U.S. v. Tim DeChristopher - Court throws out 'lesser of two evils' / necessity defense

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH - CENTRAL DIVISION UNITED STATES OF AMERICA, Plaintiff, v. TIM DeCHRISTOPHER, Defendant. MEMORANDUM OPINION AND ORDER Case No. 2:09-CR-183 Judge Dee Benson This matter is before the court on the government’s motion in limine to bar defendant Tim DeChristopher (“DeChristopher”) from presenting a necessity defense at trial, including any evidence in support of such a defense. (See Dkt. No. 12.) A hearing on the motion was held on September 25,
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  IN THE UNITEDSTATES DISTRICT COURTDISTRICT OF UTAH - CENTRAL DIVISIONUNITED STATES OF AMERICA,Plaintiff,v.TIM DeCHRISTOPHER,Defendant.  MEMORANDUM OPINION ANDORDER  Case No. 2:09-CR-183Judge Dee BensonThis matter is before the court on the government’s motion in limine to bar defendantTim DeChristopher (“DeChristopher”) from presenting a necessity defense at trial, including anyevidence in support of such a defense. ( See Dkt. No. 12.) A hearing on the motion was held onSeptember 25, 2009. At the hearing, the government was represented by John W. Huber andScott B. Romney. DeChristopher was represented by Ronald J. Yengich, Patrick Shea andElizabeth Hunt. After taking the motion under advisement, the court has further considered thelaw and facts relating to the motion. The court has also considered DeChristopher’s recentlyfiled Written Proffer Of Choice Of Evils Defense and Request For Evidentiary Hearing, thegovernment’s response to that submission, and DeChristopher’s reply memorandum. Being fullyadvised, the court renders the following Memorandum Opinion and Order. BACKGROUND Each United States Bureau of Land Management (“BLM”) state office is required toconduct a competitive oil and gas lease sale at least four times a year if public lands are availablefor leasing and the BLM receives nominations for leasing. See 30 U.S.C. § 226(b)(1)(A); 43C.F.R. § 3120.1-2. Interested members of the public and industry nominate parcels for competitive lease by sending letters of interest to a particular BLM state office that identifies  specific tracts of land that are desired for lease.  Id  . § 3120.3. Prior to conducting a quarterlylease sale, the Utah BLM office prepares a preliminary list of oil and gas lease parcels that may be offered at that sale. Individual BLM field offices then determine whether the issuance of a particular oil and gas lease is consistent with a governing Resource Management Plan and itsaccompanying environmental impact statement. Once these determinations are made, the UtahBLM office prepares a sale list and notifies the public that a competitive lease sale will take place no less than 45-days after the date of posting. 43 C.F.R. § 3120.4-2. The Utah BLM officegenerally provides a 30-day protest period where any member of the public may “protest” theinclusion of certain parcels in a particular lease sale. See 43 C.F.R. §§ 4.21 and 3120.1-3.The lease sale itself is a public auction with leases sold to the highest bidder. 43 C.F.R. §3120.5. If not acquired on the day of the sale, leases remain available for purchase at a reducedrate over the next two years.  Id  . § 3120.6. The BLM completes the leasing transaction by“issuing” the lease to the high bidder after the lease sale.  Id  . § 3120.5-3. If an oil and gas lease parcel is protested by a member of the public, the lease is not issued until the protest is resolved. A. The December 19, 2008, Lease Sale On November 4, 2008, the BLM posted a final list of oil and gas lease parcels for a leasesale on December 19, 2008. During the 30-day protest period that followed, the BLM receivedapproximately 1,600 protests including at least one protest for every proposed parcel on the salelist. In addition, on December 17, 2008, a coalition of environmental groups filed a federallawsuit in the District of Columbia seeking to prevent the issuance of leases included in the leasesale. See Southern Utah Wilderness Alliance v. Allred  , No. 08-2187, 2009 WL 765882, at *1-2(D.D.C. Jan. 17, 2009).2  On December 19, 2008, DeChristopher went to the Utah BLM office in Salt Lake City,Utah. Outside the BLM office, environmental activists organized a protest. Inside the office,DeChristopher registered to bid on oil and gas leases. In order to register as a bidder,DeChristopher was required to fill out and sign a “Bidder Registration Form.” The Bidder Registration Form required DeChristopher to certify that: (1) he was a good-faith bidder, (2) hehad the intention to acquire an oil and gas lease on the offered lands, (3) a winning bidconstituted a legally binding commitment to accept the lease, and (4) in the event of winning a bid, he was obligated to pay the BLM by the end of the day a percentage of the lease’s purchase price, whether or not the lease was subsequently issued. The Bidder Registration Form alsoinformed DeChristopher of the criminal consequences of tampering with the bidding process.At the lease sale, DeChristopher placed bids on dozens of oil and gas leases. Initially,DeChristopher would drive up the bid price and then pull out before he had won the bid. Butthen he began to bid on the oil and gas leases until he won the bid. In total, DeChristopher wonfourteen leases totaling $1.7 million. DeChristopher claims he acted to combat the“government’s violation of its own laws and regulations and the consequential exacerbation of global warming and climate change, and destruction of irreplaceable natural and culturalresources.” ( See Def.’s Written Proffer 5-7.) B. Post-offense Events Related to the December Lease Sale On January 17, 2009, the United States District Court for the District of Columbiagranted a temporary restraining order preventing the BLM from issuing seventy-seven of theleases that were sold at the December lease sale. See Allred  , 2009 WL 765882, at *1.On February 4, 2009, the newly installed Secretary of the Interior, Kenneth Salazar,canceled the winning bids on the seventy-seven disputed leases and returned $6 million of 3   payments that the BLM had collected from their sale. Included among the seventy-seven parcelsthat Secretary Salazar canceled were eleven of the fourteen leases that DeChristopher “won.”The other three leases were unaffected by the Secretary’s order.On April 1, 2009, a grand jury returned a two-count indictment against DeChristopher,charging him with (1) violating the Federal Onshore Oil and Gas Leasing Reform Act, and (2) providing false statement. Both before and after the return of the indictment against him,DeChristopher and his actions at the BLM lease sale received considerable attention by the printand broadcast media. He gave numerous interviews, at times with his lawyer standing at hisside, in which he declared that he was justified in his actions because of his concerns about theenvironment. In these statements DeChristopher indicated that he would defend his behavior asnecessary or legally justified. See Ronald Yengich, Attorney for DeChristopher   , Religion & Ethics Newsweekly : Civil Disobedience (PBS television broadcast Mar. 20, 2009) (“the primarydefense would be what lawyers would call the “choice of evils” defense, and that’s an historicdefense about someone who is basically protesting a government action, and they are saying thatI did this, even if it may be technically against the law, because there is a greater evil out there.”);Patrick Shea, Attorney for DeChristopher, Interview by Doug Fabrizio with Tim DeChristopher and Patrick Shea, in Salt Lake City, Utah (Apr. 28, 2009) (“we would like a courtroom presentation of the scientific fact of global warming. . . . There is a little used defense called thelesser of two evils. . . . Essentially what it says is if a citizen faces a choice between two evils and picks the latter, the lesser, the jury or a judge can find them not guilty of the crime. . . . That isone of the things we are going to be doing.”), available at  http://www.publicbroadcasting.net.Inreaction to these various public pronouncements, on May 14, 2009, the government filed amotion in limine seeking to bar DeChristopher from presenting a necessity defense at trial,4
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