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A Report From the Frontlines in the War Against Fracking

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A mixture of emotions is running through the Finger Lakes region of New York in the wake of Governor Cuomo’s announcement on Wednesday, December 17 to ban hydraulic fracturing (“fracking”) in the state. Residents are relieved to be protected from the health risks and environmental damage produced from fracking. Nevertheless, they are continuing their struggle to oppose the Texas-based Crestwood corporation’s project to store volatile gases extracted from other states, such as Pennsylvania, in salt caverns along the shores of Seneca Lake, which provides drinking water for approximately 100,000 people. Crestwood is seeking to make the Seneca Lake location a hub in its broader infrastructure that supports fracking.

Since October of this year, wave after wave of residents comprising the group We Are Seneca Lake (WASL) have practiced non-violent civil disobedience at the gates of the Crestwood facility protesting the Federal Energy Regulatory Commission’s (FERC) decision permitting the storage of methane in the salt mines. A proposal to store liquefied petroleum gas (LPG) is currently before the state Department of Environmental Conservation (DEC).

The momentum of the uprising has only grown since then. During the week of November 17-21 there were 48 arrests as activists blocked the gates every day. Among those arrested were local residents, business owners, farmers, and wine makers (Seneca Lake is in the center of New York’s agricultural region and its wine country). The day before Governor Cuomo’s announcement banning fracking, there was a massive blockade leading to 41 arrests, most of whom were local educators. And when Governor Cuomo made his announcement last Wednesday, Seneca Lake Defenders were dancing to the joyous jams performed by the Ithaca-based Sim Redmond band before their arrests. All told, there have been over 160 arrests this fall in front of the gates of the Crestwood facility.

But as inspiring as the WASL protests have been, the legal system in the Town of Reading has been less so as it has made a mockery of both law and justice. Those attending court appearances of the arrested have been shocked by the lawlessness of the proceedings. One town justice, John Norman, recused himself because of his employment by Crestwood. The other, Raymond Berry, has steadfastly refused requests for his recusal due to his comments from the bench taking issue with the protesters, and the impression that he takes his orders from the District Attorney’s Office, looking to representatives from that office to guide his decision making when court is in session.

Berry’s harsh and arbitrary sentencing has left lawyers and court observers wondering if he is unfamiliar with New York’s sentencing law or if he is merely zealous in his defense of the Crestwood corporation. Arrestees have been charged with trespass violations. Such violations—they are not crimes and are essentially the equivalent of a parking or speeding ticket—are punishable by fines of up to $250 or, if the defendant is unable or unwilling to pay the fine, a jail sentence of up to 15 days. Normally, it is exceedingly rare for anyone to be sentenced to jail for a violation. But normal is not a word to be used in connection with Berry’s court, as he arbitrarily hands down maximum jail sentences for routine violations.

Court proceedings on the evening of Wednesday, December 17 were a morass of lawless confusion. Friends accompanying Laura Salamendra to her second appearance were turned away at the courthouse door by a deputy from the Schuyler County Sheriff’s Office at 5:00pm. Officer Kirk Smith stated he was under orders from the Sheriff to close the court to the public. He remained immune to arguments that closing the court’s proceedings to the public violated constitutional rights, saying that he was following the orders of the Sheriff. (In an apparent effort to deter attendance of court proceedings, parking was also suspended on the road outside the courthouse under a temporary order from the Sheriff’s Office and an adjacent public parking lot has been closed, forcing those who wished to attend court proceedings to walk about a third of a mile after parking their cars.) Only Salamendra and Attorney Sujata Gibson were allowed in. A phone call to Schuyler County Judge Dennis Morris requesting that he order Town Justice Berry to open his court to the public went unanswered and unreturned.

When Salamendra and Gibson entered the courtroom, they interrupted what appeared to be Assistant District Attorney (ADA), John Tunney, in a closed, one-sided ex parte conversation with Judge Berry over how to deal with Crestwood arrestees like Salamendra, and how to deal with Attorney Gibson, who has been acting as a legal adviser to some of the protesters. Gibson overheard Tunney instructing the judge “to make sure she [Gibson] doesn’t talk for the defendants,” and to “get it in writing” if she represents anyone. Gibson immediately objected, arguing, “This sounds like ex parte arguments.” “If he [ADA Tunney] has an argument, he should make it in open court. This is illegal.” According to Gibson, Tunney’s response was to laugh at her.

Attorney Gibson then objected to the closed court. Judge Berry said he had no choice in the matter. She responded, “If you’re being told [to close the court], that’s inappropriate and you should recuse yourself.” Salamendra then insisted that she was entitled to have her supporters with her. ADA Tunney responded, “she can have one [support person],” and pointed to the Sheriff’s deputies, telling them that she could have one support person with her. Salamendra then left to get the one support person she was being allowed, but the police would not let her out of the courtroom, wanting her to give them the person’s name so they could bring the person into the courtroom. “Why can’t I go?” she asked the officers. They said that they were concerned about the possibility of “passing materials,” and did not allow her to leave. Salamendra insisted, saying that she was not under arrest and left the courtroom to get her friend.

Attorney Gibson continued to object to the closed court, telling Judge Berry, “you’ve got to make this decision on the record.” He responded, “I’m denying access. Press can’t come in.” Gibson challenged him, “I’d like to have the reasons on the record.” Berry responded by posing a hypothetical: “What can you say about courts with only three seats?” Gibson looked around the empty courtroom with a maximum capacity of over forty. “We’re not in that courtroom.” There was a long pause. “Fire code,” he responded. “What is the fire code here?” Gibson asked. “I don’t know,” Berry conceded.

When Salamendra returned, the judge did not read the statement informing her of her right to counsel or ask her if she understood the charges against her. Breaking the silence, she pleaded guilty. The judge sentenced her to a $200 fine plus court fees, for a total of $325, which Salamendra refused to pay. “Then why did you plead guilty?” the judge asked, as the ADA laughed. “My constitutional rights were not taken seriously,” Salamendra complained later. “They were mocking me…. It was a good ol’ boys club.” The judgment was printed and handed to her. In this change of policy, Salamendra was not permitted to go to jail instead of paying the fine, a policy change that is particularly burdensome to her because she only makes five dollars an hour as a waitress. A civil judgment will be made against her if she fails to pay the fine, with potentially damaging consequences for her credit worthiness if she is unable to pay. As Attorney Gibson described later, the discussion of penalty in front of the judge, if any, was cursory, leaving the impression that Judge Berry and ADA Tunney had already come to an agreement on new sentencing policy.

After the closed 5:00pm court action against Salamendra, well-known biologist and author Sandra Steingraber arrived on the scene and negotiated with the Sheriff’s deputies to open the court to the public for its 7:00pm proceedings. Over the course of the evening, defendant after defendant asked Judge Berry to recuse himself due to the earlier exclusion of the public from his court, and the witnessed private conversation between himself and ADA Tunney. When defendant Faith Meckley of Geneva, NY made this argument, Berry adjourned her case until January 21, 2015 to take the matter “under advisement.” When Berry asked high school teacher Audrey Southern how she pleaded to the trespass charge against her, she told him that she would have a “hard time deciding,” and wanted to know what the likely sentence would be. Although on previous occasions this would have been an easy question for Berry to answer, since he had suggested that he felt bound by law only to sentence defendants to the maximum allowable penalties, he now played coy, saying there could be any number of options including a fine, jail time, or “a combination of both.” Due to the standoff caused by Southern’s refusal to plead prior to Berry’s decision regarding recusal, her case was adjourned until January 21.

Court observers were reminded of Berry’s contempt for due process by the last defendant of the evening, Rosalie Richler-Goldberg. As the other defendants had before her, she requested Berry’s recusal both in light of the conversation between himself and Tunney, and so that her case could appear before a judge with a law degree (there is no requirement that town justices have law degrees in New York state). Richler-Goldberg asked to delay making her plea until Berry had made his decision regarding recusal. Berry responded: “There’s no guarantee I’ll give this up.” Richler-Goldberg responded: “you said you’d take it under consideration.” Berry stated, “I say a lot of things like that. It pacifies people.” The evening had begun with Salamendra feeling like she was being mocked by the judge and the assistant district attorney, and the evening ended with Judge Berry mocking the people who appeared in his court. Now, WASL must fight two battles. One is against Crestwood’s project endangering the lives and livelihoods of those living near Seneca Lake. The other is the corruption of the Schuyler County legal system that has cast off impartiality in its determination to defeat the growing uprising against the Texas-based Crestwood corporation.

Paul A. Passavant is a professor of political science at Hobart and William Smith Colleges in Geneva, New York.

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