Journalist Freed From Testifying in Pot Resort Trial

SIOUX FALLS, S.D. (CN) – A journalist who covered an informational session about a proposed “marijuana resort” on an Indian reservation won’t have to testify at trial next week after the attorney general dismissed her subpoena.

Dana Ferguson, who covers South Dakota politics for the state’s largest newspaper, The Argus Leader, attended an informational session and tour of the Santee Sioux Tribe’s proposed marijuana dispensary and smoking lounge in October 2015. Other reporters – including one from Courthouse News – and state lawmakers were also present.

The tribe wanted to reassure lawmakers that the facility, which was still under construction at the time, would have safeguards in place to prevent marijuana from leaving the reservation. Although the drug remains illegal in the state, the tribe moved forward relying on a 2014 memo from the Department of Justice implying that it would limit is prosecution of marijuana-related crimes in Indian Country.

The facility never came to fruition, however. Just one month after the tour, the tribe burned its crop and halted its resort plans in response to rumors of a federal raid.

But that wasn’t the end of the story for those involved in the truncated project. In August 2016, the state of South Dakota filed criminal charges against Jonathan Hunt and Matthew Hagen, two consultants from the Colorado-based firm Monarch America who worked with the tribe on the logistics of growing and selling marijuana. Hunt pleaded guilty to a drug conspiracy count shortly after, but Hagen pleaded not guilty.

His case goes to trial next week, and the attorney general initially called on Ferguson to be available as a witness.

The Argus Leader objected.

"Commanding our reporter to testify in this case is not only troubling but unnecessary," Argus Leader news director Cory Myers said in the newspaper. "There are multiple avenues for the attorney general to get testimony about the tour, including from any of the five elected officials present, without compromising our reporter's role as [an] independent observer."

Katie Mallery, assistant attorney general for the state, dropped the subpoena on Monday after negotiations with Jon Arneson, an attorney representing Argus Leader Media, according to the newspaper.

“I appreciate Ms. Mallery’s understanding of the media’s position here,” Arneson told The Argus.

Arneson could not be reached by phone on Tuesday to provide further comment, and Ferguson declined comment.

South Dakota is one of only a handful of states that does not have “shield laws” to protect reporters from being forced to divulge confidential sources to law enforcement or to testify in court, according to The Reporters Committee, a nonprofit organization dedicated to protecting freedom of the press.

But in 1995, the state’s Supreme Court ruled in Hopewell v. Midcontinent Broadcasting that reporters enjoyed a “qualified privilege” that protected them from disclosing anonymous sources in civil cases unless five criteria were met.

These criteria include whether the journalist was a party to the litigation; whether the information she had was relevant to the “heart of the lawsuit”; whether alternative sources of information had been exhausted; whether the informant’s safety depended on confidentiality; and whether the reported information could be proven false.

The ruling only applied to civil law, however.

“In criminal proceedings, the interest of the public in law enforcement and the defendant in discovering exculpatory evidence may outweigh the journalist's need for confidentiality,” the ruling stated in a footnote.

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