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<font size="1"><a href="https://theintercept.com/2021/04/03/unicorn-riot-dakota-pipeline-energy-transfer-subpoena/">https://theintercept.com/2021/04/03/unicorn-riot-dakota-pipeline-energy-transfer-subpoena/</a>
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<h1 class="gmail-reader-title">Pipeline Company Issues Broad Subpoena to News Site That Covered Protests Against It</h1>
<div class="gmail-credits gmail-reader-credits">Alleen Brown - April 3, 2021<br></div></div><hr><div class="gmail-content">
<div class="gmail-moz-reader-content gmail-reader-show-element"><div id="gmail-readability-page-1" class="gmail-page"><div><div><p><u>Last week,</u> members of the nonprofit news organization Unicorn Riot received a <a href="https://www.documentcloud.org/documents/20521079-subpoena_energytransfer_unicornriot_redacted">subpoena</a>
from the pipeline giant Energy Transfer seeking a wide range of
documents, including newsgathering materials that would identify
sources. The subpoena is part of an aggressive, yearslong legal effort
launched by Energy Transfer in the wake of the Standing Rock movement,
when thousands of opponents of the corporation’s Dakota Access pipeline
came to camps at the border of the Standing Rock Sioux reservation in an
attempt to stop pipeline construction and protect the tribe’s drinking
water from contamination.</p>
<p>Through a series of expensive conspiracy lawsuits against a disparate
range of actors, the pipeline company has sought to paint the Standing
Rock movement as the product of a vast misinformation-driven conspiracy
to damage Energy Transfer.</p>
<p>Now, as part of that effort, Energy Transfer is demanding Unicorn
Riot turn over virtually any documents, video footage, audio, article
drafts, and communications related to the firm and its pipeline. The
subpoena also sought information about the nonprofit’s organizational
structure, social media accounts, and names of employees, volunteers,
and supporters. Niko Georgiades, who was among the Unicorn Riot
reporters covering Standing Rock, was separately <a href="https://www.documentcloud.org/documents/20521080-subpoena_energytransfer_ng_redacted">subpoenaed</a>.</p></div><blockquote><span></span><p>“This subpoena is outrageous and strikes at the heart of the First Amendment. It should be thrown out immediately.”</p></blockquote><div><p>“This
subpoena is outrageous and strikes at the heart of the First
Amendment,” said Trevor Timm, executive director of the Freedom of the
Press Foundation. “The breadth of the subpoena is striking: not only
encompassing things like story drafts and internal communications, but
also the personal information of Unicorn Riot’s donors. The judge should
see this for what it is: a menacing attempt to intimidate a news outlet
whose only ‘crime’ is being critical of the company. It should be
thrown out immediately.”</p>
<p>Unicorn Riot signaled it would contest the subpoena. “We intend to
vigorously defend our sources and our First Amendment protected
activity,” Unicorn Riot told The Intercept in a statement. (Energy
Transfer did not respond to a request for comment.)</p>
<p>Over the course of months of protests at Standing Rock, Unicorn Riot
developed a reputation for its immersive livestreams, video news
reports, and public information requests, which provided powerful
evidence of the aggressive tactics used by law enforcement agencies and
Energy Transfer. The organization’s work leans to the left politically
and tends to be critical of law enforcement agencies, with journalists
often reporting from within movement spaces. At Standing Rock, law
enforcement officials at times<a href="https://theintercept.com/2016/11/27/arrests-of-journalists-at-standing-rock-test-the-boundaries-of-the-first-amendment/"> viewed</a> the group’s journalists as members of the movement, subjecting them to repeated arrests as well as “less than lethal” weapons.</p></div><div><p>Unicorn
Riot has fewer than a dozen members and is entirely supported by
private donations from individuals who seek out their coverage of social
movements and protests. (Disclosure: Sam Richards, one of the authors
of this story, has written for Unicorn Riot as a freelance journalist on
matters unrelated to pipeline protests.) Energy Transfer, meanwhile,
reported nearly $5 billion in revenue in 2019 and has somewhere in the
neighborhood of 13,000 employees.</p>
<p>Fighting back will be an immense financial burden for a tiny organization like Unicorn Riot. The group has launched a <a href="https://donorbox.org/unicorn-riot-nodapl-legal-defense">fundraiser</a> to pay for a First Amendment lawyer.</p>
<h3>Attempt to “Chill” Speech</h3>
<p>Critics say the toll exacted by fighting legal attacks is exactly the point of what Energy Transfer is doing.</p>
<p>The Unicorn Riot notice was just one of a slew of subpoenas related
to Energy Transfer’s case over the last month to a wide range of
individuals and groups who were involved in the Standing Rock movement.
Among them were legal collectives, groups that provide nonviolent
direct-action trainings, and Standing Rock tribal officials.</p>
<p>The Water Protector Legal Collective, which also received an Energy Transfer subpoena, <a href="https://waterprotectorlegal.org/water-protector-legal-collective-challenges-energy-transfer-partners-dakota-access-pipelines-slapp-subpoena/">described</a>
the subpoenas as part of a set of tactics “designed to bury
organizations in litigation and force organizations to spend precious
resources, time, and energy defending against corporations.”</p>
<p>Energy Transfer “is on a fishing expedition for information that
could lend credence to their ill-founded notion that nonprofit
organizations and Water Protectors seeking to protect human rights and
the earth for future generations were allegedly engaged in illicit
activity,” said staff attorney Natali Segovia in a <a href="https://waterprotectorlegal.org/water-protector-legal-collective-challenges-energy-transfer-partners-dakota-access-pipelines-slapp-subpoena/">statement</a>. “In reality, it is ETP and large corporations that break the law with impunity.”</p></div><div><p><img src="https://theintercept.imgix.net/wp-uploads/sites/1/2021/04/GettyImages-632671762-greenpeace.jpg?auto=compress%2Cformat&q=90&w=1024&h=683" alt="An onlooker takes photographs of Greenpeace activists hanging from a construction crane with a banner that reads "Resist" in Washington, D.C., U.S., on Wednesday, Jan. 25, 2017. The protest comes one day after the Trump administration invited TransCanada Corp. to reapply for its Keystone XL project and issued a memorandum supporting completion of the Energy Transfer Partners LPs Dakota Access Pipeline. Photographer: Andrew Harrer/Bloomberg via Getty Images" style="margin-right: 0px;" width="441" height="294"></p><p class="gmail-caption">Greenpeace
activists, protesting ongoing pipeline construction, hang from a
construction crane with a banner that reads “Resist” in Washington,
D.C., on Jan. 25, 2017. The protest comes one day after the Trump
administration invited TransCanada Corp. to reapply for its Keystone XL
project and issued a memorandum supporting completion of Energy
Transfer’s Dakota Access pipeline.</p>
<p class="gmail-caption">
Photo: Andrew Harrer/Bloomberg via Getty Images</p></div><div><p>The
subpoenas are part of a follow-up effort to a sprawling federal
racketeering lawsuit Energy Transfer filed in 2017 against a range of
defendants, including the environmental group Greenpeace; BankTrack,
which is a nonprofit that pressures banks to stop financing harmful
activity; and several individual pipeline opponents.</p>
<p>The federal complaint alleged that thousands of people came to camps
at the border of the Standing Rock reservation because of a Greenpeace
misinformation campaign. Widespread evidence, including a robust public
record, show that water protectors instead were galvanized by calls for
help made by tribal members and the publication of shocking footage
showing Dakota Access pipeline security contractors siccing dogs on
pipeline opponents.</p>
<p>Energy Transfer claimed it sustained $300 million in damages, a total
that could translate into triple the penalties — nearly $1 billion —
under the federal law called the Racketeer Influenced and Corrupt
Organizations Act, known as RICO.</p></div><blockquote><span></span><p>“The
suit was brought to chill Greenpeace’s speech, drain our resources, and
intimidate anyone who speaks out against pipeline projects.”</p></blockquote><div><p>The legal effort has been labeled a <a href="https://protecttheprotest.org/category/resource-categories/what-is-slapp/">SLAPP suit</a>
by Greenpeace, short for “strategic lawsuits against public
participation.” The SLAPP designation refers to efforts designed to
silence a powerful plaintiff’s critics by using the legal system to
drain them of resources. The goal is not solely to win the lawsuit but
to force a corporation’s political adversaries to hemorrhage money,
time, and morale through relentless legal filings. In response to
repeated SLAPP suits targeting Greenpeace and others, a task force
called <a href="https://protecttheprotest.org/about/">Protect the Protest</a> launched in 2018.</p>
<p>In February 2019, a judge summarily <a href="https://www.greenpeace.org/usa/wp-content/uploads/2019/02/ETP.pdf">dismissed</a>
Energy Transfer’s initial federal RICO case. “Donating to people whose
cause you support does not create a RICO enterprise,” he said. “Posting
articles written by people with similar beliefs does not create a RICO
enterprise.”</p>
<p>Exactly a week after the dismissal, Energy Transfer filed a new
complaint against Greenpeace in a local North Dakota district court. The
new case basically repackages the old complaint without the federal
RICO claims, adding instead allegations of trespassing and other
property-based claims. Named alongside Greenpeace is the Red Warrior
Society, which occupied an encampment of pipeline opponents that
supported obstructive direct-action protests, Greenpeace organizer
Charles Brown, and water protectors Cody Hall and Krystal Two Bulls.</p>
<p>“The suit was brought to chill Greenpeace’s speech, drain our
resources, and intimidate anyone who speaks out against pipeline
projects,” said Greenpeace deputy general counsel Deepa Padmanabha.
“We’ve been fighting this SLAPP suit for many years, and we’ll continue
to fight this battle because it’s important for all individuals and
groups engaged in advocacy work.”</p>
<h3>Widening Net</h3>
<p>In the latest iteration of Energy Transfer’s legal attack, the
corporation issued several subpoenas in recent weeks to individuals who
are not defendants in the case. Among those subpoenaed are groups that
provided legal services to people facing criminal charges during
Standing Rock, including the Water Protector Legal Collective and the
Freshet Collective. The Ruckus Society and Indigenous Peoples Power
Project, which both promote nonviolent direct action, were also
subpoenaed. And so were officials involved in inspecting the pipeline
route on behalf of the Standing Rock Sioux Tribe, including Dr. Kelly
Morgan, an archeologist for the tribe, and Tim Mentz, the tribe’s former
tribal historic preservation officer, who submitted <a href="https://earthjustice.org/sites/default/files/press/2016/Decl-of-T-Mentz-Sr.pdf">key testimony</a> in a case arguing that the pipeline would harm culturally significant sites.</p></div><div><p>In an <a href="https://drive.google.com/file/d/1A-E9IZLSddZ4l30lDAFRoExFgYJ6PpcY/view">objection</a>
to its subpoena, the Water Protector Legal Collective noted that it has
provided legal support in more than 800 criminal cases and argued that
the subpoena is “seeking the records of a legal organization akin to a
law office, including communications by, between and among
WPLC-associated attorneys, WPLC staff and its clients.” The group said
the subpoena was “an assault by Energy Transfer and Dakota Access upon
the attorney client-privilege itself” and “a fishing expedition.”</p>
<p>The Water Protector Legal Collective subpoena even requested
communications with members of the press. “This is a clear attempt to
inhibit communications by an advocacy organization with the press in
violation of WPLC’s first amendment rights under the U.S. Constitution,”
the collective said in its objection.</p>
<p>Mentz and Morgan, for their part, have objected to the subpoena on
the grounds that the documents Energy Transfer is demanding are the
property of the Standing Rock Sioux tribe, which is protected from such
third-party subpoenas by sovereign immunity.</p>
<p>Unicorn Riot has been forced to dedicate a sizable portion of its
limited resources to deciding how to handle the sweeping subpoena, even
as the group maintains round-the-clock coverage of the murder trial of
former Minneapolis police officer Derek Chauvin, who killed George Floyd
last summer and sparked a nationwide protest movement. “We are
committed to bringing you hard hitting journalism and will not bow to
attempts to intimidate or interfere with our reporting,” the
organization stated on its new legal defense fund page.</p></div></div></div></div>
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