Tim DeChristopher's attorneys disappointed but not surprised.
to decide whether to request an 'en banc' hearing with more justices.
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The 10th U.S. Circuit Court of Appeals on Friday upheld environmental activist Tim DeChristopher's conviction in a 2-1 decision, finding there was sufficient evidence to convict him for making false statements and interfering with a gas and oil lease auction in Utah nearly four years ago.
In a partial dissent from the majority, Chief Justice Mary Beck Briscoe said she would have reversed one of the two convictions against DeChristopher on the grounds that wording in the Federal Onshore Oil and Gas Leasing Reform Act requires proof of group activity and the government failed to prove he acted in concert with others.
Defense attorney Ron Yengich called the decision "disappointing."
"I am encouraged that we got one dissent," Yengich said in an email. "I felt that when we did the oral argument, the three-judge panel was more focused on highly technical, procedural issues and not on substantive legal claims. So, I am not surprised, but I am disheartened."
Given the partial dissent, Yengich said he will consult with two other attorneys who represented DeChristopher to decide whether to request an en banc hearing by the 10th Circuit's 10 active judges; one, Utahn Scott M. Matheson Jr., has already recused himself.
"But that decision is down the road," Yengich said.
Henia Belalia, director of Peaceful Uprising, a climate justice group DeChristopher co-founded in 2009, also said she was disappointed but not surprised.
"I feel like the entire course of this trial has not let him speak freely, has not upheld a lot of rights," Belalia said, "and they have definitely targeted him as a political dissident."
The U.S. Attorney's Office hailed the decision and described it as "expected."
DeChristopher posed as a bidder at an oil and gas lease auction held by the U.S. Bureau of Land Management in Salt Lake City in December 2008 in order to call attention to environmental harms caused by drilling. He successfully bid nearly $1.8 million on 14 parcels, shutting out other bidders and driving up prices on other leases. When it realized what was happening, the BLM halted the auction.
On the day of the auction, DeChristopher told investigators that he had initially intended to cause a disturbance but then realized the only way to get into the auction room was to pose as a bidder. Once there, he decided the best way to have an impact was to bid on parcels even though he knew he could not pay for them.
A Utah jury convicted DeChristopher in March 2011 of interference and making false statements or representations. The eco-activist is serving a 24-month sentence at a federal facility in Littleton, Colo., and is scheduled to be released April 21, 2013 the day before Earth Day.
In his appeal, DeChristopher argued, among other things, the government failed to show he acted as part of group, which he said the act required.
But the majority, noting this was the first case brought under the law, rejected that defense, saying neither wording in the act nor instructions to the jury required such a finding.
"Although participation is usually in common with others, it need not necessarily involve other persons," the court said. "And a person can 'organize' something entirely on one's own."
It also rejected DeChristopher's argument that he could not be prosecuted because he did not know beforehand what specific statutes he was violating when he set out to disrupt the auction. The government gave the jury "ample" evidence that DeChristopher knew his actions would "circumvent or defeat" the law, the court said.
"This evidence included [DeChristopher's] statements that he was 'there to stop that auction,' that he wanted to cause a disruption, and that he intended to win leases for which he could not pay," the court said. After the auction was halted, DeChristopher asked an agent how much trouble he was in and said he was prepared to deal with the consequences.
"A reasonable jury could conclude from these facts that [DeChristopher] knew his actions would interfere with the statutory and regulatory provisions relating to oil and gas leases," the court said.
The court said DeChristopher's other claims, including that he was singled out for prosecution and was unable to challenge the legality of the auction at his trial, also fell short.
DeChristopher had hoped to present a "necessity defense" that he placed the bogus bids to prevent irreparable harm to treasured public lands.
"Any evidence of the BLM's noncompliance with federal law or its environmental failures was irrelevant to [DeChristopher's] guilt or innocence, and the district court properly excluded the evidence," the appellate court said.
Rather than disrupt the auction, DeChristopher could have stopped any perceived environmental harm by filing or joining a lawsuit to prevent the issuance of leases, action pursued by several environmental groups, it noted.
In her dissent, Briscoe said the plain language of the act reveals a "shortfall" in the government's case against DeChristopher. In passing the act, Congress chose words that commonly denote group activity, she said.
"Here, it is undisputed that DeChristopher acted alone a fact the government and the majority confront by twisting the common understanding of 'organize' and 'participate' to cover the conduct of a lone actor," Briscoe said, adding that the act's language targeted "boiler-room operations run by scheming oil and gas speculators, not the actions of a solitary intermeddler at an auction."
The Rev. Tom Goldsmith, pastor of the First Unitarian Church of Salt Lake City, also expressed disappointment in the decision.
"I had hoped the collective wisdom of the appellate court would override what I think was a clearly wrong conviction and sentence," he said. "It just demonstrates once again the heroic act of one person following his conscience, the dictates of his conscience and also makes clear that our judicial system just doesn't know how to handle acts of civil disobedience."
Goldsmith said he last spoke with DeChristopher by telephone about a month ago and "his spirits were good. ... He has not crumbled in the face of this adjustment."
Bill McKibben, author and international climate activist, said he has visited DeChristopher in prison, where the inmate is "more than holding his own."
"It's heartbreaking," McKibben said of the ruling, "not for Tim ... but for those of us who'd like to think our federal government wasn't just an arm of the fossil fuel industry. This same Justice Department couldn't find a person to try in our huge financial collapse, but they treated Tim's civil disobedience as dangerous fraud. We'll carry on Tim's fight as best we know how."
Judy Fahys contributed to this story.