rights tradition. What really strikes me about Nick's deposition as it's playing in the courtroom is how frank and direct he is.

He tells the lawyers that the Indigenous People's Power Project trained 5,000 to 10,000 people at Standing Rock and says he himself participated in dozens of actions to stop construction.

Nick Tilsen (2): I was arrested in Standing Rock for, you know, running in, in front of machinery and locking down to machinery. And on those days we won.

We chased off those pipeline workers. They went fleeing. They [00:38:00] went. Running away from us. Those were days of a victory for our people because on those days, you know, we were able to stop destruction happening at the point of construction.

Alleen Brown: I asked Nick about his decision to be so straightforward in his testimony.

Nick Tilsen (2): I. We don't regret anything we did in Standing Rock. We don't regret resisting to fight for Mother Earth, to fight for sacred water, to fight for human rights and Indigenous rights to fight a corporation who's contributing to climate change that will, you know, has the potential to impact all human beings in the world like.

We know what we were doing there.

Alleen Brown: Ultimately, he sees Energy Transfer's attempt to frame Greenpeace as the orchestrators of the movement as part of a racist legacy.

Nick Tilsen (2): I'll be honest, like when I, when I read more into the lawsuit and the bullshit that was written into there in all of that was like [00:39:00] this continued pattern of erasure. And this continued treatment of Indigenous people actually, that, um, that we're not capable, that we don't come from these sophisticated nations that have the unique relationships with the federal government. It had to have been this NGO. If anybody knows anything about the Indigenous resistance movement, the last thing we need is a white NGO to come into our, onto our movement to quote unquote save us.

You know, um, because those days of, you know, quote unquote "saving the Indian" are over.

Alleen Brown: On day 10 of the trial Energy Transfer plays its last video deposition and Greenpeace begins to present its defense. We begin to hear from actual people on the stand who worked at Greenpeace during Standing Rock. Cy Wagoner is Diné and an artist, and he worked for [00:40:00] Greenpeace for seven years.

He wears his shoulder length hair swept back. He has a turquoise necklace and earrings and wears black rimmed glasses. I talk with him after he takes the stand. He said he went to Standing Rock because other indigenous leaders invited him there. It wasn't because of his employer Greenpeace, which he sometimes refers to as GP.

Cy Wagoner: Regardless if GP is gonna pay for it or not. Um, I was gonna find a way I was gonna find resources and make my way there.

Alleen Brown: Cy put together a proposal and a budget request, and Greenpeace did approve it. $15,000 would pay for five people from the Indigenous People's Power Project to go to Standing Rock.

This is where Energy Transfer gets their idea of the paid protestors. This amount came to about $125 per day per Indigenous People's Power Project member. Plus expenses. It was a stipend because people had to be away from their jobs to be there. Cy was there on his usual Greenpeace salary.[00:41:00]

Cy Wagoner: When I first arrived. Um, our goals was to set up, um, trainings in the intro to Nonviolent direct Action where we talk a little bit about history theory. We talk about, uh, safety deescalation, and, uh, we, we met with. Uh, a complete, unorganized, um, situation. No one was talking. People had their own agendas. It was chaotic. There were various groups, planning, protests, and even some others holding trainings.

Alleen Brown: For example, Cy said he met folks from Red Warrior Camp, but they never worked together. What Cy really looked forward to was the nights.

Cy Wagoner: It was so peaceful. It was t-shirt weather still. You could go out in the night and see the stars and see the moon come up, and um, you would just go to your neighbor and there, there would be a circle around a fire, and they're most likely singing their songs in their language, and some of them I knew or was familiar with, and then some I just never heard before in my life. [00:42:00] I can't remember the last time that uh, Indigenous people in the US have have converged like that and shared, um, shared knowledge and wisdom in songs. Unorganized, unannounced. You could smell like the wood that they brought from their regions.

It was, it was just, it was just, uh, overwhelming. Physical, emotional, spiritual, um, experience.

Alleen Brown: In court, he tells the jury that he mostly worked to set up an area for building art for protests. He did help support two protests on the ground. One was an action where members of indigenous people's power project locked down to machinery.

Another was a march in downtown Bismarck. I asked him about the nickname Energy Transfer gave him and his colleagues.

I

Alleen on tape: don't know if you even heard this, maybe you did, but they're like throwing around this term, the Greenpeace six and uh, you're one of them. So I guess I'm just curious how it feels to be one of the Greenpeace six.

Cy Wagoner: Who's the other [00:43:00] five? I, I guess, you know, like, I mean, I mean call many things, but I don't think that's a bad thing.

Alleen Brown: Cy says Greenpeace hasn't always been good at following the lead of Indigenous people. But he's seen things shift.

Cy Wagoner: Since Greenpeace has been around since the seventies, they have burned some bridges and, and rebuild some bridges with some indigenous communities.

I think they've been learning a lot in that process of how to show up in those spaces because they, they made those mistakes. Within my seven years of employment, I saw some changes. I saw the massive Greenpeace ship make those turns.

Alleen Brown: Greenpeace calls their former executive director Annie Leonard to testify.

She says that Greenpeace's past missteps where it came to Indigenous people led them to establish a detailed indigenous people's policy, and that policy means that they would never come to an indigenous nation struggle and take [00:44:00] over.

Annie Leonard: Greenpeace's policy is that we don't engage in indigenous led campaigns or Indigenous territories unless we're asked.

Alleen Brown: We chat outside after she's done.

Alleen on tape: These various documents we've seen say that, um, Greenpeace supported, um, training, you know, maybe a, a few thousand people in Nonviolent Direct Action, why shouldn't Greenpeace have to pay damages for that?

Annie Leonard: So a big part of Greenpeace's Nonviolent Direct Action training is in embodying nonviolence.

It's deescalation. And I've gone through these trainings and boy do I find it helpful. I found it helpful on that stand today. As a matter of fact.

Alleen Brown: In her testimony, Annie repeated a version of Nick Sen's argument that civil disobedience is a crucial tactic for American democracy. Trey Cox challenges her.

Rosa Parks didn't trespass on other people's property, did she? Annie replies. Rosa Parks was trespassing because she was ordered to vacate [00:45:00] that seat, and the law in Montgomery at the time said she must vacate that seat. Trey hits back again. Rosa Parks didn't send a whole work crew home for a day when she sat in that seat, did she?

Annie replies, she kickstarted the Montgomery bus boycott, where for over a year, people boycotted buses. A lot of bus people were put outta work because hundreds and hundreds and hundreds of people chose to walk every single day to boycott the segregated bus line. Trey seems to have hit his limits. I don't wanna fuss with you on that anymore, Ms. Leonard.

The more of this trial I see, the more I realize there's a lot of really important information that's not gonna make it into the courtroom early every morning. The lawyers show up before the jurors get there to argue over what information can and can't be mentioned in the upcoming court sessions and in the [00:46:00] middle of Greenpeace presenting its defense Judge Guillen makes a big decision. He rules that key details of a pipeline safety report will be kept out of the trial, even though the possibility of a leak is at the heart of why the organization got involved at Standing Rock in the first place. Also, we still haven't heard anything from any member of the Standing Rock Sioux tribe, and it dawns on me that maybe we won't.

The Standing Rock Sioux Tribe has its own litigation still going against the pipeline company. I could imagine all kinds of reasons tribal leaders wouldn't wanna be on that stand. And if Greenpeace is serious about their Indigenous people's policy, then they'd abide by what the tribe wanted. But the funny thing about a lawsuit like this is that sometimes it shakes loose information that isn't part of the plaintiff's plan.

You see, I started monitoring this lawsuit months ago, and as Energy Transfer and Greenpeace exchanged legal filings, arguing over what this [00:47:00] trial would look like, new details began to bubble up about what happened behind closed doors. As Energy Transfer built this pipeline, some of those details aren't gonna be allowed in the courtroom, and some of the people who really know the truth behind energy transfers claims aren't gonna be called to testify.

But I'm not a lawyer and I don't have to stay inside the Morton County Courthouse. The judge in this case might have kept pollution out of the courtroom, but by following this lawsuit, I'm finding myself pulled back into the heart of what this story was originally about the water.