February 2, 2012
Vermont

Lowell wind: Students’ contempt charges dismissed

Robin Smith, Staff Writer, The Orleans Record, orleanscountyrecord.com 2 February 2012

NEWPORT CITY – Judge Robert P. Gerety Jr. on Wednesday threw out the state’s contempt of court case against two Sterling College students who were involved in the protest against the Lowell wind project.

Gerety said the students, Trevor Ring and David Martorana, had no way of knowing on Nov. 16 that they were about to be in contempt of a preliminary injunction banning anyone from being within a 1,000-foot blast safety zone at certain times.

The students’ attorney, Kristina Michelson, argued last week in Orleans Superior Court–Criminal Division, that the state couldn’t prove that the students knew when blasting would take place.

Michelson said the state did not have enough evidence in the first place to even charge the students with contempt of court.

“There was no evidence received tending to show that the defendants were notified of the time that blasting would begin on the day they were arrested,” Gerety wrote in his three-page ruling. “There was no evidence from which a reasonable person could infer that the defendants knew the time that blasting would begin on the day they were arrested.”

Gerety called that an essential element of any prosecution for contempt of court of the preliminary injunction. He said the state did not provide “substantial, admissible evidence” for an essential element in the charge, even when considered in a way most favorable for the state.

Gerety did not make any decision in the defense request to dismiss a trespassing charge against Chronicle Publisher Christopher Braithwaite, who was cited while covering a protest on the Lowell wind site in December. Gerety last week asked attorneys for more evidence before he would make a decision.

And the trespassing charges against six protesters are still in criminal court, with no date set yet for trial.

Last fall, protesters gathered in the blast safety zone on neighboring property owned by Don and Shirley Nelson to intentionally hinder blasting.

That prompted wind project developer Green Mountain Power to request a preliminary injunction in civil court to stop them.

The preliminary injunction by Judge Martin Manley had to be rewritten several times before local law enforcement officers would agree to try and enforce it.

Once enforced, protesters such as Dr. Ron Holland of Irasburg warned deputies and state police that they wouldn’t be able to press any charges in court.

The preliminary injunction lasted long enough for GMP to complete blasting near property owned by the Nelsons. The injunction expired in early December, after construction of the wind project moved to different parts of the Lowell mountain ridgeline and protesters could no longer affect the blast schedule.

The Sterling students were on the mountain during blasting near the Nelson property in November. They were on the mountain, with others, on Nov. 9, deputies said in their affidavit. At that time, they were given a copy of the preliminary injunction and warned about the blasting safety zone and the two-hour warning whistle.

But on Nov. 16, Gerety noted, the students had not known when the blasting would happen, had not heard a warning whistle and thought the area was clear. They were arrested and charged.

“The terms of the preliminary injunction are clear that the persons described in the order are enjoined from being present in the 1,000-foot area during a specific time frame starting two hours before blasting activity is scheduled to start and ending when the all-clear whistle is sounded,” Gerety wrote.

“Accordingly, one essential element of any prosecution for contempt of the preliminary injunction is that the individuals involved are notified of the time that blasting is scheduled to begin. In the absence of such notice the individuals involved lack the information necessary to conform their conduct to the requirements of the order,” Gerety wrote. “Accordingly, the defendants’ motion to dismiss must be granted.”

Gerety said GMP was ordered to warn the public of any blasting as part of the preliminary injunction.

And GMP was also supposed to provide notice of the blasting to law enforcement officers “sufficient to allow for execution of this order,” Gerety said.

“There was no evidence presented at the hearing from which the court is able to find that GMP complied with these orders. In fact, the evidence received on this topic was that GMP did not provide law enforcement with notice of the time that blasting would begin,” Gerety said.

Michelson had raised two other points that she said would warrant dismissal of the state’s case.

She argued that the preliminary injunction was too vague and not enforceable. She also said the students weren’t even among those targeted by the court order.

Gerety didn’t address those issues in his decision because there was no need, he said.

The charges were dismissed without prejudice, meaning that the state has the right to present its case again to the court.