NEWPORT – Failure to post the blasting schedule or give notification at the wind site on Lowell Mountain may unravel criminal charges brought against two protesters here in Orleans County Superior Court.
Judge Robert Gerety Jr. is expected to rule later this month on a defense motion to dismiss contempt of court charges brought against David Martorana, 19, and Trevor Ring, 20, students at Sterling College in Craftsbury.
They were charged with violating a court order on November 16 when they failed to keep 1,000 feet away from the site during the blasting phase of construction.
Issued by Judge Martin Maley, the order prohibited anyone from acting in concert with adjoining property owners Don and Shirley Nelson from being present “within 1,000 feet” of the northwest property line between the Nelsons and the site.
The order was issued at the request of Green Mountain Power, the utility that is building a 21-turbine wind farm on Lowell Mountain.
The hearing last Thursday was scheduled on a motion from Hardwick defense attorney Kristina Michelsen, who contended that the state lacked the evidence to support a case against her clients.
The only witness to take the stand was the officer who arrested the pair for the violation.
Lamoille County Deputy Sheriff Claude Marcoux testified that twice during the month he had confronted the defendants with the order. “We made sure they understood if they were within the two-hour window, they would be arrested,” he told Orleans County prosecutor Sarah Baker.
The second time police encountered the men in the blasting zone, they were four minutes away from the scheduled blast, according to the officer’s testimony.
The deputy testified the site was well marked with signs, including one 1,000 feet from the blast zone, which had been posted on the mountain’s main trail.
But the signs were not the problem as far as the defense attorney was concerned.
“The issue is whether they were notified of the blast hour,” said Ms. Michelsen.
Deputy Marcoux was unable to say for sure, but he believed the first blast of the day was touched off around nine. He was also unable to recall if an all-clear whistle had sounded following the blast, or if either defendant was aware of the blasting schedule.
When he arrested the two men, he said, he was “going by the letter of what the injunction said”!— referring to the court order to keep the public out of the blasting zone during a two-hour window before blasts.
Under cross-examination by attorney Michelsen, the officer said there were no blasting schedules on the sign posted on the trail. He also said he had no idea if a blasting schedule was posted on the Nelson property, which borders the wind site.
The first time he encountered the two defendants, November 9, Deputy Marcoux testified they were on the Nelson property with other people “having a good time.”
He said there were other people within the zone who were attempting to disrupt the work by planting a tree in the road and putting up tents.
All left when requested by police, he noted.
As the far as the blasting schedule for November 16, the officer told the judge that the only person police dealt with concerning the schedule was the GMP representative on the site, David Coriell.
“I didn’t notify anyone,” he said, adding that he did not know if the other officers at the site had or not.
Upon meeting Mr. Coriell that morning, Deputy Marcoux said, he learned that the first blast was scheduled for nine and another at eleven. But he also testified the schedule was subject to change because of problems arising at the blast site.
Asked by the judge how the defendants could be expected to know when a blast was coming, the deputy threw up his hands.
“That’s a question I cannot answer,” he said.
As a practical matter, the deputy said it would have been difficult for police to notify everyone on the Nelson property about the schedule, especially those he called “mountain goats,” who didn’t use the marked trail.