As hundreds of Enbridge Line 3 pipeline protesters fight criminal charges in Minnesota state courts, at least one county prosecutor has attempted to seek reimbursement for his efforts from a controversial public safety fund bankrolled by the pipeline company itself, an advocacy group found.
The Center for Protest Law and Litigation obtained Hubbard County Attorney Jonathan Frieden’s requests last week as part of its ongoing investigation into the multimillion-dollar fund, which was imposed as a condition on the oil company’s public permit for the $2.9 billion Line 3 project.
While other law enforcement entities were granted $4.7 million in reimbursements from the fund last year, Frieden’s requests were rejected. He has demanded an explanation.
The Center for Protest Law, which represents pipeline opponents who were arrested and criminally charged during last year’s statewide protests, says the “bottomless” fund has created a perverse incentive to aggressively police Enbridge’s opponents.
Enbridge first proposed replacing its old pipeline, which carries tar sands from Canada to the Minnesota-Wisconsin border, in 2014 over strenuous objections from local tribe members and their allies. While the oil company cited safety concerns about the old pipeline, Native activists and their allies say the replacement project begun in 2020 threatens to destroy Anishinaabe wetlands and wild rice habitat and that it violates treaty rights.
“Over and over again, we’re seeing aggressive prosecution, wrong charges, over charges, false charges — all of which is being fueled by oil money,” Center for Protest Law co-founder Mara Verheyden-Hilliard told Law360 on Monday.
Not only does the fund encourage law enforcement agencies to criminalize protesters, according to Verheyden-Hilliard, but “officers are individually incentivized to act against water protectors because they can get significant overtime for doing so.”
The Center for Protest Law expects to challenge the public safety fund in court, but is still in the investigation stage, Verheyden-Hilliard said.
“The fund turns northern Minnesota into a company town,” she told Law360.
Defense attorneys told Law360 that police and prosecutors grew increasingly aggressive with arrests and criminal charges last summer as protesters flocked to pipeline construction sites across northern Minnesota.
A county sheriff, however, denied the fund acted as an incentive for arrests and told Law360 that Enbridge should help pay for the extra burdens the protests put on law enforcement.
According to the Minnesota Public Utilities Commission, which acts as administrator of the public safety escrow account, Enbridge has poured $6.2 million into the public safety fund to date. Last year, fund managers paid out more than $4.7 million for “maintaining the peace” at Line 3 construction sites.Enbridge first proposed replacing its old pipeline, which carries tar sands from Canada to the Minnesota-Wisconsin border, in 2014 over strenuous objections from local tribe members and their allies. While the oil company cited safety concerns about the old pipeline, Native activists and their allies say the replacement project begun in 2020 threatens to destroy Anishinaabe wetlands and wild rice habitat and that it violates treaty rights.
“Over and over again, we’re seeing aggressive prosecution, wrong charges, over charges, false charges — all of which is being fueled by oil money,” Center for Protest Law co-founder Mara Verheyden-Hilliard told Law360 on Monday.
Not only does the fund encourage law enforcement agencies to criminalize protesters, according to Verheyden-Hilliard, but “officers are individually incentivized to act against water protectors because they can get significant overtime for doing so.”
The Center for Protest Law expects to challenge the public safety fund in court, but is still in the investigation stage, Verheyden-Hilliard said.
“The fund turns northern Minnesota into a company town,” she told Law360.
Defense attorneys told Law360 that police and prosecutors grew increasingly aggressive with arrests and criminal charges last summer as protesters flocked to pipeline construction sites across northern Minnesota.
A county sheriff, however, denied the fund acted as an incentive for arrests and told Law360 that Enbridge should help pay for the extra burdens the protests put on law enforcement.
According to the Minnesota Public Utilities Commission, which acts as administrator of the public safety escrow account, Enbridge has poured $6.2 million into the public safety fund to date. Last year, fund managers paid out more than $4.7 million for “maintaining the peace” at Line 3 construction sites.
PUC records obtained by Law360 show the vast majority of these reimbursements have gone to over 30 local police and sheriffs’ departments across the state for salary and equipment relating to Line 3 pipeline protests. In December, the Minnesota State Patrol received $1.5 million for policing the construction sites.
Frieden told Law360 that he requested reimbursement simply because it was available — and not because his office is overburdened by the hundreds of cases it has brought against pipeline protesters. The office doesn’t need the money, he said, and will continue prosecuting crimes without it.
Frieden says his office is handling 400 to 500 criminal cases stemming from last summer’s protests throughout Minnesota, the majority of them misdemeanors.
“We appreciate their right to protest,” he told Law360, “but while they were out protesting something they fundamentally don’t agree with, they crossed the line into criminal conduct,” including trespassing, unlawful assembly, blocking roadways and chaining themselves to pipeline equipment. There were a number of individuals who protested all summer and never committed a crime, he added.
According to Joshua Preston, a Minnesota attorney who represents Line 3 protesters, the privately funded escrow account removes normal budgetary constraints and overtime limits and “really frees up the officers to put in more time into arresting people.”
“That threshold for throwing people onto the bus to take them down to the jail to be booked is just reduced, because you know that it’s not your county’s money that’s being spent to do that — it’s the escrow account,” he said.
Preston said Hubbard County prosecutors brought 37 cases of felony theft by “indifference to owner rights” against protesters who allegedly locked themselves to equipment or to each other.
Judge John E. DeSanto, a local judge who was brought back from retirement last year to handle pipeline protest cases, dismissed two felony theft cases in November for lack of probable cause. According to his order, prosecutors failed to show any evidence of theft or intent to take control of the heavy pipeline equipment.
The Minnesota Department of Public Safety published a letter to state legislators in September that said the Enbridge-bankrolled fund “may be used only for reimbursing state agencies for officers’ salaries and for personal protective equipment and may not be used for equipment such as tear gas, rubber bullets, or extrication equipment.”
But in addition to salary costs, PUC records obtained by Law360 show that the Enbridge fund has paid for mobile field force and extraction training, gas masks, shields, helmets, handcuffs — and in Cass County, a “boom truck for protester removal.” According to PUC distribution summaries, the Cass County Sheriff’s Office has received over $907,500 from the fund for Line 3 protest response in less than a year.
In a series of emails last year, Frieden sent a bill to the pipeline fund manager for more than $27,000 in salary and overtime costs related to “maintaining the peace in and around the construction site,” the invoice stated, quoting a provision of the Enbridge permit application pertaining to allowable uses of the escrow fund. According to his request, these peacekeeping efforts included “multiple arrests/citations/complaints and prosecutions.”
The PUC denied each of his requests.
Freiden fired off an email in reply, saying: “I look forward to hearing why multiple late nights and overtime hours by my staff to charge the individuals endangering the public don’t qualify under public safety. I assume the cost to arrest them is covered, just not to prosecute them?”
Hubbard County Sheriff Cory Aukes told Law360 on Tuesday, “It’s unfortunate that he was denied because that was all extra hours his staff had to put in.” The blame for the arrests and charges lies solely with the protesters who “came halfway or even all the way across the country to break thelaw,” he said.
“None of them were local,” he said. “The people that live here were in support of this pipeline.”
Aukes said Enbridge should be financially responsible for the extra strain on law enforcement agencies and that protesters who damage private property should be ordered to pay restitution.
Last year, Ojibwe activists Winona LaDuke and Tara Houska won a temporary restraining order against Aukes for allegedly barricading the driveway to a private camp where protesters had gathered as invited guests and then making several arrests.
On Tuesday, Aukes rejected defense attorneys’ argument that the fund incentivizes police action against demonstrators. “There’s no incentive whatsoever,” he said. “Whether it’s my agency or a neighboring law enforcement agency, we went to where the crimes were being committed.”
The origin of the fund traces back to 2018, when the Association of Minnesota Counties called on the PUC to come up with a way to fund additional law enforcement and emergency services in the event that Enbridge was granted a permit. The counties were concerned about the expense of social unrest in the wake of clashes over the Dakota Access Pipeline, which cost local governments tens of millions of dollars.
The PUC added the escrow account to the Enbridge permit in June 2018, and last year the legislature passed an omnibus public safety bill allowing public agencies to be reimbursed from the fund.
But there were no public hearings that specifically addressed the private Enbridge fund for police, according to Ojibwe activist LaDuke, co-founder of Honor the Earth. The fund was simply added to the permit provisions in the last days of the approval process, four years after Enbridge first submitted its application.
According to conditions subsequently added to the permit language, Enbridge was required to submit a security plan to the sheriff’s office in counties where it was planning pipeline construction and then “work with local authorities to prohibit public access to the right-of-way during construction to promote public safety and, as needed, security.”
The permit does not specify how much money Enbridge should deposit into the public safety escrow account, saying the amount would “be determined by the escrow account manager after consultation with the public safety liaison,” who is appointed by the PUC.
“This paying for police by a Canadian multinational is very Third World,” LaDuke told Law360. “Canadian multinationals pay for the police in Third World countries to cover their mining projects, to cover their dam projects.”
In an interview Monday, Frank Bibeau, attorney for the White Earth Band of Ojibwe, joked that he might be hitting up the fund soon for expenses related to transferring protest-related criminal cases against tribe members to tribal court. So far, 10 prosecutions have been transferred to Red Lake Tribal Court. More than a dozen are still pending transfer to White Earth Tribal Court, he said.
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