Joe Lafferty speaks to a group of Dakota Access Pipeline protesters
By: Mary Steurer
MANDAN, N.D. (North Dakota Monitor) – Environmental group Greenpeace has asked a judge for permission to collect evidence related to a conservative-leaning, pro-fossil fuel mailer it believes could taint the jury pool in its legal battle with Energy Transfer, the developer of the Dakota Access Pipeline.
In October, some residents of Morton County received a 12-page direct mailer titled “Central ND News” that contains positive coverage of Energy Transfer while also drawing attention to criminal behavior by anti-Dakota Access Pipeline protesters.
“I would say the purpose of that publication is, quite clearly, to remind people about what was happening eight years ago,” Everett Jack, an attorney representing Greenpeace, said during a Monday afternoon hearing. “We should be entitled to find out who made that decision.”
Greenpeace is one of many activist groups that supported the protests, which took place in rural south-central North Dakota near the Standing Rock Reservation in 2016 and 2017. The demonstrations were in solidarity with the Standing Rock Sioux Tribe, which opposes the pipeline out of pollution and sovereignty concerns.
In the aftermath of the protests, Energy Transfer filed suit against Greenpeace in Morton County District Court, accusing the environmental group of engaging in criminal behavior during the demonstrations and of waging a misinformation campaign against the company.
Energy Transfer alleges tens of millions of dollars in damages. Greenpeace, meanwhile, argues there is no evidence it ever took part in or endorsed criminal activity during the protests, or that it sought to defame Energy Transfer. The case is scheduled to go to trial in February.
Greenpeace seeks permission from Southwest Judicial District Court Judge James Gion to conduct discovery into the Texas-based company that printed and distributed the Central ND News. It wants to find out who hired the company to send the mailers, what their motivation was and whether the Central ND News was targeted explicitly at Morton County residents, according to court records.
“We should have the right to figure out who sent it when they did and why,” Jack said during the hearing.
Trey Cox, representing Energy Transfer, said the Central ND news is simply a local news publication and it existed long before the mailer was sent out. He pointed out that Greenpeace is not mentioned anywhere in the 12-page mailer.
“I do not believe that this motion has any basis in law or in fact,” Cox said during the hearing. He called Greenpeace’s request a “thinly veiled attempt” to push back the trial date and to transfer the case to a different court.
The direct mailer resembles a print newspaper. It’s unclear how many people received a copy. So far, Greenpeace has not found any evidence that the mailers were sent to anyone outside Morton County.
Its distribution to Morton County residents in October was first reported in a joint article by the North Dakota News Cooperative and climate news publication Floodlight. Central ND News does not appear to be based in North Dakota, the publications reported. Their article identifies the owner of the publication as Metric Media, which in recent years has propped up hundreds of conservative local news outlets with little original content.
Much of the material in the October mailer is old news. One article describes a $5 million donation Energy Transfer made to the University of Mary in 2018. Two others focus on events from the DAPL protests that took place in 2016.
Even if Central ND News is not a new publication, to Greenpeace’s knowledge, this fall was the first time it ever published anything about the Dakota Access Pipeline protests, Jack said. He added that as far as he could tell, the October mailer was also the only time the Central ND News had ever sent a physical paper to Morton County residents.
Several pages of the mailer aren’t related to the protests or to Energy Transfer. Some include content that is favorable toward President-elect Donald Trump, Gov. Doug Burgum and North Dakota’s congressional delegation, as well as information about gas prices around the state and local events.
The Central ND News also has a website, centralndnews.com. The outlet has published roughly a dozen stories critical of anti-DAPL protesters since early August, each of them relying heavily on reporting from other news outlets, a review by the North Dakota Monitor found. Most of the stories end with several paragraphs about Energy Transfer’s lawsuit against Greenpeace.
Jack raised questions about possible ties between Metric Media and Energy Transfer founder and board chair Kelcy Warren. In early September, Warren made a contribution to a political action committee that days later paid Metric Media for “media services,” he said. He said the mailer started appearing in Morton County mailboxes a few weeks later.
Cox said there’s no proof that Warren’s donation had anything to do with Metric Media.
Greenpeace has published content highly critical of Energy Transfer, he added, so it has no right to worry about the Central ND News prejudicing the jury.
Moreover, Greenpeace’s request for discovery is unnecessary because the jury selection process will filter out biased jurors, Cox said.
“Let’s assume that everyone in Morton County got this newspaper,” he said. “So what?”
Jack said Greenpeace is not asking for the trial to be rescheduled. However, he said if its request for discovery is granted, Greenpeace could request the case to be moved to a different court depending on what information it uncovers.
Gion said he will take the matter under advisement.
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