Judge Tosses Dakota Access RICO Claims Against Nonprofit

FARGO, N.D. (CN) — A federal judge dismissed Energy Transfer Partners’ criminal racketeering claims against a nonprofit that wrote letters to banks asking them not to protest the Dakota Access Pipeline, though Energy Transfer’s claims against Greenpeace and Earth First! are still pending in that lawsuit.

U.S. District Judge Billy Roy Wilson called Energy Transfer Partners’ racketeering claims against BankTrack “dangerously broad.”

BankTrack is a Netherlands-based nonprofit that organizes protests to try to stop banks from financing projects with which it disagrees — among them, the $3.8 billion Dakota Access Pipeline.

Energy Transfer Partners (ETP) also sued Greenpeace and Earth First! in August 2017, claiming all three defendants criminally conspired to interfere with its pipeline construction.

ETP claimed that BankTrack’s sending letters to banks financing the pipeline constituted criminal racketeering, and demanded damages for it.

Judge Wilson didn’t buy it in his Tuesday ruling.

“While the complaint vaguely attempts to connect BankTrack to acts of ‘radical eco-terrorist,’ an international drug distribution and money laundering enterprise, and violations of the Patriot Act, BankTrack’s actual conduct in this case was allegedly writing a few letters to financial institutions and posting links to the letters on its website,” Wilson wrote.

While other groups or people may have used violence to try to stop the pipeline, Wilson ruled, BankTrack’s letter-writing cannot “reasonably or plausibly” be related to that.

“Energy Transfer Partners must show the existence of an enterprise that was engaged in interstate commerce; BankTrack’s association with the enterprise; BankTrack’s participation in the conduct of the affairs of the enterprise; and that BankTracks Participation was through a pattern of racketeering activity,” Wilson wrote. “It has failed on all four requirements.”

Energy Transfer Partners also accused BankTrack of mail fraud and wire fraud and using “extortive threats” to fraudulently induce donations based on false or misleading mailings. Judge Wilson didn’t buy that either.

He said that BankTrack “had no contact with North Dakota,” and that mail fraud and wire fraud require a victim. “If donors were the victims of wire or mail fraud, they could seek recovery,” the judge wrote.

Wilson compared ETP’s argument to the abortion controversies.

“If BankTrack is liable here, then every anti-abortion group that mails donor solicitations alleging ‘abortion is murder,’ or urges individuals not to do business with abortion providers on that basis, may be part of a RICO enterprise responsible for abortion clinic bombings,” the judge wrote.

In a statement Wednesday, BankTrack called ETP’s lawsuit a textbook case of an anti-SLAPP suit: a thinly disguised attack upon free speech.

“We hope the judge will now similarly dismiss the case against the other defendants, and that the ringing rejection of this case will discourage other corporations from launching these kinds of Strategic Lawsuits Against Public Participation,” BankTrack director Johan Frijns said in the statement.

Also this week, Wilson ruled that ETP failed to properly serve Earth First! with the lawsuit, and gave it until Aug. 1 to show why those claims should not be dismissed.

ETP has its own problems with North Dakota. North Dakota Attorney General Wayne Stenehjem sued the company this month, seeking enforcement of North Dakota’s anti-corporate farming law.

The law limits large corporations such as ETP from owning and operating farms, to protect family farming in the state. Stenehjem claims ETP’s ownership of 12 square miles of ranchland it bought in 2016 violated the anti-corporate farming law.

He seeks fines, and wants ETP order to sell the ranchland within a year or face additional fines.

ETP wants that lawsuit dismissed, calling the Depression-era ban on corporate farms unconstitutional.

The North Dakota Farm Bureau sued the state in a similar case in June 2016, also in federal court. It called the law unconstitutional interference with interstate commerce.

Stenehjem originally found the land purchase necessary during construction of the Dakota Access Pipeline, but only if it was temporary. That agreement with ETP ran its course at the end of June and prompted the state’s lawsuit.

Dakota Access attorney Lawrence Bender said the state’s lawsuit should be thrown out because the anti-corporate farming law allows for continued ownership if the corporation uses the land for a necessary industrial project. Bender also claims that the land continues to be used by lessees for agriculture.

Stenehjem has not expressed interest in dropping the case against ETP. That trial has been scheduled for April 2019.

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