top of page

Court Update: Two More Water Protector Cases Dismissed

March 30, 2017

Today, in a signed order, Morton County District Judge Schmalenberger granted Motions to Dismiss filed by water protector defendants Theresa Blackowl and Olivia Bias. The defendants were charged with “criminal trespass” and “engaging in a riot” when they were arrested at an area identified as DAPL site 118 on Highway 6 on October 10th.

In the affidavit offered by the prosecution, Ms. Bias was accused of “refusing to leave and locking arms in a teepee to delay arrest” and Ms. Blackowl was accused of being “in a tepee on DAPL site 118” and “refusing to leave.” The defendants filed Motions to Dismiss arguing that the facts alleged, even if true, did not provide the probable cause necessary to show a crime was committed or that the defendants committed it.

In granting the defendants’ Motions, Judge Schmalenberger concurred:

The complaint must show that probable cause exists to believe that the defendants committed the acts charged. The alleged facts must be sufficient to warrant a defendant committed it… The allegations in the affidavits do not meet this standard. The affidavits do not even contain the essential elements of the charged offense…THEREFORE, IT IS HEREBY ORDERED that the charges of inciting a riot and criminal trespass are dismissed without prejudice.

Attorneys bringing the Motion were part of the Water Protector Legal Collective’s (WPLC) Pro Hac Vice program approved by the North Dakota Supreme Court. The program allows experienced out-of-state attorneys to appear in the #NoDAPL cases pro bono, without local counsel present. Melinda Power and her local counsel sponsor, Amanda Harris, originally filed the Motions to Dismiss. Ms. Power is a WPLC-affiliated pro hac vice attorney from Chicago, and Amanda Harris is an experienced local criminal defense attorney.

While Judge Schmalenberger’s immediate ruling is limited to the two cases set for trial tomorrow and is based on the specific language of the affidavit, the rationale for dismissal could easily apply to many of the other hundreds of Water Protector cases where “criminal trespass” and “engaging in a riot” are charged and specific factual allegations are lacking.

Yesterday, on March 29, North Dakota Water Protectors had felony “reckless endangerment,” “lockdown” charges dismissed. States Attorney Grossinger said he had a conflict on the day the felony reckless endangerment case was set for trial, and he was not prepared for trial on April 4th, despite having nearly six months to investigate, gather evidence, and find witnesses who could establish that any crime occurred.

As of today, no Water Protectors have been found guilty of felony charges, none have been sentenced to spend time in jail, and over 30 Water Protectors have had misdemeanor charges dismissed for lack of evidence. We also want to acknowledge the Freshet Collective for providing bail, travel money, and ground support for defendants, as well as financial assistance to local attorneys who are representing Water Protectors.

Oil may be flowing under Lake Oahe, but the arc of the moral universe still bends toward justice. Water protectors are winning the fight against the head of the “black snake” in the courts, and this Movement has inspired so many to continue this fight elsewhere. These are still sacred times.

For more information, contact:

Attorney Jeffrey Haas, WPLC, 505-469-0714 Attorney Sandra Freeman, WPLC, 703-254-3402 Attorney Melinda Power, 773-301-5594 Attorney Amanda Harris, 701-751-7636 Attorney Bruce Nestor, 612-991-9488

7 views0 comments


bottom of page