Earlier this week a group of 84 members of Congress sent a letter to the Department of Justice asking if the department plans to pursue an investigation against protesters who sabotaged pipelines and equipment last year in an effort to block the completion of the Dakota Access Pipeline. The letter also asks whether “attacks against the nation’s energy infrastructure” fall under the DOJ’s “understanding of 18 U.S.C. 2331(5). That’s the section of the U.S. code which defines “domestic terrorism.”

(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.

The letter states that the members of Congress are not trying to punish legitimate protest but are focused on “violence toward individuals and destruction of property.” And there was some of both during the Dakota Access Pipeline protests. One individual was charged with attempted murder after she fired a handgun when officers attempted to arrest her. Those charges were dropped but federal charges were filed and she is scheduled to go on trial in January 2018. From Vice News:

According to police affidavits filed in connection to the attempted murder charges, Pennington County Deputy Thad Schmit spotted Fallis “being an instigator and acting disorderly” so he “took [her] to the ground.”

Police allege she resisted arrest by tucking her arms under her body, and in the struggle that ensued, they heard two gunshots ring out, and saw the ground near one officer’s left knee “explode.” Officers say they grabbed a gun from her left hand and handcuffed her…

On the way to jail, Fallis “made the statement that she was trying to pull the gun out of her pocket and the deputies jumped her and the gun went off.” She also allegedly told probation and parole officers that they were lucky she didn’t shoot “all you fuckers.”

That was the single most violent action taken by protesters but there was also significant property damage including multiple acts of arson and a campaign of sabotage which two protesters, Jessica Reznicek and Ruby Montoya, later admitted to carrying out. As recently as August, the FBI was still investigating that case.

There were also 761 arrests made between August 2016 and February 2017. Most of those were misdemeanors, but protest leader Chase Iron Eyes was arrested in February for inciting a riot, which is a felony. Iron Eyes, who faces up to five years in prison if convicted, plans to make a “necessity defense,” i.e. to admit he’s guilty but claim circumstances left him with no other choice. From the Grand Forks Herald:

“Given the Dakota Access Pipeline’s imminent threat to my tribe’s and my family’s only water supply, I ultimately had no choice but to resist on the front lines,” Iron Eyes said. “Pipelines spill all too often, and our efforts to stop DAPL’s construction were thwarted by President Trump’s illegal intervention to cancel the environmental impact statement that the Army Corps of Engineers had decided to prepare.”

With all of this going on, an industry group announced Thursday it would be setting up a database to keep track of attacks on energy infrastructure. From the Associated Press:

An oil and gas industry group is seeking to highlight what it says is an increase in protester attacks on energy infrastructure such as oil pipelines through an online database cataloguing incidents of “eco-terrorism, sabotage, arson, vandalism and violence.”

There is a discernible line between protest, even civil disobedience leading to arrest, and crimes like arson, sabotage, and violence. Protesters who want to march and shout and carry on must be allowed to exercise their First Amendment rights. However, “protesters” who cross the line into felony crimes aimed at political ends (stopping or shutting down oil and gas infrastructure) really are crossing a line that seems to verge on domestic terrorism.

I’m not an attorney but it seems to be me it would hinge on whether or not the specific acts were actually deemed dangerous to human life as specified in the definition. I suspect the protesters would argue they were careful not to sabotage the pipeline in a way that could lead to a spill or an explosion. They intend to be a threat to property but not to people. However, that’s a fine line. What if the saboteurs get it wrong? Isn’t their behavior inherently dangerous? Using blowtorches on a pipeline is literally playing with fire. Eventually one of these stunts will go wrong, perhaps horribly.

If some of these actions seem to be on the line, there are more extreme environmentalists who are fairly open about their desire to go way over the line. Their numbers may be small but there are extreme eco-groups calling for campaigns of sabotage against energy infrastructure as the best way to achieve their social and political goals. One hopes the DOJ already has a wary eye on those groups.