A Utah District Court judge ruled yesterday that environmental activist, Tim DeChristopher, would not be able to present a defence of necessity at the trial where he faces charges for fraud and for violating the Federal Onshore Oil and Gas Leasing Reform Act.
On December 19, 2008, DeChristopher participated in an oil and gas lease auction, where it is alleged he made bids not only to raise lease prices, but also to win leases he had no intention of paying. In that auction, DeChristopher won fourteen leases covering 22,000 acres, and totaling $1.7 million USD.
His actions were an attempt to prevent what some groups saw as a midnight pass by the outgoing Bush administration for the exploitation hundreds of thousands of acres of pristine land in Utah. When charged, DeChristopher attempted to argue necessity to defend his actions. To head off the media circus that surely would have sprouted had he been able to bring global warming in the courtroom, government attorneys filed a motion to prevent DeChristopher from presenting the defence.
In her ruling yesterday, Judge Dee Benson granted the government’s motion, holding that DeChristopher’s offers of proof did not meet any of the requirements for necessity.
In the U.S. Court of Appeals for the Tenth Circuit – of which Utah is a part – the defence of necessity has four elements. The defendant must have:
(1) chosen the lesser of two evils,
(2) acted to prevent imminent harm,
(3) reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and
(4) had no legal alternatives to violating the law.
Judge Benson found that (1) the “greater harm” DeChristopher feared was too speculative, (2) the harm was not imminent, (3) there was an insufficient causal relationship between DeChristopher’s actions and the harm to be averted, and (4) that a legal alternative did and does in fact exist (the leases in question are also currently the subject of an ongoing lawsuit (Southern Utah Wilderness Alliance v Allred, No. 08-2187, 2009 WL 765882 – for those with Westlaw access).)
This Utah District Court ruling stands in contrast to a UK case last year, where jurors accepted the analogous “lawful excuse” defence asserted by six Greenpeace activists. The activists were cleared of charges stemming from £35,000 worth of damage they caused to a coal-fired power station.