Jurors to deliberate pipeline protesters case

Pair says they had owner’s permission

—Messenger photo by Peter Kaspari Emma Schmitt, left, and Tosun Mahmud Fitil listen during testimony in Calhoun County District Court Friday. The two are each charged with trespassing during a protest of the Dakota Access Pipeline last October.

ROCKWELL CITY — Two people arrested for protesting the installation of an oil pipeline in Calhoun County testified Friday that they believe they were both justified and had permission of the landowner during the protest.

Emma Schmitt, 23, of Rockwell City, and Tosun Mahmud Fitil, 36, of Omaha, Nebraska, are each charged with criminal trespass, a simple misdemeanor.

Both Schmitt and Fitil were protesting construction of the Dakota Access Pipeline on Oct. 29, 2016, on property where the pipeline was being constructed in Calhoun County.

The property the two are charged with trespassing on is east of Rockwell City near the corner of Calhoun County roads N65 and D35. It is owned by Shirley Gerjets, who opposed the pipeline company’s presence.

The two said they had permission from the landowner to be there. However, prosecutors are arguing that the pair had trespassed onto the easement which had been granted to the pipeline company through eminent domain.

—Messenger photo by Peter Kaspari Retired Calhoun County Sheriff Bill Davis points to a map of where the protest of the Dakota Access Pipeline was happening last October.

Both Schmitt and Fitil took the stand in their own defense Friday.

Fitil said he didn’t see any pipeline work being done when he was protesting the construction.

Under questioning from his attorney, Channing Dutton, of Lawyer, Lawyer, Dutton & Drake LLP, of Des Moines, Fitil said nobody ever told him to leave the property.

“If someone had told you to vacate the premises or you would be arrested, what would you have done?” Dutton asked.

“I don’t understand why I would be arrested,” Fitil said. “I had permission to be where I was that day. I had a signed affidavit.”

—Messenger photo by Peter Kaspari Ricki Osborn Stubbs, assistant Calhoun County attorney, delivers her opening statement to a Calhoun County jury in the trials of Emma Schmitt and Tosun Mahmud Fitil Friday. Schmitt and Fitil are on trial for trespassing during a protest of the Dakota Access Pipeline last October.

Both Fitil and Schmitt said they were protesting, in part, because of climate change. Both admitted to being passionate about the issue and had a flier with them that talked about the impact climate change is having on the environment.

Ricki Osborn Stubbs, assistant Calhoun County attorney, asked Fitil if he had planned on getting arrested that day. Fitil said he did not because he had permission to be there.

“But you understand that property was taken by eminent domain, correct?” Osborn Stubbs asked. “As she (Shirley Gerjets, landowner) had testified here today?”

“I believe that’s being contested,” Fitil replied.

“Sure, it’s on appeal,” Osborn Stubbs said. “But they went through the proper channels and it was taken by eminent domain.”

—Messenger photo by Peter Kaspari Channing Dutton, of Lawyer, Lawyer, Dutton & Drake LLP, of Des Moines, delivers his opening statement during the jury trial of Emma Schmitt and Tosun Mahmud Fitil Friday. The defendants are accused of trespassing during a protest of the Dakota Access Pipeline last October.

Schmitt testified that she spoke with then-Calhoun County Sheriff Bill Davis during the protest. She said it was a “very friendly encounter,” though she ended up being arrested for trespassing.

Schmitt said she actually lost her shoes during the protest after stepping in mud, and was holding them when she was arrested.

She added that another reason she was protesting was because she believed eminent domain is wrong.

“Your view was that it was a wrongful taking?” Dutton asked.

“Yes. Absolutely,” Schmitt said.

Dutton also asked Schmitt if there was anything to indicate that they were trespassing on pipeline property.

“There was nothing to say there was an easement there,” Schmitt said.

Davis, who retired as Calhoun County sheriff in March 2017, testified that there was a strong law enforcement presence at the protest because he believed there was the potential for violence. He said this was because construction on the pipeline was getting close to completion.

“My fear was that somebody might attach themselves to the equipment,” he said.

Davis added the protesters “went right onto the easement” after driving through Gerjets’ bean field.

He told the protesters they needed to back up into the bean field or they would be arrested.

Davis was wearing a body camera at the time and the entire encounter between him and the protesters was recorded.

Jurors saw the footage, which included the arrest of Schmitt and Heather Pearson, another protester who was convicted of trespassing in July.

Davis told the jurors that his primary concern was safety, both for the protesters and for the pipeline workers.

He added that, other than the arrests, no other incidents happened, and he said the protesters were very civil and did not resist arrest at all.

The defense rested its case at about 3:55 p.m. Friday.

Calhoun County Magistrate Judge Andrew Smith, who is presiding over the trial, told the jurors that rather than rush through closing arguments and jury instructions, he was going to send them home for the weekend.

Smith added the five-woman, one-man jury will hear the remainder of the case Thursday starting at 1 p.m.

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