By MARIANNE NOVY

Since at least the early 1980s, anti-war activists, such as the Merton Center’s own Molly Rush and Sister Megan Rice, who visited Pittsburgh last summer, have tried to use the necessity defense- -when vandalizing nuclear warheads, they were damaging property to prevent a greater harm. Usually they did not get a chance to make this case during their trial.

More recently, environmental protesters have been making the same argument. Most of the time the courts have rejected it, but with a few exceptions.

In July 2017, Jessica Reznicek and Ruby Montoya, who then lived in the Des Moines Philip Berrigan Catholic Worker House, announced during a press conference that since the preceding November’s elections they had been burning construction and electrical equipment and cutting valves in order to delay construction of the Dakota Access Pipeline. They spoke of the influence of the Catholic Worker and Plowshares tradition of antiwar protest and cited the dangers to health and violations of religious principles they were combatting; the pipeline’s route transporting oil from North Dakota to Illinois trespasses on land sacred to Native Americans and is dangerously near water sources that leaks could pollute. They publicized the pipeline’s dangers through other talks, but after the FBI raided the Catholic Worker House and the Iowa senate legislated a 25-year penalty for sabotage, the two women dropped out of public sight and have not yet been charged.

On October 11, 2016, the month before the Des Moines team began their actions, protestors sometimes known as the Valve Turners shut off valves on four other pipelines, Keystone XL in North Dakota, Trans Mountain in Washington State, and Enbridge in Montana and Minnesota. These pipelines were to bring oil from the tar sands deposits in Alberta. Making petroleum products from this kind of oil releases more global-warming emissions than most other sources, so this concern added to the problems with potential water contamination and routing through sacred Native American lands. In Minnesota, Emily Johnston and Annette Klapstein made a safety call to Enbridge, explaining their actions and providing warning so Enbridge could shut down the pipeline remotely, which they did. Similar calls occurred at the other location.

All the Valve Turners were charged. Ken Ward, in Washington, was not allowed to use a necessity defense. His first trial resulted in a hung jury. At the second, he was convicted of burglary with one juror describing him as a hero. The judge sentenced him to two days in prison and 30 days of community service. Michael Foster, in North Dakota, was also not allowed to make a necessity defense. He was sentenced to three years in prison, two of them suspended and served on supervised probation. His colleague Sam Jessup was given a two-year suspended sentence. Leonard Higgins, in Montana, was convicted of felony criminal mischief and misdemeanor trespass and sentenced to $3755 restitution and three years in prison, deferred.

However, in Minnesota things went differently. Johnston was charged with felony damage to “critical public service facilities” plus other charges that might lead to decades in prison. Klapstein was charged with aiding and abetting. But Clearwater County district judge Robert Tiffany granted them a necessity defense. This defense had never previously been put before before a jury in a climate case. Their legal team lined up climate change science experts James Hansen, Bill McKibben, Anthony Ingraffea, and eight others to testify.

Jury questioning identified only a few potential jurors who cared about climate change, and at least one of them was cut by the prosecutor. Many had jobs dependent on the pipeline, or spouses with such jobs. However, the day the trial began, October 8, the Intergovernmental Panel on Climate Change issued its report saying that limiting carbon emissions soon is more urgent than expected. The legal team had plans to show how Clearwater County itself would be negatively impacted by global warming.

But this evidence was not presented. The judge acquitted the Valve Turners on all counts. The only physical evidence of damage the prosecutor could present was one “cut chain,” which the judge decided hardly meets the standard of “damage to critical infrastructure.”

An educational opportunity was lost. But a legal precedent was gained. The Minnesota Appeals Court support of Tiffany’s decision to allow the necessity defense means that it can be used in other jury cases, at least in Minnesota. And the case also restricted the meaning of “damage.” And the necessity defense had already been successfully used, early in 2018, in a non-jury trial before Judge Mary Ann Driscoll, when 14 activists, including former Pittsburgh resident Tim DeChristopher, disrupted construction of a high-pressure gas pipeline being built through the Boston suburb of West Roxbury.

Sources:

Amy Goodman, “Valve Turners on Trial: Judge Acquits three Climate Activists who Shut Down Tar Sands Pipelines, “ Democracy Now, 10.10.2018.

Dean Kuipers, “Pipeline Vandals are

Rewriting Climate Activism,” Wired,

11.09.2018,

Michelle Nijhuis, “The Valve Turners,”

New York Times Magazine, 2.18. 2018,

42-48.

Michael J. O’Loughlin, “Pipeline Protesters cite Catholic Worker movement

as inspiration,” America, 8.4.2017

Marianne Novy is a long-time member of the Merton Center and now a member of the new Pittsburgh branch of Pennsylvania Interfaith Power and LIght, an interfaith organization active against climate change.

(TMC newspaper VOL.48 No.10 December 2018. All rights reserved)

Since at least the early 1980s, anti-war activists, such as the Merton Center’s

own Molly Rush and Sister Megan Rice, who visited Pittsburgh last summer,

have tried to use the necessity defense- -when vandalizing nuclear warheads,

they were damaging property to prevent a greater harm. Usually they did not get

a chance to make this case during their trial.

More recently, environmental protesters have been making the same argument. Most of the time the courts have rejected it, but with a few exceptions.

In July 2017, Jessica Reznicek and Ruby Montoya, who then lived in the Des Moines Philip Berrigan Catholic Worker House, announced during a press conference that since the preceding November’s elections they had been burning construction and electrical equipment and cutting valves in order to delay construction of the Dakota Access Pipeline. They spoke of the influence of the Catholic Worker and Plowshares tradition of antiwar protest and cited the dangers to health and violations of religious principles they were combatting; the pipeline’s route transporting oil from North Dakota to Illinois trespasses on land sacred to Native Americans and is dangerously near water sources that leaks could pollute. They publicized the pipeline’s dangers through other talks, but after

the FBI raided the Catholic Worker House and the Iowa senate legislated a 25-year penalty for sabotage, the two women dropped out of public sight and have not yet been charged.

On October 11, 2016, the month before the Des Moines team began their actions, protestors sometimes known as the Valve Turners shut off valves on four other pipelines, Keystone XL in North Dakota, Trans Mountain in Washington State, and Enbridge in Montana and Minnesota. These pipelines were to bring oil from the tar sands deposits in Alberta. Making petroleum products from this kind of oil releases more global-warming emissions than most other sources, so this concern added to the problems with potential water contamination and routing through sacred Native American lands. In Minnesota, Emily Johnston and Annette Klapstein made a safety call to Enbridge, explaining their actions and providing warning so Enbridge could shut down the pipeline remotely, which they did. Similar calls occurred at the other location.

All the Valve Turners were charged. Ken Ward, in Washington, was not allowed to use a necessity defense. His first trial resulted in a hung jury. At the second, he was convicted of burglary with one juror describing him as a hero. The judge sentenced him to two days in prison and 30 days of community service. Michael Foster, in North Dakota, was also not allowed to make a necessity defense. He was sentenced to three years in prison, two of them suspended and served on supervised probation. His colleague Sam Jessup was given a two-year suspended sentence. Leonard Higgins, in Montana, was convicted of felony criminal mischief and misdemeanor trespass and sentenced to $3755 restitution and three years in prison, deferred.

However, in Minnesota things went differently. Johnston was charged with

felony damage to “critical public service facilities” plus other charges that might

lead to decades in prison. Klapstein was charged with aiding and abetting.

But Clearwater County district judge Robert Tiffany granted them a necessity

defense. This defense had never previously been put before before a jury in a climate case. Their legal team lined up climate change science experts James Hansen, Bill McKibben, Anthony Ingraffea, and eight others to testify.

Jury questioning identified only a few potential jurors who cared about

climate change, and at least one of them was cut by the prosecutor. Many had jobs dependent on the pipeline, or spouses with such jobs. However, the day the trial began, October 8, the Intergovernmental Panel on Climate Change issued its report saying that limiting carbon emissions soon is more urgent than expected. The legal team had plans to show how Clearwater County itself would be negatively impacted by global warming.

But this evidence was not presented. The judge acquitted the Valve Turners on all counts. The only physical evidence of damage the prosecutor could present was one “cut chain,” which the judge decided hardly meets the standard of “damage to critical infrastructure.”

An educational opportunity was lost. But a legal precedent was gained. The Minnesota Appeals Court support of Tiffany’s decision to allow the necessity defense means that it can be used in other jury cases, at least in Minnesota. And the case also restricted the meaning of “damage.” And the necessity defense had already been successfully used, early in 2018, in a non-jury trial before Judge Mary Ann Driscoll, when 14 activists, including former Pittsburgh resident Tim DeChristopher, disrupted construction of a high-pressure gas pipeline being built through the Boston suburb of West Roxbury.

Sources:

Amy Goodman, “Valve Turners on Trial: Judge Acquits three Climate Activists who Shut Down Tar Sands Pipelines, “ Democracy Now, 10.10.2018.

Dean Kuipers, “Pipeline Vandals are

Rewriting Climate Activism,” Wired,

11.09.2018,

Michelle Nijhuis, “The Valve Turners,”

New York Times Magazine, 2.18. 2018,

42-48.

Michael J. O’Loughlin, “Pipeline Protesters cite Catholic Worker movement

as inspiration,” America, 8.4.2017

Marianne Novy is a long-time member of the Merton Center and now a

member of the new Pittsburgh branch of Pennsylvania Interfaith Power

and LIght, an interfaith organization active against climate change.