Damages Debate Drives Climate-Change Activist’s Trial

FORT BENTON, Mont. – The guilt or innocence of a Montana climate-change protester charged with criminal trespass and criminal mischief will come down to the definition of “damage.”

On Tuesday, attorneys made their opening arguments and testimony began in the Choteau County trial of “valve-turner” Leonard Higgins.

Higgins is one of five climate-change activists who participated in a coordinated effort on the morning of Oct. 16, 2016, to simultaneously shut down oil pipelines in four states: Washington, Montana, North Dakota and Minnesota. Organizers made phone calls to the pipeline companies 15 minutes prior to the action to alert them that activists would be closing the valves. This allowed the pipeline control centers to stop the flow of tar-sands oil from Canada. In each case, a few men accompanied the activists to film the event. Once they had closed the valves, the activists peaceably surrendered to law enforcement.

Higgins’ charges stem from his entrance into  a fenced-off area where he closed a shutoff valve in the Enbridge pipeline near Fort Benton, Montana.

Montana law says that someone who causes more than $1,500 worth of damage can be fined up to $50,000 or go to prison for up to 10 years.

Defense attorney Herman Watson said that although his client had trespassed, the damage he caused was minimal.

“This case is kind of unique. I’ve never asked a jury to find my client guilty. But Leonard’s a different kind of guy. I want you to hear him out,” Watson said. “Leonard entered the property; he cut four chains. He put a chain back on the valve, and in that chain, he put leaves and flowers. He didn’t intend to cause an explosion. He knew that he wouldn’t cause any more than $1,500 of damage because he did research. He studied pipeline safety. ”

Earlier, in his opening arguments, Choteau County prosecutor Steve Gannon said Higgins showed intent when he brought the bolt cutters he used to cut four chains: the chain on the gate of the fenced enclosure containing the manual shutoff valve, and the chains locking the main valve and the two auxiliary valves. Gannon said Higgins also damaged the cover of an actuator valve. The valve cover cost $838 and the chains cost another $100.

While that adds up to less than $1,500, Gannon argued that the damage Higgins caused went beyond that because pipeline managers had to work on the problem all day, sending technicians to check valve sites beyond where Higgins was. So Gannon said both the managers’ and technicians’ salaries should go into the calculation of damages. The incident also shut down the pipeline for more than five hours, which lost Enbridge money.

“They had to validate that the other sites were good before starting up again. It’s over $1,500. I’m going to ask that you find him guilty,” Gannon said.

During a jury break, Watson and his partner Lauren Riggens objected to the additional damages, arguing that prosecution hadn’t documented the cost of the salaries with proper records. The attorneys had only received an email the night before trial containing a rough breakout of the salaries.

Watson cited 2001 Montana Supreme Court ruling Montana v. O’Connell, which found that such evidence had to be calculated with reasonable methods based on the best information available. The prosecution hadn’t produced that evidence, Watson said.

Choteau County District Judge Daniel Boucher overruled Watson’s objection.

So Watson argued his case to the jury, after a Cornell University pipeline-safety expert testified that Higgins’ action caused no damage to the pipeline.

“No one worked overtime. They used company trucks. They were doing their jobs that day,” Watson said. “When we’re talking about damages, we’re talking about a few very specific physical items that were broken. The state has to prove beyond a reasonable doubt that he caused more than $1,500 in damage. This cost $938, and there hasn’t been any proof of anything more than that.”

Higgins will take the stand on Wednesday morning to testify on his own behalf.

Juries have already found the defendants in Washington and North Dakota guilty. With the Montana trial underway, only the Minnesota case remains outstanding. It is also the only one where the judge is permitting the necessity defense, which allows a defendant to admit to committing a criminal act while claiming that circumstances – in this case, human contribution to climate change – justified it.

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