Colorado fracking company wants to ‘silence’ opposition to massive drilling project, lawyer says

Deep-pocketed energy companies use lawsuits as weapon against public opposition.

An oil derrick rises up in a neighborhood in Weld County, Colorado. CREDIT: Steve Nehf/The Denver Post via Getty Images
An oil derrick rises up in a neighborhood in Weld County, Colorado. CREDIT: Steve Nehf/The Denver Post via Getty Images

A college student, a legal observer, and a videographer attended a protest at an oil and gas construction site in Greeley, Colorado in early March and all three are now getting sued by the company behind the massive project.

The student, Cullen Lobe, already was facing criminal charges in Weld County, Colorado for locking himself to a bulldozer as part of an act of civil disobedience at the oil and gas construction site. But for Extraction Oil and Gas, the government’s criminal charges against Lobe weren’t enough. The Denver-based company decided to take legal action of its own.

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The company’s civil lawsuit names Lobe and four others — John Lamb (the legal observer), Brian Hedden (the videographer), Jeremy Mack, and Mary Delffs — as defendants. While Lobe was arrested and now faces criminal charges, the four other individuals were not arrested but instead were given criminal citations by the Weld County Sheriff’s Department for trespassing at the Extraction Oil and Gas drilling site.

The legal action against Lamb, a legal observer with the National Lawyers Guild who was acting as a legal observer at the March 8 protest, and Hedden, an independent journalist who videotaped the protest, comes at a time of increasing concern surrounding the arrest and prosecution of reporters and protesters critical of U.S. government and powerful corporations.

During protests of Donald Trump’s inauguration in Washington D.C., at least six journalists and filmmakers were charged with felony rioting offenses. Legal observers also were rounded up as part of the D.C. police’s strategy to trap and then arrest everyone who was on the street.

The charges were eventually dropped against the legal observers and most, but not all, the journalists. A reporter who went to trial as part of the first group of inauguration defendants was found not guilty. Another journalist is among the defendants still facing prosecution.

Prosecutors also brought serious criminal charges against the filmmakers who covered the coordinated oil pipeline “value turner” action in October 2016. But the cases against the filmmakers were later dismissed.

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Over the past decade, energy companies have started taking stronger measures, including legal action, against environmentalists and landowners who wage civil disobedience campaigns against their projects. The aggressive attacks by the companies, combined with state lawmakers considering anti-protest legislation, are making citizens think twice before exercising their First Amendment rights, according to legal experts.

The lawsuit against Lobe is “meant to harass and intimidate” him while seeking to “chill and silence the community,” Lobe’s lawyer, Jason Flores-Williams, wrote in a motion to dismiss the lawsuit.

In its March 9 lawsuit, which was amended three weeks later, Extraction Oil and Gas asked the District Court of Weld County, Colorado to force the 23-year-old Lobe and the others to pay “all available damages, fees and costs, including at least nominal damages.” Additionally, the complaint seeks a ruling to prevent the defendants from committing “any further trespass” on any Extraction Oil & Gas sites. The company contends the demands in its lawsuit are necessary to deter further disruption at its drilling sites.

In a motion filed last Wednesday, Flores-Williams asked the court to dismiss the company’s complaint.

According to Flores-Williams, a prominent defense attorney based in Denver, the company’s lawsuit is a “textbook” case of what is known as a Strategic Lawsuit Against Public Participation, or SLAAP. This type of legal action is intended to intimidate and silence critics by weighing them down with the cost of a legal defense until they halt their criticism or opposition.

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“This is the small kid and the huge bully in the sandlot and the bully poking his finger in the small kid’s chest, saying, ‘You get out of here. If you ever come around again, I’m going to destroy you’,” Flores-Williams told ThinkProgress.

For 2017, Extraction Oil and Gas reported revenues from oil, natural gas, and natural gas liquids sales increased 117 percent over the prior year to $604.3 million. The company had not responded to a request for comment on Flores-Williams’ motion to dismiss its lawsuit at the time this article was published.

Along with Lobe and the other defendants, Extraction Oil and Gas named “John and Jane Does 1-8” in its lawsuit. These unnamed people are residents of Colorado who “acted in concert” with the others named in the complaint, the company said.

Naming John and Jane Does is a legal maneuver used by companies when they want to use the discovery process in a court case to see who attended meetings, signed attendance lists, or painted signs in order to add those people to the lawsuit, according to Flores-Williams. If Extraction Oil and Gas prevails in this action, “the mere act of attending a meeting could expose a person to civil liability,” he said.

Weld County, located along Colorado’s Front Range, is one of the most heavily drilled counties in the country. Companies have expanded their fracking operations from rural areas to suburban communities. Many residents in Weld County and other counties in Colorado, however, have decided to fight the pollution and noise that comes when the oil and gas industry enters neighborhoods.

“Weld County is an oil-friendly county,” Andy McNulty, a lawyer with Killmer, Lane & Newman, LLP, a Denver law firm that specializes in First Amendment cases, said in an interview with ThinkProgress. “But you always hope that the judiciary is somewhat immune from those political pressures. It’s more important now than ever, as we’ve seen with the executive overreach of power in the Trump era, that the judiciary stands as a bulwark to protect the constitutional rights of its citizens.”

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On Friday, McNulty and his law firm agreed to represent Lamb, the legal observer, in the lawsuit filed by Extraction Oil and Gas against him.

Hedden said the police originally did not detain him and Lamb. But later, the police came to the parking lot where Hedden and others were lawfully assembled to give him his citation.

The two citations that Hedden received were 1st degree criminal tampering, which comes with up to $5,000 in penalties and 18 months in prison, and 2nd degree criminal trespass, which comes with up to $750 in penalties and six months in prison.

For the criminal citations, Hedden said lawyers from the University of Denver Sturm College of Law are working with him.

According to Lobe, he was motivated to protest Extraction Oil and Gas’s activities because of the company’s decision to build its project next to a middle school in a lower-income section of Greeley. The company was originally awarded a permit in 2013 to drill up to 67 wells a few hundred feet away from Frontier Academy in Greeley. The school is composed of children that come largely from white, middle-class families. The parents were not happy with the project and organized a movement against the project.

In 2014, in the face of the parents’ resistance, Extraction Oil and Gas abandoned the Frontier Academy site. The company instead turned its attention to a new location on the other side of town, also within a thousand feet of a school. The school, Bella Romero Academy, serves mostly recent immigrants and working-class families. Nearly 90 percent of its children qualify for free and reduced-price lunches.

The drilling site represents a “clear case of environmental racism,” Lobe told ThinkProgress. “These companies feel like they can just go in anywhere and do whatever they want. They have all the money. They have all the power. We really hope that these people can take a step back and look at what danger they’re putting these children in.”

In his motion to dismiss, Flores-Williams wrote that Lobe “is the kind of engaged young person that we should want to encourage, not drive into bankruptcy” by assessing damages against them for raising their voice.

Close to 30 states have laws that protect citizens from lawsuits that seek to penalize them for expressing their opposition or organizing against a project. Although Colorado doesn’t have an anti-SLAPP statute, it does have a procedure that can stop this type of lawsuit before it is abused. In a 1984 case, the state Supreme Court in 1984 ruled that a housing developer’s lawsuit against a citizens’ group was a classic case of retaliation for the opposition to a housing development.

Flores-Williams cited the 1984 case in his motion to dismiss Extraction Oil and Gas’s lawsuit against Lobe. “Extraction seeks to use this court not as a means of redress, but as its muffler or silencer, with the muzzle pointed squarely at an active, engaged community with legitimate concerns over the health and safety of its children,” the motion said. “The decision to sue a college student already facing criminal charges — and restrict the rights of many unnamed others and the community at large — goes beyond the pale.”

Similar to Extraction Oil and Gas’s legal strategy in Colorado, Energy Transfer Partners, the company behind the Dakota Access Pipeline, filed a lawsuit against Greenpeace and several other environmental groups that opposed the oil pipeline project. Lawyers for Greenpeace accused the company of attempting to silence advocacy work and attack the fundamental right to free speech.

Energy Transfer Partners is using SLAPP against its critics “in an attempt to shut them up — or even better, to shut them down,” according to Greenpeace. The company is suing Greenpeace for at least $900 million in damages.

“The use of this dirty tactic by corporations is on the rise. As we face an upswing in a new global right-wing agenda, governments and corporations around the world are attempting to chip away at free speech,” Greenpeace wrote in a blog post about the lawsuit.

Individual environmental activists, along with legal observers and journalists, are facing the same type of threats at the local level as the national green groups. In Weld County, “if the court were to grant injunctive relief and especially if the court were to allow this case to go trial for damages, it would have a significant chilling effect on the free speech rights of these folks,” McNulty said.

This article was updated at 8:30 a.m. ET on Monday, April 16, 2018 to report that Andy McNulty, a lawyer with Killmer, Lane & Newman, LLP, has agreed to represent John Lamb, the legal observer. This article was updated at 1 p.m. ET on Monday, April 16, 2018 to describe the criminal citations issued to Brian Hedden.