Charges Dismissed ‘In the Interest of Justice’ for 42 Seneca Lake Gas Storage Protesters

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Mar 192015


Charges Dismissed ‘In the Interests of Justice’ for 42 Seneca Lake Gas Storage Protesters
Mariah Plumlee | March 19, 2015 10:57 am | Comments

[Author’s Note: As this goes to press, Reverend Nancy Kasper’s charges were dismissed in the interest of justice. She was one of 42 dismissals at the Reading Town Court on March 18.  Reverend Kasper will still go to trial for her second arrest.]

It was 4 degrees on February 23, on the drive from Mecklenburg to the Reading Town Court. It had become a familiar route. Since October, I’ve been part of a local movement protesting the expansion of gas storage beside Seneca Lake by a company called Crestwood Midstream. The argument is a familiar one. People against the expansion cite environmental concerns: unstable caverns with a history of collapse, air quality issues and their associated health risks, increased train and truck traffic. Local winemakers are concerned about their grapes, being sullied by an industry known for its cavalier destruction.

To date, there have been 216 arrests at the gates of Crestwood. Since November, I have watched musicians, professors, nurses, teachers, bakers, chefs, psychologists, farmers, philosophers, business owners, winemakers and parents face charges of trespassing and disorderly conduct at the Reading Town Court. It is, my husband says, my miniseries.

The best part of the drive is heading west on 79 out of Burdett when the lake just appears. Boom. Like a guy jumping out of a cake. I grew up downstate, in a family that eschewed fresh water for salt. I find it hard to trust water that doesn’t move with the moon. (I once burst into tears at a gas station in Queens because I could smell the ocean). My children, however, were born here. Ignorant of sand up their swimsuits, or being caught in a dead man’s roll, they make piles of shale on Lodi Point every summer, squawking with excitement when a boat goes by, and for a moment, there is a wave. They are lake people. Headed down the hill, the lake was on my right, massive and unapologetic. It was so cold I was driving with my gloves still on.

Today was Reverend Nancy Kasper’s trial. She pled not guilty at her arraignment, and chose to go to trial with a public defender. For a violation, there is no jury, just the judge, which I have learned, is called a bench trial. The deputy at the door of the courthouse asked me if I was there for an arraignment or if I was ‘just visiting”. This is the euphemism he uses every time he sees me, though I am attending a public trial, in a public building. Then it was time for the search. I held my arms out in a T, and told him I’d left my phone in the car. We both agreed that I didn’t have any weapons or bombs on me. He outlined my down coat with the metal detector, and it beeped its assent. All I had on me were mechanical pencils.

I’ve been attending these court proceedings for two reasons. One: moral outrage. Jamming fracked gases into unstable caverns under one of the biggest sources of freshwater in the state, in the heart of a thriving, award winning wine industry is madness. Two: Gratitude. I came of age in a world without trustworthy role models. My heart has grown three sizes watching the people here stand up to defend their home, their water. They have given me the beginnings of faith. So I show up.

There were a handful of people in the courtroom: a few Seneca Lake Defenders that I knew; Barry Moon, the director of operations at Crestwood; and a young man in a dark suit and hair product sitting beside him. He never identified himself.

Wesley Roe, Reverend Kasper’s public defender, started things off by reminding Judge Berry that he had passed a motion requesting an expert witness. His argument, he said, was two-pronged. One, the Reverend had acted on a belief of imminent harm, and two, that harm was real. In order to show this, he said specific testimony was necessary from an expert witness.

John Tunney, the assistant District Attorney, took issue with Mr. Roe’s request, saying, “justification is not an applicable defense.” The question, he said, was not why the defendant had trespassed, but whether or not she had trespassed. Judge Berry said he agreed with ADA Tunney and that there would be no expert witness.

Judge Berry went on to say that in his understanding the application for construction of a compressor station had not yet been approved by the DEC. Roe reminded him that FERC had approved Crestwood’s request to expand their current methane storage to 2 billion cubic feet last summer. Judge Berry still would not allow the expert witness.

Mr. Tunney called Barry Moon and Deputy Eberhardt to testify. Mr. Moon, who is the Director of Operations at Crestwood, has worked for the company for the last 27 years, since they were Bath Petroleum. He is familiar with the physical plant, and involved with the wells and layout of salt and gas facilities. He told us about the NO TRESPASSING signs at the site and that the protestors did not have Crestwood’s permission to be on the property. He was working at the brine field on November 19, 2014, when he was informed that the gate was being blocked. He made the official complaint to the police that resulted in Rev. Kasper’s arrest, among others. This was my first time seeing Barry Moon in the flesh. He wore a striped shirt and corduroy pants. He was unassuming and polite while on the stand. I wondered what he really thought about all of this.

Deputy Eberhardt described the scene at the site of the arrest and identified Rev. Kasper as one of the people blockading the south gate. Mr. Roe asked him if the blockaders were doing any harm. Mr. Tunney objected to that line of questioning. Mr. Roe was finally allowed to ask Mr. Eberhardt if the protestors had been compliant. “Did they resist? Were they reasonable? Did they answer your questions?” They had not resisted, they were compliant.

Reverend Kasper testified on her own behalf. Tall and neatly dressed, she spoke calmly with clarity. She said she was compelled as a mother and as a citizen of this planet to protect our future. She spoke of mass extinctions and environmental degradation, about being a minister, and the harm that she has witnessed to the earth over the course of her lifetime. She said she put her body in the way of progress, that … But Tunney stopped her before she was finished, saying, “I have tried to be indulgent. I understand the point. It is not unfounded. I am objecting on the subject of relevance.” The only thing that mattered, he argued, was that she admitted to trespassing. Mr. Roe urged Judge Berry to dismiss the charges in the interest of justice. Mr. Tunney insisted that was a pretrial motion and couldn’t be requested now. Mr. Roe objected to the preclusion of his expert witness and asked again how imminent harm could possibly be irrelevant. He got no answer from Judge Berry.

The court was adjourned. I asked Mr. Tunney to explain his argument about the justification defense not being relevant. He said in Section 35 subdivision 2 of the Penal Code it says that under certain circumstances criminal conduct may be justified and reasonable and necessary to avoid imminent harm, such as a man breaking into a house that is on fire to save a child’s life. As an example, he mentioned a case down state where some people had blocked a bulldozer in an attempt to save a park from destruction, but they did so 7 hours before the demolition was to begin. They could have used those 7 hours to call a lawyer and get an injunction, Mr. Tunney explained to me, so they therefore could not use the justification defense. Rev. Kasper’s case was even more pronounced, he said, as it had been several months since her arrest, with no new developments at the construction site.

I drove back the way I had come, my face smarting from the short walk to the car. The wind had picked up, and the air was exquisitely painful. The lake was on my left now. Tidal or not, the sight of all water was comforting. Still a liquid, holding strong at 32 degrees. A warm spot. A 600-foot deep, forty-mile long warm spot. Even now, in this harsh winter, the lake was moderating the climate for us. A miracle.

‘I have tried to be indulgent,’ Tunney had said, as he interrupted Nancy. I have indulged many a toddler in my career, and I know that telling them they are being indulged is the final flourish on the manipulation. He didn’t have to let her talk about why she trespassed, but he did. For a little while.

State Route 14 south merged from two lanes into one and I eased in behind a truck. It was hard to keep my attention on the road, rendered a gray by the salt, boring compared to the shifting textures and tones out on the lake. There was wind out there, slicing the water into pieces of light. I ran through the words for blue that I knew: Cobalt. Cerulean. Aegean. Azure. Ultramarine. Sapphire. Lapis. None of them were accurate enough for what I saw. Take all the words for blue, put them into a kaleidoscope, look straight into a cold sun. That’s what color it was.

I thought about Mr. Tunney’s definition of imminent harm, how small it was. Nancy Kasper, on the other hand, made the issue big. Big like the lake is big. She had big reasons for risking arrest. Our water, our soil, is at the very root of what this place is, and why we are able to live here. Tunney said our concerns weren’t unfounded. Why isn’t he fighting for us? Why is the DA’s office protecting an industry that considers the lake, the grapes, and the farms an insubstantive issue?

Of the 216 arrests that have occurred, Reverend Kasper’s trial is the first. She is the first voice of many to publically stand trial in an attempt to protect their home, their water. They aren’t going to stop, those clear, calm voices. The water was still on my left as I put my Subaru in fourth to get up the hill. Soon it would be behind me, just out of sight.



Charges dismissed for We Are Seneca Lake protesters

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Mar 192015

Judge Raymond Berry dismissed all charges against the 42 protesters, according to a news release from We Are Seneca Lake.

People from all over the region have held ongoing protests at the gates of Crestwood Midstream in the Town of Reading Schuyler County for about five months. Protesters have included local winemakers, teachers, students and musicians.

According to We Are Seneca Lake, in an agreement with the Schuyler County District Attorney’s office, the charges of trespassing and disorderly conduct will also be dismissed against about 100 additional people whose cases were pending.

In the past, protesters have criticized Berry for handing down maximum sentences.

The defendants who appeared before Berry on Wednesday submitted an oral motion asking for their charges to be dismissed. Their statement read:

“We only have this planet. We must safeguard it for those who follow. Would that it not be necessary, but sometimes citizens of good conscience must engage in non-violent acts of civil disobedience to protect that sacred trust. As long as Crestwood Midstream Partners, or any other corporate or public or private entity, continues to threaten our way of life by the proven dangerous storage of highly compressed gas in the crumbling caverns at the Salt Point facility, I reserve the right to act as my conscience dictates in order to protect Seneca Lake, its citizens, and the surrounding environment. I reserve all rights to protest further at the Crestwood facility, although it is not my intent at this time to break the law in doing so.”

Assistant District Attorney John Tunney expressed his willingness to accept a motion to dismiss after each recitation, members of We Are Seneca Lake stated.

Sujata Gibson, a defense attorney who has worked with the protesters since December, said the motion dismissals were a historic move that affirms the importance of the protesters.

“We’ve seen a sea change in the way the court and the prosecutors have reacted to our cases — from maximum sentences for jail terms for trespassing violations to large-scale offers to support dismissals in the interests of justice. This is a testament to the sincerity and passion of the protesters,” Gibson stated in a press release.

Protesters that had motions dismissed Wednesday:

Judy Abrams, 66, Trumansburg, Tompkins County;

Edgar Brown, 60, Naples, Ontario County;

Carolyn Byrne, 38, Ithaca, Tompkins County;

Deborah Cippola-Dennis, 49, Dryden, Tompkins County;

Joanne Cippola-Dennis, 53, Dryden, Tompkins County;

Lyndsay Clark, 53, Springwater, Livingston County;

James Connor, 83, Mecklenburg, Schuyler County;

Doug Couchon, 64, Elmira, Chemung County;

Kim Cunningham, 58, Naples, Ontario County;

John Dennis, 63, Lansing, Tompkins County;

Michael Dineen, 65, Ovid, Seneca County;

Peter Drobney, 56, Corning, Steuben County;

Martha Ferger, 90, Dryden, Tompkins County;

Richard Figiel, 68, Hector, Schuyler County;

Carrie Fischer, 38 Fayette, Seneca County;

Kenneth Fogarty, 75, Guilford, Chenango County;

Lynn Gerry, 58, Watkins Glen, Schuyler County;

Heather Hallagan, 41, Meckenburg, Schuyler County;

Carey Harben, 47, Hector, Schuyler County;

Nancy Kasper, 56, North Rose, Wayne County;

Sharon Kahkonen, 65, Mecklenburg, Schuyler County;

Crow Marley, 55, Hector, Schuyler County;

Faith Meckley, 20, Geneva, Ontario County;

Kelly Morris, 55, Danby, Tompkins County;

Paul Passavant, 48, Geneva, Ontario County;

Kirsten Pierce, 44, Burdett, Schuyler County;

Mariah Plumlee, 35, Covert, Seneca County;

Leslie Potter, 70, Big Flats, Chemung County;

Dan Rapaport, 54, Newfield, Tompkins County;

Stephanie Redmond, 38, Ithaca, Tompkins County;

Rick Rogers, 66, Spencer, Tioga County;

Cat Rossiter, 62, Sayre, Bradford County;

Laura Salamendra, 30, Geneva, Ontario County;

Coby Schultz, 54, Springwater, Livingston County;

Elan Shapiro, 67, Ithaca, Tompkins County;

Brion Seime, 42, Newfield, Tompkins County;

Stefan Senders, 55, Hector, Schuyler County;

Audrey Southern, 31, Burdett, Schuyler County;

Chris Tate, 52, Hector, Schuyler County;

John Wertis, 51, Wertis, Trumansburg, Tompkins County;

Dwain Wilder, 75, Rochester, Monroe County;

Ruth Young, 77, Horseheads, Chemung County.

Follow Kelsey O’Connor on Twitter @ijkoconnor.

A Risk Too Far

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Jan 262015

Monday, January 26, 2015

A Risk Too Far

Assessing risk is a complicated thing.  The technical definition of risk — that it is equal to the statistical probability of exposure multiplied by the statistical probability of harm — seems simple enough.  But in practice, calculating those probabilities is far from straightforward.  And when you throw in questions like, “Are the people exposed to the risk the same ones as the ones who are benefiting from it?” and “What if the people involved in the risk assessment are very likely to be lying to you?”, it becomes damn near impossible to determine.

Such is the situation we find ourselves in, here in upstate New York.  The current controversy that is polarizing the region surrounds the benefits and risks of hydrofracking and storage of natural gas and liquified petroleum gas (LPG) in salt caverns underneath Seneca and Cayuga Lake.  You see signs in front of houses saying “Ban Fracking!” and “Friends of New York State Natural Gas” in almost equal numbers.
So let’s roll out some facts, here, and see what you think.
Hydrofracking well in the Barnett Shale, near Alvarado, Texas [image courtesy of photographer David R. Tribble and the Wikimedia Commons]
Hydrofracking involves the use of sand, salt, and surfactant-laden water to blow open shale formations to release trapped natural gas.  The gas is pumped back up, along with a toxic slurry of “fracking fluid” that then has to be disposed of.  The gas itself is transported down a spider’s web of pipelines, some of which pump the pressurized gas down into the abandoned salt mines that honeycomb our area.
In upstate New York, the permission to build the infrastructure for this massive project was granted by the Federal Energy Regulatory Commission last year, in a move that brushed aside objections from geologists and ecologists, and which appears to many of us to be a rubber-stamp approval of corporate interests over safety and clean drinking water.  Now, Crestwood Midstream, a Texas-based energy company, wants to expand the current salt-cavern storage to include LPG.
So let’s see what we can do to consider the risks involved in this project.
The first piece, the risk of exposure, involves looking at the history of fracking and gas storage, to see if comparable facilities have experienced problems.  So here are a few accidents that have occurred in such sites:
What I haven’t told you, however, is the time scale involved with these events.
All of them occurred within the past twelve months.
Kind of puts a new spin on the gas industry’s claim that fracking is safe for humans and for the environment, doesn’t it?
What seals the deal is the question of what happens after these accidents occur.  The answer is: not much.  The question is, honestly, not so much “what is done?” but “what could be done?”  And the answer is still: not much.  Such accidents are nearly impossible to remediate completely, and leave behind fouled ecosystems and contaminated drinking water that won’t be useable for generations.
So as you can see from the above list, accidents really are more of a matter of “when,” not “if.”  This leaves it to the local residents to consider what the response would be if the unthinkable happens.  The result would be the salinization of a huge amount of water in the south end of Seneca Lake, which would likely be permanent as far as human lifetimes are concerned, given Seneca Lake’s depth and slow rate of flushing.  Aquifers would become too saline to use for drinking water or agriculture, which would destroy not only local farms but the multi-million-dollar winery industry that has become a mainstay of the economy.
And whose responsibility would it be if a problem did occur?  The answer is, “Not Crestwood’s.”  They are not insured against accidents of this scale.  To quote directly from their own 10K report:

These risks could result in substantial losses due to breaches of contractual commitments, personal injury and/or loss of life, damage to and destruction of
property and equipment and pollution or other environmental damage. These risks may also result in curtailment or suspension of our operations. A natural
disaster or other hazard affecting the areas in which we operate could have a material adverse effect on our operations. We are not fully insured against all risks inherent in our business. In addition, we are not insured against all environmental accidents that might occur, some of which may result in toxic tort claims.

If there was a salt cavern collapse similar to one that happened in the 1960s, the result would be nothing short of a catastrophe for the local residents, because there would be no compensation forthcoming in the way of insurance money.  The only recourse would be a “toxic tort claim” against Crestwood, which would result in costly litigation that would be far too expensive for an average resident to pursue.
And Crestwood is planning on taking the same cavern that experienced a 400,000 ton roof collapse fifty years ago, and filling it with pressurized natural gas.
So if the whole thing blows up in our faces, literally and figuratively, Crestwood can cut their losses and go home to Texas.  We don’t have that option.
This hasn’t stopped the pro-gas voices from characterizing the risk as minimal, and the people who are speaking out against Crestwood as crazy tree-huggers who have “drunk the Kool-Aid” and who are the victims of “imaginary delusions.”  These last phrases are direct quotes from one David Crea, an engineer for U.S. Salt, a company that is now owned by Crestwood.  Responsible, intelligent people, say Crea, couldn’t possibly be against gas storage in salt caverns; and he points out that a lot of the people who have been protesting the Crestwood Expansion are from the eastern half of Schuyler County, not the western half, where the facility is located.
Because, apparently, you have to live right on top of a disaster before you’re allowed to have an opinion about it.  This kind of illogic would claim that the objections of a woman in Oregon to the siting of a pesticide factory 400 yards away from an elementary school in Middleport, New York are irrelevant because “she doesn’t live there.”  (I didn’t make that up; read about the situation here, which resulted in dozens of children suffering from permanent lung damage.)
So sorry, Mr. Crea; it’s not the concerned locals who have “drunk the Kool-Aid.”  There’s not that much Kool-Aid in the world.  It’s the citizens you and your ilk have hoodwinked, and who now sit on top of a site that has a ridiculously high likelihood of catastrophic failure.  And if you multiply all of those risk factors together, you come up with a figure so large that you would have to be on Crestwood’s payroll to consider it acceptable.

WRITE ON: Shrubbery over citizens

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Jan 172015

WRITE ON: Shrubbery over citizens

Posted: Friday, January 16, 2015 5:05 pm

The Town of Reading’s elected officials have failed a real-world civics test three times in less than a month.

They locked the public out of the Reading Town Hall — a town hall paid for, maintained and heated with taxpayers’ dollars — on Dec. 17, on Jan. 7, and then again Tuesday, each time leaving as many as 50 people outside in bitter winter cold.

On Jan. 7 and Tuesday, the wind chill dropped the effective temperature to well below zero.

While people shivered outside, a judge in a toasty-warm courtroom (with very limited seating) heard cases against people facing trespassing charges for blocking the gates at the Crestwood salt-cavern gas storage site on Route 14.

But the spacious (and also well-heated) town hall room was kept vacant, except for two Schuyler County Sheriff’s Deputies, charged with keeping the people outside from entering the building while also guarding the courtroom.

Until the weather turned really cold in December, the town hall meeting space outside the courtroom was open to these same citizens, many of whom were either waiting to go into the court themselves or there to support arrestees.

But according to one town official, board members got their knickers in a twist when someone accidentally stepped on some decorative plants outside.

Town Supervisor Marvin Switzer said the town board told him it won’t stand for people damaging “the shrubbery” and ordered the lockdown of the hall.

How the town’s shrubbery is protected by locking citizens out of a public building in the middle of winter is a tangle of such illogic it seems impossible to unravel. Impossible unless the town board’s deliberate, mean-spirited action has its real roots in board members’ pique at the Crestwood protesters.

Since the massive natural gas and liquid propane gas storage project was first proposed, the Town of Readinghas behaved as if persons unwilling to join them as boosters of salt-cavern gas-storage are annoyances, not concerned citizens with a differing opinion.

Early in the debate several years ago, the town planning board suspended all public comments about gas storage. Other topics were welcome for comment, for questions or to engage the planners in discussion. But any utterance mentioning gas storage would rile the chairman to angrily demand silence.

That Reading slap at the free speech clause of First Amendment to the U.S. Constitution has been eclipsed with this freeze-the-public maneuver. It’s a not-very-subtle attempt to thwart the public’s constitutional right to assemble.

In addition to locking people out on Dec. 17, no parking signs were posted on the roads around the town hall, ostensibly for safety reasons. More likely they were to discourage people from attending court or a peaceful anti-gas storage rally because the signs haven’t appeared in Reading for other recent events.

In the wake of these disgraceful incidents, the members of the Reading Town Board need to brush up on their civic responsibilities as elected representatives whose duty is to serve the public, not just those people they choose to favor based on politics.

Differences of opinion about the safety and suitability of the Houston-based company’s natural gas and proposed LPG storage facility are part of the healthy give and take of democracy.

Had the Schuyler County Legislature done its civic duty four years ago and led discussions and debate about the project, the nearly 200 people arrested for trespassing might not be visiting the Reading Court at all.

But it didn’t and so now it’s time for the Town of Reading to reread (or read for the first time) the pertinent sections of the U.S. Constitution and then adjust its civic priorities.

Priority should be given to the health and welfare of citizens and for the lawful right of citizens to assemble, not to protect ornamental shrubbery.

Fitzgerald worked for six newspapers as a writer and editor as well as a correspondent for several news services. He lives in Valois and Watkins Glen with his wife. They are owner/operators of a publishing enterprise called *subject2change Media. His “Write On” column appears Fridays. He can be contacted