Corporate civil rights trump public safety
By Will Collette
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| Voldemort won on April 14. Charlestown lost. |
The Charlestown Town Council got an earful from attorneys
representing Charlestown quarry operators about serious, if not fatal flaws, in
the new ordinance that was apparently crafted in haste by Town Solicitor Peter
Ruggiero to regulate quarrying operations in Charlestown for the first time.
The Council was presented with a two-part decision. The first
action before them was a proposed
resolution to seek “enabling legislation” from the General Assembly that
would grant Charlestown the authority to regulation quarries and sand pits.
Town Solicitor Ruggiero noted that this resolution simply sought the state’s advance
permission to enact a mining ordinance, but did not obligate the town to do so. The Council was warned by attorney Maggie Hogan that the resolution doesn't actually do what Ruggiero said it would do. Nonetheless, the Council adopted the measure, after extended
debate, by 4 to 1 (Lisa DiBello voting no).
The second decision before them was a complete re-write of
last month’s Ordinance
#362, now numbered Ordinance
#364. The debate over that ordinance was even hotter and ended without a final vote.
While I didn’t feel at all motivated to worry about the
civil rights of the operators, I did note the odd absence of timelines in the
new draft for when existing quarry operators were supposed to file their
applications and when they were obliged to obey all the provisions of the ordinance.
I had every confidence that attorneys for the operators would thoroughly defend their clients’ interests.
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| Effort to regulate mining set back by Solicitor Ruggiero's sloppy legal work |
And that’s exactly what they did.
Although Thomas Enright, one
of the many attorneys for the notorious
Copar Quarries, spoke first, attorney Maggie Hogan, representing Evelyn
Smith, really got the ball rolling with an emotionally-charged yet meticulously
detailed critique of Solicitor Ruggiero’s work product.
She added detailed layers and flavor to the Constitutional
objections raised by the Copar lawyer, pointing out the sloppy errors in the new
ordinance draft that “appalled” her. I urge you to watch
and listen to her arguments before the Council on Clerkbase (assuming you
can access it[1]).
She tore Peter Ruggiero up so badly that, at one point, Town
Council Boss Tom Gentz interrupted to rebuke her for overly personal testimony
that Boss Gentz found “offensive.” Maggie was unapologetic, holding that the
ordinance was so offensive that her characterizations were appropriate.
Ruggiero’s only response was to say he felt his approach was
sound and that the criticisms leveled against his work were “just an argument.”
But it was pretty clear to me (and everyone else) that if it was an argument, then Ruggiero lost it. And not just lost, but lost in embarrassing fashion where the overall quality of his work and even his competence is called into question.
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| The Supremes love corporations |
The major flaw in the new
ordinance is that it is loaded with provisions[2]
that take away the due process rights of existing mine operators who try to
apply for a permit to continue operating.
While I am no fan of the
concept of corporate civil rights such as granting them personhood[3],
free speech, etc., the fact is that the US Supreme Court is a huge fan of corporate rights,
whether you like that idea or whether it makes you want to barf.
The law of the land is that you cannot deny businesses due
process rights, take away their use of property without due process and, under
certain circumstances, compensation, subject them to arbitrary and capricious
decisions and, unfortunately, draft
Ordinance #364 is loaded with problems like these.
Missteps and misinformation didn’t help
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| Boss Gentz: Don't say that name! |
While the debate centered on the Constitutional rights of
corporations, some Charlestown residents felt their Constitutional rights were
thrown under the bus. Charlestown resident and Copar neighbor Al James said
that he recalled some protections for people in the Constitution[4].
Most galling was Boss Gentz’s decision to impose a gag rule
on any resident who named the Corporation That Shall Not Be Named (i.e. Copar).
Any time a resident spoke at the podium to cite an example from their own
experience with Copar (Copar, Copar, Copar) that underscored the need for a mining ordinance, they were
reprimanded by Boss Gentz if they said Copar.
Next time, let’s just substitute “Voldemort” for Copar and
see if that makes Boss Gentz’s head explode.
Jim Mageau weighed in to support the quarries and oppose
residents who wanted to see the quarries regulated. He said the quarries in
Charlestown were just fine and didn’t need regulation.
He chided the Town Council for pandering to what he termed the elite few at the outskirts of town who wanted special treatment. He also criticized the Council for putting up $50,000 to pay for the Copar neighbors’ legal defense (drawing surprised gasps from the audience who knew this wasn’t true).
He chided the Town Council for pandering to what he termed the elite few at the outskirts of town who wanted special treatment. He also criticized the Council for putting up $50,000 to pay for the Copar neighbors’ legal defense (drawing surprised gasps from the audience who knew this wasn’t true).
The problem is that Jim was wrong on nearly every claim he made.
For one, there have been problems with other quarries, and
not just Copar. While it is true that Copar’s
outrageous conduct at the Bradford quarry on the Charlestown line has
gotten the most attention, people have voiced complaints about several of the
other sites. As I reported, the town
attempted to close down the Botka site on the northern shore of Pasquiset
Pond and local residents are currently suing Botka over that site.
Perhaps it was due to Council Boss Gentz’s censorship of
mentioning the Corporation That Shall Not Be Named, but in fact Copar is not only in Bradford, but also has an operating site right in Charlestown – they took over the
old
Morrone site on Route 91. They operate right on the bank of the Pawcatuck River
and blast regularly. They have already been cited for unsafe blasting practices
by the Mine
Safety and Health Administration[5].
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| From the US Mine Safety & Health Administration enforcement database. These violations are for Copar on Route 91 in Charlestown - not Bradford where there are many more violations. Maine Drilling and Blasting is Copar's blasting contractor. |
Plus, as Pat Kent and Raymond Morgan testified, there is
continuing concern that “Voldemort” might acquire the lease from South County Sand
& Gravel to the inactive site on Klondike Road. Pat violated Boss Gentz’s
rule and named Corporation That Shall Not Be Named by name, drawing a reprimand from Gentz to which she replied, “Let
Copar go ahead and sue me!”
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| Is that one of Boss Gentz's Porsches there? |
Jim Mageau is wrong to say that only an elite few are concerned
about quarrying. Charlestown’s six quarries listed as active, plus the inactive
site on Klondike road, affect every part of town.
These sites constitute around 300
acres of moonscape (bigger than Ninigret Park) that will need to be
reclaimed. To my knowledge, only Evelyn Smith has ever reclaimed unused
quarry land voluntarily. Click
here to read an article containing aerial shots of each of the seven sites.
Just about everyone
in Charlestown will be affected over the next several weeks as the parade
of trucks come down Routes Two and One from Botka’s site with sand for
Misquamicut Beach restoration.
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| John O. Mancini - got the $50,000 contract to fight Whalerock, not Copar |
Jim Mageau also confused the Whalerock Wind Turbine fight with
Copar when he said the town put up $50,000 for the legal costs of the Copar
neighbors. False. The Town Council majority put up $50,000
for a Special Counsel plus all of the town’s own legal costs for three
years of litigation to fight Whalerock,
not Copar.
On several occasions, neighbors fighting Copar asked the
Council to give them at least some of the same kind of aid and support that
they gave to the “anonymous abutters” fighting Whalerock. Instead, they got goofy
letters and now a fatally flawed ordinance.
Pat Kent, Al James, Denise Rhodes and Tina Shea from Concerned Citizens of Bradford-Charlestown
attempted to refocus the debate on the need to regulate an unregulated
industry. They said they understood the due process problems being pointed out
by the quarry lawyers, but wanted to make sure public health and safety, and
the environment were protected.
The strain and stress within the neighborhood near Copar's Bradford site is causing nerves to fray and tempers to flare up, and a frustrating night like April 14 doesn't help.
The strain and stress within the neighborhood near Copar's Bradford site is causing nerves to fray and tempers to flare up, and a frustrating night like April 14 doesn't help.
I doubt we’ll see much of Ordinance
#364 again. Ruggiero wants to take another whack at re-writing it[6]
and wants to talk about the issues in regulating mining with the Council in
private. An Executive Session for that purpose has been scheduled for 5 PM on
April 23.
While the public is invited to attend, in this instance, it
means sitting in the empty Council chambers while the Council discusses this
mess behind closed doors. They will return to the public Council chambers when
they are done but will say nothing
about what they discussed unless they took a vote and made a decision.
Which is unlikely.
Meanwhile, it’s business as usual at the six operating sites
in Charlestown including the one on Route 91 on the banks of the Pawcatuck River operated by...Copar, Copar, Copar, Copar,
Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar,
Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar,
Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar…
FOOTNOTES
[1]
And if you can’t, click
here for suggestion on how you can.
[2]
These include lack of criteria for Council decisions, lack of a timeline,
susceptibility to arbitrary denial, reliance on “findings of fact” when no
standards for such findings are provided, arbitrary provisions for default
without recourse or appeal, violation of the “privileges and immunity clause of
the Constitution (14th
Amendment, §1) that forbids states from passing laws that discriminate
against citizens of another state, the “takings”
clause of the 5th Amendment that prohibits taking private
property without due process or proper compensation.
[3] My
favorite bumper sticker on the matter of corporate “personhood” is one that
reads, “I’m not gonna believe a corporation is a person until Texas executes
one.”
[4] The Preamble to the US
Constitution reads “We the People of the
United States, in order to form a more perfect Union, establish justice, insure
domestic tranquility, provide for the common defence, promote the general
welfare, and secure the Blessings of Liberty to ourselves and our prosperity,
do ordain and establish this Constitution for the United States of America.”
[5]
Oddly, the draft Ordinance #364 struck out the prohibition against blasting
that was one of the highlights of the earlier draft. Boss Gentz said this was
taken out because only one quarry, the one he referred to as “the one on Route
91,” also known as the Corporation That Shall Not Be Named, a.k.a. Copar, was
engaged in blasting.
That’s right, of course, and it’s also a fact that the
Mine Safety
and Health Administration has issued five
notices of violation against Copar and its blasting contractor for unsafe
blasting, excessive noise and other breeches of safety standards at the Charlestown site alone. As a rule of
thumb, when a company exposes its own workers to unsafe conditions, they are
even less likely to take much care in protecting their neighbors or the
environment.
[6] During
my working life, I was often had to write drafts of legislation. It can be interesting and challenging
work, but it is work that no one should try doing without a net. Even
experienced lawyers make sure that others carefully review and edit these types
of drafts.
Ruggiero may want to consider having one of his associates write the next draft. Or maybe the 5th grade history class at Charlestown Elementary.
In hindsight, the errors in Ruggiero’s draft are pretty obvious. Even though I
wasn’t really looking for them, I spotted the most glaring one – the lack of
timelines for critical actions. If Ruggiero does another sloppy rush job, and
doesn’t have at least one other person going over it carefully, we’re going to
see another debacle like the one at the April 14 Council meeting. Then Charlestown should go looking for a new Town Solicitor.