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Constraints of justice: Report from the valve-turner trial in North Dakota

“Marx said that revolutions are the locomotive of world history. But perhaps things are very different. It may be that revolutions are the act by which the human race travelling in the train applies the emergency brake.”  (Walter Benjamin)

Cavalier, North Dakota: Work doesn’t stop at sunset

Fall was just beginning to settle in when we arrived in Cavalier, North Dakota, a rural town with a 2010 census of 1,302 people. Six years later, Cavalier’s population had decreased by 61. Maybe it’s the economy or maybe it’s the weather—hard to tell. In Invisible Cities, Italo Calvino argued that each city receives its form from the city it opposes. In North Dakota, the vastness of the rural landscape doesn’t offer any such opposition.

But Calvino also realized that cities, like languages, can be deceptive, and the deceptive nature of Cavalier lies in the contrast between the dormant atmosphere of empty streets and the nonstop harvesting and transportation of beets from fields to processing plants. We are staying in the town of Grafton, south of Cavalier, for the five days of the valve-turner trial.

As we drive to and from Cavalier, we see beet–filled trucks rumble by, clusters of vehicles parked in fields, growing mountains of beets in lots along the highway. Beet harvest ensues at a relentless pace, day and night, belying the quiet streets within the boundaries of Cavalier proper. The highway between Grafton and Cavalier is muddy. Loose beets decorate intersections and informal roads created by trucks leaving the fields. We look up “beet harvesting” on the internet, learning about big ventilation tubes under the mountains of beets, the demand for seasonal labor, the opportunity to earn $2500 in two weeks.

The trial of Foster and Jessup

Last October, as part of a four-state act of civil disobedience, Michael Foster closed a valve on an oil pipeline in Pembina County, ND. The pipeline, owned by TransCanada, carries oil from the Bakken tar sands. TransCanada had been notified in advance that the valve would be closed so the pipeline could be shut down. When law enforcement arrived, Foster turned himself in. Sam Jessup was present to live stream the valve turning and the ensuing arrest.

The Pembina County Courthouse in Cavalier is a stately old building with ornate murals depicting justice in its many forms. It will be the site for the trial of Foster and Jessup.  In this building, the duplicity of North Dakota law will become visible as the State exercises its right to act as both victim and executioner.

Jessup and Foster face a range of charges, but in a North Dakota twist, the charges are wrapped in the language of conspiracy. Conspiracy is loosely defined by law, amenable to wide application, a powerful weapon for state prosecutors.  It requires two people—one who knew what the other person planned to do; one person who in some way supported, or did not try to prevent, the other from acting. Conspiracy bumps the charges higher—into felony territory. A defense attorney describes conspiracy to prospective jurors as “an old law used to prosecute unpopular people.”

Geology, economics and politics: a fossilized mix

The geology of North Dakota puts it in the middle, almost literally, of the struggle to halt the spread and limit the use of fossil fuel infrastructure.  At this exact moment the fossil fuel industry is the most significant factor driving economic growth in the state. Writing for US News in March 2017, Mark Silva observed that oil and gas production accounted for nearly 16% of the state’s economy in 2014, as compared with 2% ten years earlier. The catalyst for that change was the advent of fracking, and the possibility of horizontal drilling into the Bakken formation.

In terms of North Dakota politics, the current US Attorney for the District of North Dakota, Christopher C. Meyers, uses the acronym V.O.I.C.E. to highlight the top priorities of that office:

V is for violent crime: The U.S. Attorney’s Office promises to use all available resources to prosecute violent crimes.

O is for organized the crime: Mr. Meyers promises relentless pursuit of criminal organizations and specifically calls out criminal activity in the Bakken region, including “drug, firearm, and human trafficking.”

I stands for Indian Country, and here Mr. Meyers articulates a commitment to public safety in tribal communities.

C stands for children—the US Attorney’s office is committed to protecting children from “all forms of abuse and exploitation.”

E stands for—and here the acronym gets a little wobbly—“environmental crime and protecting the public treasury.” In the blurb that follows, Mr. Meyers declares that natural resources are precious, and that the civil division will “aggressively defend lawsuits and use affirmative civil enforcement tools to protect the public treasury.” Aggressively protecting the public (and private) treasury seems like a better description of Mr. Meyers’ commitments. Unlike forty-six other states’ US Attorneys, North Dakota’s US Attorney was allowed by Trump to stay in place. In exchange, Meyers appears to support the administration’s view that environmental crimes are those committed by environmental activists, rather than crimes committed against the environment.

The line between the public treasury and environmental crime is blurry in ND. In a September 2017 article for the Associated Press, James MacPherson reported that the builder of the Dakota Access Pipeline sent the state of North Dakota $15 million dollars to help pay costs of law enforcement operations against protestors at Standing Rock. In a report released in December 2016, the Center for Biological Diversity lists 85 pipeline spills in North Dakota since 1996, six of them in 2016. In asserting his commitment to protect the public treasury and prosecute environmental crimes, Meyers appears not to recognize the contradiction between protecting the rights of fossil fuel producers and shippers and his espoused goals of protecting children and native people.

Localism as a convenient myopic virtue

The prosecutor’s opening remarks had a two-fold objective: first, to reduce the legal narrative by reinforcing the state’s decision to deprive the defendants of use of the “necessity defense” in response to the critical ecological conditions derived from climate change. By prohibiting any discussion of motive or purpose, the state of North Dakota constrained the scope of the trial to the narrower issues of trespassing and committing economic damage—potential or imaginary—against corporations. In doing so, the state of ND implicitly judged and sentenced in advance the defendants, while censoring and silencing the scientific validity of climate change as a reality that humans and the planet must face. 

Second, the prosecutors put special emphasis on the fact that Sam and Michael were “foreigners”—(one had come from Vermont and one from Seattle). This kind of parochialism is untenable from the perspective of two people concerned about their nation, their human species, or the planet that we all inhabit. More importantly, it showed the duplicity of the state and its prosecutors. They made no reference to the outside status of TransCanada — a foreign company— which owns the pipeline and transports tar-sand oil from Canada to refineries in Texas where it is sold on to other countries. Nor was mention made of the presence in ND of foreign capital originating from the United Kingdom, Japan, Canada, Netherlands, and France, among others.

Don’t confuse the jurors

A key motive for the coordinated valve-turner actions in October 2016 was to put the fossil fuel industry on trial by using the necessity defense: actions taken to stop the flow of oil were necessary in order to prevent a harm larger than the harm caused by the act itself.

Judge Laurie Fontaine ruled that Foster and Jessup could not use the necessity defense, because testimony “could confuse or mislead the jury into believing the legitimate concerns regarding climate change are an excuse or defense to the crimes charged.” That was exactly the case the valve-turners had hoped to bring before the jurors.

Civics 101: jury selection

Jury selection took almost two full days. Fifty prospective jurors were called; forty-seven were questioned; twenty-four made it to the final pool; twelve were selected.

Some of the defense attorney’s questions revealed the limits of one of the most sacred principles in our criminal justice system: “Can you presume the defendants are innocent?”

“No. We must be here for a reason.”

“These people are not from the area. If they made the effort to drive here, they meant to do something.”

“I believe in law enforcement. The defendants wouldn’t be here if they hadn’t done something wrong.”

A less common response: “These fellows are presumed innocent, and I’m not going to make a judgment until I hear all the information.”

Another line of questioning focused on whether potential jurors could distinguish the valve-turning action from the longer-lasting Dakota Access Pipeline demonstrations in the southern part of the state: “Can you separate this incident from the events at the Dakota Access Pipeline?”

“Not really. I just have feelings…”

Yet another line of questioning probed prospective jurors’ views on the protest. When asked whether they had heard of the sit-ins during the Civil Rights Movement and the Freedom Riders, or seen the movie “Selma,” jurors shook their heads no. When asked to describe their views on protest, prospective jurors’ comments tended to run along these lines: “It’s OK to protest, but when you break the law, you have to pay the consequences…” “It’s OK to protest but we have to follow the law…” The sanctity of private property trumps public interest, public good.

No territory for mothers

Everyone involved in this four-state action consciously broke the law, as a defense attorney tried to explain to the jury, in order to “change the narrative, to get people to think differently about oil and about climate change.” The prosecutor told the jury that, “If you don’t find these people guilty, chaos will ensue.” He drew a crude diagram on a white board, showing how the valve-turners’ actions were at the top of slippery slope leading from Ted Kaczynski to Sharia Law. “Liberty is the right to do what the law allows, and without laws we have chaos.”

In closing argument, a defense attorney compared today’s climate denial with yesterday’s tobacco cover-up. He walked the jurors through a Congressional hearing in 1994 where seven CEOs of tobacco companies were asked whether or not nicotine was addictive. One by one they answered “No. Nicotine is not addictive.” We know now, the attorney said, that they knew and they lied. The story about tobacco’s dangers changed, and that’s what these gentlemen are trying to do. They are trying to change the narrative about the dangers associated with burning fossil fuels.

Well, said the prosecutor in response, this would be like blowing up the trucks carrying cigarettes, and who would think that was OK? Pipelines themselves don’t make the oil—they just move it. How are they at fault?

Eppur si muove

Two men must now face the consequences of their actions — sentencing will take place January 18 of next year. Michael is a former mental health counselor who conducts conferences in schools about the importance of trees. Sam is a student of algebra at the University of Vermont. They are aware of the physical reality and social implications of climate change; they understand their actions to be necessary and urgent.

In this context, unfair and ill-informed as the sentence may be, it does not matter. Michael and Sam both know, as Galileo knew in MDC, that the shallow lucubration of the Inquisition could not alter the scientific reality of planetary movement. In the same fashion, the contemporary inquisitors of the modern state and their narrative of denial cannot eliminate the reality of climate change.

Emily Lardner and Enrique Quintero are Sam Jessup’s mom and step-dad. They live and write in Washington state.


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