A17-1650 A17-1651 A17-1652

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1649
A17-1650
A17-1651
A17-1652

State of Minnesota,
Appellant,

vs.

Annette Marie Klapstein,
Respondent (A17-1649),

Emily Nesbitt Johnston,
Respondent (A17-1650),

Steven Robert Liptay,
Respondent (A17-1651),

Benjamin Gary Joldersma,
Respondent (A17-1652).

Filed April 23, 2018
Appeal dismissed
Halbrooks, Judge
Dissenting, Connolly, Judge

Clearwater County District Court
File No. 15-CR-16-413

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David L. Hanson, Clearwater County Attorney, Bagley, Minnesota (for appellant)

Tim M. Phillips, Law Office of Joshua R. Williams PLLC, Minneapolis, Minnesota (for
respondents)

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Richard J. Savelkoul, Martin & Squires, P.A., St. Paul, Minnesota; and

Megan H. Berge (pro hac vice), Baker Botts L.L.P., Washington, D.C. (for amicus curiae
The Minnesota Chamber of Commerce)

Jordan S. Kushner, Law Office of Jordan S. Kushner, Minneapolis, Minnesota; and

William P. Quigley (pro hac vice), Loyola University New Orleans College of Law, New
Orleans, Louisiana (for amici curiae Law Professors and Legal Education Organizations)

Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
In this pretrial appeal, appellant State of Minnesota challenges the order of the
Clearwater County District Court permitting respondents to present evidence at trial on the
defense of necessity. Because the state has not demonstrated that the district court’s ruling
will have a critical impact on the outcome of the trial, we dismiss the appeal.
FACTS
On October 11, 2016, respondents Annette Klapstein and Emily Johnston traveled
to the rural town of Leonard with the intention of shutting down a petroleum pipeline at a
valve station located nearby. Klapstein and Johnston used bolt -cutters to cut the chain
securing the valve enclosure, entered, and then cut the chain securing the valve device
itself. Respondent Benjamin Joldersma accompanied Klapstein and Johnston, and he
contacted Enbridge—the company operating the pipeline —in order to inform it of what
was occurring and to provide the company an oppor tunity to remotely shut down the

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pipeline valve, which it ultimately did. Respondent Steven Liptay also accompanied the
group for the purpose of documenting the events of the day in video recordings.
Klapstein, Johnston, and Liptay were each charged with felony criminal damage to
property, aiding and abetting felony criminal damage to property, gross misdemeanor
trespassing, and aiding and abetting gross misdemeanor trespassing. Joldersma was
charged with conspiracy to commit felony criminal damage to pr operty and aiding and
abetting felony criminal damage to property.
Respondents gave notice of their intent to rely on the defense of necessity at trial.
The state filed a memorandum opposing respondents’ reliance on the necessity defense and
requesting that the district court expressly preclude its use. Respondents filed a responsive
memorandum asking the district court “to allow them to present evidence of . . . necessity
to a jury of their peers.” At a hearing to address the state’s objection, respondents testified
to their individual perceptions of the necessity of their actions in preventing environmental
harm caused by the use of fossil fuels, particularly the tar sands oil carried by the pipeline
with which they interfered.
After supplemental br iefing, the district court issued an order and memorandum ,
stating:
The Court GRANTS [respondents’] request to present
evidence on the defense of necessity at trial. The Court’s grant
is not unlimited and the Court expects any evidence in support
of the defense of necessity to be focused, direct, and presented
in a non -cumulative manner. The State of Minnesota may
object at trial on the above or other lawful grounds.

The state appeals from this order.

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D E C I S I O N
The state may appeal from a pretrial order in a criminal case provided that it can
establish “how the district court’s alleged error, unless reversed, will have a critical impact
on the outcome of the trial.” Minn. R. Crim. P. 28.04, subd. 2(2)(b). “To prevail, the state
must clearly and un equivocally show both that the trial court’s order will have a critical
impact on the state’s ability to prosecute the defendant successfully and that the order
constituted error.” State v. Zanter , 535 N.W.2d 624, 630 (Minn. 1995) (quotation s
omitted).
To establish critical impact, the state need not show that the pretrial ruling
“completely destroys” the state’s case, but it is sufficient that it “significantly reduces the
likelihood of a successful prosecution.” State v. McLeod , 705 N.W.2d 776, 784 (M inn.
2005) (quotations omitted). Nevertheless, the test for critical impact is intended to be a
“demanding standard” and presents a threshold question that must be resolved prior to
ruling on the merits of a pretrial order itself. Id. If this test is no t satisfied, the correct
remedy is dismissal of the appeal. See State v. Jones , 518 N.W.2d 67, 71 (Minn. App.
1994) (dismissing appeal for lack of critical impact), review denied (Minn. July 27, 1994).
The state argues that the district court’s ruling will significantly reduce the
likelihood of a successful prosecution because the necessity defense is inapplicable to
respondents’ cases, and therefore evidence concerning it “will unnecessarily confuse the
jury and conflate the issue regarding the [r]espondents’ culpability.” The common-law
defense of necessity has long been recognized in Minnesota and “ applies only in
emergency situations where the peril is instant, overwhelming, and leaves no alternative

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but the conduct in question. ” State v. Johnson , 289 Minn. 196, 199, 183 N.W. 541, 543
(1971). Generally speaking, necessity is an effective defense to a criminal charge “if the
harm that would have resulted from compliance with the law would have signif icantly
exceeded the harm actual ly resulting from the defendant’ s breach of the law. ” State v.
Rein, 477 N.W.2d 716, 717 (Minn. App. 1991) (quoting United States v. Seward, 687 F.2d
1270, 1275 (10th Cir. 1982)), review denied (Minn. Jan. 30, 1992).
In State v. Jones, this court held that the state’s claim of critical impact in a pretrial
appeal may not be predicated on future evidentiary rulings that have yet to occur. 518
N.W.2d 67, 70 (Minn. App. 1994). The defendant in Jones was indicted for the aggravated
robbery of a casino together with four other individuals. Id. at 68. A fifth person —who
had withdrawn from the conspiracy prior to the robbery taking place —was to be called as
a witness on the state’s behalf. Id. In anticipation of this, the state moved to preclude the
defense from introducing evidence that this witness had participated in the robbery of a
truck stop just days before the robbery of the casino. Id. The district court denied this
motion, and the state filed a pretrial appeal. Id. at 69.
The state argued that permitting the defense to introduce unproven evidence of a
witness’s involvement in other criminal activity would have a critical impact on its case
due to the fact that one of Jones’s codefendants was acquitted after a tria l in which this
same evidence was introduced. Id. at 70. The state maintained that this evidence
“divert[ed] the jury’s attention from the charged offense.” Id. In finding a deficient
showing of critical impact, this court noted that the state’s concern over the admission of
this evidence “extends to a series of evidentiary rulings it expects the district court will

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make.” Id. We declined to assume that the dist rict court in Jones’s case would make the
same decisions that were made in the trial of his co -defendant and noted that doing so
would “amount to issuing an advisory opinion.” Id. (citing State v. Kvale , 352 N.W.2d
137, 140 (Minn. App. 1984)). We concluded that the district court’s finding on the
relevance of Jones’s evidence did not have a critical impact and that the state could not
“premise critical impact on a series of evidentiary rulings that may or may not follow that
ruling.” Id.
The district cou rt’s ruling here presents an analogous circumstance. Similar to
Jones, the district court’s ruling does not have any immediate impact on the state’s case in
the absence of other yet -unmade rulings in trial . The district court’s order only permits
respondents to present eviden ce on necessity at trial; it makes no commitments as to the
scope of the evidence that will be allowed, and it specifically authorizes the state to object
again at trial on any lawful grounds. Any evaluation of the impact of this ord er on the
state’s case necessarily involve s assumptions as to (1) what testimony and evidence will
actually be presented at trial, (2) what objections to its admission the state will make, and
(3) what those rulings will be.
Whether, for instance, the district court will instruct the jury on the allowable use of
this evidence prior to its deliberation is a question that would bear heavily on assessment
of critical impact, but yet is wholly unanswered by the district court’s order. The district
court may or may not so instruct the jury at the conclusion of the evidence. A finding of
critical impact in this situation would therefore—just as in Jones—be tantamount to issuing
an advisory opinion on the matter. See Thompson v. State , 284 Minn. 274, 277, 170

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N.W.2d 101, 103 (1969) (“An appellate court will not consider abstract or unnecessarily
general questions which might result in one answer to one set of circumstances but another
answer to a different set of circumstances.”). Considering that the ef fect of the district
court’s order in this matter is so conditioned by and dependent upon the resolution of issues
and objections not yet before it belies the state’s claim that it has met its “demanding”
burden of “clearly and unequivocally” demonstrating a critical impact on its case.1 Zanter,
535 N.W.2d at 630.
Appeal dismissed.

1 Because the state has failed to make a satisfactory showing that the district court’s pretrial
order will have a critical impact on the trial’s outcome, we do not reach the question of the
applicability of the necessity defense in this matter.

D-1

CONNOLLY, Judge (dissenting)
I respectfully dissent. This case is about whether respondents have committed the
crimes of damage to property and trespass. It is not about global warming.
I disagree with the majority’s characterization of the district court’s order as being
tentative. That order specifically grants respondents’ request to present evidence on the
defense of necessity at trial. At oral argument, respondents stated they believe the district
court’s order would permit them to call four expert witnesses. These witnesses intend to
testify at length about global warming and their belief that the federal government’s
response has been ineffective. To permit any such evidence would have a critical impact
on the outcome of the trial. To establish critical impact, the state n eed not show that the
pretrial ruling “completely destroys the state’s case,” but it is sufficient that it “significantly
reduces the likelihood of a successful prosecution.” State v. McLeod , 705 N.W.2d 776,
784 (Minn. 2005) (quoting State v. Joon Kyu Kim , 398 N.W.2d 544, 551 (Minn. 1987)).
Here, the state argues that the district court’s ruling will significantly reduce the likelihood
of a successful prosecution because the necessity defense is inapplicable to this case, and
therefore, such evidence will confuse the jury and conflate issues regarding culpability. I
agree.
Moreover, the evidence the respondents wish to provide for their necessity defense
is inadmissible because it does not relate to the defense of necessity as this defense has
been inter preted under Minnesota law. Generally, our court reviews a district court’s
evidentiary ruling for an abuse of discretion. State v. Loving, 775 N.W.2d 872, 879 (Minn.
2009). However, even under this standard, appellate courts may reverse a district cour t’s

D-2

ruling when that ruling is “based on an erroneous view of the law.” State v. Bustos, 861
N.W.2d 655, 666 (quoting Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011)). Here, the
district court relied on an erroneous view of the law when it granted respondents permission
to present evidence on the necessity defense at trial, and consequently, it abused its
discretion.
In Minnesota, “[a] necessity defense defeats a criminal charge if the harm that would
have resulted from compliance with the law would have significantly exceeded the harm
actually resulting from the defendant’s breach of the law.” State v. Rein, 477 N.W.2d 716,
717 (M inn. App. 1991), review denied (Minn. Jan . 30, 1992) (quotations omitted).
Additionally, the necessity defense exists only if “(1) there is no legal alternative to
breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal
connection between breaking the law and preventing the harm.” Id. The necessity defense
“applies only in emergency situations where the peril is instant, overwhelming, and leaves
no alternative but the conduct in question.” State v. Johnson , 289 Minn . 196, 199, 183
N.W.2d 541, 543 (1971). Respondents cannot meet any of these elements.
First, respondents are unable to establish that there was no other legal alternative to
breaking the law when they chose to trespass and sabotage the pipeline. In Minnesota, the
necessity defense is not available to individuals who decide to disobey the law despite other
available legal alternatives. See Rein, 477 N.W.2d at 718 ( concluding that the defendant
protestors were not able to use the necessity defense becau se they had access to the other
alternatives such as the state legislature, courts, advocacy, etc.); see also Cleveland v.

D-3

Municipality of Anchorage , 631 P.2d 1073, 1078 -80 (Alaska 1981) (rejecting necessity
defense because harm could be protested through other noncriminal means).
Here, like in Rein, the respondents had the full disposal of the state and federal
legislatures, state and federal regulatory agencies, and the courts. 477 N.W.2d at 718 .
Although respondents argue that their “legal efforts” for addressing fossil fuel consumption
and climate change are “not sufficient to address the problem,” the pertinent question for
purposes of the necessity defense is not whether the defendants were successful in using
various political and legal processes but whether there were no legal alternatives to
preventing the harm. The answer in their case is that there were many other ways
respondents could have tried to effectuate meaningful change in U.S. environmental policy.
Instead, they elected to engage in criminal conduct, not as a last resort, but rather as their
idea of a more effective resort. That was their choice, but the law of necessity does not
shield them from criminal liability because there were other legal alternatives.
Second, because the re spondents cannot show that the harm was imminent, the
necessity defense does not apply. The harm the respondents cite as justification for their
trespass and sabotage of the pipeline is catastrophic climate change. Although they argue
that much of the world has recognized that climate change is an urgent and consequential
problem, the pipeline respondents sabotaged was operating legally under both the laws of
Minnesota and the United States. Our court does not recognize harm from a practice when
that practice is specifically condoned by the law. Rein, 477 N.W.2d at 718; see also United
States v. Schoon , 971 F.2d 193, 197 -98 (9th Cir. 1991). This recognition is every bit as
true when the practice is conducting legal abortions, as it is when the practice is the

D-4

transportation of tar -sands-derived crude oil. See Rein, 477 N.W.2d at 718 (concluding
that there is no cognizable harm to be avoided in trying to stop legal abortions). Because
the respondents are unable to establish harm —let alone imminent harm —their use of the
necessity defense is inappropriate in this context.
Third, because there is no direct, causal connection between respondents’ criminal
trespass and the prevention of global warming, the necessity defense does not apply. The
necessity defe nse requires “a direct, causal connection between breaking the law and
preventing the harm.” Id. at 717. This connection must have a close “nexus between the
act undertaken and the result sought.” Schoon, 971 F.2d at 198.
Here, like in many other civil -disobedience cases, the act alone does not suffice to
stop the harm but rather requires —at the very least —one more step not controlled by the
protestors. See id. (explaining that “Congress must change its mind”). Many courts over
the years have held that attempts to change the law through means of civil disobedience
cannot be directly or causally linked to preventing an imminent harm. See, e.g., United
States v. Cassidy, 616 F.2d 101, 102 (4th Cir. 1979) (stating that even if the defendants
could show the United States illegally possessed nuclear weapons under international law,
their demonstration could not invoke the necessity defense because throwing blood on the
walls of the pentagon does not have a direct, causal relationship with nuclear weapons
possession); United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972) (stating that the
defendant’s assumption that destroying draft boards would have an impact on the country’s
war in Vietnam was unreasonable); Rein, 477 N.W.2d at 718 (stating that there was no
evidence that any abortions were actually prevented by the trespass).

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In the instant case, respondents could not have reasonably expected that their
criminal act was “directly” or “causally” connected to the prevention of climate change.
In fact, in their brief, respondents concede that they only had “anticipation of a direct causal
connection” based on their action’s potential ability to raise awareness in others of the harm
of climate change. Although there is no doubt that their actions drew attention to the cause
they sought to highlight, that in and of itself would not be effective in reversing a state’s
or country’s climate laws or policies. Respond ents’ use of the necessity defense is
inapplicable because their actions are far too removed from the continuing harm they
sought to prevent.
I believe the undisputed facts of this case negate all three essential elements of the
necessity defense. Conse quently, it would be reversible error to allow respondents to
present any of their evidence. By permitting it, the district court’s error will have a critical
impact on the outcome of the trial. Therefore, I would reverse the decision of the district
court.