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Photojournalist says she was wrongfully arrested during Dakota Access Pipeline protests

Tonita Cervantes is suing Morton County, the city of Mandan and several law enforcement officers.

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At least three fires were burning Wednesday, Feb. 22, 2017, at the Dakota Access Pipeline camp near Cannon Ball, North Dakota, in advance of the 2 p.m. deadline to clear the camp.
Mike McCleary / Bismarck Tribune
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MANDAN, N.D. — An Oregon photojournalist has claimed several enforcement officers from central North Dakota wrongfully arrested her during the Dakota Access Pipeline protests in 2017.

Tonita Cervantes of Portland, Oregon, filed the civil rights lawsuit Monday, Dec. 19, in North Dakota federal court. The social documentary journalist claimed Morton County Sheriff Kyle Kirchmeier, his deputy and a Mandan police officer violated her right to document the pipeline demonstrations south of Bismarck.

“(Cervantes) was attacked, arrested, imprisoned and prosecuted because she was a photojournalist engaged in Constitutionally protected activity and to retaliate against her for doing so,” a civil complaint alleged.

The lawsuit details Cervantes’ arrest on Feb. 22, 2017, near the Backwater Bridge on North Dakota Highway 1806.

Demonstrators began to gather months earlier in south-central North Dakota to oppose the Dakota Access Pipeline. Also called DAPL, the roughly 1,170-mile line has the ability to carry 750,000 barrels of oil per day from northwest North Dakota to Illinois, giving Bakken oil access to refineries in the Gulf Coast.

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The $3.78 million project was hailed as a better way to transport oil over rail, and proponents praised it as an economic booster for the state. But the Standing Rock Sioux Tribe and others feared the pipeline put water supply for Native Americans at risk since it crossed the Missouri River less than a mile north of the Standing Rock Indian Reservation. Should it leak, oil would pollute the river that flows through the reservation.

The protests that started in mid-2016 attracted thousands to the state who opposed the pipeline. It also prompted a large response from law enforcement from across the state after a clash between protesters and security personnel with dogs.

The demonstrations produced tense and violent moments. In November 2016, the Backwater Bridge was the site of a riot, resulting in injuries and multiple arrests.

Three months later, Cervantes was filming law enforcement and their interactions with demonstrators, according to the complaint. She was at the west edge of the highway with other journalists and protesters, the complaint said. She was wearing a fluorescent green vest and bright yellow poncho, both of which said press, according to the complaint.

The highway is public. While the road was closed to vehicles during the protests, it was open to pedestrians, according to the complaint. Police announced they would begin arresting people in violation of Gov. Doug Burgum’s eviction order for camps on land controlled by the U.S. Army Corps of Engineers, the complaint said.

The day of Cervantes' arrest was the deadline given for protesters to leave the camps. Burgum's order issued in November 2016 didn’t apply to Highway 1806, according to court documents.

Cervantes told law enforcement it was unfair to arrest members of the press who were covering the event, the complaint said. That’s when officers took her into custody, despite her saying she was a photojournalist, according to the complaint.

Cervantes’ attorneys claimed zip ties used to restrain her were “extremely tight and painful” and had to be replaced three times. She was charged with obstruction of a government function, which was later dismissed for lack of probable cause, the complaint said.

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After her arrest, she was taken to the Morton County Jail and “placed in an enclosure resembling a dog cage,” the complaint alleged. Jail staff refused to tell her where she was being taken when she was transported to the Lake Region Law Enforcement Center, the complaint said.

“After arriving at Devils Lake (North Dakota) Correctional Facility, she was told she was ‘uncooperative' for asking to make her one phone call and told ‘criminals don’t have rights,’” the complaint said. “She was given for sleeping on the floor only a thin blanket and a hard plastic multi-purpose object used to carry dead bodies out when someone dies on the cellblock.”

The Lake Region Law Enforcement Center is not named as a defendant in the civil suit.

Cervantes’ attorneys said she didn’t violate the law and was compliant with law enforcement, but the defendants’ actions were “objectively unreasonable.”

Her photography equipment wasn’t released to her until March 1, 2017, after the National Press Photographers Association demanded the Morton County state’s attorney to release it, the complaint said.

Cervantes was one of at least 15 journalists arrested and charged in connection to the DAPL protests, her attorneys said in court documents.

Kirchmeier, Mandan Police Chief Jason Ziegler and Cervantes' attorney, Melinda Power, did not reply to phone messages left by The Forum.

April Baumgarten joined The Forum in February 2019 as an investigative reporter. She grew up on a ranch 10 miles southeast of Belfield, N.D., where her family raises Hereford cattle. She double majored in communications and history/political science at the University of Jamestown, N.D.
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