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.
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.
Next week the state Department of Environmental Conservation holds an “issues conference,” which determines if the DEC will pursue further investigation of citizens’ concerns on the proposal’s environment effects.
“This is the endgame,” said Doug Couchon, a key organizer of the “We Are Seneca Lake” group opposed to the plan. Couchon, who lives in Elmira, was a speaker at a rally Saturday in Geneva dubbed We Are Seneca Lake, Too.
Among the 300-plus protesters at the rally, which included speeches at City Hall and a march from Lakefront Park through downtown, was South Bristol resident Edgar Brown. Brown said he was encouraged by the rally and other developments putting pressure on the state to deny the permit.
“Awareness is growing, and there is an increasing feeling of solidarity,” said Brown.
At the issues conference on Feb. 12 in Horseheads, Chemung County, a judge will consider information presented by pre-approved individuals and groups on the environmental effects of the proposal by Houston-based Crestwood Midstream. From there, the judge could call for a full adjudication of the concerns, or could grant Crestwood the permit.
A recent development in the growing efforts to halt the project was the formation of Finger Lakes Wine Business Coalition and that organization’s Jan. 30 letter to Gov. Andrew Cuomo.
The coalition — representing wineries, vineyards and wine-related businesses from the Finger Lakes region — also participated in the push to prevent shale gas drilling in New York. Cuomo last year put the kibosh on drilling
“We view this Facility as a direct threat not only to Seneca Lake, but to the strong and growing tourism industry in the Finger Lakes,” stated the letter signed by the dozens of coalition members, including Will Ouweleen of Eagle Crest Vineyards, John Ingle of Heron Hill Winery; and Doug Hazlitt of Hazlitt 1852 Vineyards. The letter also pointed to data supporting a poor history of similar gas storage facilities in salt caverns nationwide, threatening safety and quality of life.
The Finger Lakes Wine Business Coalition and other opponents say the permit would bring heavy industry, more truck traffic and unacceptable risk of catastrophic accidents to a region that thrives on tourism.
Brown expressed his feelings in a post for We Are Seneca Lake web page, saying that as the father of young sons, he wants them to “grow up to understand, love, and protect the Finger Lakes” and to model that commitment himself.
“That is a beautiful story that corporate officials in ivory towers in Houston, Texas, can never possibly hope to understand,” he wrote. “There is no pocketbook deep enough to challenge and prevail against this kind of fierce, collective commitment.”– See more at: http://www.irondequoitpost.com/article/20150204/NEWS/150209910/1994/NEWS/sthash.STQWstWF.dpuf#sthash.G6gWOr66.dpuf
By MICHAEL FITZGERALD | Posted: Friday, January 23, 2015 5:05 pm
Finger Lakes Times, Geneva, NY
What a difference six months can make.
A regional rally of nearly 500 people marched through Watkins Glen last July to protest a narrowly approved Schuyler County Legislature resolution supporting liquid propane gas storage in unlined salt caverns on the west shore of Seneca Lake.
That county resolution urged Gov. Andrew Cuomo to approve a proposal to store 88 million gallons of LPG in caverns three miles north of Watkins Glen.
Next Saturday, Jan. 31, Geneva will be the site of another regional rally. But this one is to make it clear the future of the lake is not solely in the hands of misguided Schuyler County elected officials.
The rally has also been organized to demonstrate the rapidly growing regional — and nearly unanimous — Finger Lakes solidarity against the project.
The Geneva rally will begin at Waterfront Park followed by a march through downtown (with a visit to GOP Congressman Tom Reed’s office) before ending up at Geneva City Hall.
Speakers include Seneca County’s Steve Churchill, environmental activist Sandra Steingraber, Geneva City Councilman Ken Camera and Doug Couchon, one of the key organizers of the “We Are Seneca Lake” group.
We Are Seneca Lake has been grabbing state and national headlines since October for its blockade and arrests at the Town of Reading site where Crestwood of Houston has federal approval to store natural gas and is seeking permits to add LPG — under high pressure — to its underground inventory.
Two hundred people had been arrested for trespassing as of Monday. Arrests continue almost daily.
The Geneva rally, dubbed “We Are Seneca Lake, Too,” is part of the run-up to the Feb. 12 state Department of Environmental Conservation issues conference in Horseheads.
James T. McClymonds, chief administrative law judge for the DEC, will be taking testimony from proponents and opponents.
If McClymonds believes the issues and evidence opposing a state permit for the LPG storage are weighty enough, he is expected to recommend a court hearing at a later date.
It’s like a playoff game. Everything is on the line for opponents who need to convince McClymonds to give them a day in court. The same for Crestwood, which wants the permits issued to start LPG storage in the caverns right away.
Among other issues, the danger posed to lake water quality is expected to be a key matter on the table. Seneca Lake currently provides water to more than 100,000 people.
While both sides have prepared their evidence and lined up a slew of experts to testify, the Schuyler County Legislature — the same legislature that voted to support the LPG storage in July — decided against becoming involved in the conference, instead opting to let gas industry lobbyists make their case for approval.
But in a surprise move, Schuyler legislators Michael Lausell, a Democrat, and Van Harp, a Republican, broke ranks with their colleagues and filed with the DEC to be allowed to offer evidence and testimony outlining concerns about sketchy safety protocols in the county to handle any propane storage related emergency.
Their action constitutes a political earthquake and directly challenges Dennis Fagan, just reelected legislative chair and an ardent booster of LPG storage. His support comes despite citizens’ demands he recuse himself from all gas matters because of a perceived conflict of interest. Fagan is up for reelection in November to keep his legislative seat.
The political case has been tightly stitched against the LPG storage with each rally, the regional alliance, official government-backed resolutions, arrests and overwhelming public opposition.
If the scientific case presented Feb. 12 is as strong, perhaps the next regional rallies will be celebrations of making it through this playoff.
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 at Michael.Fitzgeraldfltcolumnist@gmail.com.