Climate Activists Face Jail for Shutting Tar-sand Valves: Judge Forbids Mention of Climate Change during Trial

May 14th, 2017 - by admin

Climate Direct Action & Democracy Now! – 2017-05-14 00:55:21

In Landmark Climate Activist Trials,
Judges Deny Defendants’ Request to
Let Juries Hear Evidence about Climate Change

Shut It Down / Climate Change Action

The Climate Action Five are facing jail terms for daring to shut down five oil sand pipeline valves that fuel climate change. Their direct action shut down 15% of US crude oil imports for nearly a day.

MOUNT VERNON, WA (May 11, 2017) — In the landmark case of Ken Ward, one of several climate activist facing severe felony charges for shutting the emergency valves on pipelines carrying oil sands, Judge Michael E. Rickert of Skagit County Superior Court in Washington state has for a second time denied the request for a “necessity defense.”

The necessity defense is an established legal defense in cases where a defendant acted to prevent greater harm. But Judge Rickert’s decision bars Ward’s defense team from using it, and arguing before a jury that his actions were necessary to prevent worse climate harms. It further prohibits the defense from calling expert witnesses and submitting evidence about the impact of climate change.

Ward freely admits that he entered a Kinder Morgan TransMountain oil sands pipeline facility near Anacortes, Washington and turned an emergency shutoff valve. In fact, he notified the company in advance, live-streamed his action, then waited for the police to arrive. As a result he faces felony charges of burglary, criminal trespass, and sabotage carrying decades of potential jail time and fines of up to $21,000.

Ward acted in conjunction with other “Shut It Down” valve turners who simultaneously did likewise in and Minnesota, Montana and North Dakota. They were responding to a call for action from the Standing Rock pipeline protest in North Dakota. Together, these five activists plus four helpers succeeded in temporarily halting the flow of carbon-intensive Canadian oil sands into the US.

The facts of Ward’s case are established and not in dispute. What is at issue is whether Ward’s actions were justified since he acted to prevent worse climate harms from the use of carbon-intensive oil sands, and whether he has the right to make that case before a jury.

He contends that since he worked in the climate movement for decades and exhausted all legal avenues to reduce fossil fuel exploitation and greenhouse gas emissions, to no avail, direct, principled citizen climate action is legally justifiable and “necessary.”

The first time Judge Rickert ruled to deny Ward the necessity defense was in late January, before Ward’s first trial. In the pre-trial hearing, the judge questioned the existence of climate change, saying, ” “there’s tremendous controversy over the fact whether it even exists. And even if people believe that it does or it doesn’t, the extent of what we’re doing to ourselves and our climate and our planet, there’s great controversy over that.”

Rickert’s ruling prevented the jury from hearing Ward’s full defense including evidence about imminent harm from climate change. But Ward did testify about the motives for his actions, and the first trial ended in a hung jury, as one or more jurors refused to convict him. Judge Rickert declared a mistrial and scheduled a second trial for May.

In the pre-trial phase of Ward’s second trial, the defense submitted a motion to reconsider the necessity defense, citing ample evidence that the existence of human-caused climate change is an established fact that should not be kept from the jury.

The prosecution filed a response, which again questioned the existence of climate change, saying, ” Some would even argue that [climate change] is not a true threat to begin with, as there are clearly different sides to the issue.” Copies of the defense’s motion and the prosecution’s response are available on request. Ward’s second trial is scheduled to start the week of May 22.

“The Constitution guarantees the right to a complete defense, and juries are supposed to decide whether or not a defendant’s conduct was justified,” said Kelsey Skaggs, a staff attorney at the Climate Defense Project and a member of Mr. Ward’s defense team. “It’s disconcerting to see a judge impose his own opinion about the value of protest so as to limit these fundamental rights.”

“While presenting a necessity defense in court would enable Ken Ward to tell the full story of his act of conscience, this is not a setback.” said Marla Marcum, Director of the Climate Disobedience Center. “Ken’s poise and determination in taking decisive action to avert climate cataclysm was the necessary thing to do, and is still the necessary thing to do. He will continue to inspire people across the country to do what’s needed in the face of government inaction.”

Meanwhile, last month in Fort Benton, Montana, Judge Daniel Boucher of Montana’s Twelfth Judicial District Court similarly denied a necessity defense to Leonard Higgins, another “valve turner” who acted simultaneously with Ward.

He faces charges of criminal trespass and criminal mischief (a felony) carrying up to 10 years in jail and fines of up to $50,000 for shutting the emergency valve on the Spectra Energy Express oil sands pipeline in Coal Banks Landing, Montana.

(November 30, 2016) — Thom Hartmann speaks with Ken Ward, co-founder of Climate Disobedience Center, about how activists are being harrassed and persecuted throughout the country, and what that means for our future.

Like Ward, Higgins notified the company in advance, documented his action and waited for law enforcement. As in Ward’s case, the judge also ruled testimony about climate change and civil disobedience “irrelevant” in Higgins’ case. Higgins trial is currently scheduled to start July 18.

But the necessity defense has been deemed relevant and used successfully by climate activists before, and some legal scholars say the case for applying it to climate action is getting stronger all the time as climate change becomes more obvious, and decades of clear scientific evidence of climate harms fail to stop massive expansion of the fossil fuel industry aided by massive government subsidies.

Valve-turner trials now getting underway are important test cases and could set far-reaching precedents for the legal status of US citizen direct action on climate change.

Four more climate activists who face charges for taking part in a related “valve turner” action Minnesota, Annette Klapstein, Emily Johnston, Ben Joldersma, and documentarian Steve Liptay, are also pursuing a necessity defense. Their pre-trial hearing is scheduled for May 30 in Clearwater County District Court in Bagley, Minnesota.


On October 11, 2016, five brave climate activists, determined to act commensurately with the truth of unfolding climate cataclysm in the face of the failure of adequate policy, closed safety valves on the 5 pipelines carrying tar sands crude oil into the United States.

This act of climate disobedience shut down 15% of US crude oil imports for nearly a day — a display of the sorts of shifts that are necessary to avoid complete cataclysm. In this light, the five valve-turners are standing by their actions, saying that they are not only necessary, but morally and legally justified to avoid the catastrophic harm caused to humanity by unprecedented climactic disruption.

In order to ensure that the pipelines would be safely shut down, a call was placed to each company’s emergency response and control number fifteen minutes before valve turners entered the sites, apprising them of the situation and giving them ample time to shut each pipeline down.

Following an 8:30AM Central time call to Enbridge, Emily Johnston and Annette Klapstein cut the locks and entered the fences around two safety valves for Enbridge Corporation’s tar sands pipelines 4 and 67 near the town of Leonard, Minnesota.

At 8:45, Ben Joldersma placed an additional call to Enbridge to ensure that the pipeline would be shut down safely, and as Emily and Annette prepared to manually close the valves, Enbridge remotely shut first the valve on line 67 and then, about 10-15 minutes later, the valve on line 4.

After locking the valves in the closed position, they placed flowers in the valve handles and waited about an hour until the Clearwater County Sheriff arrived and Emily and Annette were arrested.

At 9:00AM Central, Michael Foster pulled up to a safety valve near the town of Walhalla, North Dakota. After placing the safety phone call, Michael turned the huge wheel on the valve for the TransCanada Corporation’s Keystone pipeline and ceased the flow of oil.

After waiting for half an hour, Pembina County Sheriffs arrived and arrested Michael. Later, after waiting to recieve information about where Michael was being taken, Sam Jessup (who was live-streaming the action) and documentary filmmaker Deia Schlosberg were questioned and then arrested.

At 8:15AM Mountain Time, Leonard Higgins, near Coal Banks Landing, Montana, cut the lock on a valve enclosure on Spectra Energy’s Express Pipeline. After turning the manual wheel for a time discovered a switch on the other side of the valve.

When he turned the switch from “remote” to “local” the hydraulics took over and closed the safety valve. He watched as a gauge of oil thru-put slowly diminished to zero. He waited until Chouteau County Sheriffs arrived and he was arrested.

At 7:30AM Pacific Time, Ken Ward cut the chain on the valve wheel of Kinder Morgan’s TransMountain pipeline in a field near the refineries of Anacortes, WA. He turned the manual valve wheel, closing the valve.

He noticed it was surprisingly easy to close, and drew the conclusion that oil must not have been flowing that day, which was confirmed by the corporation later. He was later arrested on the site by Skagit County Sheriffs, along with two independent documentary filmmakers who did not trespass, Linsday Grayzel and Carl Davis.

With that final valve closure, all five pipelines bringing carbon-intense Canadian tar sands into the United States were shut down. They remained shut down for most of the day, halting 15% of the US’s daily oil supply.

Later that day after being detained for questioning, Reed Ingalls, who was live-streaming Leonard in Montana, was arrested while leaving Fort Benton. All the activists and filmmakers spent the night in their respective county jails.

Ken was released on bail Wednesday afternoon along with Lindsay and Carl. Emily and Annette were released on bail later that evening in Minnesota, and they were able to have a much deserved meal.

The others, however, were held for a second night in North Dakota and Montana. Leonard, Michael, Deia, Sam and Reid were finally released on Thursday October 13th following their arraignments, and attempted questioning by the FBI. Michael was the last to be released around 7PM Pacific on Thursday. On Friday he hopped on an Amtrak train headed for Seattle where he was met on Saturday by a loving crowd.

All are facing felony charges with potential sentences of decades in prison and tens of thousands of dollars in fines, but the valve turners remain resolute: It was the right thing to do, because the consequences of inaction and climate cataclysm far and away outweigh the personal consequences.

One week after the action, filmmaker Steve Liptay, who was covering the actions in Minnesota, was charged with 2 misdemeanors for trespass and aiding and abetting trespass. He was notified by mail from the Clearwater County District Court.

As of this writing, the prosecution of filmmakers Lindsay Grayzel, Carl Davis and Deia Schlosberg has been suspended by officials in Washington and North Dakota.

Climate Activists Face Trial and Jail Time
Democracy Now!

(October 12, 2016) — Ten climate activists were arrested Tuesday for attempting to shut down all tar sands oil coming into the United States from Canada by manually turning off pipelines in Minnesota, Montana, North Dakota and Washington state.

The group, which calls itself Climate Direct Action, includes five activists and five other supporters and videographers. They posted pictures and videos online that showed them cutting chains and turning the manual safety valves to stop the flow through the pipelines.

The activists issued a statement on Tuesday saying the action was in support of the call for International Days of Prayer and Action for Standing Rock. They also called on President Obama to “use emergency powers to keep the pipelines closed and mobilize for the extraordinary shift away from fossil fuels now required to avert catastrophe.”

While all 10 activists remain in jail, we speak Jay O’Hara, co-founder of the Climate Disobedience Center, and Afrin Sopariwala, a member of Climate Direct Action and a part of Women of Color Speak Out, a climate justice collective.

Democracy Now! is an independent global news hour that airs weekdays on nearly 1,400 TV and radio stations Monday through Friday.

Trial Support

“This is an all hands on deck moment for our climate, when we have to stand up and do what’s right. Tar sands extraction is devastating and wrong. Shutting it down is right. We all have to find ways to show the fossil fuel industry that we do not consent to their reckless destruction of our futures. The valve turners found one. Peaceful resistance and direct action are the only things that might save us.”
— John Sellers, Other98

Emily, Annette, Michael, Leonard and Ken (along with two supporters and one documentarian) are going to court to argue that shutting down 15% of US oil supply was not only morally necessary, but is legally justified as they are prosecuted by the states of Washington, Montana, North Dakota and Minnesota for their action on October 11, 2016.

Next Trial: May 22nd, Ken Ward
The first of these trials started on January 30th in Skagit County, Washington, where Ken Ward was tried for closing a safety valve on Kinder-Morgan’s TransMountain Pipeline. After three days, the proceedings ended in a hung jury, where at least one of the jurors was unwilling to convict Ken despite video evidence of him taking the action, and a mistrial was declared.

He’ll be going back to court for a re-trial on May 22nd. Ken’s lawyers (including the Climate Defense Project and the Civil Liberties Defense Center) will ask Judge Rickert (who presided in Ken’s first trial) to reconsider his previous denial of Ken using the necessity defense.

The valve-turners took a huge risk for all of us, and we want to be there to have their back and share our love. Packing the courtroom is also going to show the judge, the jury and the media that these brave women and men aren’t some lone wolves, but speak for all of us who know that we need dramatic and swift change.

July 18th: Potential Trial for Leonard Higgins
Trials are notoriously difficult to plan around: trying to get the schedules of courtrooms, judges, prosectors and lawyers to line up. We believe Leonard Higgins will go to trial in Montana in July.

To find out more about how to be present in the courtroom to support the valve turners when they stand trial, sign up on the appropriate RSVP page – linked from the top of this page. We’ll keep you up to date as the legal calendar becomes more clear.

The Legal Arguments
Our legal team, which includes the Climate Defense Project and the Civil Liberties Defense Center in collaboration with the Climate Disobedience Center, is preparing a full fledged necessity defense, bringing high-profile expert witnesses on climate change and social change to make the case that the valve turners actions are legally justifiable.

“We are now fully immersed in the climate crisis, with the earth’s ice melting and its oceans turning ever more acid. Hence it is reasonable and necessary that people take nonviolent but increasingly firm action to try and address this emergency. Those who have acted will be considered great heroes by future citizens.”
— Bill McKibben

Valve Turner Legal Calendar
This post will be continually updated with the confirmed court appearances and upcoming legal milestones.

May 22-26 Ken Ward re-trial, Skagit County, Washington

May 30 Necessity Hearing for Annette Klapstein, Emily Johnston, Ben Joldersma and Steve Liptay, Bagley, Minnesota

July 18-19 Leonard Higgins Tentative Trial Date, Chouteau County, Montana

October 2 Michael Foster and Sam Jessup Trial Date, Pembina County, North Dakota

View our Facebook for live updates
Sign 350 Seattle’s letter of support
Donate to our legal fund

Please see our trial support page for more information.

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.