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Law enforcement officers met protesters at the railroad crossing on Morton County Road 82 west of Mandan on Nov. 15, 2016. Officers arrested 25 of the 400 people gathered there. Those defendants represent some of the first felony cases of the Dakota Access Pipeline protests to go to trial.

BISMARCK, N.D. — Sam Saylor walked down a dark hallway of the Morton County Courthouse to the clerk of district court’s office.

He was there to ask if the judge had arrived for a motion hearing that snowy afternoon on Wednesday, but instead was told the hearing was canceled, the charges dismissed.

Prosecutor Brian Grosinger had motioned one day before trial to dismiss the four pipeline protest-related charges against Saylor’s client, Ernest Cobiness.

His reason?

“The state cannot sufficiently identify the defendant,” Grosinger wrote in his motion.

“You would think that someone would have caught that,” Saylor said while waiting to speak with Grosinger.

‘Evaporate’ options

Cobiness’ case is one of many this month related to a protest event on Nov. 15, 2016, at the railroad crossing on Morton County Road 82.


While marching south along Morton County Road 82 to a Dakota Access yard, protesters met law enforcement on the railroad tracks on Nov. 15, 2016. Some individuals placed and removed a truck filled with debris on the tracks. Other people placed sticks and branches on the tracks, and someone spray-painted an outbuilding.

Twenty-five people were arrested that day. Many of those defendants face felony tampering with a public service for the events on the train tracks. Their cases are among the first felony charges to go to trial from the Dakota Access Pipeline protests.

Two trials already have taken place, with one acquittal and two convictions, including the first protest defendant to be convicted of a felony at trial.

“We firmly believe that these charges are inaccurate,” said Saylor, of the Freshet legal collective. "That they don’t apply to people exercising their First Amendment rights, specifically the felony tampering with a public service.”

Cobiness, 22, is a resident of Buffalo Point First Nation in Manitoba. He said he makes his living "solving problems for our people.” Specifically, he said he builds sweat lodges for elders and cuts teepee poles with his dad — just ways to help others in his community.

"People are very traditional up here," said Cobiness, who has had felony charges dangling over him for the past year.

Now dismissed, Cobiness said he and his family are relieved, but added that being “wrongly accused” made life difficult for him.

“(The charges) put a damper on what I can do, getting myself a job anywhere,” he said by phone Friday.

Attorney Amanda Harris, who has defended numerous protest cases, agreed that felony charges and convictions can “evaporate” a person’s options in life.

“It limits your ability to educate yourself, what kinds of fields you can have, what kind of careers you can have, where you can live,” she said.

Her client, Rodrick Joe, was convicted of a protest-related felony at trial earlier this month. At sentencing, Harris said Joe had wanted to enter the military or a trade school.

These “collateral consequences” only add to a punishment Harris said doesn’t necessarily fit the facts.

For example, she and Grosinger debated at trial the legal definitions of “tampering,” “public service” and “substantial." Harris also referenced an offense she said was more suitable for Joe’s and others’ alleged crimes: class C felony tampering, altering or damaging railroad property.

“I think if they actually charged them with tampering with the railroad, it’s clear they didn’t commit those crimes,” Harris said.

Grosinger was in a meeting and unavailable for comments Wednesday. He did not reply to a handwritten request for an interview regarding Cobiness’ case, nor to a phone message seeking comment on the felony protest cases overall.

‘Individual decisions’

Saylor emphasized the individual conduct of each protest defendant, rather than the en masse approach perceived to be taken by the Morton County State’s Attorney’s office, which charged about 830 related cases.

“That’s the note I want to keep playing: These people are making individual decisions,” Saylor said. “There’s individual stories here.”

Cobiness said he came to the Standing Rock Sioux Reservation because of “a spiritual calling,” a desire to bring awareness there and back home. Last winter, he left the protest camps to participate in a cross-country ride with the Mothers Against Meth Alliance.

“It’s not only in Standing Rock; the fight for water is all over,” Cobiness said.

Earlier this month, seven felony defendants were bound for two trials in two days stemming from the railroad incident. Only Joe, Erica Gonzalez and Rebecca Jessee proceeded to trial.

The others? Well, their dispositions are as individual as their conduct on Nov. 15, 2016, according to Saylor, who declined to discuss the defendants’ choices regarding trial.

“Each individual makes a decision about their own case,” he said.

For example, Hannah Grover was bound for trial with Joe, but court documents indicate she is taking a pretrial diversion agreement.

John Platner also was to join them but his trial was continued. So was Stewart Towle’s, who was set for trial with Cobiness.

Sarah Shomin was to be tried alongside Gonzalez and Jessee, but has indicated her change of plea.

Sarah Hogarth, spokeswoman of the Water Protector Legal Collective, said late last month that about 20 defendants were set for trial this month from the railroad incident.

Saylor said Wednesday he has 10 protest cases left, two of them from the railroad incident. Harris said Thursday she has 11 cases remaining, including two involving felonies, with her latest trial set for June. The next protest-related trial at the Morton County Courthouse is set for Thursday.

Reach Jack Dura at 701-250-8225 or


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