by Jason Flores-Williams
Denver, CO–In an unprecedented and direct assault on First Amendment rights, Extraction Oil & Gas, the fracking corporation responsible for the massive Bella Wells extraction site–the largest fracking site next to a public school in the United States–filed suit on March 23, 2018 against Cullen Lobe in his personal capacity. Cullen Lobe is a Colorado State University student who participated in non-violent civil disobedience against Extraction Oil and Gas on March 9, 2018.
This appears to be a first, where energy corporations are now using their massive resource advantage to sue citizens in order to repress organized dissent. The lawsuit will enable the corporation–setting precedent for all corporations–to use the discovery process to retrieve information about any person who has shown interest in challenging environmental exploitation, then use that information to sue those persons in their individual capacities. (The suit is styled John Does 1-20, which is legalese to use discovery to see who attended meetings, signed attendance lists, helped plan, made coffee, painted a sign, in order to add those people to the law suit.) If this corporation prevails in this action, the mere act of attending a meeting could expose a person to civil liability.
When the government prosecutes an individual for crimes associated with civil disobedience, the government, as a state actor, is somewhat bound by the dictates of First Amendment Rights and Due Process. What makes this new corporate strategy especially disturbing is that corporations (which, as we know, are persons) are not bound by the same First Amendment and constitutional restrictions as the government. The scope of civil litigation is much greater than mere criminal prosecution, so successful corporations could now use their almost infinite resources to go after the very associations that give rise to community organization and resistance.
Here is the text of the complaint:
DISTRICT COURT, WELD COUNTY, COLORADO 901 9th Avenue Greeley, CO 80631 (970) 475-2400
PLAINTIFFS: Extraction Oil & Gas, Inc. and 7N, LLC,
v.
DEFENDANTS: Cullen Lobe; John and Jane Does 1-20. Attorneys for Extraction Oil & Gas, Inc. and 7N, LLC: Ghislaine G. Torres Bruner, #47619 Philip W. Bledsoe, #33606 Bennett L. Cohen, #26511 POLSINELLI PC 1401 Lawrence Street, Suite 2300 Denver, CO 80202 (303) 572-9300 Telephone (303) 572-7883 Facsimile gbruner@polsinelli.com pbledsoe@polsinelli.com bcohen@polsinelli.com
Case No. 2018CV____
Division/Courtroom:
COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF
Plaintiffs Extraction Oil & Gas, Inc. (“Extraction”) and 7N, LLC (“7N”) (collectively
“Plaintiffs”), through undersigned counsel, Polsinelli PC, complains and seeks injunctive
relief against Defendants, as follows.
I. PARTIES AND JURISDICTION
1. Plaintiff Extraction Oil & Gas, Inc. is a Delaware Corporation authorized to
conduct business in the State of Colorado.
2. Plaintiff 7N, LLC is a Delaware limited liability corporation authorized to
conduct business in the state of Colorado. 7N is a wholly owned subsidiary of Extraction.
DATE FILED: March 9, 2018 3:49 PM FILING ID: 1A9126D86E201 CASE NUMBER: 2018CV30214
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3. Plaintiffs’ property (the “Property”) is located in the NW¼ of Section 15,
Township 5 North, Range 65 West, of 6th P.M., Weld County, Colorado.
4. Defendants Cullen Lobe and John and Jane Does 1-20, are, on information
and belief, residents of Colorado who are subject to the jurisdiction of this Court because
they reside in Colorado; or if they are not residents of Colorado are subject to the jurisdiction
of this Court because they have conducted business in and/or committing tortious acts in
Colorado. C.R.S. § 13-1-124.
5. Venue is proper in this Court under C.R.C.P. 98(a) and (c) because this action
seeks remedies for trespass to property located in Weld County.
II. FACTS
6. On March 8, 2018, Defendants, who are presumed to be members of an
unincorporated organization styling itself the Suede Light Brigade, entered upon real
property in Weld County, Colorado, where Extraction is developing oil and gas operations on
the Vetting 15-H Well Pad and facilities.
7. Plaintiffs are developing oil and gas resources on this Property pursuant to
Colorado law, law fully with approved local and state permits, among other law, and
including (but not limited to) the Weld County government and the Colorado Oil and Gas
Conservation Commission.
8. Defendants entered upon Plaintiffs’ Property for the apparent purpose of
staging a protest and disrupting Plaintiffs’ operations.
9. Some of the Defendants chained themselves to equipment on the Property
being used for Extraction’s operations.
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10. Defendants were met by officers of the Weld County Sheriff’s Department
and were asked to leave Plaintiffs’ Property.
11. Some Defendants were arrested and charged with criminal trespass and
criminal tampering.
12. Defendants took pictures and recorded video of their trespass which they
posted to a Facebook page, www.facebook.com/suedelightbrigade/ on March 8, 2018.
13. Defendants’ Facebook postings include pictures and videos showing one or
more of them chained to a bulldozer on Plaintiffs’ Property.
14. Defendants’ Facebook postings include videos showing them encountering
officers of the Weld County Sheriffs’ Department who directed Defendants to leave
Plaintiffs’ Property.
15. Captions to these Facebook pictures and videos state that Defendants received
citations from the Weld County “sherries” [sic Sheriff’s] Department for first degree criminal
tampering and second degree criminal trespass.
16. Defendants also maintain a GoFundMe page at www.gofundme.com/58t3148.
17. A picture on this GoFundMe page shows a young man chained to a Caterpillar
bulldozer, with the caption explaining that Defendants staged a demonstration to stop
Extraction’s operations, and that “Cullen was arrested and taken to the Greeley County Jail
and a number of others on site we’re [sic were] given citations for tampering and for
trespassing.”
18. The Suede Light Brigade maintains a website at http://suedelightbrigade.com/,
which contains further information regarding its activities opposing oil and gas development
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in Colorado.
COUNT 1 TRESPASS
19. Plaintiffs incorporate all prior paragraphs.
20. Plaintiffs are the owners of the Property.
21. Defendants intentionally entered upon Plaintiffs’ Property, without permission
or consent.
22. Defendants entered Plaintiffs’ Property for the admitted purpose of disrupting
Plaintiffs’ operations.
23. Defendants’ own social media postings, including the above Facebook and
GoFundMe pages, document and thereby admit Defendants’ intentional efforts to disrupt
Plaintiffs’ operations via unlawful trespass.
24. Defendants’ own social media postings, including the above Facebook and
GoFundMe pages, document and thereby admit that Defendants’ actions provided Weld
County law enforcement with probable cause to arrest them for criminal trespass and
criminal tampering.
25. Plaintiffs will establish their damages for this trespass at trial, and are entitled
to at least nominal damages.
COUNT 2 INTENTIONAL INTERFERENCE WITH CONTRACT
26. Plaintiffs incorporate all prior paragraphs.
27. Extraction has oil and gas leases and plans to develop mineral interests from
the Property, among other things.
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28. As evidenced by their own social media postings, Defendants knew that
Extraction is operating on the Property pursuant to oil and gas leases, local and state permits,
and other law.
29. As evidenced by their own social media postings (including the pictures and
videos showing some Defendants chaining themselves to a bulldozer), Defendants, by their
conduct, are interfering with or are attempting to interfere with Extraction’s performance of
its oil and gas contracts and interests.
30. Defendants’ conduct was improper.
31. Plaintiffs will establish their damages at trial, and are entitled to at least
nominal damages.
REQUEST FOR INJUNCTIVE RELIEF
32. Plaintiffs incorporate all prior paragraphs.
33. Plaintiffs are entitled to preliminary and permanent injunctive relief.
34. A permanent injunction barring Defendants from trespassing upon the
Property, or any property owned by or in possession of Extraction, 7N, or their affiliates,
should be included in the Court’s judgment against Defendants.
35. A permanent injunction is warranted because Defendants, through their own
admissions in their social media postings, have confirmed their intent to continue trespassing
upon Plaintiffs’ Property for purposes of interfering with Plaintiffs’ operations, and
confirmed their willingness and capacity to engage in such tortious conduct.
36. Plaintiffs are also entitled to preliminary injunctive relief, including as
warranted a Temporary Restraining Order (TRO) and/or preliminary injunction pursuant to
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C.R.C.P. 65.
37. A court should enter a TRO or preliminary injunction upon a showing of: (1) a
reasonable probability of success on the merits; (2) a danger of real, immediate, and
irreparable injury which may be prevented by injunctive relief; (3) that there is no plain,
speedy, and adequate remedy at law; (4) that the granting of a preliminary injunction will not
disserve the public interest; (5) that the balance of equities favors the injunction; and (6) that
the injunction will preserve the status quo pending a trial on the merits. C.R.C.P. 65; Rathke
v. MacFarlane, 648 P.2d 648, 653–54 (Colo. 1982); Briscoe v. Sebelius, 927 F. Supp. 2d
1109, 1114 (D.Colo. 2013) (noting that the requirements for issuing a temporary restraining
order mirror the requirements for issuing a preliminary injunction).
38. In this case, Plaintiffs satisfy the Rathke factors based entirely on Defendants’
own admissions through their social media postings, in which Defendants have (1) explained
their mission of opposing Plaintiffs’ operations by committing tortious and criminal conduct;
and (2) documented themselves committing such tortious and criminal conduct.
39. Reasonable probability of success on the merits. Defendants have admitted
to committing the civil torts of trespass and intentional interference with contract. These
admissions provide Plaintiffs with more than a reasonable probability of obtaining a
judgment against Defendants for these torts. Even if Defendants’ conduct has not (yet)
caused Plaintiffs substantial damages, Plaintiffs will be entitled to recover nominal damages.
Accordingly, Plaintiffs’ likelihood of success on the merits more than reasonably probable.
40. Danger of real, immediate, and irreparable injury which may be
prevented by injunctive relief. The Weld County Sheriff’s Department promptly removed
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Defendants, and arrested some of them as warranted, for their tortious and criminal conduct
on March 8, 2018, as detailed above. If Plaintiffs could be assured that the Weld County
Sheriff’s Department will always be able to immediately respond and achieve such results in
the event of similar conduct in the future, then injunctive relief might arguably not be
necessary. However, Defendants have demonstrated by their conduct that they are not
deterred by the prospect of criminal charges or arrest. Defendants have also indicated their
intent to continue trespassing Plaintiffs’ Property and interfering with its operations.
Defendants’ conduct includes acts which may cause Plaintiffs real, immediate and irreparable
injury. For example, chaining oneself to a bulldozer may result not only in interference with
Plaintiffs’ operations, but exposes both the protester and Plaintiffs’ personnel to very real risk
of severe physical injury. Only by issuing a TRO or preliminary injunction prohibiting
Defendants from engaging in such acts can the Court obtain the ability to restrain such
dangerous conduct.
41. No plain, speedy, and adequate remedy at law. Given Defendants’
admitted intent to trespass and interfere with Plaintiffs’ operations, and their demonstrated
willingness and capacity to do so, Plaintiffs do not have the luxury of waiting until they
obtain a final judgment against Defendants for permanent injunctive relief. Plaintiffs are
entitled to a TRO and/or preliminary injunction to stop Defendants’ conduct now, in order to
maintain their lawful operations and prevent physical injury to Defendants and others.
42. Public interest. Plaintiffs appreciate that Defendants style themselves as
protesters engaging in civil disobedience to oppose oil and gas development projects, and
Defendants will argue that the public interest is served by shutting down the project on
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Plaintiffs’ Property. Plaintiffs need not and will not engage Defendants in this debate at this
preliminary stage. Plaintiffs do not seek any type of injunctive relief that impacts
Defendants’ speech – only relief to prevent Defendants’ physical trespassing and interference
with Plaintiffs’ operations. Accordingly, at this stage, it is enough to note that Extraction is
operating in full compliance with Colorado law, and pursuant to permits issued by state and
local officials including (but not limited to) the Weld County government and the Colorado
Oil and Gas Conservation Commission. As a result, the public policy of Colorado that is
ascertainable at this preliminary stage squarely and exclusivelysupports Plaintiffs.
43. Balance of equities. Balancing equities here requires the Court to balance
Plaintiffs’ interest in unimpeded operations with Defendants’ political and environmental
activism. Critically, Defendants have ample avenues for engaging in their political and
environmental activism, as evidenced by their website and the many activities it records and
announces, their Facebook page, their GoFundMe page, etc. Plaintiffs do not seek to enjoin
Defendants’ speech. But Defendants have deliberately broken the law to further their point.
Balancing equities does not require a court to weigh the value of illegal or criminal conduct
because Defendants consider such criminal conduct valuable in the pursuit of their mission.
The equites thus favor Plaintiffs.
44. Preservation of the status quo. For purposes of an injunction, the status quo
is “the last uncontested status between the parties which preceded the controversy.”
Dominion Video Satellite Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir.
2001). Defendants obviously have no legal right to trespass upon Plaintiffs’ Property, and
Plaintiffs contest their trespass. The status quo that is properly preserved by a preliminary
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injunction is the one where Defendants are not trespassing on Plaintiffs’ Property and
chained to Plaintiffs’ heavy machinery.
45. Bond. Because Defendants have no right to commit physical trespass or
interference, they will not and indeed cannot be damaged by a preliminary injunction
prohibiting them from committing these illegal acts. A bond is therefore unnecessary. To
the extent the Court views some bond as required by Rule 65, Plaintiffs are willing to post a
nominal bond.
PRAYER FOR RELIEF
WHEREFORE, Extraction and 7N request:
1) that the Court award Plaintiffs judgment against Defendants for all available
damages, fees and costs, including at least nominal damages; and
2) that the Court enter preliminary and permanent injunctive relief against
Defendants and in favor of Plaintiffs to enjoin Defendants’ trespass and
interference with Plaintiffs’ operations; and
3) such further relief as the Court deems proper.
DATED: March 9, 2018. Respectfully submitted,
By: s/Ghislaine G. Torres Bruner Ghislaine G. Torres Bruner
Attorneys for Extraction Oil & Gas, Inc. and 7N, LLC
Plaintiff’s address: Extraction Oil & Gas, Inc. and 7N, LLC 370 17th St #5300 Denver, CO 80202
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