U.S. District Judge Dee Benson already has forbidden DeChristopher from using a "necessity defense," in which his attorneys would argue their client placed bogus bids to stop a greater harm or injustice in this case, climate calamity.
"I don't know whether I'll be allowed to say why I did this," DeChristopher told The Salt Lake Tribune. "We'll see how far we can get with it."
When the four-day jury trial opens Monday in Salt Lake City's federal court, the question isn't whether the then-University of Utah student, as charged, crashed a government auction, mischievously outbid energy producers with no intention of paying and blocked their access to the Utah outback. He did that, and meant for everyone to know it.
"It was my intention to raise a red flag," he said.
The question is how far Benson will let DeChristopher and his attorneys stretch this from a trial about the facts of Dec. 19, 2008, and into one about ideas and causes. The judge will have to decide whether DeChristopher, who plans to testify in his defense, or his attorneys go too far in testing his ruling that this isn't a case about protecting the environment.
"The judge is going to try to police the backdoor and keep that from coming in," said University of Utah law professor Paul Cassell, a former federal judge. But a crafty lawyer can sometimes squeeze in references to forbidden topics, and Cassell said judges sometimes allow it but later inform juries to disregard it.
"It sounds like Judge Benson's going to have a busy trial," the criminal-law professor said. "He's going to be called upon to make a lot of decisions about what's in bounds and what's out of bounds.
"Legally," Cassell said, "this looks a lot like a slow guilty plea. There's no defense to the charge that he obstructed the auction."
Hijacking the auction • As President Barack Obama prepared to replace President George W. Bush, the outgoing administration's Bureau of Land Management prepared one last oil and gas lease sale, offering 149,000 acres in 130 parcels, many of them in parts of Utah deemed worthy of wilderness classification and included in eternally gridlocked wilderness bills.
Some of the zones encircled prized scenic and recreational destinations at Arches and Canyonlands national parks. Dozens of energy companies large and small, including the likes of Kerr-McGee and the Bill Barrett Corp., showed up to compete for the public real estate.
DeChristopher joined protesters who insisted the auction and the land-management plans that enabled them were rushed to beat tighter environmental standards expected under Obama. But while others held placards outside the BLM's state headquarters at The Gateway or silently watched the bidding inside, DeChristopher signed in as a bidder and at one point started raising his paddle regardless of how high the prices rose. With no way or desire to pay the $1.8 million tab, he won 14 leases in a row for more than 22,000 acres around the two redrock desert national parks and in eastern Utah's remote Book Cliffs. BLM agents then removed him for interrogation and later escorted him from the building.
It was the kind of sabotage that Utah Petroleum Association President Lee Peacock said threatens a natural gas industry that is fueling eastern Utah's economy.
"It slows down the process," he said, "to where the state stands to lose the benefits of oil and gas development."
Now DeChristopher faces two felony charges carrying maximum penalties of 10 years in prison and $750,000 in fines accusing him of scheming against federal law and making a fraudulent statement when registering as bidder No. 70. The Bush-appointed U.S. attorney during the 2009 indictments said he was seeking a plea deal and didn't expect a sentence anywhere near even five years, though the office of current U.S. Attorney for Utah Carlie Christensen declined to comment about potential sentencing or on any aspect of the case.
DeChristopher, in a recent interview at a coffeehouse near his rented home in Sugar House, said he expects to go to prison but believes his cause is worth it.
"It's something I've been preparing for," he said. "It's the most likely [outcome]."
He is not, however, looking forward to it and would prefer the chance to persuade a jury to keep him free. "I don't have any illusions that prison is a nice place or anything like that."
Living on kindness of supporters • A slender, shorn and stubbled 29-year-old who spent his early working years taking troubled kids on Dugway-area wilderness retreats, DeChristopher was an economics major with a different slant on the profit motive.
He returned to college after working with teens because he had learned that his clients were good kids trying to deal with a broken system. He wanted to change the system. He became more strident in his environmental views and less confident in the sort of petition-signing activism he previously had supported when, in 2007 and 2008, many climate scientists asserted that environmental stresses were coming faster than they had warned.
"This wasn't an issue about my grandkid," he recalled. "It was on track to severely impact my lifetime."
That understanding led him to the conclusion that direct, nonviolent action was his best tool, and ultimately to the BLM auction.
He graduated from the U. a year after the auction and had lined up a job with the Utah Population and Environment Coalition helping to establish a well-being measurement as an alternative to the gross domestic product economic indicator. He gave up that job because he thought that he soon would have to focus on his trial.
"For two years," he said, "I've been two months away from trial."
Throughout the trial delays, he has lived on the kindness of supporters, both political and moral. Environmentalists have made small donations via the Internet, and he has gained nationwide exposure as activists have sponsored him to speak at conferences and rallies coast to coast, including in California and New York. In September in Washington, D.C., DeChristopher, a West Virginia native and Pennsylvania high school graduate, helped rally the crowd at an "Appalachia Rising" protest against mountaintop-removal coal mining.
He has enjoyed help with the rent and expenses from congregation members at his First Unitarian Church in Salt Lake City. He also received a surprise $13,000 grant from the Kindle Project, a New Mexico-based fund for social-change movements.
"I've pretty much been a full-time activist supported by the community," he said.
DeChristopher has roommates, and the limited income has met his needs. "I have a very low cost of living. I grow a lot of my own food."
Becoming the accidental activist • The pushed-back trial dates have left him frustrated and "in limbo." One came when his defense team sought information about bidders from other auctions who have not paid what they pledged.
As with the necessity defense, Benson rejected the request for this evidence that DeChristopher's attorneys had hoped to use to suggest selective prosecution for political reasons. Other bidders, representing energy companies, sometimes bid but don't buy, potentially standing in the way of competitors who would drill the leases.
DeChristopher said his attorneys still may argue that point, though he believes U.S. courts tend to penalize defendants who act for political reasons more than those who act for profit. The opposite, he said, is true in the United Kingdom, where a judge recently declined to punish Greenpeace activists who shut down a coal-fired power plant by scaling its smokestack.
He fears his political motive also may expose him to a longer prison sentence.
Cassell, the U. law professor, agrees that political motives can lead to harsher treatment in court, depending on circumstances. A defendant's apparent altruism can help his or her case. But when the defendant is defiant, showing no remorse, he said, a judge may exact serious punishment to deter a repeat offense.
Cassell does not believe DeChristopher qualified for the necessity defense, with which he could stake his innocence claim to the perceived need to halt climate change. Such a defense is appropriate only when a danger is clearly imminent and directly tied to the threat in question, he said, and also when no legal remedy is available. The fact that environmental law group Earthjustice subsequently won a restraining order against the leases and that Obama's Interior secretary, Ken Salazar, pulled most of them back for further review showed that other remedies existed, he said.
"Judge Benson got it right," Cassell said.
DeChristopher's attorneys Ron Yengich, Elizabeth Hunt and Pat Shea (a former national BLM director) declined to comment about the case after a final pretrial hearing Thursday.
Ed Firmage, a retired U. law professor and activist who helped with the successful challenge to deployment of the MX missile in Utah a generation ago, said it's a shame that DeChristopher won't get to argue his driving philosophy. "The rulings of the court have not been auspicious."
Firmage has met DeChristopher and found him to be a "person of substance" who apparently seized the moment, unplanned, when it was before him.
"Sometimes a person grabs a charismatic role by an immediate and spontaneous response to what's before them," Firmage said. Leaders in other social movements such as Mohandas Gandhi and Martin Luther King Jr. have done the same.
"I suspect he may have to face a Gandhian result," Firmage said. "He may lose and have to do a little time. But if he really wants a statement, losing is winning. He will do good for his cause."
Fighting on other fronts • DeChristopher insists prison isn't and never was a goal. He said he acted to slow down the rush to lease and the Obama administration's concurrence vindicated him.
Without the court's permission to lobby the jury to weigh his environmental convictions a defense he finds in line with the Founding Fathers' view of juries as a community's conscience DeChristopher hopes to argue that his actions weren't illegal because the auction itself was not legal.
"The crime is when you disrupt a legal auction that follows the rules," he said. "That's not what happened on Dec. 19."
Cassell said Benson may block that argument, too, if he determines it's irrelevant.
Earthjustice attorney Robin Cooley won the restraining order against awarding the leases from the 2008 auction, and Salazar then withdrew 77 of them totaling 103,000 acres. She argued that the BLM sold the leases without proper analysis of threats to air quality and archaeological resources in Utah. U.S. District Judge Ricardo Urbina in Washington, D.C., prevented the companies from drilling long enough for Obama to take office and for Salazar to shelve the sales.
"They just rushed it out and cut corners with all the environmental laws that they have to comply with," Cooley said of the Bush administration.
Peacock, the Utah petroleum industry representative, disagreed, noting the restraining order didn't end the case.
"Those seeking to have these parcels put up for lease," he said, "did everything required of them."
The BLM may yet sell some of the leases, but not without more scrutiny. Earthjustice's lawsuit continues, now challenging the agency's management plans, on which the lease sales were based. Utah counties have fought back and are asking that the case be transferred to the Beehive State.
As for DeChristopher, he said that he has learned things about himself since the auction, including that he's a good speaker. That should help as he continues a life of activism. But he also looks forward to a career putting his economics degree to work after his legal troubles pass. In the meantime, he's OK with another delay, this time in prison.
"It's a sacrifice worth making to defend a livable future," he said. "I'd certainly love to see a jury rule that that kind of action is justifiable, but I'm not holding my breath for that."