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Wind protest: Students plead not guilty  

Credit:  Robin Smith, Staff Writer, The Orleans Record, orleanscountyrecord.com 23 November 2011 ~~

NEWPORT CITY – Two Sterling College students pleaded not guilty to criminal contempt of court Tuesday, accused of violating a court order that bans anyone from getting too close to blasting at the Kingdom Community Wind project in Lowell.

David Martorana, 19, and Trevor Ring, 21, stood in Orleans Superior Court–Criminal Division to face the charges, supported by faculty members and friends in the courtroom behind them.

Judge Robert P. Gerety Jr. released the pair on conditions, including that they do not violate any other court order.

Martorana, from Randolph, N.J., and Ring, from Gaithersburg, Md., attend the small four-year college in Craftsbury Common. Neither have a criminal record.

Gerety, hearing the arraignment by telephone, found probable cause for the charges based on police affidavits. The penalty for criminal contempt of court is up to the presiding judge.

The students participated in ongoing protests at the Lowell ridgeline, where Green Mountain Power is constructing the crane path and sites for 21 industrial-grade wind turbines.

They were the first to be arrested and accused of violating a safety zone on property owned by Don and Shirley Nelson near the wind project. Fellow protesters say the students did not intend to violate the zone. They argue that the court order creating the zone is confusing and being incorrectly enforced.

The protesters originally intended to hinder the blasting and try to slow the project enough to stop GMP from erecting the 459-foot-tall turbines on the ridgeline.

Once the court order went into effect, the protest became more about observing the construction. However, protesters have escalated their efforts, entering the wind project property during the weekend to plant trees in a symbolic gesture.

Judge Martin Maley, presiding in a separate lawsuit between GMP and the Nelsons, issued a preliminary injunction in early November barring the Nelsons or anyone on their property from encroaching within a 1,000-foot safety zone within a two-hour window whenever there is blasting at the project. The safety zone extends onto the Nelson property.

The injunction gives GMP the right to use law enforcement officers to enforce the safety zone. GMP has been paying deputies from area sheriff’s departments to police the zone.

In an affidavit filed with the court, Orleans County Sheriff’s Department Deputy Jonathan MacFarlane said that another deputy read the order to Martorana and Ring Nov. 9 and gave them copies of the order. The pair moved out of the safety zone at that time.

On Nov. 16, MacFarlane said Deputy Claude Marcoux found the pair inside the safety zone when blasting was about to occur at 9:56 a.m. and arrested them.

“Martorana stated to me that he had received a copy of the paperwork and was on the designated area because he had felt the blast and assumed the area was clear to enter. Once inside the 1,000-foot boundary, Martorana was approached by Deputy Marcoux. Deputy Marcoux stated that they were blasting again within five minutes and he was inside the two-hour window. Deputy Marcoux then took Martorana into custody.”

He used the same wording to describe the arrest of Ring.

They were fingerprinted, cited into court and released Nov. 16.

The students left the courtroom Tuesday with their friends and faculty members. They declined to comment about the case.

Their attorney challenged the legality of the affidavit and the preliminary injunction itself.

“I ask the court not to find probable cause,” Michelsen said, with Martorana by her side and Ring seated behind her.

The affidavit by MacFarlane does not support the charges in two ways, she said.

First, she said that the preliminary injunction was not broad enough to include the students as one of those who could be targeted for contempt if they didn’t move out of the safety zone.

She said the order implied that the students had to be acting in concert with the Nelsons to be charged. Michelsen also questioned whether they were among the “permittees” allowed on the property, as described in the preliminary injunction.

Michelsen said the language of the court order is excessively broad and meaningless.

Orleans County State’s Attorney Alan Franklin said the students themselves clearly thought they were allowed on the property.

It is reasonable to infer that they had permission, based on that, the judge said.

Michelsen disagreed.

The Nelsons initially welcomed protesters to their property, showing them where to set up camp on the ridgeline near the wind project. They had been battling to stop the wind project since its inception. Once GMP took the Nelsons to court about the protest, they have obeyed the court order and stopped actively encouraging the protest.

However, the land has always been open to hunters and hikers. Don Nelson told Judge Maley that it was up to GMP to police the safety zone.

Michelsen also questioned whether the preliminary injunction has a fatal flaw by not requiring the times of the blasts each day to be announced or posted.

The students didn’t know that one blast would follow another in short succession, she said.

They had no notice of that, she said. “The order is not capable of being complied with.”

Franklin said that an all-clear whistle is used to let anyone know that the area is clear. The whistle had not sounded, he said.

The students “assumed it was OK to go in since the blast had already occurred.”

After the arguments, Gerety said he found probable cause, meaning that the state’s case in the absence of a defense would support a conviction.

The preliminary injunction was rewritten twice before Orleans County Sheriff Kirk Martin and area state police said they could enforce it.

Gerety heard the case because Judge Robert Bent recused himself to avoid a conflict.

Source:  Robin Smith, Staff Writer, The Orleans Record, orleanscountyrecord.com 23 November 2011

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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