This spring, Montanans will have a chance to follow up on the largest climate-related act of civil disobedience in Montana history, which saw 23 arrests over five days, as hundreds gathered at the State Capitol in opposition to Big Coal. A subgroup of the protesters — myself included — are now taking our case to court, arguing that the threat of climate change necessitates peaceful civil disobedience. If we are successful, it could set an encouraging precedent for nonviolent protest in Montana and elsewhere.
This campaign started on Aug. 13, 2012, when seven of us sat down in the State Capitol rotunda and refused to leave at closing time, an act of protest against elected officials’ leasing of state lands to the coal industry. We were particularly concerned about coal mine-for-export projects — like the massive Otter Creek proposal in Southeast Montana — which would add to climate change while exposing communities throughout the Pacific Northwest to coal dust and diesel pollution. The mine itself would damage or destroy precious aquifers and agricultural land in eastern Montana.
For many Montanans, the fight over coal is reminiscent of battles that pitted the politically powerful copper industry against communities over a century ago. “Montana has a long, sad history of resource extraction followed by pollution,” said David Jones, a professional fishing guide from Hamilton, Mont., who was arrested on the second day of the August protest. “Coal is a poison much like the arsenic that remains in our rivers a century after the copper barons made their short term profit and left a mess for future generations.”
These late 19th- and early 20th-century copper barons bought up newspapers in attempts to sway public opinion and bought out lawmakers to secure political favors. But they sparked a public backlash that led to statewide political reforms, and the toxic mess left by copper mining and smelting eventually helped inspire state environmental laws. Unions fought the copper barons with strikes and other forms of direct action, and today direct action seems no less important in the fight against Big Coal.
On the first day of the Capitol sit-in, none of us knew quite what to expect. We only knew we were the first of what would hopefully be five waves of people participating in civil disobedience that week. We also knew that we could spend the night in jail or pay $340 in bail, and that our actions would likely draw positive attention to our cause. For several of us, it was our first time getting arrested. But we had the support of hundreds of others who came to rally in solidarity with the Capitol sit-in throughout the week. Any apprehension we felt was eased by the belief that we were doing everything in our power to stop dirty energy extraction.
The next day, having been charged with trespass, we walked out of jail to find that our civil disobedience had made news headlines across Montana. The only question was whether our movement had the tenacity to keep up the rotunda action all week. We weren’t disappointed: Over the next four days, 16 more people joined the sit-in and were proudly arrested. They represented a range of ages and backgrounds, from college students, to working people, to retired grandparents.
“When respectable old ladies and men are willing to be arrested, it makes the issue stand out as something we are willing to risk a lot for,” said Linda Kenoyer, a grandmother from Livingston, Mont., who was arrested on the third day. “It makes people pay attention to what we are saying, and jostles them out of their complacency.”
Around the country, more climate activists are adopting this logic and turning to civil disobedience. Last summer saw a series of direct actions against coal mining, fracking and tar sands. A blockade of the southern leg of the Keystone XL tar sands pipeline has continued through winter, and is still spawning tree-sits and other direct actions in Texas. More of this kind of long-term action is needed to stop fossil fuel industries in their tracks. And in Montana, though the Capitol sit-in finished months ago, we’re harnessing the court system to keep coal exports in the spotlight.
At a November 14 post-arrest court hearing, 16 of us who were arrested in August announced our intent to seek a jury trial. The others, many of whom live far from the state capital of Helena and are tied up by work and school, understandably decided to take a plea bargain. At the hearing, our lawyers announced plans for a necessity defense, arguing that when it comes to stopping coal exports, civil disobedience is justified.
Such a defense is based on the common sense idea that breaking the law is justified if you do it to prevent a greater harm. For example, in most places you won’t be convicted of a crime for breaking down a door if you do it to rescue someone from a burning house. With the world approaching dangerous climate tipping-points, and after decades of failed efforts to curb climate change through traditional politics, many climate activists now believe civil disobedience is as much a moral imperative as breaking into a burning building.
After all, Montana environmentalists have tried for years to stop the Otter Creek Mine and are running out of options. Groups like the Northern Plains Resource Council, the Sierra Club and the Blue Skies Campaign have turned out members to public hearings, submitted official comments and asked elected officials to consider the health and climate impacts of coal exports. Yet in 2010, state officials granted Arch Coal, the second largest coal exporter in the U.S., a preliminary lease to Otter Creek. Federal permit-givers, like the Army Corps of Engineers, have turned a blind eye to region-wide effects of coal export projects.
“The legal system did not provide us with an adequate path to express our legitimate concerns,” said Janet Jordan, who participated in the first day of civil disobedience in August. Jordan traveled to Helena from Olympia, Wash., a town that will see increased coal train traffic if export proposals go through. “There was no justice for those of us affected,” she said, referring to why civil disobedience is necessary.
This is not the first time climate activists have used the necessity defense. In a high profile 2008 case, six U.K. protesters were cleared of wrongdoing after scaling a coal-fired power plant and painting an anti-coal message on the smokestack. NASA climate scientist James Hansen testified on behalf of the protesters, explaining that the coal plant could be responsible for the extinction of 400 species, as well as significant damage to coastal cities due to rising sea levels. The jury in that case agreed with the necessity argument and acquitted the six protesters.
Not all U.S. courts, however, have been as quick to recognize the validity of a necessity defense. In 2009, student-activist-turned-folk-hero Tim DeChristopher was barred from using a necessity argument to defend his disruption of an oil and gas auction in Utah. This ultimately led to his conviction and a sentence of two years in prison.
Despite the setback for DeChristopher, things look more promising for our case in Helena. On November 14, the municipal court made no objection to our legal team’s stated intent to use a necessity defense. It now remains to be seen if the local government will move the case forward or drop charges to avoid publicity that could come with a precedent-setting trial.
If the trial does take place, it may encourage more people to get involved in direct action. A network called the Coal Export Action, originally established to organize the August sit-in, is seeking to use the upcoming trial to educate more people about the role civil disobedience is playing in the climate movement. Media coverage of the August action and November court hearing was mostly positive and has helped build a buzz around climate-related protest in Montana.
Like many of the sit-in participants, Margarita McLarty — a grandmother who was arrested on the third day of the action and plans to participate in the trial — believes this kind of civil disobedience can help inspire the transition to a cleaner and more just energy system. “I hope that we can wake up,” McLarty said, “and apply our wisdom, creativity and vision towards growing clean energy alternatives. That dream compelled me to sit down on the floor of our Capitol building and risk arrest.”
Thanks for the update, Nick. What I like about your piece is that you emphasize that CD is only one part while transitioning to alternatives and making those known are the other wing. Do you know if the protestors are working on a larger strategy in which this protesting is but one technique, and is there a sense of when and how the stakes will be nonviolently raised if it is signaled that it is time to go beyond protest?
Hi Stephanie, thanks for your comment. Yes, it is definitely very possible that we will need to raise the stakes further in Montana, in order to stop coal export proposals from going forward. Right now several such proposals (including the Otter Creek Mine) are in the permitting stages. Groups involved in the Coal Export Action, as well as several other Montana nonprofits, are attempting to put pressure on decision makers in all ways that we can, and civil disobedience is one of the higher-profile (and arguably most effective) tactics we can use. However, if projects like Otter Creek do get official approval, our movement will need to turn to more “direct” forms of direct action.
Part of the value of an action like the August sit-in, as I see it, is that it gets people used to the idea of participating in civil disobedience. That’s especially important in a place like Montana, where the climate movement doesn’t have as long or extensive a history of broad-based direct action as exists in some parts of the US. If and when it gets to the point that we need to physically block construction of a new mine or coal railroad with out bodies (and this is certainly a realistic possibility), I hope the sit-in last August, and the further outreach and education we’ll be doing around a trial, will have helped lay the groundwork for this type of escalated direct action.
Thanks for writing in and raising these important points.
Nick,
Perhaps necessity defense was actually barred for Tim, I do not know. But usually it’s not actually barred. What happens is that prosecutors file motions in limine. These limine motions exclude any mention of words related to the issue. For example, long ago, I was “limine’d” out of being able to mention anything nuclear in my trial for C.D. at the Nevada Nuclear Test Site. One way around it is to focus on intent. A defendant can testify re his/her intent, state of mind, etc., and that way, get to the issues.
Hi Ellen,
I am one of the attorneys for the Montana Action. The City did indeed file a motion in limine, as we speak co-counsel and I are editing and revising our response to get a final version out. We will get it out shortly, and will send you a copy.
We are very proud of our clients and what they did and look forward to a full defense in court.
Larry
Bellingham “coal protesters” known as the Bellingham Twelve are also planning to use a necessity defense, seeking acquittal by a jury to set a precedent for nonviolent protest in Washington and elsewhere.
These citizens and environmental activists, of which I am one, have chosen to NOT seek dismissal and to NOT plea bargain over charges stemming from their arrest on 12/12/11 for an act of Civil Disobedience. On that day, they blockaded BNSF coal unit trains – north and southbound – by bodily lying on the rails going by the BNSF Railway office at “C” Street and Roeder Avenue in Bellingham, WA.
We firmly believe that the Coal Extraction/Export/Combustion scheme that would see Powder River Coal converted to Carbon Dioxide to fuel the economy of our nation’s chief economic competitor is more than a treasonous act.
This scheme is more than class warfare, motivated by greed and waged against the owners of our nation’s Public Lands (our nation’s citizens) by the filthy rich oligarchy that have acquired their power by the purchase of influence. We believe that this influence is so pervasive that our nation’s democratic process is subjugated to the will of those imposing this scheme on the rest of us. We have no faith that our corrupted institutions of governance can or will overcome this subjugation.
We believe that the capacity of our only planet’s life sustaining environment is at, or past, the tipping point after which those still living on Earth exist on a charred remnant of mankind’s birthplace. This scheme threatens a holocaust against life on earth, and the Bellingham Twelve believe it must be stopped. When this much is on the line, Civil Obedience would be wrong, wrong, wrong.
Like the Helena Sixteen, the Bellingham Twelve believe that Civil Disobedience in the face of planetary ecocide is “at least” as much a moral imperative as breaking into a burning building to rescue people trapped inside.
The municipal court judge that presides over the prosecution of the Bellingham Twelve is still in his “decision phase” on the matter of allowing a necessity defense in his courtroom. He has the power to bar the use of the necessity argument as our defense at our trial, proceeding against us as common criminals. If you, in sympathy with the Bellingham Twelve’s plan to present expert testimony in a court of law about the terrible threat posed by this Coal Extraction/Export/Combustion scheme, want to do what you can to see that the municipal court judge does not bar the use of the necessity argument – here is what you should do. Write a letter expressing your sentiments, right away before he renders a decision, and mail it to …
Judge Peter Smiley
Bellingham Municipal Courthouse
2014 C Street
Bellingham, WA 98225
What do you mean “at least?’ The concept of the greater good has been clear through history. It is about time it replaces “the end justifies the means’ in our legal system and in our country.
Hi Herb,
Thanks so much for writing in. It’s great to hear about this action in Bellingham, and what you’re working to achieve in Washington State sounds very similar to what we’re striving for in Montana. It is encouraging to see how direct action is spreading in the climate movement all over the US, and I wish you the best. Thanks for letting people know about this additional opportunity to get involved!
Hello, Nick,
I’m just commenting on your article at this time. I had wanted to share with you that even if you are not deprived of necessity, they will try to deprive you of your defense by filing motions in limine to curtail your language and therefore your ability to present your case. I had hoped to let you know that in such a situation, we have gotten our cases out there by focusing on intent and state of mind, and have succeeded in exposing the injustice even though deprived of both our defense and our stated issues.
Yes, Ellen,
There too the City filed a motion in limine. We filed a Notice of defenses, they responded with their motion, we replied and had a spirited oral argument. We await the decision.
Larry
Wow, Larry, I totally forgot you were on that case!
Next to limines, the worst parts of my necessities have been the stuff around immanence. I’ve gotten around it in various ways or tried to, but regarding coal trains, I’ve told others about a possible solution but have never personally used it. It’s that due to erratic and sudden carbon-based changes in earth systems, carbon dangers have gotten to the point where they are always immanent.
Good luck and may the force be with you!
….I mean imminent!
Having started my life in Montana and engaged in related struggles, I’m heartened to hear about this action. Please let me share a few tips from my courtroom experience in civil disobedience cases.
1) Be your own attorney. Even good lawyers are constrained from saying & doing things which may help your defense. You want the authority to speak for yourself in court. Tell the judge you choose a pro se defense.
2) If you qualify for a court appointed attorney, ask for one as a back-up. He’ll probably think just like the judge, so you’ll have privileged communication with which to test your tactics.
3) The first time you get to talk to the jury, help them to understand how much power they have (consult FIJA.org). Beg them to be certain they have heard everything you have to say before they make a decision. This may keep the judge from gagging you.
Good luck and thank you all.
One other thing…
Decide how far you’re willing to push it. We once tricked a judge into refusing to allow us to give a copy of the Constitution to the jury, then made a big deal about it in the local media. It brought much attention to our case. Unfortunately, when sentencing came around, it brought seven times the usual jail term. But jail can be educational. I don’t regret it.