Judge says Dakota Access developer can't sue BankTrack

July 26, 2018 - 12:38 pm

BISMARCK, N.D. (AP) — A federal judge has ruled that the developer of the Dakota Access oil pipeline has no claim under federal racketeering law for damages against a Dutch environmental group that urged banks not to finance the $3.8 billion project.

U.S. District Judge Billy Roy Wilson in an order dated Tuesday dismissed Netherlands-based BankTrack as a defendant in a lawsuit that Texas-based Energy Transfer Partners filed in August against that group, Greenpeace and Earth First. In separate rulings this week, he also cast doubt on whether the lawsuit will succeed against the other two groups.

ETP contended in its lawsuit that BankTrack used "disinformation and extortive schemes" to try to get banks not to fund the company, threatening the banks with "brand damaging campaigns." More broadly, the lawsuit connects BankTrack with what ETP says was a campaign by pipeline opponents to incite acts of terrorism by protesters such as arson fires.

Wilson said the lawsuit "vaguely attempts" to connect BankTrack to acts of radical ecoterrorism, but he concluded that the group's conduct amounted to "writing a few letters" and said ETP did not have a valid claim against the group under the Racketeer Influenced and Corrupt Organizations Act.

"None of BankTrack's actions promoted, assisted or condoned violent criminal conduct," he wrote.

ETP did not respond to a request for comment. The company has said previously it does not comment on pending litigation.

BankTrack Director Johan Frijns in a statement said the judge's ruling "confirms that this type of advocacy work is legitimate."

"Energy Transfer's allegations about our supposed involvement in directing acts of 'radical ecoterrorism' were hard to take seriously from the outset, and we are pleased that the judge has confirmed that these were sweeping statements without any basis in fact," he said.

ETP sued BankTrack, Greenpeace and Earth First for up to $1 billion, alleging they worked to undermine the pipeline that has been moving oil from North Dakota to Illinois for the past year. The groups said the lawsuit was an attack on free speech.

The lawsuit alleges the groups disseminated false and misleading information about the project and interfered with its construction. The company maintained that the groups' actions interfered with its business, facilitated crimes and acts of terrorism, incited violence, targeted financial institutions that backed the project and violated defamation and racketeering laws.

Wilson ruled that BankTrack "did not get money, property, or anything of value from Energy Transfer through the mailings and (online) postings," and that "Energy Transfer's application of RICO to BankTrack is dangerously broad."

Wilson in a Wednesday ruling denied Greenpeace's motion to be dismissed as a defendant. However, he also ordered ETP to file an amended complaint, saying the current lawsuit is "vague" and that its "factual basis for the claims appears intentionally obscured."

"To avoid dismissal, Energy Transfer must file an amended complaint containing concise and direct allegations against each named defendants," he wrote.

"We remain confident that this meritless lawsuit by Energy Transfer Partners will ultimately be thrown out of court," Greenpeace attorney Deepa Padmanabha said Thursday.

In a Monday ruling, Wilson gave ETP until Aug. 1 to properly serve Earth First.

The Center for Constitutional Rights maintains Earth First is an unstructured social movement or philosophy, similar to Black Lives Matter, and can't be sued. ETP had tried to serve the lawsuit on Earth First Journal, but the Florida-based environmental publication effectively argued it was not the same as the movement.

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