Energy Transfer Partners v. Krystal Two Bulls

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Energy Transfer Partners v. Krystal Two Bulls

Indigenous Water Defender Sued by Company Behind Dakota Access Pipeline

Country:

United States

Case Status:

Ongoing

Issues:

Corporate Accountability, Land Rights, Extractive Industries, EarthRights Defenders

Harms:

Use of SLAPP Suits to Harass Civil Society , Threats to Free Speech

Summary

The Dakota Access Pipeline (DAPL) transports crude oil from the Bakken fields in North Dakota to terminals in Illinois, passing along the lands of the Standing Rock Sioux Tribe.

In 2016, a wide range of environmental and social justice groups began a campaign to stop DAPL, citing the health and safety dangers that the project posed to nearby communities. The Standing Rock camp grew from a few protesters to a movement of thousands. Krystal Two Bulls, one of the most prominent activists in the movement, is a Oglala Lakota/Northern Cheyenne woman, a veteran of the U.S. Army, and a media liaison who helps to communicate to the broader public about the campaign at Standing Rock.

In December 2018, Energy Transfer Partners (ETP) and its parent company, Energy Transfer Equity, sued Ms. Two Bulls, alleging that her “calls to action” opposing the controversial pipeline amounted to “racketeering” under the Racketeer Influenced and Corruption Organizations (RICO) Act.

ETP had previously sued the NGOs BankTrack and Greenpeace, as well as the EarthFirst! movement, using the same racketeering allegations. [link] The federal court has since dismissed both the case against BankTrack and the case against EarthFirst!, and ordered ETP to re-draft its allegations against Greenpeace.

ETP’s series of lawsuits against activists attacks constitutionally protected free speech by attempting to punish  legitimate advocacy work as mafia-like racketeering, and holding peaceful activists personally liable for any alleged criminal act committed against the pipeline by other protestors. Such claims are ludicrous and have been dismissed in similar cases in the past. ETP is pursuing these lawsuits in an attempt to harass and intimidate those who are opposed to its pipeline.

Corporations like ETP are misusing the U.S. legal system in order to silence their critics, using tactics such as “Strategic Litigation Against Public Participation” (SLAPP). The company’s intention in bringing a SLAPP is not to win, but to overburden the defendants with costly and time-intensive litigation procedures, while creating a chilling effect that discourages others from speaking out. RICO suits are so expensive to litigate that the process could force a nonprofit organization to close its doors before it even reached trial.

Plaintiffs

Energy Transfer Equity and its subsidiary, Energy Transfer Partners (ETP), are Texas-based energy companies that are building the Dakota Access Pipeline, financed by major Wall Street banks.

Defendants

Krystal Two Bulls is a Oglala Lakota/Northern Cheyenne woman from Montana, a former member of the U.S. Army, and a media liaison who covered the Standing Rock protests.

Other defendants named in the case are Greenpeace International, Greenpeace Inc., Greenpeace Fund, Earth First!, Cody Hall, Jessica Reznicek, Ruby Montoya, and Charles Brown. BankTrack was formerly a defendant.

 

Other Relevant Actors

Kasowitz Benson Torres LLP is a New York City-based law firm that is representing ETP in this case. The firm is known for its use of aggressive tactics and its close ties to Donald Trump. The Kasowitz law firm is also representing another company, Resolute Forest Products, in a similar SLAPP suit against Greenpeace and Stand.earth involving RICO claims. Michael J. Bowe, a lawyer for the firm, has expressed his intention to bring multiple lawsuits against environmental organizations using RICO claims.

2016

A wide range of environmental and social justice groups begin a campaign against the Dakota Access Pipeline, challenging the project’s permit in court, protesting at the pipeline site, and conducting advocacy aimed at the pipeline developers and their financiers. Some individuals, not sanctioned by the broader movement of water protectors, choose to take aggressive actions including the destruction of equipment and pipeline infrastructure. Police and security personnel respond to the protests with mass arrests and allegedly excessive force, including the use of water cannons in freezing weather conditions as well as the use of attack dogs.

2017

Protests against the pipeline continued through February, but the pipeline project is ultimately completed.

In August, ETP sues BankTrack, Greenpeace, and the Earth First! movement, alleging mafia-like racketeering under the federal RICO law.

2018

On July 24, U.S. District Judge Billy Roy Wilson issues a decision granting BankTrack’s motion to dismiss, a complete victory for the organization. Judge Wilson subsequently orders ETP to amend its complaint to plead specific allegations against Greenpeace.

On August 6, ETP files its amended complaint, adding Krystal Two Bulls and several other individuals as new defendants.

On August 22, the court dismisses the lawsuit against Earth First!.

On December 5, ETP serves Krystal Two Bulls with the complaint.

Legal Issues

The ability of companies to use RICO to hold organizations liable for any wrongful act carried out by activists in the same movement would pose an existential threat to civil society organizations in the United States. Even if such a case were to proceed past the “motion to dismiss” phase and into discovery, it would place such a strain on most civil society organizations’ resources that it could force them out of existence. RICO also allows for plaintiffs to claim treble damages against the defendants, which could also force a civil society organization out of existence. If courts establish precedents where RICO damages are possible, companies would be able to use the mere threat of litigation to force their critics into silence. Public dialogue about corporate behavior would come to an end.