A judge has thrown out felony charges against several Dakota Access Pipeline protesters arrested during a raid of the northern camp on Oct. 27.
After the raid, 139 people were charged with one felony count of conspiracy to endanger by fire or explosion and two misdemeanor counts. The prosecutors filed a single complaint and supporting affidavit against all of them on Nov. 10.
The affidavit alleges protesters at least implicitly agreed to set multiple fires throughout the day, thereby endangering law enforcement, firefighters and nearby pastureland.
But South Central District Judge Cynthia Feland was not convinced the prosecutors had made a case against each person. She notes that the prosecutor failed to specifically name who committed the crime, how and when they committed it or how they agreed to commit the crime together.
"As far as the court can tell from the facts alleged in the affidavit, these fires were set sporadically, at different locations, by different individuals, seemingly at random. The state has not alleged facts sufficient to show an explicit or implicit agreement between the 139 defendants to commit the offense charged," Feland wrote in an order to dismiss the felony charge against Yenglin Jeysien Verdugo.
Court records show identical orders also are filed with nine other protesters. Four additional protesters, whose cases were assigned to Feland, will also have their felony charge dropped, according to the Morton County Clerk's office.
It is not clear yet whether felony charges will stand against the other 125 people named in the complaint, whose cases are assigned to different judges.
The felony charge was dismissed without prejudice, meaning a prosecutor can re-charge the case if the prosecution can provide probable cause. The protesters are still charged with misdemeanor counts of maintaining a public nuisance and engaging in a riot.
"In making this order, the court recognizes the extreme stress under which law enforcement officers and the prosecutors bringing these charges have been operating. This order should not be considered a criticism of their efforts or a suggestion the arrest in this matter was not appropriate," Feland wrote.
It is possible that the prosecutor will try to appeal Feland's order dismissing the charges.
During a court appearance for Mega Mae Plenty Chief, against whom the felony charge was dropped, Morton County State's Attorney Allen Koppy set the stage for an appeal to the state supreme court. He said the state took exception to the court's order and suggested he might make an interlocutory appeal, which is an appeal that would be heard before Plenty Chief's case is closed.
The affidavit from the Morton County State's Attorney alleges several fires were set throughout the day. Protesters allegedly lit hay bales, attempted to ignite a gas tank, burned a pipeline company bulldozer and set armored vehicles ablaze, causing damage to the Backwater Bridge, according to the affidavit.
The arrests were made as law enforcement evicted protesters from a northern camp established atop the pipeline route on Dakota Access property, which they claimed as treaty land. During the hours-long confrontation, some protesters prayed while other set fires and threw objects at police. Officers responded with pepper spray and less lethal bullets. In total, 147 people were arrested.