Some anti-pipeline activists crossed danger threshold during protests, judge finds


GREAT BARRINGTON — Some anti-pipeline activists will not have to pay fines for civil charges of disorderly conduct and trespass.

Others, Judge Paul Vrabel ruled, after hearings in Southern Berkshire District Court this week, crossed the line into tumultuous and potentially dangerous behavior. And they will each have to pay a $150 fine for charges the state decriminalized.

"You have a right to protest," Vrabel said to one water protector who had climbed atop the cab of a tractor-trailer that the activists had stopped. "What right do you have to get on top of the cab?"

The cases of some of the 13 anti-pipeline activists arrested in different protest actions from July 29 to Nov. 1, 2017, reveals the complexity about what constitutes political action, what is worthy of arrest, what is unsafe, and what the rules are when pipeline company security guards use the heavy hands of state police to shoo away activists.

Vrabel sorted through a tangle of state police testimony, that of the protesters, some of whom were frequently exiting the courtroom, or arriving late, or not at all for Tuesday's proceedings.

One was disorderly inside the courtroom, and the bailiff kicked him out.

All charges, which include trespass, disorderly conduct and resisting arrest, had been reduced to civil offenses.

It all stems from six months of protests in Sandisfield and Otis State Forest, during the construction of about 4 miles of Tennessee Gas Pipeline Co.'s 13-mile natural gas spur that runs through three states.

In December, the Kinder Morgan subsidiary completed the Connecticut Expansion Project, controversial, in part, because it required cutting into state forest to add a third pipeline to a corridor with two existing lines.

What lingers are questions about the relationship between state police and the pipeline company, which has so far received over $1 million from Kinder Morgan for overtime security work near the pipeline.

Tuesday's court hearings involved activists from the Sugar Shack Alliance and a group of water protectors, all of whom engaged in several protests on different days last fall.

The valve station episode

In one such incident, Susan Baxter, Antoine American Horse, Rema Loeb and Fergus Marshall had been arrested Oct. 5 for driving a Volkswagen van into the parking area of the pipeline valve station on Town Hill Road after the company's security guard called state police.

Marshall, who was driving, had left the van to take photos of the valves, Baxter said, which are behind a tall, electrified fence and on land owned by the state.

But Baxter said this was all on the word of a security guard — the troopers didn't see it.

"So, that's your evidence?" Baxter said as she cross-examined the trooper involved. "You never saw anyone enter the valve station."

"They all knew well that they should not have entered the property," said Trooper Talitha McCarthy-Johnson.

Baxter, who for years lived next to the pipeline, said she understood where the pipeline company's easement boundaries were, but her friends did not.

Loeb, 85, has been arrested several times since the protests began. This time, she said, the boundaries were unclear near the valve station, which sits on land owned by the state. Loeb said American Horse did not trespass, despite being arrested for it.

"I will say till the day I die that Antoine never left the road," she said.

Vrabel, after taking all the matters under advisement, found that these four activists were "not responsible" for trespass because the state did not offer enough evidence to prove it.

Crossing the legal line

But even more complicated is sorting out the limits of protest behavior, especially when there's dangerous equipment around.

"It was a very chaotic scene," state police Lt. David Buell said about Oct. 25, when Ryan Smart, whom Vrabel later found "responsible," climbed atop the cab of a massive tractor-trailer carrying pipeline equipment. "And two [activists] were masked."

Buell was referring to the water protector tradition of wearing a bandanna around the face.

"Bandit masks," he said.

There was also drumming, and shouts of "Mni Wiconi," which means "water is life" in Lakota.

And it was on that day when MyKennah "Little Wind" Lott lay down on the dirt road, in front of that same truck, before it stopped. She was found responsible for disorderly conduct.

Though political protesters, by state law, have the right to act in disruptive ways for a legitimate purpose, they can't create a scene that is dangerous to themselves or others.

Vrabel found that Lott and her brother, Micah Carpenter-Lott, had also crossed that line. They were fined for resisting arrest and disorderly conduct for lunging, after being handcuffed, in front of moving trucks.

Nov. 1 was another complex day during which 20 to 30 activists made a double blockade of the road in front of pipeline company headquarters, wearing white masks and black robes and clothing.

And this is where Priscilla Lynch and Max Bambery, both cleared of infractions by Vrabel, had said they were not engaging in violent or tumultuous behavior, and had not put themselves in danger, as state police contended, by stopping trucks in the road.

Yet fighting a minor civil infraction in court is one way to get a message out.

"It is my duty as a human being, as an American citizen to stop these big companies from raping the earth," said MyKennah Lott, who is known for burning sage during protests, in the Native American tradition of cleansing people and making the earth sacred, she said. "There's life in that soil."

But Vrabel said Lott, an Arapaho water protector from Wyoming, could only use the necessity defense if she were to admit to trespassing and disorderly conduct allegations, which she did not.

Only one water protector's charges, stemming from an arrest incident involving police use of a stun gun during the Nov. 1 protest, will remain criminal. Jacob Renner's pretrial hearing is set for Feb. 12.

Heather Bellow can be reached at or on Twitter at @BE_hbellow and 413-329-6871.


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