Felonies Ho! Pipeline Pirates of ARGHkansas have Come for Ye Rights.

HB 1321 could mean six years in prison and $10,000 fines, just for stepping onto fossil fuel property.

UPDATE, APRIL 16, 2021: HB 1321 became law on April 14, Act 712.

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UPDATE, FEB 20, 2021: HuffPost details several similar bills currently active in Minnesota, Montana, Kansas, and Arkansas, citing the post below. More info on all of these bills is available on Greenpeace USA’s PolluterWatch website, which (full disclosure) I recently was contracted part-time to update.

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Last week, a new front opened up in the oil industry’s retaliation against opponents of fossil fuel infrastructure projects.

With HB 1321, Arkansas state Representative Jimmy Gazaway is attempting to rewrite state law to criminalize *nonviolent* trespass near fossil fuel pipelines, power plants, mines, and other industrial infrastructure deemed “critical.”

Among other strange considerations that could impact treasure hunters…I’ll get to that later, after we discuss the worst of the legislation.

The Purpose of HB 1321 is to Criminalize Nonviolent Trespass.

This tactic has been codified in 14 states and counting, at the behest of companies like Marathon Petroleum, Koch Industries, ExxonMobil, Enbridge, Energy Transfer, and TransCanada. 

As with every state in the nation, trespassing is already illegal in Arkansas.

More serious crimes involving violence or destruction are also illegal. Everywhere.

Oil lobbyists really like to scapegoat climate advocates for such acts. This narrative has cultivated a political will to punish those who take a peaceful stand against fossil fuel development in the era of the global climate crisis.

Here’s what the introduced version of HB 1321 says about trespassing on pipeline construction sites, mines, power plants, or other industrial properties:

Class D felony convictions can result in a maximum prison sentence of six years, and maximum fines of $10,000. 

Other Class D felony offenses in Arkansas include: 

  • Aggravated assault

  • Battery (II)

  • Sexual indecency with a child

  • Video voyeurism

  • Arson (resulting in $500 - $2,500 in damages)

  • Stealing things worth $1,000 - $5,000

  • Stealing guns worth less than $2,500

If HB 1321 becomes law, stepping onto certain industrial properties without permission joins the company of the offenses listed above.

This bill then proposes upping the stakes for a variety of situations, including truly negligible damage of property.

When I saw negligible, I mean anything above zero cents. 

This section about “criminal mischief” says that any amount of property damage could trigger Class B felonies, if it happens on “critical infrastructure” property:

In Arkansas, Class B felonies are typically reserved for really serious crimes that kill, injure or traumatize people: 

  • Negligent homicide

  • Battery (I)

  • Second degree sexual assault

  • Permitting sexual abuse of a child (see Justicia)

  • Kidnapping, then voluntarily releasing the captive

  • Sexual extortion

One might hope that any reasonable prosecutor, judge, or jury would only use such a charge to go after people who compromise public safety in a very serious way.

But do you want to be the one to test that theory?

And that’s the real point. These bills are less about convictions, and more about deterrence, as groups like the National Lawyers Guild and American Civil Liberties Union have made clear.

The companies peddling these anti-protest laws don’t care if the charges stick. They don’t really care if the laws are challenged and overturned. They just want people to fear the consequences of standing up to fossil fuel companies.

And that is why oil lobbyists are enlisting Class D politicians to impose Class D felonies on anyone who dares obstruct fossil fuel development.

There is no information available about which companies in Arkansas support this bill. Some of the usual suspects are registered to lobby in Arkansas, in 2021, according to the AR Secretary of State’s financial disclosure database:

Until other documentation becomes available, I cannot attribute the lobbying of any of these companies to HB 1321, specifically.

UPDATE, 4/19/2021: In a House Judiciary committee hearing on March 4, and a Senate Judiciary committee hearing on March 31, Rep. Gazaway named some of the bills supporters* :

  • American Council for Engineering Companies

  • American Fuel & Petrochemical Manufacturers (AFPM). See AFPM membership info.

  • American Petroleum Institute (API). See API membership info.

  • Arkansas Electric Cooperatives. (NRECA affiliate)

  • Arkansas Independent Producers of Royalty Owners (AIPRO). AIPRO members include Enbridge, ExxonMobil subsidiary XTO Energy, Williams Companies, and Diamond Pipeline, a joint venture of Valero and Plains All American)

  • Arkansas Poultry Association

  • Arkansas Prosecuting Attorneys Association

  • Arkansas Realtors Association

  • Society of Professional Engineers

(Watch at 2:23:48 for the 3/4/21 House Judiciary hearing, and at 10:08:26 for the 3/31/21 Senate Judiciary hearing, after navigating to the correct date and committee)

Okay, deep breath. This is where the Pirate jokes come in.

I know that’s the only reason you’re reading this shit.

Lingering Misdemeanors

It seems that Rep. Gazaway either didn’t look too carefully at the Arkansas law that this bill would amend, or, the only person he hates more than a pipeline protestor is…a pipeline treasure hunter…! Yarrrgh!!

Or, mushroom foragers, nomadic farmers, or anything else who might be caught using “harvesting devices” during an act of trespassing.

These acts can lead to Class A misdemeanor charges, on any private property in Arkansas. This presumably includes fossil fuel infrastructure sites, but it is not limited to such properties.

Misdemeanors are less serious than felonies, but Class A misdemeanors are still spend-a-year-in-jail serious for those who are caught on private property with “devices” that are used for “harvesting” or “unearthing.” 

Does that include my mushroom foraging basket?

How about the modern-day pirate’s metal detector and shovel - even if a marooned buccaneer doesn’t dig for the long-lost booty?

Possessing bolt-cutters (class A misdemeanor) and messing with fences (class B misdemeanor) are mentioned in this section as well:

This language is from existing law, and the new bill does not propose to change it.

It does not seem intentionally designed to compound the consequences for those who trespass on fossil fuel infrastructure sites.

I can’t help but wonder if a vindictive prosecutor might pair the felony and misdemeanor charges against would-be fossil fuel protestors. That could increase the odds that anyone caught trespassing near industrial properties, with such tools on hand, even if they are not used, could wind up in jail or prison.

I’m not a lawyer.

If one tells me any better, I will update this post.

Here’s what lawyers at the International Center for Not-for-Profit Law have to say about this bill, over at the ICNL U.S. Protest Law Tracker:

[HB 1321] “Would introduce harsh new penalties for protestors around gas and oil pipelines and other ‘critical infrastructure.’ The bill broadly defines ‘critical infrastructure’ to include a range of posted or fenced-off areas associated with natural gas and crude oil production, storage, and distribution, including above and belowground pipelines as well as pipeline construction sites and equipment. Under the bill, purposely entering or remaining on any ‘critical infrastructure’ is a Class D felony, punishable by up to 6 years in prison and a $10,000 fine. Separately, the bill provides that trespassing on property outside of a city or town, regardless of whether it is posted, is a Class D felony if the property is ‘critical infrastructure.’ In nearly all other cases, trespass is a misdemeanor or minor violation. The bill also creates a felony offense for anyone who purposely and unlawfully ‘causes damage’ to critical infrastructure. Any amount of ‘damage’—which the law does not define—is a Class B felony under the law, punishable by 20 years in prison and a $15,000 fine. If the bill were enacted, protesters who hold a peaceful sit-in at a pipeline construction site and paint protest slogans on construction material, for instance, could face lengthy prison sentences.”