Over the weekend, four opponents of the Bayou Bridge pipeline and an independent journalist covering their activities were arrested and charged under Louisiana House Bill 727, which makes trespassing on “critical infrastructure” facilities — a category that explicitly includes oil pipelines — a felony punishable by up to five years in prison, a fine of $1,000, or both. A total of eight people have now been charged under the law since it took effect on August 1.

HB 727 is one of numerous anti-protest laws that states have considered or enacted in the wake of the mass mobilization against the Dakota Access pipeline, which drew tens of thousands of people to gather near the Standing Rock Sioux reservation in 2016 and 2017. The arrests also expose the blurred line between private security and public law enforcement that has become typical in the policing of anti-pipeline struggles.

On August 9, the first three arrests under the law were carried out by probation and parole officers with Louisiana’s Department of Public Safety and Corrections moonlighting as security guards for Bayou Bridge pipeline parent company Energy Transfer Partners. Ken Pastorick, communications director for the Louisiana Department of Public Safety and Corrections, told The Intercept that the department’s director authorized the officers to work on behalf of the Bayou Bridge pipeline as a form of “extra-duty employment.” “They have the ability to enforce the law in Louisiana even when off-duty and working extra-duty security details,” he said.

Given the complex land ownership and public access rules that govern the bayou, handing discretionary arrest powers to a private company is particularly controversial. The off-duties’ involvement deepened concerns by pipeline opponents that law enforcement favored the interests of the pipeline company over the first amendment rights of concerned citizens to protest, and the rights of landowners who never granted permission to the company to build at all.

“ETP tells these Pinkerton men of the Bayou what to do, and what they are in fact doing is criminalizing water protectors,” said Cherri Foytlin, a Louisiana resident and member of the Indigenous women’s advisory council for the anti-Bayou Bridge camp known as L’eau Est La Vie (Water Is Life). “They are using the cops as a tool in that process.”

New Rules

The Louisiana law was introduced just as construction of the Bayou Bridge pipeline was getting underway, and critics say it was designed to support the interests of the oil and gas industry. The new bill is similar to a model policy promoted by the right-wing American Legislative Exchange Council, and was drafted in conjunction with the Louisiana Mid-Continent Oil and Gas Association. The bill’s supporters included Energy Transfer Partners, TransCanada, Enbridge, and Philipps 66 — all energy companies involved in the construction of contested pipelines.

The Bayou Bridge pipeline would connect the Dakota Access pipeline to refineries and export terminals in St. James, Louisiana, traversing 11 parishes and crossing the Atchafalaya Basin — the largest wetland in the United States, and an area of particular ecological importance. Like the Dakota Access pipeline, the Bayou Bridge project has faced intense opposition. Crawfish producers and environmental justice groups have pursued legal strategies and direct-action campaigns to stop the project.

Prior to the law’s enactment, trespassing on critical infrastructure was considered a misdemeanor, and the definition of critical infrastructure did not explicitly include pipeline routes. Although the penalties exacted by the new bill are significant, the law is less draconian than an earlier version that Louisiana’s House passed last spring, which would have allowed prosecutors to punish groups for “conspiring” to trespass on critical infrastructure sites. Environmental and civil society groups were not able to stop the bill’s passage entirely, but their advocacy helped defeat the conspiracy section and secure language stating that the bill should not be used to prevent lawful assembly or peaceful protests.

Bill Quigley, a Loyola University School of Law professor and attorney for Bayou Bridge opponents, is hopeful that a future constitutional challenge to the Louisiana law could stop states still considering similar legislation, like Pennsylvania, from moving forward. If prosecution of the arrestees moves ahead, attorneys may use the criminal cases as a springboard to argue that HB 727 is overly vague and broad, and infringes on free expression.

Their prosecution “may well be the test case to see if that law is constitutional or not,” said Quigley. “That would have implications not just in Louisiana, but all over the country.”

FILE - In this April 27, 2018, file photo, a old logging canal cuts through Bayou Sorrel in the Atchafalaya River Basin in Louisiana. Bayou Bridge Pipeline LLC’s building a crude oil pipeline in Louisiana expects to complete the construction project by October if a federal appeals court doesn’t order another halt to the work. In a court filing Wednesday, June 27, 2018, Bayou Bridge Pipeline LLC’s attorneys said construction of the entire 163-mile pipeline was nearly 76 percent complete as of Sunday. (AP Photo/Gerald Herbert, File)

An old logging canal cuts through Bayou Sorrel in the Atchafalaya River Basin in Louisiana on April 27, 2018.

Photo: Gerald Herbert/AP

Private Security, Public Waterways

The struggle against the Bayou Bridge pipeline has been shaped by both the unique physical terrain of the Atchafalaya Swamp and Louisiana’s distinct legal landscape. For two weeks prior to the first arrests under the new law, pipeline opponents paddled in the public waters transected by the pipeline easement, prompting workers to halt construction. Under Louisiana’s Civil Code, navigable waters are open to the public even if they contain a pipeline easement.

But on August 9, shortly after the law went into effect, Cindy Spoon says that she and another activist, who prefers to remain anonymous to avoid retaliation, were arrested while canoeing outside the borders of the pipeline easement. According to Spoon, armed guards wearing Department of Public Safety and Corrections polo shirts used the force of the air from their boat’s propellers to blow the canoe out of the main waterway and into a nearby inlet, which is part of the easement. Spoon said the officers then reached down and yanked the two women from their boat by the wrists, placing them in handcuffs.

According to records provided by the St. Martin’s Parish Sheriff’s Office, the activists were arrested under the security guards’ authority as probation and parole officers. The security guards also arrested a third Bayou Bridge pipeline opponent who was kayaking nearby. The protesters were charged with unauthorized entry of a critical infrastructure facility and resisting arrest. They were released later that day.

Pam Spees, a senior staff attorney for the Center for Constitutional Rights who is representing groups opposed to the Bayou Bridge project, said the situation raises important concerns about whose interests are being protected. “If there is a financial interest on the part of state employees to serve these private companies, who’s looking out for normal, everyday citizens and residents and landowners and others who want to protest?”

In an interview with The Intercept, Pastorick estimated that roughly 50 state probation and parole officers had gained outside employment with the security company Hub Enterprises, which was hired by Energy Transfer Partners to guard the Bayou Bridge pipeline during construction. But he said that as of August 13, department personnel were no longer working for Hub. He was not aware of the reason behind the shift.

Hub Enterprises, headquartered in Lafayette, Louisiana, brands itself as “among the largest security companies in the southern United States.” A spokesperson referred inquiries to an email address for Energy Transfer Partners media relations.

“It is not safe for people who are not specially trained and are not wearing the appropriate protective clothing to be on or around an active construction site, which includes our right-of-ways,” Energy Transfer Partners spokesperson Vicki Granado wrote in a statement to The Intercept. “Any entry on our right-of-way by those not associated with our project is trespassing. These situations are dealt with by local law enforcement. We are thankful for the work they do to ensure everyone’s safety. Beyond that we don’t discuss specifics related to our security.”

“Regarding recent laws that have been past [sic] relative trespassing on right-of-ways, we support any actions that will help to ensure the safety of our country’s infrastructure,” she said.

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A skypod occupied by a pipeline opponent hangs above land co-owned by Theda Larson-Wright, who has not granted permission for Energy Transfer Partners to build on her property.

 

Shifting Tactics in Response to HB 727

On August 1, the morning that Louisiana’s critical infrastructure bill went into effect, St. Martin’s Parish sheriff’s deputies steered their boat 45 minutes into the swamp to the remote Hog Island, where members of L’eau Est La Vie had set up platforms called “tree-sits” in the tops of trees. One officer walked to the base of the trees and announced into a bullhorn: If anyone was occupying the tree-sits, they were now committing a felony and must come down immediately.

Unbeknownst to the deputy, he was calling up to empty platforms. Aware that the bill was about to take effect, the tree-sitters had already abandoned their perches. But they hadn’t abandoned their fight.

As a strategy for getting around the bill, the pipeline opponents had set up a wood platform suspended in midair by ropes tied to surrounding trees called a “skypod.” One of the trees supporting the skypod was on the pipeline construction path. But the skypod itself was not, and thus was theoretically not subject to prosecution under HB 727.

The new strategy didn’t thwart law enforcement this weekend, however, when a skypod was pulled down, leaving the occupant dangling from a tree by a rope. The skypod had been anchored so that continued work on the pipeline could break the structure’s support line, effectively halting pipeline construction until she was removed. When the pipeline opponent lowered herself to the ground, she was tased and arrested, according to Foytlin, a member of the L’eau Est La Vie camp.

The legality of ETP’s construction activity there is questionable. Theda Larson-Wright, who owns the land where the skypod was attached, told The Intercept that she had granted L’eau Est La Vie permission to be on the property. Not all of the 38-acre tract’s hundreds of owners have granted Energy Transfer Partners permission to build, nor has the company gained access via eminent domain. Legal filings indicate that the company only began the eminent domain process after it started construction. ETP spokesperson Granado told The Intercept that the expropriation process is underway, and that more than 800 people have rights to the land. Another landowner, Peter Aaslestad, has a pending legal case demanding that ETP stop construction.

Yet, on Saturday and Sunday, according to Foytlin, sheriff’s deputies arrived claiming to have affidavits from additional owners of the property asking that the pipeline opponents be removed. They searched the L’eau Set La Vie camp and confiscated property, including a drone used to monitor construction activities.

Three other pipeline opponents and one independent journalist embedded with the group, Karen Savage, were arrested and charged under the new law for refusing to leave. But Savage disputes trespassing in a critical infrastructure construction zone. “I took great pains to avoid going on the easement,” said Savage. “If I was a reporter for CNN or ABC or one of the big media outlets, there would be all kinds of attention on this. As freelancers or folks that report on movements, we’re pigeonholed.”

A sixth water protector was also arrested under other charges. The sheriff’s office did not respond to a request for comment.

“A Little Bit of Everybody” Is Working for the Pipeline

The controversial practice of pipeline security officers working closely with local police is common well beyond Louisiana. Leaked internal situation reports written by the private security company TigerSwan for Energy Transfer Partners, and published by The Intercept last year, described extensive coordination between local sheriff’s departments and the ex-Special Forces military members employed by the company. At the peak of the DAPL protests, as the law enforcement crackdown became increasingly violent, TigerSwan regularly shared intelligence with the local sheriffs’ departments, framing those who objected to the project as dangerous and naming individuals of interest.

Another company that worked security during DAPL construction, Leighton Security Services, hired officers from numerous North Dakota sheriff’s departments, records show. Leighton faced controversy when one of its guards, who was a military veteran rather than an off-duty cop, waved a gun at pipeline opponents.

Today, Leighton continues to work security for pipeline projects that have attracted local opposition, hiring primarily local law enforcement officers. Among the controversial projects for which the security company has obtained contracts are the Atlantic Coast natural gas pipeline, the Mountain Valley natural gas pipeline, and Pennsylvania’s Mariner East 2 pipeline, which is owned by Energy Transfer Partners via its subsidiary Sunoco. Both the Atlantic Coast and Mountain Valley pipelines pass through West Virginia and Virginia; the Atlantic Coast pipeline also runs through North Carolina.

Leighton Security President Kevin Mayberry said that he almost exclusively hires off-duty public service officers selected from the county where the company is working. Although Mayberry advises his guards to defer their arrest powers to on-duty law enforcement if possible, Mayberry conceded that the off-duties’ ability to detain people is the key reason he hires them. “They have jurisdiction there — that’s the No. 1 thing,” Mayberry said.

To guard the Mariner East 2 pipeline, Mayberry said Leighton has hired local sheriff’s deputies, police officers, and constables. On the Atlantic Coast and Mountain Valley pipelines, he said, “There’s some game wardens out there, there’s some local sheriffs out there, there’s local PD guys out there — we got a little bit of everybody.”

Top photo: Energy Transfer Partners is building the Bayou Bridge pipeline through the Atchafalaya Basin.