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Dakota Access Pipeline protester subpoenaed to federal grand jury, resists testifying

Vivian Billy, left, was outside the Federal Building in downtown Bismarck on Wednesday, Jan. 4, 2016, handing out resist grand jury pamphlets while helping hold a banner with other protesters against the Dakota Access Pipeline. Photo by Tom Stromme / Bismarck Tribune1 / 2
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BISMARCK —  A federal grand jury session has been opened in Bismarck for Sophia Wilansky, the 21-year-old New York woman who nearly lost her arm during a November pipeline protest, according to court documents obtained by the Tribune.

At least one Dakota Access Pipeline protester has been subpoenaed to testify — though he is resisting the order on the grounds they represent an attempt to intimidate protesters and obtain information without a warrant.

Steve Martinez, 42, of Colorado, was ordered to testify before the federal grand jury Wednesday, Jan. 4, according to his Seattle-based attorney, Ralph Hurvitz. The subpoena required him to answer questions and provide physical evidence, including photos and SD memory cards.

Last Friday, Martinez filed a motion in the U.S. District Court of North Dakota to quash the subpoena. The motion was denied Wednesday. While Martinez did not testify, he is required to appear Feb. 1 on a new subpoena, according to Hurvitz. He will not need to provide physical evidence, because the prosecutor voluntarily gave up that requirement.

In denying the motion Wednesday, U.S. District Judge Daniel Hovland sided with the federal government, who argued Martinez should have to testify because he transported Wilansky from the protest to Prairie Knights Casino and called 911 for an ambulance.

"The government has made a showing that the grand jury is investigating a potential violation of federal law as it relates to an injury suffered by a pipeline protester following an explosion that occurred during one of the demonstrations and that Martinez may have information as a witness," Hovland wrote in his order denying the motion.

Assistant U.S. Attorney David Hagler wrote in his pleading that the severity of the injury led law enforcement to believe it was caused by an explosion. After the protest, police found three one-pound propane canisters and large jars, all of which were allegedly used as improvised explosives, illegal under federal law, according to the pleading.

The woman's father, Wayne Wilansky, has blamed the injury on an alleged concussion grenade thrown by police. Police said they had no such weapons.

Jackson Lofgren, president of the North Dakota Association of Criminal Defense Lawyers, said it's uncommon to see this type of motion, because the prosecutors rarely call non-law enforcement witnesses to a grand jury.

"It's so rare that someone who isn't a cop testifies at these things," Lofgren said. "It makes me think this person has something they don't have in their possession."

Wilansky's arm was severely injured during a standoff between protesters and police during the night of Nov. 20-21 at Backwater Bridge in Morton County. The incident began when protesters attempted to remove burned-out vehicles, from a previous clash with police, from the closed bridge. As the situation escalated, law enforcement used water hoses, tear gas and rubber bullets to disperse the protesters, who allegedly threw rocks, logs and Molotov cocktails.

The scope of the grand jury’s inquiry and who else has been called is unknown.

U.S. Attorney Chris Meyers said he could not comment on the grand jury, as it is "secret by statute and rule."

Hurvitz said he was not sure yet whether Martinez would answer questions at the February proceeding.

Prior to his hearing Wednesday, Martinez gave a statement outside the courthouse — the same one he planned to give if questioned before the grand jury — that he would not speak.

"I will in no way condone or cooperate with this attempt to repress this movement here at Standing Rock," said Martinez, adding he'd be willing to go to jail if held in contempt for not answering questions. “My own freedom is a small price to pay."

About 40 pipeline protesters and a handful of pro-law enforcement protesters demonstrated Wednesday afternoon in front of the federal courthouse in Bismarck in subzero temperatures. The building, including the post office, was shut down for about 2.5 hours.

“They’re trying to get one of us to speak against each other. That’s not going to happen,” said Vivian Billy, a protester from northern California.

Lofgren said the prosecutor could still issue a search warrant to obtain the physical evidence Martinez is no longer required to bring with him.