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Michael Foster cuts a lock at a TransCanada pipeline valve site near Walhalla on Oct. 11, 2016, before turning the emergency valve and stopping the flow of oil. The incident has prompted a North Dakota legislator to introduce a bill that seeks to be a stronger deterrent for damaging critical infrastructure.

A legislator from the northeast North Dakota district, where an oil pipeline valve was tampered with in 2016, is pushing for a stronger deterrent for damaging critical infrastructure.

Sen. Janne Myrdal, R-Edinburg, is sponsoring a bill that amends the language of state law to better define that it’s illegal to willfully tamper with or damage energy facilities and other infrastructure.

Myrdal said the proposal was prompted by the incident in October 2016 involving activists who turned an emergency valve on TransCanada’s Keystone Pipeline in Pembina County, stopping the flow of oil for more than seven hours.

“There was concern both from law enforcement and during the trial that we just didn’t have enough teeth per se in our Century Code to go after people who do that,” Myrdal said.

Her proposal also would make a fine 10 times greater if an organization is found to be a conspirator with an individual who tampers with or damages infrastructure.

“If groups from outside of our state are paying for activists to come here and paying for damage, we need to make them accountable for that as well,” Myrdal said.

Michael Eric Foster, the Seattle man found guilty of turning the pipeline valve, said making the law more severe would not have stopped him.

Foster and other members of Climate Direct Action were part of a coordinated effort in four states to stop the flow of pipelines that carry tar sands oil from Canada into the United States in protest of the oil industry’s contribution to climate change.

“What I did, I did to protect my family because everything else is failing. I owe it to my family tree and yours to do whatever we can think of to stop destroying this place for our kids,” Foster said. “The real crime that took place that day, Oct. 11, 2016, was when they came out and turned the pipelines back on.”

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Michael Foster turns the emergency pipeline valve on the TransCanada Keystone Pipeline near Walhalla on Oct. 11, 2016. 

A jury found Foster guilty of conspiracy to commit criminal mischief and criminal mischief, both Class B felonies, and criminal trespass, a Class A misdemeanor. Foster was acquitted of reckless endangerment.

Foster was sentenced to one year in prison and ordered to pay $5,000 restitution. He said he served six months and is now on parole. Foster appealed the conviction to the North Dakota Supreme Court.

Foster's co-defendant, Samuel L. Jessup, of Vermont, was found guilty of conspiracy to commit criminal mischief and criminal conspiracy. Jessup, who did not turn the valve but took video of the incident, received a lesser sentence of two years of supervised probation. He also was ordered to pay $10,000 restitution, court records show. If he satisfies the conditions, Jessup’s conviction will be dismissed and the file sealed.

None of the activists who shut off valves in other states received jail time.

Myrdal said she wants to prevent future incidents, which could have more serious consequences. In 2016, the participants called pipeline companies to alert them before turning the valves.

Myrdal’s proposal, which is Senate Bill 2044, would amend the wording of the criminal charge for tampering with or damaging a public service to add “critical infrastructure facility.” A violation is a Class C felony if the conduct is intentional.

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Aaron Birst, executive director for the North Dakota State’s Attorneys' Association, said the bill doesn’t create a new crime, but provides more definition.

“It just puts a little more teeth into the statute,” Birst said.

The bill says critical infrastructure would include a refinery, electrical power generating facility, natural gas processing plant or compressor station and crude oil storage facility including valve sites.

It also names facilities such as wireless telecommunications infrastructure, a dam regulated by state or federal government, railroad track or other freight transportation facility.

The bill states that it “may not be construed to prevent or prohibit lawful assembly and peaceful and orderly petition for the redress of grievances.”

“We worked hard on it to make sure that no First Amendment rights are trampled on whatsoever in this bill,” Myrdal said.

Foster, who said he was not paid to turn the valve, called the increased fine for an organization an “overreach.” The maximum fine for a Class C felony is $10,000, so a conspiring organization could be fined $100,000.

“It is meant to silence and intimidate and harass people who are looking out for the public good,” Foster said.

The bill has four co-sponsors and is likely to first receive a hearing in the Senate Natural Resources Committee, Myrdal said. The 80-day legislative session begins Thursday.

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(Reach Amy Dalrymple at 701-250-8267 or Amy.Dalrymple@bismarcktribune.com)

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