MORTON COUNTY, ND (Legal Newsline) – Greenpeace has so far struggled to distance itself from accusations in a $300 million lawsuit brought over delays to the Dakota Access Pipeline caused by violent protests.
A key figure in plaintiff Energy Transfer’s case against the environmental activist organization is Cy Wagoner, a Greenpeace employee described to be among the “Greenpeace 6” – individuals who were involved in disrupting pipeline construction in the fall of 2016 over the planned Missouri River crossing upstream from the Standing Rock Sioux Tribe’s reservation.
According to trial testimony, Wagoner was allied with protest groups Indigenous Peoples Power (IP3) and Red Warrior Camp, who committed acts of violence, property damage, and obstruction to pipeline equipment and workers. Wagoner currently sits on the board of IP3.
Emails presented to jurors also show Wagoner expressing support for stopping the pipeline.
Defendants in the trial now in its third week include Netherlands-based Greenpeace International, its U.S. affiliate Greenpeace USA and the group's financier, Greenpeace Fund Inc. They have argued that each entity is separate and independent from one another and that their free speech rights are on the line. They further lay blame on the U.S. Army Corps of Engineers for a five-month delay in granting an easement permit at the Lake Oahe drill site.
Energy Transfer has rested its case and Greenpeace began making its arguments on Monday.
Defense expert Neil Miltonberger from the financial damages business Vertex said that Energy Transfer never conducted a construction delay analysis, a process that would normally be undertaken in a project as large as the Dakota Access Pipeline.
“I am surprised the plaintiffs did not do a forensic schedule analysis,” Miltonberger said, adding, “this is the first time in 50 years” he had not seen it done.
Also in its defense, Greenpeace Fund explained the reason it has no employees on its tax filing is because it has a shared costs arrangement with Greenpeace Inc. and that they share a payroll system and an operations bank account, according to testimony of Greenpeace Fund and Greenpeace controller Constantine Doumas.
Doumas also testified that Greenpeace USA doesn't exist in legal terms. He said it is a public way of speaking for Greenpeace Fund and Greenpeace Inc.
Dallas-based Energy Transfer claims that it missed a crucial Jan. 1, 2017, online production date due to protests, which cost them lost profits and lost shareholder value. The company argues that Greenpeace’s actions were malicious and highly coordinated with protest groups.
Under cross examination of Wagoner, jurors were reminded of an Oct. 26, 2016, email in which Wagoner discusses finances with Greenpeace employee Nathan Santry and Georgia Hirsty (another member of the “Greenpeace 6”) in which Wagoner states, “I thank you for moving all this money around,” referencing previous emails discussing “2 pots of 15K for IP3 protesters,” “in efforts to support stopping this pipeline.”
One moment of levity occurred when Wagoner responded to plaintiff attorney Trey Cox regarding the training of protesters.
Exhibits displayed for jurors showed graffiti-sprayed equipment that was illegible.
In denying he trained protesters, Wagoner said, “I am an art teacher. I can assure you if I had trained those people, you'd be able to read what they wrote.”
Attorney Cox also pressed Wagoner to explain his connection to a photograph he sent to Greenpeace USA executive director Annie Leonard – one being a nighttime picture at a pipeline construction site of IP3 trainers paid by Greenpeace showing lock boxes and persons attached to the top of construction equipment.
The photo was forwarded to Greenpeace International and Greenpeace Fund along with a summary of Wagoner’s activities and other paid IP3 trainers at Standing Rock Sioux Tribe reservation.
Cox asked Wagoner to confirm that at least two of the three IP3 trainers and/or protesters - Nick Tilsen, Daniel T'seleie and a woman named Wanikiyewin Loud Hawk – were paid by Greenpeace to be there and that all of them were subsequently arrested for using lockboxes to prevent pipeline workers from working that day. Wagoner confirmed these details though denied remembering any specific details.
Testimony this week also has included video deposition testimony of Keith Darby of Lummus Consultants, an independent engineering consulting firm, retained by Dakota Access Pipeline lenders.
Darby agreed with an estimate that approximately $10 million in Dakota Access Pipeline construction equipment was damaged during the 2016-2017 Standing Rock protests.
He was a co-author of a bond report for lenders during construction.
He also agreed with previous testimony of Energy Transfer’s former executive vice President of engineering and construction Joey Mahmoud saying there was unprecedented political interference in the project.
“We did not anticipate the possibility of the President of the United States (Obama) intervening,” he said referring to Mahmoud’s testimony that the Department of Justice got involved in the Corps of Engineers’ decision-making.
Darby further added, “in a civilized country there are rules and regulations to follow so that investors such as his clients can know and anticipate” before making investment decisions. “Without that it is the wild west,” he said.
Greenpeace is expected to rest its case on Friday.