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Appeals court rules Minnesota pipeline protesters can use 'necessity defense'

Activists are seen attempting to cut chains after trespassing into a valve station for pipelines carrying crude from Canadian oils sands into the U.S. markets near Clearbrook, Minnesota, in this image released on October 11, 2016. Courtesy of Climate Direct Action via Reuters

BAGLEY, Minn.—The Minnesota Court of Appeals dismissed an appeal by state prosecutors Monday, April 23, paving the way for four anti-pipeline activists to argue during trial that they had no choice but to disrupt a pipeline transporting tar sands oil.

The appellate court said the four from out-of-state can use the threat of climate change as a defense for their actions.

By a 2-1 decision, the court allowed the rare so-called "necessity" defense to go forward despite the objections from prosecutors in Clearwater County in far northwest Minnesota who took the case to the higher court.

A necessity defense is used to shield people who must break the law in order to prevent greater harm.

The decision was released six months after Ninth District Judge Robert Tiffany ruled that Annette Klapstein, 65, of Bainbridge Island, Wash., Emily Johnston, 51, of Seattle, Benjamin Joldersma, 39, of Seattle and Steven Liptay, 37, of Brooklyn, N.Y., could present the necessity defense during their trial.

The four were arrested Oct. 11, 2016, after Johnston and Klapstein used bolt cutters to cut padlocks and chains in order to access a pipeline facility near Leonard, Minn. Liptay, a documentarian and photojournalist, was documenting the act and Joldersma went along to help with safety precautions.

Canadian energy company Enbridge, which owns the disrupted pipeline, received a warning call from the group and shut down the valve for about a day.

Klapstein, Johnston and Joldersma are all charged with felonies. Liptay is charged with two gross misdemeanors.

The battle over the group's use of the necessity defense began in December 2016 when Timothy Phillips, the attorney representing the defendants, gave notice of his clients' intent to rely on the necessity defense. After months of back-and-forth and pages of memorandums outlining each sides' argument, Klapstein, Johnston, Joldersma and Liptay testified in front of Tiffany on Aug. 15, 2017. Clearwater County prosecutors objected to the use of the necessity defense, arguing in an earlier memorandum that it should not be used in cases involving protesters.

But each member of the group testified that they felt that climate change should be considered a "greater harm," and that civil disobedience was their only option. After Tiffany ruled in October that the group could go forward with the necessity defense, prosecutors appealed the decision.

In the court of appeals opinion, Judge Jill Halbrooks wrote that, in order to challenge the district court's ruling, the state must "clearly and unequivocally show both that the trial court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the order constituted error."

Though prosecutors argued that allowing the necessity defense "will unnecessarily confuse the jury," Halbrooks wrote that the state did not prove that Tiffany's ruling would impact the state's case, as it is not yet clear how the necessity defense would play out at trial.

"The district court's ruling does not have any immediate impact on the state's case in the absence of other yet-unmade rulings in trial," Halbrooks wrote. She was joined in the ruling by Judge Denise Reilly.

Judge Francis Connolly dissented.

"This case is about whether (defendants) have committed the crimes of damage to property and trespass. It is not about global warming," Connolly wrote.

The defendants have said they intend to call witnesses to testify about global warming and their belief the federal government's response has been ineffective.

The protesters were part of an effort by Climate Direct Action to shut down five pipelines carrying tar sands crude from Canada to Minnesota, North Dakota, Montana and Washington.

Information about the group's next court appearance was not immediately available.

Grace Pastoor

Grace Pastoor covers crime, courts and social issues for the Bemidji Pioneer. Contact her at (218) 333-9796 or gpastoor@bemidjipioneer.com

(218) 333-9796
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