The Delta 5: Ordinary People Taking Extraordinary Actions

On July 24, 2014 at 2am a train carrying 100 cars of highly explosive crude oil went off the tracks under the Magnolia Bridge in Seattle. Each tanker car held 28,000 gallons of oil. Fortunately the train was moving very slowly and none of the oil spilled or exploded.

All of this took place within a mile of where Abby Brockway’s daughter goes to school. For Brockway, that was a defining moment, “After that day, I realized that I couldn’t wait any longer – I needed to take action.”

Two months later Brockway and four others — Michael LaPointe, Patrick Mazza, Jackie Minchew, Elizabeth Spoerri — erected an 18 foot tall metal tripod over Burlington Northern Santa Fe railway tracks at the Delta Rail Yard in Everett, Washington in protest of oil trains and inaction on climate change. Petite Brockway climbed to the very top of the tall structure and the other four locked themselves to the foot of the poles. Eight hours later, with the help of a fire department ladder truck and the jaws-of-life, they were arrested and charged with criminal trespass and blocking a train. They were dubbed the Delta 5.

In January, I travelled to a small courthouse tucked between strip malls north of Seattle to attend the Delta 5 trial. For four days the typically quiet courtroom was overflowing with observers, supporters, reporters and television cameras. It was so packed that many times many of us had to sit on the floor. From the beginning I sensed I was witnessing something historic.

This was to be the first time the necessity defense was argued in a U.S. climate or fossil fuel-connected civil disobedience trial, and only the second climate necessity trial in the world. The necessity defense makes the case that any crimes committed were necessary to avert greater harms from climate change and fossil fuel pollution. After hearing the entire necessity defense arguments, Judge Anthony Howard determined that the defendants had met most but not all of the requirements to have the jury consider it and instructed jurors to make their decision based solely on the legal definitions of criminal trespassing and intentionally blocking a train.

The jury eventually delivered a surprising decision, finding the defendants guilty of second degree criminal trespass but not of intentionally obstructing a train. Ironically, the railroad said that the specific train the Delta 5 had blocked was not scheduled to leave until later that night.

The final two hours of the trial delivered extraordinary moments. One took place during a break after the jury had delivered their decision. The Delta 5 and their legal team were huddling in a narrow hallway outside the courtroom. Three of the jurors joined the group. As reporters and photographers crowded around the jurors and defendants addressed one another.

The jurors expressed remorse for ruling guilty on any charge. Sixty-one year old truck driver Joe Lundheim wiped away tears when Abby Brockway said, “I’m actually really pleased with what you delivered to us, because we have options now and there’s more we can do with this, and this was probably the best verdict that could have been returned to us.”

Lundheim went on to say, “That was huge in itself, that you guys were able to bring this matter to a jury trial. … There’s this very narrow window of time when traffic is going to exponentially increase on this toxic product coming through our neighborhoods to make a buck—while a buck is able to be made—before it closes … And I know this because I’ve been listening to this stuff all week long, so thank you for that.”

“We don’t want to be the corridor,” juror Sue McGowan added. The jurors and defendants hugged and then, through a big smile Delta 5 defendant LaPointe said loudly, “May I say welcome to the movement?” The crowd erupted into laughter and applause.

Shortly after Judge Howard delivered extraordinary closing comments:

Frankly the court is convinced that the defendants are far from the problem and are part of the solution to the problem of climate change . . . they are tireless advocates that we need in this society to prevent the kind of catastrophic effects that we see coming and our politicians are ineffectually addressing. People in the courtroom learned much, including the guy in the black robe.

The defendants were sentenced to 90 days jail with credit for one day already served and 89 suspended provided they did not violate a two-year probation period.

There will be more to come. At least three of the Delta 5 defendants have filed an appeal. Their goal is to have the necessity defense considered by a jury.

When I asked Patrick Mazza why he had decided to complicate his life by crossing the line to direct action civil disobedience he said,

My day on the rails was the day before my daughter’s 18th birthday, the last day before she became a full adult. By the time she’s my age it will certainly be hotter, more storm tossed and troubled. She knows it too. A few years back I was sitting on the porch late on a sunny afternoon, she came up and asked, ‘Dad, is there hope for the world?’ That’s the kind of question for which a parent needs a positive answer. When I sat down on the railroad track, I did my best to supply one.The 

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