Judge Sets Protest Case Against S.D. Activist for Trial


Bismarck Tribune | Dec 12, 2016

A South Dakota housing activist accused of locking himself to construction equipment at a Dakota Access Pipeline protest will go to trial on a felony charge of reckless endangerment.

South Central District Judge James Hill found probable cause Monday that Nicholas Tilsen, 34, of Porcupine, S.D., recklessly endangered the lives of law enforcement officers who sawed through the contraption attaching him to equipment on Sept. 14.

“It is very clear in this case from both officers’ testimony that the dangers existed of fire hazard, electrical hazard, individual falling,” Hill said in court Monday afternoon, adding that he believed Tilsen had been informed of the potential for harm.

The probable cause finding came despite arguments from Tilsen’s attorney, Bruce Ellison, that the risk was exaggerated, that officers did not take all precautions to protect themselves and that Tilsen could not have known the extent of the danger.

Tilsen, founder of the Thunder Valley Community Development Corp. on the Pine Ridge Indian Reservation, allegedly used a “sleeping dragon” — a device made of metal pipe that activists use to hook themselves to equipment — to lock onto a track hoe at a pipeline worksite near New Salem. A person can usually self-detach from equipment by undoing a carabiner inside the pipe. Several protesters have used these devices since August as a means of stopping construction on the pipeline they fear could contaminate the Missouri River and disturb sacred sites.

In order to remove Tilsen, a law enforcement officer stood on a platform 3 to 4 feet from the ground and used a grinder to cut open the pipe around his arms, according to testimony from Mandan Police Lt. Scott Stromstodt, leader of the “cut team.” In order to keep Tilsen from getting burned, another officer sprayed water continuously on the pipe. Stromstodt said the officers involved were at risk of sparks, shards, falling and electrocution.

“Anytime you combine water and electricity can be a recipe for disaster,” Stromstodt said.

Morton County Sheriff’s Deputy Jonathan Moll testified that he warned Tilsen of the danger under which he placed himself and the officers by not self-releasing from the equipment. Moll said he could not recall whether he detailed the dangers of the cutting.

In his questioning of the officers in court, Ellison challenged whether police could not have worn more protective gear to reduce the risks of cutting Tilsen loose. Fire trucks were on scene, and Ellison suggested the officers could have borrowed fire-resistant clothing or helmets with visors.

“We have officers who made a decision to act in haste,” Ellison said in his closing statement. “They had every piece of equipment that would’ve protected them.”

Stromstodt countered that those extra protections might have been impractical and bulky.

Ellison also challenged the extent to which Tilsen might have shown “extreme indifference to the value of human life,” which is required to prove a felony reckless endangerment charge. The officers both testified to using similar grinders at home, sometimes without goggles. Also, Tilsen’s face and ears were covered to protect him from sparks and hearing damage.

“We know that Mr. Tilsen’s ears were covered. His eyes were covered. He couldn’t see any of the process that was going on. So he would be unaware of any injury or even the potential to the officers before they started doing the extraction,” Ellison said.

Several protesters face reckless endangerment charges on similar allegations. For the most part, judges have upheld those charges after preliminary hearings, with the exception of Judge Bruce Romanick, who threw out a similar felony against protester Wanikiyewin Wi Loud Hawk in November.

Tilsen also faces three misdemeanor charges: criminal trespass, obstruction of a government function and disorderly conduct.

Hill set the case for trial on March 22.