Artist and Organizer Shanai Matteson at the Welcome Water Protector Center. Photo by Keri Pickett/Honor the Earth.
Standing in front of the Water Protector Welcome Center in Palisade on a frigid day in January 2021, Shanai Matteson took a microphone and addressed the bundled up crowd. Some carried “stop Line 3” signs and flags in gloved hands. Others sat in lawn chairs around a fire pit.
“We’re looking for people who might be in a position to potentially get arrested, if that’s what it comes to today,” Matteson began her speech, which was recorded and streamed on Facebook. “Think about your privileges, your personal situation. Think about what you’re willing to stand up for today.”
Matteson went on to talk about jail support forms, which anyone could fill out in the event they are arrested.
Later that day, a group of people went to an active Line 3 construction site and protested on the property. A handful of people were arrested, according to court documents. Matteson did not attend the protest, but five months later she was charged, too, with a gross misdemeanor for aiding and abetting criminal trespass on a pipeline, punishable up to one year in jail and/or a $3,000 fine. Watching the video later, Aitkin County Sheriff Dan Guida said he believed there was probable cause that she encouraged people to get arrested, and prosecutors agreed.
Matteson, who had been organizing against Line 3 since 2017, was shocked and upset when she got the charge in the mail. “I remember opening up the envelope and throwing it because I was just mad,” she recalled.
Matteson’s case is among several that lawyers for Line 3 activists say are examples of “overcharging,” in which defendants received more serious charges than they believe were warranted. Jordan Kushner, Matteson’s lawyer, said her case in particular is an example of “bogus charging.”
Kushner has represented hundreds of political activists and protesters over the years, but Line 3 defendants are facing more serious charges. Matteson’s case “raises some very significant First Amendment concerns,” Kushner said, especially considering she wasn’t at the protest where the trespassing occurred.
The harsher charges are reflective of more recent crackdowns on protests across the country, from climate activism to Black Lives Matter rallies. The effects for defendants are far-reaching, and the consequences often linger well beyond the resolution of their cases, even when charges are ultimately dropped.
Civil libertarians say the hassle is the point, deterring people from exercising free speech rights to protest against the marriage — as with Line 3 — of corporate and government power.
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“The state doesn’t necessarily have to win in court to punish someone,” says Mara Verheyden-Hilliard, executive director of the Center for Protest Law and Litigation, whose lawyers are representing several people charged in Line 3 protests. “It can be through dragging people through the system, letting it consume their lives and their days, worrying about what is going to happen, and making them spend time and money on defending themselves.”
Over a year and a half after Matteson made that speech, the judge threw out the case, saying there wasn’t sufficient evidence. She was acquitted. Although it was a victory for her and other Line 3 activists, she still feels angry. Palisade, where Matteson lives, is a small town of just a few hundred people, and her case drew attention. It was covered by the local press, and Matteson read Facebook comments from people who thought she should’ve been punished, even after the charge was dropped.
“There’s a whole group of people that live in my community that now believe I committed a crime — I just didn’t get caught,” Matteson said. “If somebody wanted to take revenge or cause more hardship, then I’m not a difficult person to locate, and I have two young children.”
Over the past roughly 18 months, around 1,000 people have been charged for activities related to Line 3 protests, many of which are only now being resolved. Of those, 92 were felony charges and 349 gross misdemeanors, according to the Pipeline Legal Action Network.
Among them are two people charged with felony attempted assisted suicide for locking themselves to each other inside a pipe and refusing to come out despite warnings about heat stroke and lack of oxygen.
Another was charged with felony fleeing for driving through a treaty camp before stopping for police.
A freelance journalist with visible press credentials was charged with trespassing while covering a protest.
“It does have potential impact on whether the legal system is used in this unreasonable way to prosecute protesters in the future,” said Kushner, who is representing several other clients, including the two charged with felony attempted assisted suicide, whose cases have not yet resolved.
“Critical infrastructure” laws passed after 9/11
One of the most common charges above a misdemeanor in the Line 3 protests was the charge of gross misdemeanor trespass on a pipeline, which is considered critical infrastructure. This is a more severe charge than the usual misdemeanor trespass on a construction site, which has a maximum punishment of 90 days in jail and/or a $1,000 fine. So far, hundreds of protesters have received the more serious charge. Arguments by their lawyers that the pipeline shouldn’t count as critical infrastructure because it wasn’t running yet have so far largely been unsuccessful.
Some state critical infrastructure laws include sites under construction, but Minnesota’s law doesn’t specify.
The critical infrastructure laws were originally passed to protect national security in the wake of Sept. 11, but today they are often used against pipeline protesters, too. “Over the last number of years, there’s been a growing effort to criminalize protesters and find ways to create a mechanism of outrageous prosecution, and that’s through passing all of these critical infrastructure laws across the country,” said Verheyden-Hilliard.
Some states have amended their critical infrastructure laws to explicitly include pipeline protesters, but Minnesota, which hasn’t amended its law since 2008, has not. For some defendants then, the charge seems a stretch.
Siihasin Hope Alvarado traveled between Albuquerque, New Mexico, and Minnesota to support Line 3 activists for about a year and half. In that time, they participated in protests and events to raise awareness about the project’s harms to Indigenous communities.
In August 2021, Alvarado was protesting outside what’s called a “man camp” — temporary housing for workers in extractive industries — in response to a report that two Enbridge pipeline workers were arrested in a sex trafficking scheme.
Alvarado says they were outside of the camp in Cass County, and someone had blockaded the exit with a flipped over vehicle to prevent workers from getting to the pipeline construction site. Alvarado was chained to the vehicle. Police officers arrived and cut Alvarado out of chains, which took several hours, and arrested them for trespassing on critical infrastructure, even though there wasn’t a pipeline at the property.
Alvarado spent a night in jail, including 15 hours in solitary confinement without access to a working toilet and sink, they said. Jail guards also threatened Alvarado, they added. “They were telling me I was very pretty and stuff, but then when I was being released they were telling me, ‘We’ll see you back here soon. When you come back, you’ll see what happens.’ That didn’t feel good,” Alvarado said.
The next day, Alvarado’s charge was downgraded to misdemeanor trespass. That charge was also ultimately dismissed.
Alvarado’s lawyer, Amanda Eubanks, also with the Center for Protest Law and Litigation, said the gross misdemeanor charge was unwarranted. “They were outside the fence, and there wasn’t a pipeline there. It should’ve been a black and white situation,” she said.
The ordeal left Alvarado — and their family — fearful, but it also strengthened their commitment to the cause.
“I think it really affirmed my belief in who I am as a Native person,” said Alvarado, who is Diné. “In the desert, water is very scarce. When I first went to Minnesota and I saw all of the water, I thought this is something worth protecting.”
Money from Enbridge to law enforcement, per the PUC
Though the Line 3 replacement pipeline was ultimately completed — and has been running for nearly a year — many individual protests were successful at preventing workers from doing their jobs, which delayed construction. Some lawyers and activists have connected the large number of arrests and serious charges with financial incentive from Enbridge to keep the project running.
As of January this year, Enbridge had poured $8.6 million into a public safety escrow account, as required by the Minnesota Public Utilities Commission, which issued the permit to build. This, says Verheyden-Hilliard, is what separates Line 3 from other protests around the country where prosecutors have been accused of overcharging.
“The circumstances of what we’re experiencing in northern Minnesota are very distinct, particularly because of this massive flow of cash from the object of the protest to the sheriffs’ departments, who are then repressing the protesters and the water protectors,” Verheyden-Hilliard said.
Enbridge notes it had no decision-making power over how the money in the escrow account was spent. Law enforcement departments could request reimbursements from the escrow account manager to offset the costs associated with protests, and the manager would decide if it was warranted, according to Enbridge spokesperson Juli Kellner.
“Law enforcement didn’t arrest activists for peaceful protest,” Kellner wrote in a statement. “Officers arrested activists for breaking the law. Illegal and unsafe acts by activists endangered themselves, first responders and workers, and caused millions of dollars in damages.”
Sheriff Dan Guida of Aitkin County, where about 125 people were charged with trespassing, said he never knew if his department would be reimbursed when they submitted requests, including for things like training and overtime costs.
“I can understand why people would say that fund is incentivizing the (police) response, but we didn’t get paid by putting people in jail,” Guida said. “And it costs taxpayers lots of money to manage a jail and run these things. We didn’t get paid to do a lot of extra activity. We didn’t take advantage.”
He added, “It seems like when we made arrests — and this is my perception — but it seemed like a lot of people went to Line 3 to try to get arrested. They tried to burden the jails and burden law enforcement. … Our community is peaceful right now and I appreciate that.”
Some protesters, however, felt they were just in the wrong place and the wrong time — and were not trying to get arrested.
Dawn Goodwin was among those who received charges in the mail following the Line 3 construction site protest in Aitkin County after Matteson’s speech. She was charged with gross misdemeanor trespass on a pipeline, misdemeanor unlawful assembly and misdemeanor presence at unlawful assembly.
The statement of probable cause for the charges doesn’t mention Goodwin until the seventh and final paragraph, which says she was identified in a live stream video “standing next to the open trench.” She was recognizable from a protest about a month earlier, when she’d been charged with misdemeanor trespass on a construction site.
Goodwin says she was at the construction site that day in January, but not purposefully on Enbridge’s easement. A spruce top caught her eye, she said, and she walked across the easement to check it out, having just learned about its medicinal properties.
“I happened across the magic line at that moment,” she said. “There were no machines or anything there. It was just the driveway.”
Goodwin, who is part of the White Earth Band of Ojibwe, is trying to move that case to tribal court, as are several other Indigenous women who’ve been charged.
About 300 cases remain open in Minnesota courts, with an additional 20 remaining open in tribal court, according to the Pipeline Legal Action Network. As these cases wrap up, many of those charged have reaffirmed their commitment to protecting the environment, despite any lingering consequences.
“I’m upset at the personal consequences this has had for me,” Matteson said. “But also in a bigger way I feel it’s important to continue organizing anyway. This certainly doesn’t intimidate me away from activism. I’m more committed now than I was before, for standing up and speaking up and using my rights and understanding my responsibility, and I hope other people see and feel that too.”
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