from the District Court of Morton County, South Central
Judicial District, the Honorable Daniel S. El-Dweek, Judge.
D. Grosinger, Mandan, ND, for plaintiff and appellee.
Melinda L. Power (argued), Chicago, IL, and B.J. Jones,
Fargo, ND, for defendant and appellant.
C. Ringsak (on brief), Bismarck, ND, for defendant and
1] Rebecca Kathleen Jessee appeals from a district court
order deferring imposition of sentence after she was found
guilty of tampering with a public service. Jessee argues her
presence on railroad tracks during the Dakota Access Pipeline
protest did not constitute tampering with tangible property
and the district court improperly classified Burlington
Northern Sante Fe Railway as a public service. We reverse,
concluding Jessee's presence on the tracks did not
constitute tampering with tangible property.
2] In November 2016 a two-line stand-off between protesters
and law enforcement formed at the intersection of the
railroad tracks and County Road 82 in Morton County. Law
enforcement responded to reports of protesters attempting to
cross the railroad tracks to reach a pipeline construction
yard. Responding officers observed a small group, which did
not include Jessee, placing debris on the railroad tracks.
Law enforcement alerted Burlington Northern Sante Fe Railway
of the situation and stopped all trains traveling through the
area. As both law enforcement and protestors gathered in
greater numbers, the railroad tracks became the dividing line
between the two groups. Law enforcement used loudspeakers to
warn the protesters to disperse or face arrest.
3] Jessee was among dozens arrested and charged with varying
crimes for participating in the protest. Jessee was charged
with tampering with a public service for being on and near
the railroad tracks during the protest. At Jessee's bench
trial the district court found Burlington Northern Sante Fe
Railway qualifies as a public service under N.D.C.C. §
12.1-21-06, the delay of one hour and forty-five minutes was
a substantial interruption and Jessee's presence on the
railroad tracks was tampering. The court found Jessee guilty
and entered an order deferring imposition of sentence for one
year. Jessee appeals the order.
4] Jessee argues insufficient evidence supports her
conviction of tampering with or damaging a public service.
Section 12.1-21-06, N.D.C.C., provides:
"1. A person is guilty of an offense if he causes a
substantial interruption or impairment of a public
communication, transportation, supply of water, gas, power,
or other public service by:
a. Tampering with or damaging the tangible property of