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A person with a hand drum paces between law enforcement officers and a line of oil pipeline protesters south of St. Anthony, North Dakota, on Monday, Oct. 10, 2016. (AP photo: The Bismarck Tribune)
A person with a hand drum paces between law enforcement officers and a line of oil pipeline protesters south of St. Anthony, North Dakota, on Monday, Oct. 10, 2016. (AP photo: The Bismarck Tribune)

Conviction appeal based on global warming unlikely

BISMARCK, N.D. — A lawyer for an environmental activist convicted of targeting an oil pipeline in North Dakota said he doesn’t think a judge’s decision disallowing the threat of global warming as a defense to justify the crime would be grounds for an appeal.

Defendant Michael Foster, of Seattle, said he has not decided whether to appeal his jury conviction to the North Dakota Supreme Court, and part of him wants “to honor the judge and the jury and their verdict.”

Foster took part in effort on Oct. 11, 2016, to draw attention to climate change by turning off valves on five pipelines that bring Canadian oil south. Foster targeted the Keystone Pipeline in North Dakota. Other activists targeted pipelines in Minnesota, Montana and Washington state.

A jury in North Dakota’s Pembina County on Friday convicted Foster after a weeklong trial of criminal mischief, criminal trespass and conspiracy. He faces up to 21 years in prison when he’s sentenced Jan. 18. The man who filmed his protest action, Samuel Jessup of Winooski, Vermont, was convicted of conspiracy and faces up to 11 years.

Foster had hoped to use a legal tactic known as the climate necessity defense — justifying a crime by arguing that it prevented a greater harm from happening. Prosecutors objected, saying they didn’t want a trial on global warming.

Judge Laurie Fontaine sided with the state, saying in part that “a reasonable person could not conclude that (climate change) harms, however serious they might be, were imminent and certain to occur” had the pipeline not been temporarily shut off. She also disallowed four people Foster wanted to call as expert witnesses on his behalf, including former NASA scientist James Hansen, an advocate of climate change awareness.

Defense attorney Michael Hoffman said Tuesday that he doesn’t think the judge’s ruling on those two issues should be a part of any appeal, and that it’s up to Foster whether to appeal at all.  Foster said he’ll decide once he learns his sentence.

Foster, who on Tuesday was headed to a coffee chain business in Seattle to urge use of a different cup to save trees, said his North Dakota protest a year ago was aimed at spreading his message of climate change awareness in a way that would get more notice than “standing on a corner handing out fliers.” Even though he succeeded, he wonders about how much difference it will make.

“It’s been a year, and pollution is worse today than the day I turned the Keystone valve shut,” he said. “Based on that alone, I wonder how effective it was. If people don’t respond quickly (to climate change), it won’t matter.”

Eleven activists were charged in the four-state effort. One was convicted of burglary in Washington in June and was sentenced to two days in jail and community service. Prosecutors dropped charges against two filmmakers in that state. Criminal cases are pending against two activists in Montana and four in Minnesota.

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