DeChristopher?s environmental defense under scrutiny in court

By By Michael McFall

By Michael McFall

Tim DeChristopher’s argument with the federal government could crumble before he even gets to make it.

Last April, the U.S. Attorney’s Office pressed criminal charges against the senior in economics for winning 14 land leases at a Bureau of Land Management auction in an attempt to protect them from oil and gas companies that he believes would destroy the land. The prosecution argues that he did so without the intent to make good on the $1.7 million he owes the government, a violation of federal law. Since then, DeChristopher has been vocal in his intent to argue that what he did was wrong for a greater good, which shouldn’t be prosecuted. If he loses, he could face up to 10 years in prison.

But come Sept. 25, when his local defense team and the federal prosecuting attorneys meet for a showdown in court, DeChristopher’s argument could get silenced.

“It’s the lesser-of-two-evils defense,” said Patrick Shea, one of DeChristopher’s defense attorneys, last April. In a nutshell, DeChristopher plans to make the case that his actions, while criminal, were not as evil as allowing the oil and gas companies to expedite climate change, an immediate threat to the planet.

However, that argument might not make it past the downtown federal court’s front doors.
“The court should bar the defendant from presenting (that defense),” wrote Brett Tolman, one of the U.S. attorneys, in a motion to ban DeChristopher from even mentioning climate change in the courtroom. His prosecutors8212;Tolman, John Huber and Scott Romney8212;will argue that his environmentalist views have nothing to do with the law at hand, and the jury might acquit DeChristopher for his good intentions despite his actions. The case is purely a matter of determining if DeChristopher knowingly broke the law by dishonestly bidding on the leases, and nothing more, according to the prosecutors.

Shea, who oversaw the BLM during the Clinton administration, sees it differently. He and the defense team filed a response last week that the ban would infringe on

DeChristopher’s constitutional right to prepare his defense to serious criminal charges.
Even if DeChristopher were allowed to evoke the name of Mother Nature, his argument wouldn’t stand, Tolman wrote. The lesser-of-two-evils defense only works if he meets all of the criteria8212;one being that he had no other legal recourse to achieve his means of protecting the land from destruction.

This could prove a big challenge to the defense.

The BLM doesn’t issue a lease that’s been officially protested8212;a process DeChristopher did not use8212;until after the government has investigated the filed protest and resolved it. As of May, the bureau still has a backlog of 350 unresolved protests, all filed in the past three years. The BLM received about 1,600 official protests on the land DeChristopher won. So the prosecution argues that the land would not have been touched for at least several years, and he did not have to break the law to keep it safe while trying to protect them8212;legally8212;in the meantime, such as by filing a lawsuit or an official protest.
“Some of these lawful tactics appear to be methods and means he has used since committing the charged offenses,” Tolman wrote. “They were equally available to him prior to breaking the law.”

In July, DeChristopher admitted he could only remember one other time such a defense worked for a group of environmentalists, and that was in England. But at the same time, he was confident that he could bring his argument to court and successfully use it.

The judge will hear both arguments for why the lesser-of-two-evils defense should and shouldn’t be permissible in this case Sept. 25, and the trial will begin in October.