GREAT BARRINGTON — It took time and extra brainpower to figure out who actually trespassed in Otis State Forest in early May — and who didn’t.
But after weighing the circumstances in which 24 anti-pipeline activists from Sugar Shack Alliance were arrested — and the charges reduced to civil offenses — Southern Berkshire District Court Judge Paul Vrabel found some of the protesters “responsible” under civil laws, and others not, for what are considered minor charges that carry a $100 fine.
“Although the protesters do not agree with everything [in the ruling],” said Sugar Shack attorney Joseph Zlatnik, “I’m very glad that the judge took the time to consider our arguments seriously and took the time to write a well-reasoned, thorough opinion.
“I was very impressed by this particular decision,” Zlatnik added. “He went deep into it.”
Vrabel’s decision came down to words and their usual meanings. It also hinged on proof of actual trespassing, given the lay of the land in the state forest, and whether it is “improved” or “enclosed,” according to the legal standard.
The series of arrests began when 18 Sugar Shack Alliance activists blocked two access roads to Tennessee Gas Pipeline Co.’s existing easement, where tree cutting had begun on a roughly 2-mile stretch of state-owned land for the company’s $93 million Connecticut Expansion Project.
A few days later, five people were arrested after they got so close to tree felling equipment that work was temporarily stopped.
In a separate incident, another eight activists — including 98-year-old activist legend Frances Crowe — were arrested last Saturday after they stopped pipe-laying work. They were arraigned Thursday, and their hearing is set for July 18.
Even before the approval by the Federal Energy Regulatory Commission last year, plans to run a third pipeline through what is considered nearly pristine state forest fueled the wrath of residents and activists for a number of reasons.
“Nobody is doing their job,” said Vivienne Simon, who was one of the first activists arrested. While she hadn’t finished reading Vrabel’s ruling, Simon listed every agency she said has been negligent and in collusion with corporate strategy to get a pipeline built no matter what.
“There is just a litany of people and governmental bodies whose job it is to make sure that [the pipeline] didn’t get to the point that local citizens had to get arrested,” she added.
But what really stirred activist thunder was that the Kinder Morgan subsidiary won the 2-mile easement from the state for this third line — a 13-mile tri-state natural gas spur — despite being protected by the state Constitution under Article 97.
And this was one way the activists defended their actions, Zlatnik told the Eagle.
“With Article 97, you can’t give an easement without consulting two-thirds of the state Legislature,” he said.
That’s what state law says. But that consultation with the Legislature fizzled after the state fought the company in court, and a Superior Court judge ruled that federal gas law overtook state law.
But the activists pressed forward with the idea, anyway — to make their point. And two more defenses were added, Zlatnik said — the “necessity” of preventing “harm” by stopping a new pipeline, and that the land isn’t enclosed or improved.
So those five protesters who stepped off private land and into an easement with vague borders and no signs were held “not responsible.” Vrabel also wrote that because the arresting officer did not testify in court, the account of the infraction was uncertain.
It was different for the people who blocked access roads. They’ll have to pay the fine.
“No trespassing” signs marked the area, and the access roads are “human-created” improvement to the land, Vrabel wrote, using Black’s Law Dictionary definition of improved land.
He also wrote that “the very activity” of building a pipeline in the state forest “makes it improved land for trespassing purposes.”
But in his ruling, Vrabel made sure everyone understood what he meant.
“It should be noted that the court is not making a value or moral judgment that Kinder Morgan’s activity in constructing the pipeline is an ‘improvement’ at the state forest in the usual sense of that word, that is, an enhancement of the property,” he wrote. “The defendants are certainly entitled to have the opinion that this activity is anything but an enhancement.”
Reach staff writer Heather Bellow at 413-329-6871.