NEWPORT – After an argument about whether there were legal grounds to charge them with the offense, two wind project opponents who were arrested on Lowell Mountain on November 16 pled innocent Tuesday morning to charges of criminal contempt of court.
Trevor Ring, 20, and David Martorana, 19, were released without bail on one special condition – that they obey all court orders. Both will opt for a trial by jury, according to their attorney, Kristina Michelsen of Hardwick.
The two Sterling College students are the first – and so far the only – opponents of Green Mountain Power’s industrial wind project to be arrested. Ironically, they had no intention of getting arrested, according to a statement from their supporters. Like all the other protesters who have climbed to a high campsite on the Nelson farm that borders the wind project, they were prepared to obey a police order to move 1,000 feet away from the property line. Police didn’t give them the opportunity to do so, according to the affidavit of Orleans County Deputy Sheriff Jonathan MacFarlane.
Meanwhile, on Saturday and again on Monday a group of opponents who planned to face arrest laid at least temporary claim to a long sliver of the construction site.
Climbing the mountain at first light Saturday, the group stepped out of the forest and painted a new property line across the blast rubble to mark that territory that Don and Shirley Nelson say belongs to them. It is claimed by Trip Wileman, who leased much of the land for the wind project to Green Mountain Power (GMP).
The group planted seven small evergreen trees along the line, carrying soil and water from the nearby forest. They erected Vermont and American flags, set up a tent, and built a substantial fireplace to keep them warm and roast the occasional marshmallow.
Their plan was to get arrested for trespass, rather than for violating Judge Martin Maley’s preliminary injunction that orders protesters to clear the area when blasting is scheduled.
And in that effort, they failed. Saturday seemed to be an off day for GMP’s contractors, at least along the crane path that will ultimately stretch along the ridgeline for about four miles.
The territory occupied by the protesters lay along the crane path, directly west of the campsite they established in the Nelsons’ woods in late September.
Although one construction machine could be heard in the distance, Saturday’s protesters had the mountain to themselves for several hours.
As they became impatient, the protesters discussed ways to alert GMP, and ultimately the police, to their presence. The most creative idea: order a pizza and have the delivery man tell the guards at the gate it was for the protesters who were occupying the project site.
When a single GMP employee finally arrived in a pickup, he seemed satisfied to photograph the group and keep an eye on things from his truck.
The frustrated protesters walked down the mountain early Saturday afternoon, discussing plans to try again another day.
That happened Monday. A dozen opponents gathered at the bottom of the mile-long trail up the mountain at 5 a.m. They climbed the steep, slippery trail in full darkness, most wearing the sort of headlamps favored by outdoors people.
They found their new campsite intact at about 6:20 a.m., lit the fire, set up the flags and prepared to serenade the workmen with the Vermont state song, which begins: “These green hills and silver waters are my home. They belong to me. And to all of her sons and daughters….”
The song was pretty much drowned out by the equipment, as the huge machines coughed to life and set to work. Just to the north of the campsite, a big excavator attacked the rubble at the base of a deep cut the blasters had carved, a new – and permanent – feature of Lowell Mountain.
Massive dump trucks received the rubble and raced it down the path, passing within perhaps 10 feet of the protesters, sometimes meeting and passing directly in front of them.
The protesters were not interfered with. Some of the drivers offered a wave and a grin, some stared grimly ahead as they passed.
But there was no official communication until about 8 a.m., when a GMP pickup pulled up. One of its two occupants told the protesters “you guys are going to have to move. We’re blasting today.”
Nobody moved. There was discussion, around the campfire, of stepping out into the middle of the crane path in hopes of bringing the work to a halt. But there was no consensus, and the protesters had already agreed to act together as a group, if they were going to act at all.
At about 8:45 a.m. Deputy Claude Marcoux arrived in a Lamoille County Sheriff’s Department vehicle.
“You’ve moved onto their property,” he told the group. However, he added, “I’m not going to get into that. My attorney told me just to read the document and ask you to leave.”
The document was Judge Maley’s preliminary injunction, ordering them down the mountain.
“I just need to know how many people I’m going to take down the mountain,” said Deputy Marcoux, who seemed determined to do his job in a straightforward and cheerful manner.
“I understand you’ve moved the line,” he said. “That will be dealt with. It’s a criminal matter. What it is right now is what it is.”
Marcoux read the lengthy injunction, and seemed surprised that he would have no passengers down GMP’s side of the mountain, to be cited for contempt.
The protesters took down the flags and made a dignified retreat. They left the trees, but were pursued down the trail by the acrid smell of burning green brush. Behind them a group of men lost no time in uprooting the trees and tossing them on the campfire.
The protesters were escorted to a sign on a tree marking the edge of the 1,000-foot safety zone by a Franklin County Sheriff’s deputy named J.C. and by Dave Coriell, who does public relations on the project for GMP.
At the top, Coriell had been too upset to talk to the press, who he said was also trespassing on GMP’s turf. But he had a pleasant chat on the walk down with one of the protesters, a Sterling student named Jackie, and was prepared to talk under the 1,000-foot sign.
Eight days earlier, this reporter noted, GMP had hired deputies to keep Sunday visitors off its idle site, in the interest of safety. How safe was it to have loaded dump trucks and other heavy equipment operating so close to the demonstrators today?
“It wasn’t dangerous today,” Mr. Coriell replied. “We would not do something in a situation that was unsafe.”
By leaving the demonstrators unmolested all through Saturday and again on Monday morning until blasting was scheduled, GMP had avoided having them arrested for trespass.
At a strategy meeting in Craftsbury Common on Nov. 17, Dr. Ron Holland of Irasburg had argued that, if a law was to be broken, trespass was a better option than contempt of court.
The key difference, he said, was that a trespass charge would lead to a trial in which GMP would have to prove it had clear title to the land the protesters would occupy. The Nelsons’ claim to that land has yet to be resolved in court, though Judge Maley did not see it as a reason to delay construction.
Facing a contempt charge, he warned, would be “like standing in front of a Mac truck – you’re going to get run over.”
At Monday’s impromptu meeting on the trail, Coriell had a question for Dr. Holland.
“How come on the news you say you want to get arrested,” Coriell demanded, but then leave the mountain under police orders?
“I want to get arrested for something reasonable,” Dr. Holland replied.
If protesters got arrested for disobeying Judge Maley’s order, he continued, “we’d be back before the judge – and we know he’s angry.”
“Like fighting with a mad dog,” another protester said.
The idea that the Lowell wind project would help prevent global warming is “totally bogus,” Dr. Holland argued. “You guys are making money on our tax dollars, and meanwhile global warming gets worse.”
“Stop pointing,” said Jackie, noting that the doctor had his finger aimed at Coriell. The group talks a lot about taking on the system, the corporation, the government and its agencies, but not the individual workers involved.
“I’m too much of a frigging professor,” said a chastened Dr. Holland.
But if the project is completed, he continued, “you guys are the winners, we’re the losers. The environment loses, and future generations lose. We want to get arrested so we can get a trial, so we can say this to the people.”
If Dr. Holland believed that an arrest for criminal contempt would deny him that opportunity, and leave him to answer only to Judge Maley, Tuesday’s events in the criminal division of Orleans Superior Court proved him wrong.
Ring and Martorana were summoned to a routine arraignment session along with several other people who had been charged with crimes.
Judge Robert Bent was on the bench, but removed himself from the case. Judge Robert Gerety Jr. handled their arraignment over the telephone.
Their lawyer, Michelsen, argued that the case should be dropped on the spot for lack of probable cause. That’s an argument that, even assuming everything in the police affidavit is true, it fails to establish that the alleged crime was committed.
She noted that Judge Maley’s order is directed at the Nelsons, certain of their associates, “and all and any other persons acting in concert or in participation with Defendants Donald and Shirley Nelson.”
“There is no allegation that the defendants were acting in concert with the Nelsons,” Ms. Michelsen argued.
State’s Attorney Alan Franklin struggled with the issue, but referred to some of the things the defendants said to police at the scene.
Finally, Judge Gerety asked: Was the prosecutor saying that the young men’s participation with the Nelsons was “a reasonable inference from their statements?”
The prosecutor agreed. Michelsen disagreed, but Judge Gerety ruled that there was probable cause to bring the charges, and accepted pleas of innocent from Ring and Martorana.
“The defense may wish to file a motion,” the judge said.
In a brief interview outside the courthouse, Michelsen said that she would, indeed, file a motion to dismiss the case, based on the arguments she had just made.
But if such a motion fails, it seems that Martorana and Ring will have the opportunity to argue the justice and reasonableness of their actions before a jury of their peers.
The wind project lost a couple more legal battles last week.
The state Supreme Court rejected a complaint for extraordinary relief filed by the Nelsons’ lawyer, Scott McGee, on the grounds that Judge Maley’s order violated their rights under the U.S. and Vermont constitutions. Briefly put, the high court said there were still issues to be settled in Superior Court before the matter was ready for appeal.
And the state Public Service Board declined to order GMP to stop blasting, rejecting a motion for an emergency stay filed by attorney Jared Margolis for the towns of Albany and Craftsbury. That motion was filed after an October 28 blast hurled small chunks of rock and a large piece of recycled tire over the heads of protesters and onto the Nelson property.
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