Dozens of Line 3 protesters in Minnesota still facing criminal prosecution

The two activists were making their stand for the environment, latching themselves together inside one of the large pipes during construction of the Line 3 oil pipeline in Minnesota.

Prosecutors say what they were doing that day in July 2021 was criminal, even beyond what's typically charged after civil disobedience. St. Olaf College student Madeline Bayzaee and Amory Lei Zhou-Kourvo of Michigan were both charged with one count of felony aiding attempted suicide — each other's. They also face charges of felony obstruction of legal process and gross misdemeanor trespass on critical public service facilities.

Canadian tar sands oil has been flowing for nearly a year now through Enbridge Energy's pipeline and the law enforcement teams in riot gear are long gone. The charges against Bayzaee and Zhou-Kourvo are among the approximately 200 criminal cases still open from the long series of Line 3 protests, one of the largest environmental actions in Minnesota history.

Nearly 800 of several thousand demonstrators were charged with crimes, most of them stemming from protests during last year's construction. The prosecutions jammed county courthouses in northern Minnesota.

About a fifth of the cases remain open, according to Marla Marcum, director of the nonprofit Climate Disobedience Center. Marcum has been tracking the pipeline litigation jointly with the Pipeline Legal Action Network in Minnesota.

Calgary-based Enbridge Energy argued that the old Line 3 needed to be replaced because it was crumbling. Opponents have fought it as a threat to land and waters subject to Ojibwe treaty rights, and a driver of climate change.

"We're still seeing counties that are struggling to even schedule hearings let alone resolve cases," said Claire Glenn, a lawyer with the Line 3 Legal Defense Project, backed by the Civil Liberties Defense Center and the Water Protector Legal Collective.

The arrests occurred as states across the country have further criminalized protests against fossil fuel and oil lines. Seventeen states have passed laws in recent years further restricting protests of oil and gas pipeline projects by ramping up penalties, said Elly Page, who manages the U.S. Protest Law Tracker at the Washington, D.C.-based International Center for Not-For-Profit Law.

Minnesota lawmakers tried too, with an eye to Line 3 protests, but were unsuccessful. The state's existing "critical public service facilities" statute deems pipeline trespass a gross misdemeanor. Even so, the charges leveled against Line 3 protesters last year were more severe than usual, legal advocates say.

Minneapolis civil rights lawyer Jordan Kushner said this is the first time he's seen civil disobedience protesters charged with felony theft or with aiding assisted suicide.

Kushner is representing Bayzaee and Zhou-Kourvo. They were arrested on a hot July day last year in Verdon Township after crawling some 250 feet into a pipe that was closed on one end, and secured themselves together inside.

A volunteer firefighter strapped on an oxygen tank and crawled in after them with a rope. He testified he thought they were close to heat stroke but they refused to come out, saying they were prepared to die to protect the water, court documents show. Then Aitkin County Sheriff Dan Guida went in and tied a rope to one protester. With just minutes left on Guida's oxygen tank, all three were pulled out together "like a big plug," Guida testified.

"They looked like they'd been in a 130-degree oven for an hour," Guida said.

Kushner said he has advised his clients not to talk since the case is active. He accused prosecutors of overreach.

Aitkin County Attorney Jim Ratz said that's "patently false." The two protesters could have died in the pipe, he said, and the charges are justified: "Their intent there was to die."

Other prosecutors have said they are just following the law.

"My take on it has always been the same," said Hubbard County Attorney Jonathan Frieden. "We don't prosecute people based on their beliefs. We prosecute people if they violate criminal statute."

By Marcum's count, the criminal cases against an estimated 800 protesters include about 95 felony charges — mostly felony theft related to demonstrators chaining themselves to equipment. Marcum called the numbers conservative.

Although there isn't a full account yet, most of the closed cases appear to have been resolved by a stay of adjudication or continuance for dismissal, Marcum said. That generally means that if a person stays out trouble, the charges will be dismissed or there will be no conviction on their record.

Marcum called that a win: "It is an indication that the prosecutors themselves don't actually believe that these charges represent acts that they think represent any actual danger to communities."

Only a handful of the cases went to trial, she said, and no one remains in jail.

Juries acquitted demonstrators in two cases; a third case was dismissed mid-trial; and in a fourth the protester was convicted of unlawful assembly and public nuisance. However, the case ended with a stay of adjudication on the condition of jail time, and the protester was sentenced to 30 days.

More than 50 demonstrators charged with crimes were Indigenous, according to Marcum, although not all had treaty claims in Minnesota. About 15 cases involving Native Americans were transferred to White Earth Tribal Court, said White Earth tribal lawyer Frank Bibeau, who represented most of those defendants. Some were dismissed on Treaty Rights, and others took a plea deal and paid a fine. About 15 additional Native American people charged petitioned to have their cases transferred but were denied and are spread out among different county courts, Bibeau said.

"It's very sad," Bibeau said.

Among the pending cases are three involving veteran Native rights activist Winona LaDuke, a member of the White Earth Band of Ojibwe and the face of Line 3 opposition in Minnesota.

In one case from December 2020 in Aitkin County LaDuke was cited for trespassing while praying inside a prayer lodge on the Mississippi, a traditional tent-like structure she built by lashing together bent ironwood. Officers said it was on an "exclusion zone" owned by the state, court documents show.

LaDuke said she's still incredulous that she and other demonstrators are facing criminal charges for trying to protect the water, and Enbridge is not.

"It's fundamentally wrong," she said.

Bibeau and Glenn are challenging the trespass charges on multiple grounds including that they violated LaDuke's right to freedom of religion as well as her Treaty Rights to be on land ceded to the government by the Ojibwe.

They also assert that the charges violate her due process and equal protection guarantees because officers acted "at the direction and behest" of Enbridge due to "financial incentives" created by the public safety escrow account.

The state Public Utilities Commission created the Enbridge-funded account so that taxpayers did not have to foot the law enforcement bill for policing Line 3 during construction. In total, Enbridge paid $8.6 million through the public safety escrow account the state set up to cover Line 3 policing costs.

Most of the payments went to law enforcement agencies, state records show, although the single largest recipient was the state Department of Natural Resources which was reimbursed for $2.1 million.

The account has been attacked by Line 3 opponents for creating an incentive for law enforcement to crack down harder on demonstrators.

"It's pretty disturbing when you have law enforcement working for a private corporation and furthering their agenda," said Kushner, the civil rights lawyer.

Enbridge has contested the claims. On its website, the company says it did not direct law enforcement to arrest protesters and did not determine which expenses were eligible for reimbursement from the escrow account.

"This legislation does not in any way incentivize a particular policing strategy such as increased arrests or patrols," it said.

The fund was handled by Rick Hart, an independent account manager appointed by the Public Utilities Commission. Hart is a former investigator for the Hennepin County Sheriff's Office and former Bloomington deputy chief of police. The fund was set up with clear guidelines to reimburse agencies for personnel expenses and protective gear, but not for other equipment such as tear gas or other crowd dispersal tools. Portapotties and handcuffs were approved.

The Wright County Sheriff's Office was denied reimbursement for munitions, including pepper balls, chemical sprays, rubber bullets and a flash bang, according to copies of denied requests the newspaper obtained through a data practices act request. Some enforcement agencies were denied reimbursement for batons.

The public safety account also did not cover prosecution expenses, although Frieden, the Hubbard County attorney, tried. He submitted two invoices totaling $27,352.74 last year. Reimbursement was denied.