In a motion filed with Orleans Superior Court–Criminal Division, Michelsen asked for Judge Robert P. Gerety Jr. to dismiss the charges against the students.
A hearing is set for Jan. 26.
Michelsen took issue with various parts of the state’s case.
“The charges of criminal contempt against the defendants Martorana and Ring should be dismissed for lack of a prima facie case. The state will be unable to prove that defendants are ‘permittees’ of the Nelsons and consequently the state will be unable to prove that defendants are subject to the dictates of the preliminary injunction,” she wrote. “The state will be unable to prove that the sheriffs gave defendants an opportunity to remove themselves from the 1,000-foot safety zone after warning them of ongoing blasting.
“The state will be unable to prove that GMP, the sheriffs and the Vermont State Police carried out the terms of the preliminary injunction specifically by failing to implement a system of warning of the blast window at the 1,000-foot perimeter,” she wrote.
“The charges should also be dismissed because the preliminary injunction is unconstitutionally vague, rending those to whom it may apply incapable of compliance,” she wrote.
The preliminary injunction, written by Judge Martin Maley in Orleans Superior Court–Civil Division, was issued in November at the request of GMP so the utility could call police to stop protesters from hindering blasting on the ridgeline. It had to be rewritten several times before state police and Orleans County Sheriff Kirk Martin were able to enforce it.
The injunction required those near the wind site to stay out of or leave the 1,000-foot safety zone on Nelson property two hours before and after blasting. A whistle was to mark the blasting zone times and deputies were to sweep the area to make sure it was clear.
At the time that the students were near the Lowell wind site, blasting was occurring almost every two hours as contractors sought to make up for lost time because of slowdowns caused by protesters.
Deputies said the students heard blasting, thought the safety zone ban was up and went to the protester camp. Deputies saw them there, knew that they had been read the court order in the past and arrested them.
They were not given a chance to leave the area.
Michelsen said that the state cannot prove that the students were targets of the injunction, which lists “agents, employees, attorneys, invitees, licensees, permittees or persons acting in concert with Donald and Shirley Nelson.”
GMP and law enforcement viewed the injunction as intending to bar everyone from the safety zone during blasting.
The Nelsons do not post their land, so that means anyone is allowed or permitted to be on the land. The Nelsons initially welcomed and helped the protesters on the property near thewind site, stopping only when the court ordered it.
But Michelsen said the preliminary injunction wasn’t explicit enough. “If the court intended the general public to be covered by the order, it could have and should have done so.”
She challenged the deputies’ decision to arrest the students immediately and not give them a chance to move out of the blast safety zone.
She pointed to language in the order that says “persons who refuse to move away from the boundary as directed by this order shall be removed, arrested …”
The two students had been warned a week early about the safety zone and moved then, she said.
But she argued that the pace of blasting meant that the warning whistle and the all-clear whistle weren’t given for each blast because the blasts were so close together in time on the day of the arrests.
She also criticized the deputies for not policing the path where protesters and others approached and entered the safety zone.
Protesters complained at the time on their blog that the blasting schedule meant no one could be in the safety zone from dawn to dusk each work day.
“The preliminary injunction is impermissibly vague, rending those who might be subject to its terms incapable of complying with it,” Michelsen argued. “Criminal prosecution premised on such a vague order violates the fundamental due process rights of the defendants.”
She said the state would be unable to prove that the deputies covered the safety zone boundary at the right times before each blast or that the whistle could be heard from the path leading to the safety zone.
The U.S. Supreme Court, she said, says vague laws inflict harm on the criminal justice system and “basic notions of fairness and justice.”
The preliminary injunction required police to explain how the order works to anyone in the area, she said.
“The defendants have been arrested and charged for violation of an order they could not have complied with. Due process requires that criminal statutes define proscribed conduct with sufficient specificity as to provide fair warning to potential offenders and to avoid arbitrary and discriminatory enforcement,” Michelsen concluded.