VALVE TURNERS – The Cases
CLDC readily stepped in to provide free legal representation for the Valve Turners, and became lead legal counsel in the cases of Ken Ward (WA), Leonard Higgins (MT), Emily Johnston, and Annette Klapstein (and Ben Joldersma) (MN). One Valve Turner (Michael Foster (ND)) was represented by other attorneys. We want to thank cooperating attorneys without whom we couldn’t have done it: Ralph Hurvitz (Seattle, WA), Herman Watson, IV (Bozeman, MT), Tim Phillips (Minneapolis, MN) and Alex Marquardt and Kelsey Skaggs (San Francisco, CA).
The Valve Turners were charged with felonies including Sabotage, Burglary, Criminal Mischief and other critical energy infrastructure crimes. Their cases have made their way through the court system, by and large setting positive precedent for the necessity defense that can be used by activists for many years to come. In almost all of the Valve Turner trials, multiple jurors came up to us and our clients to thank us for educating them about climate change and for trying to do the right thing.
“All in all, I think the Valve Turner cases were an excellent example of activists and lawyers working together to use the legal system and courtrooms to advance climate advocacy, outreach, and education in rural areas where fossil fuel industries prevail and activists rarely set foot. We kept activists out of jail (except for Michael), we prevented them from having to pay exorbitant restitution amounts to the pipeline companies, and we created state-wide precedent in Washington and Minnesota. Pretty darn good for five activists.” Lauren Regan, lead attorney in the cases said.
MINNESOTA: The trial judge granted our demand to use the climate necessity defense, ruling that the defendants and the climate crisis met the requirements — an “emergency situation , where peril is imminent and the defendant has no other option but to violate the law.” The State prosecutor appealed the decision, but the Court of Appeals rejected the appeal. Although the Court of Appeals ruling was based on technical grounds, it recognized generally the existence of a necessity defense, and left intact the ruling, allowing us to proceed with the defense at trial. The Minnesota Supreme Court denied the State’s petition for review of that ruling.
At trial in October 2018, after the State rested its case, defense counsel made a motion for judgment of acquittal, arguing that the State had not met their burden of proof as to the charges. In a rare outcome, the trial judge acquitted all of the defendants of multiple felonies, without defendants having to present their side of the case. The ruling did forestall our ability to put on our climate necessity defense, including the expert testimony that had been prepared, but an acquittal in a direct action case involving multiple felonies is always a major victory, and we were happy to have developed the briefing on the necessity defense in Minnesota, for future attorneys to use.
MONTANA: Although the trial judge denied Leonard Higgins the “compulsion defense” (Montana does not have a necessity defense per se), the judge imposed no fines or jail time, and only a fraction of the huge restitution money Enbridge had requested. The appellate court affirmed the trial court’s denial of the compulsion defense.
WASHINGTON: After the trial court denied the climate necessity defense for Valve Turner Ken Ward, we went to trial, which resulted in a hung jury (meaning not all jurors could agree to convict). The State prosecutor elected to re-prosecute Ken a second time. We again asserted the climate necessity defense, and again the trial judge denied it. We went to trial and again the jury could not convict on the sabotage charge, but did find him guilty of burglary. We appealed to the Washington Court of Appeals, and in April 2019 Ward’s conviction for burglary was reversed and remanded by the Appellate Court. The Court ruled that the trial judge had violated Ward’s Sixth Amendment rights by refusing to allow him to present evidence of the necessity of his actions to a jury of his peers, including expert testimony from climate scientists and civil disobedience experts. The State then sought further review by the Washington Supreme Court, but in September 2019 the Supreme Court denied the request, establishing Washington State precedent recognizing the necessity defense for direct action to prevent catastrophic climate change. Unbelievably, the Skagit County District Attorney has decided to use tax dollars to prosecute Ken a third time—this time with a full climate necessity defense allowed. We look forward to presenting this case whenever the global COVID 19 pandemic allows jury trials again—or when the District Attorney removes himself from the back pocket of Kinder Morgan (the tar sands oil pipeline corporation).