This story follows an in-depth ICN report on efforts to crack down on protests in 31 states, including Louisiana.
An oil pipeline developer and local authorities in Louisiana are using a controversial new law to crack down on protests there, with at least nine people arrested this month within weeks of the law’s entry into force.
So far, none of the protesters has been formally charged with a crime, and their arrests are raising questions about the ambiguity of the law.
The arrests include three separate incidents. In the first, three activists were pulled off a canoe and a kayak in a bayou on Aug. 9. Four more people, including a journalist, were detained on Aug. 18 on private property. Two more were arrested the following day at the same location.
Louisiana law requires that anyone arrested go before a judge within 72 hours for a hearing where bond can be set. None of the protesters is currently jailed. And the cases haven’t reached the district attorney’s office, so it has not yet decided whether to formally press charges, the district attorney’s office said.
It’s hard to say, then, whether the protesters face serious legal jeopardy for treading too close to an ambiguous new legal line.
Protesters in Boats, Arrested on the Bayou
Each of the incidents came under questionable circumstances that highlight issues regarding the new state law, which imposes harsh penalties for trespassing on pipeline property. They also raise a host of knotty legal issues about the rights of the activists and the powers of the energy companies they’re confronting.
Cherri Foytlin is an organizer with L’eau Est la Vie, a group that formed to coordinate protests against the Bayou Bridge pipeline, which is majority owned and operated by Energy Transfer Partners. She said that as activists were setting up tree-sits along the pipeline construction route in July to try to prevent the developer from cutting trees, sheriff’s deputies warned them that come Aug. 1, they’d be facing felony charges.
Foytlin said protesters were well aware of the new law and designed their activities to avoid violating the statute once it took effect. On Aug. 9, three protesters paddled their boats on a small waterway in the basin close to where construction was underway. As in most states, navigable waterways are considered part of the public trust in Louisiana, meaning anyone is allowed to access them, even if the adjacent land is privately held.
According to the activists, pipeline contractors hemmed in the protesters with fan boats. Photographs posted to Facebook show uniformed state officers with the Department of Public Safety and Corrections pulling the activists off their boats and placing them in handcuffs. Those arrested were Cynthia Spoon, Sophia Cook-Phillips and Eric Moll.
Alexis Daniel, a spokeswoman for Energy Transfer Partners, said in an email that “while we respect that there are a variety of opinions about pipeline infrastructure, we do not tolerate illegal activity on our right-of-ways, nor activities that would put our workers in danger,” and that the company hires private security to protect its workers. She said that in this case, however, local or state authorities had detained the protesters, and she referred questions to them.
Yet it remains unclear whether any government agencies were involved in the first arrests at any point. Ken Pastorick, a spokesman for the Louisiana Department of Public Safety and Corrections, said the arrests were conducted by off-duty officers who were working for Hub Enterprises, a private security company. He referred questions about the arrest to the company, saying his agency was not involved. Hub did not respond to emails or a phone call from InsideClimate News.
Spoon said in a video posted to Facebook that after the off-duty officers detained them, the officers handed the three over to deputies with the St. Martin Parish Sheriff’s Office, a detail repeated by their lawyer, William Quigley. But Ginny Higgins, a spokeswoman for the sheriff, denied that her office was involved in any way.
Foytlin said it was an example of a private company taking the law into its own hands. “They’re rude, they’re mean and they kidnapped our people,” she said. “Why is it that Energy Transfer Partners gets to decide who can and cannot be on navigable waters in the Atchafalaya Basin?”
Quigley said it’s unclear how the new law would apply on public trust land. While the definition of which waterways are navigable and what rights landowners have has been subject to debate, he said in this case the activists were on public trust waters and should not have been arrested. If the district attorney presses charges, he said, they will challenge the new law in court as part of their defense.
More Arrests: Who Had the Right to Be There?
Last weekend, a second round of arrests again raised questions about the limits of the new law, and whether local law enforcement was giving the pipeline company preferential treatment. The latest stand came as protesters erected a platform in the trees on a parcel of land deep in the swamp that, as it turns out, is co-owned by hundreds of parties who inherited the land.
In July, Peter Aaslestad, one of the owners, filed for an injunction to halt work on the pipeline after learning from activists that contractors had been clearing trees on the land. Aaslestad said that he had already refused to sign an agreement with the company to give access. The same day, Energy Transfer Partners, operating through the subsidiary Bayou Bridge Pipeline LLC, asked the same court to expropriate the land and grant the company a permanent right of way for the pipeline. In the filing, the company said it had signed agreements with nearly 350 owners and had made good faith efforts to do the same with the rest.
Another co-owner, Theda Wright, said she was also alarmed to learn the company was operating on her land even though she, too, had declined to sign an agreement. She told InsideClimate News that she got in touch with Foytlin and invited the activists onto the property.
“This little spot of land in the Atchafalaya Basin is irreplaceable,” said Wright, who inherited the land from her father. “These pipelines spill all the time, and they will devastate the basin.”
The activists and the company are now pursuing dueling claims, with each arguing it had consent from owners to be on the land, and each claiming the other was in violation. It’s unclear how the pipeline company could have been working on the land legally without either securing agreements from all the owners or having the state grant the land through eminent domain, the process it appeared to start with its court filing in late July.
A spokesman for the Louisiana Department of Natural Resources, which regulates pipelines, referred questions to the state attorney general’s office, which did not immediately respond to an inquiry. Daniel, of Energy Transfer Partners, said “Bayou Bridge believes that it has the necessary rights to move forward.”
Robert Verchick, who teaches environmental law at Loyola University New Orleans and was a senior staffer at the U.S. Environmental Protection Agency from 2009-2010, said the issue is debatable, but that the law would generally treat the parties differently. The activists would likely need consent from only some of the co-owners—he likened it to a husband inviting a salesman in for coffee without his wife’s consent. But for a significant, irreversible change like pipeline construction, he said, you’d likely need unanimous consent unless the company is granted eminent domain powers by the state.
On Aug. 18, deputies with the St. Martin Sheriff’s Office arrested Madeline Hicks, Ramon Mejia, Brittany Osland and Karen Savage, an independent journalist, again under the new law. The following day, they arrested Isabelle Gauthier and Cheyenne Verrett.
Again, the activists wondered why they were arrested while the pipeline company was allowed to proceed, even as there was dispute among the owners over who had permission to do what.
Higgins, of the St. Martin Parish Sheriff’s Office, did not reply to questions about the second set of arrests.
Testing the First in Series of Controversial Laws
If prosecutors press charges, the case would be the first test of the law. Similar laws have been enacted over the past two years in two other states—Oklahoma and Iowa—that stiffen penalties for trespassing on or interfering with pipelines and other infrastructure.
Already, however, critics of the law say it has inflicted damage.
“Just the pretense of a law like this, because it’s so broadly written and because the penalties are so high, has the potential to quell protests and activities which might be lawful,” Verchick said. “It makes unclear where the trip line is.”
The Louisiana law takes what was once a misdemeanor trespass charge and turns it into a felony with up to five years in prison for any “unauthorized entry” to a pipeline facility or construction site.
The Bayou Bridge pipeline is planned to connect a facility in Texas with the petrochemical infrastructure of St. James, Louisiana. Along the way, the project crosses the Atchafalaya Basin, a sensitive river swamp ecosystem that is treasured for its crawfish.
Local environmental groups have opposed the project because of the risks it posed to the basin and its residents. In May, a state judge ruled that Louisiana regulators had violated state law when issuing a permit for the project, but the state appealed the ruling and construction has proceeded.
Foytlin says that while her group will try to avoid breaking the new law, the activists remain undeterred.
“We promised that we would fight this pipeline going into the ground every inch,” she said, “and we will keep that promise.”