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Activists in Pipeline Protest Embrace Unique Defense

The group is going to trial for breaking into private property and turning off valves on five pipelines.

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BISMARCK, N.D. (AP) — An environmental activist who targeted an oil pipeline in North Dakota a year ago as part of a broader four-state effort to draw attention to climate change is due to stand trial along with the man who filmed his deeds.

Michael Foster's trial starts Monday in Pembina County. He is among the first in that group of activists to go to trial, following a man in Washington state who was convicted of a burglary charge and served just two days in jail. Here's a look at Foster's case, an update on others and an examination of the defense Foster and other activists hope to use: that their lawbreaking was in the public's interest.

On Oct. 11, 2016, 11 activists with the group Climate Direct Action were arrested when they tried to shut down pipelines in North Dakota, Minnesota, Montana and Washington state. They did it to protest fossil fuels and as a show of support for people demonstrating against the Dakota Access pipeline, which was still under construction.

The activists broke into private property and turned shutoff valves on five pipelines operated by Enbridge, Spectra Energy, Kinder Morgan and TransCanada that move oil from Canada to the U.S. The protesters warned pipeline company officials about their intent ahead of time. Company officials said pipelines at four of the sites were temporarily shut down before the protesters could reach the valves. The pipeline in Washington wasn't operating at the time of the attempt.

The first activist to stand trial, Ken Ward, was convicted of burglary in Washington in June. Jurors deadlocked on a sabotage count. Ward was sentenced to the two days he had already spent behind bars, plus community supervision and community service. Prosecutors earlier dropped charges against filmmakers Lindsey Grayzel and Carl Davis, who recorded Ward's pipeline protest.

In North Dakota, Foster faces various felony and misdemeanor charges, including criminal mischief, conspiracy, reckless endangerment and criminal trespass. Samuel Jessup, who filmed Foster's protest, will also stand trial.

Criminal cases involving similar charges are pending against activists Leonard Higgins and Reed Ingalls in Montana, and against Emily Johnston, Annette Klapstein, Steve Liptay and Ben Joldersma in Minnesota.

How Might the Case Play Out?

There's no question about what Foster did. The mental health counselor from Seattle surrendered peacefully to authorities on the day of his protest and doesn't deny using a bolt cutter to get through a chain link fence so he could turn the pipeline's shutoff valve. He said he did it to make a more forceful statement.

"Not just another parade or a hearing or a petition," he said. Still, Foster has pleaded not guilty, as has Jessup, of Burlington, Vermont. If convicted, Foster could face more than 20 years in prison and could be fined more than $40,000. Jessup would face a maximum sentence of about half that.

Foster is hoping to use a legal tactic known as the necessity defense — justifying a crime by arguing that it prevented a greater harm from happening. "I'm going into this to challenge the jury to use their conscience to consider my act of conscience," he said.

The necessity defense is popular among environmental activists. The Climate Defense Project even offers an educational guide on what it calls an area of the law that is "developing rapidly."

However, whether the defense is permitted by law varies from state to state, and in some states including North Dakota it's unclear whether there's a statutory basis, according to University of Mississippi law professor Michael Hoffheimer.

"It's not the most common defense, but it gets raised in high-profile controversial cases where political activists are seeking to challenge the law," he said. "Activists in these cases really want to have an opportunity in the legal system to show the crime they're charged with is prohibiting conduct that's not as bad as the harm they're trying to avoid."

Other suspects in the October pipeline shutdown effort also have turned to the necessity defense.

The judge overseeing Ward's trial wouldn't permit it, though he did allow Ward to tell jurors about what motivated his actions. Ward said after his conviction that "I'm leaving this trial heartened, knowing that we are bringing these arguments into the jury system."

A decision is pending on whether the necessity defense will be allowed in the Minnesota cases. In the Montana case, Judge Daniel Boucher denied the necessity defense, saying Higgins wanted to attract publicity and was trying to "place U.S. energy policy on trial." Assistant North Dakota Attorney General Jon Byers has asked state District Judge Laurie Fontaine not to allow the necessity defense in the Pembina County trial.

"Although the defendants may testify what was going through their mind at the time they took the actions they did, the court should prohibit any other presentation of a climate necessity defense or the attempt to turn this into a trial on global warming," Byers wrote.

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