Editor’s note 1/14/16: See KING 5’s video coverage of the trial, including testimony from Eric de Place, here.
Update 1/15/16: The Delta 5 have been declared not guilty on the obstruction of train charge, meaning there can be no claim of financial harm for restitution. They have been declared guilty only of trespass. The states asks for no jail time and a suspended sentence of 90 days. Learn more here.
On September 2, 2014, five Northwest climate protection activists took a stand for the Thin Green Line. In the early morning hours, Mike LaPointe, Patrick Mazza, Jackie Minchew, Liz Spoerri, and Abby Brockway—the so-called “Delta 5”—entered BNSF’s Delta Railyard in Everett, Washington, where they erected a blockade, locked themselves to it, and obstructed an oil train for eight hours. They were arrested that afternoon and spent the night in Snohomish County Jail. This week, they are standing trial for criminal trespass and blocking a train.
As Abby Brockway told KUOW, “We felt we had to trespass on those who are trespassing against us because we saw no other thing we could do to stop what is happening to this generation that will come after us. The thing I’m most afraid of is telling my daughter years later, that I didn’t try hard enough to protect her future.”
Standing trial in Lynnwood, Washington, this week, the Delta 5 hope to mount a “necessity defense.” Although not acknowledged by federal law, a necessity defense is a recognized element in common law (and the statutory laws of most states) that applies to particular situations in which breaking the law is more advantageous to society than obeying it—trespassing in order to rescue someone from a burning building, for example. The legal team representing the defendants explains that they will argue that: 1) there was verifiable imminent danger; 2) they had a reasonable expectation of efficacy in taking action; and 3) they, and the climate movement more generally, had pursued every available legal alternative. A necessity defense will also allow lawyers to call expert witnesses, including rail expert Fred Millar, physician Frank James, and a BNSF whistle-blower.
I will be called, probably on Wednesday, as a “lay witness,” meaning that my role will be to establish the facts of the case. In particular, I will be presenting Sightline’s research establishing that post-2012 fossil fuel export proposals in the Northwest would be capable of delivering at least 822 million metric tons of carbon dioxide pollution embedded in coal, oil, and natural gas—more than five times the carbon pollution capacity of the Keystone XL pipeline. I will also demonstrate that Sightline research finds that recent oil train projects in the Northwest would be expansive enough to ship one million barrels of oil per day in 100 combustible oil trains per week.
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After hearing testimony, the court will decide whether a necessity defense justifies the actions of the Delta 5. If not, they will face criminal penalties. Yet the activists stand resolved. As Brockway wrote in a December 2015 open letter, “As a mother, a Presbyterian, and a lover of democracy… I am prepared to face the legal consequences of my actions. The cost is worth paying. As far as obedience is concerned, I choose obedience to the future generations.”
For more on the Delta 5 trial, you can find good coverage at DeSmogBlog and Democracy Now. You can also read or listen to a sermon that Brockway gave on Sunday, January 10, at Woodland Park Presbyterian Church in Seattle.
You can find details of the trial here.
I defended the first “White Train” case in the 1980s. We were prohibited from arguing necessity and I was ordered to “stay away” from arguments appealing to jury nullification. The jury was very receptive to our case. We lost the case, but won the judge over, and ultimately the cause was successful. I hope this case is successful in getting the message out.
Funny that these activists were jailed and are now waiting trail when the so called militia that’s taken over Federal property at Malheur National Wildlife Refuge remains free to vandalize public property and no one’s talking about a trial for them or for the outlaws that supported Cliven Bundy in 2014 by taking up arms against law enforcement. There’s a double stand here, but hey we all knew that.
S. Brian Willson
In 1987 I and two other veterans were part of a well publicized (in advance) block of a US Navy munitions train in Concord, California hauling weapons headed for Reagan’s wars against the poor in Central America (El Salvador and Nicaragua).
We used the Nuremberg Principles as our legal authority to interrupt the criminal acts of the US government of moving weapons intended to murder campesinos. By doing so we were upholding international and US Constitutional law that obligates citizens to make known and stop crimes committed by the government. In that case the train did not stop, in fact was ordered by the base commander to not stop, and it accelerated to more than three times it 5 mph legal speed limit. I did not get out of the way in time and lost both legs and suffered a fractured skull. The other two veteran blockers narrowly avoided injury.
Nonetheless, it was an act of conscience and sanctioned by the law (even if a court would not likely have honored the Nuremberg obligation). The government act of plowing through our blockade led to 10 years of around-the-clock DAILY blocking of munitions trains that involved more than 2,000 arrests as EVERY train was initially blocked requiring arrests in order for the train to proceed. There was an encampment of people on and along the tracks that whole time, an historic example of occupation.
I applaud your actions as being extraordinarily noble and necessary, and am pleased the judge has allowed the necessity defense.