Two environmental activists are waiting to learn whether the illegal protest methods they used in Oxford Township last year will cost them nearly $40,000.
52-3 District Judge Julie Nicholson is expected to issue a written ruling on whether Duncan Tarr and Dylan Ochala-Gorka will be responsible for paying the Wisconsin-based Precision Pipeline $39,226 in restitution for losses it claims resulted from a work disruption caused by the protesters.
‘It was, in my mind, really excessive,? said Denise Heberle, the Ann Arbor attorney who’s representing the activists. ‘The defendants are young men. One is a full-time college student, the other’s a part-time, freelance carpenter. If they are hit with that kind of (debt), it’s going to take them the rest of their lives to pay it.?
Oakland County Chief Assistant Prosecutor Paul Walton had little sympathy for the activists? plight given their criminal actions.
‘You’re going to commit a criminal wrong, you’re going to incur costs associated with it,? he said. ‘If you don’t want to incur these damages, then don’t protest that way.?
Tarr and Ochala-Gorka pleaded guilty to trespassing charges stemming from an August 25, 2014 protest in which they used large U-shaped bicycle locks to secure their necks to the frame of a Precision Pipeline truck parked on the Koenig Sand & Gravel property along Lakeville Rd.
Precision Pipeline is the company that did the construction work for the Canada-based Enbridge’s replacement of Line 6B, a 285-mile pipeline that transports crude oil between Griffith, Indiana and Sarnia, Ontario in Canada.
The pipeline runs through Oxford and Addison townships, so when Precision was working on the final 50-mile stretch between Ortonville and Marysville last year, it rented the Koenig property for use as the main staging area for the project.
Tarr and Ochala-Gorka were part of a protest against Enbridge organized through the Michigan Coalition Against Tar Sands (MI CATS). They were among 20 to 30 protesters at the Koenig site that day.
As a result of their guilty plea, the two men were sentenced to one year of probation, various fines and fees, community service and no-contact stipulations with Precision Pipeline and Enbridge.
They must also pay restitution.
Tarr and Ochala-Gorka already paid $1,662 in restitution to the Oxford Fire Department for the costs it incurred for being called to the scene and having to cut the locks because the two protesters refused to cooperate when ordered to leave the Koenig property, according to Oakland County Sheriff’s deputies.
Those costs included having two fire trucks and two firefighters on scene, plus replacement blades for the department’s manual bolt cutters and hydraulic cutters. The original blades were damaged while cutting the locks.
A restitution hearing was convened last week in the Rochester Hills court to determine what Precision Pipeline is owed.
Walton explained that in a criminal restitution hearing, the main issue is whether the victim suffered the loss being claimed based on the evidence presented.
‘The victim is not obligated to find the best way to lessen their damages,? he said. ‘The issue is did the defendant cause the damages??
Steven Grice, a project manager for Precision Pipeline, submitted the $39,226 restitution request to authorities and testified in court via video-conference link.
‘These are actual out-of-pocket (costs),? he told this reporter. ‘It wasn’t numbers I made up or anything . . . That’s what it cost me that morning.?
Grice said he calculated the time and money Precision lost that day due to the protest using time sheets from the 275 Precision employees on site, invoices submitted by subcontractors and equipment rental charges.
‘When they turned the time sheets into me at the end of the day, I just went through each crew and how many minutes (were lost) per person and added it up based on the union rates,? he explained. ‘Union wages are not cheap.?
‘Some of the crews were able to get out right away. Some of them were stranded for a lot longer. Some of the people (on the crew) were able to get out, but the foreman and inspector couldn’t. They were in the back of the line. So, they were held up longer and those crews can’t go to work unless that foreman and inspector are both there.?
As for the equipment, Grice said, ‘Caterpillar and John Deere, those guys still send us a bill (for) 7 o’clock to 5 o’clock everyday for that piece of equipment.?
‘If we were stuck in the yard for 30 minutes to an hour because of the protesters, they still billed us the same (amount), whether (the equipment) got used or not . . . That stuff’s not cheap these days.?
Heberle doesn’t believe her clients? actions resulted in a $39,226 loss for Precision Pipeline. ‘I have no reason to suspect (Grice is) not being truthful, but I also have no basis for verifying that,? she said.
Heberle said ultimately, her clients? protest ‘failed? because the construction vehicles were able to pass the truck to which they had locked themselves and get to the job sites.
‘They failed to stop the work,? she said. ‘They may have had to go by at a slightly slower pace, (but) they were able to complete the day’s work.?
‘To the extent there was any time they were completely blocked, it wasn’t by my clients,? Heberle noted. ‘It was by other protesters who have not been charged with anything because when they were told to leave, they did.?
In the incident report, sheriff’s deputies stated when they arrived, there were other protesters trespassing on Koenig property and blocking the driveway, preventing vehicles from passing. But when ordered to leave the property, those protesters complied without incident and no other arrests were made, the report stated.
‘Any losses (Precision) suffered that day were not the direct (result) of Duncan and Dylan’s behavior,? Heberle said. ?(The construction vehicles) may have been slowed down a bit because of the other protesters, but that wasn’t (the fault of) Duncan and Dylan. (The construction vehicles) may have had to pass the truck driving a little a more slowly than usual, but they should drive slowly; they’re crossing a public trail.?
The Polly Ann Trail crosses the Koenig driveway, which is where all this took place.
Heberle argued Precision’s internal policy requiring a foreman and inspector be at a job site in order to begin work could routinely cause delays and that’s not her clients? fault.
‘Everyday, there must be some delay in getting started because not every member of the team is present once they get to the work site,? she said. ‘I’m sure that happens everyday.?
Heberle believes Tarr and Ochala-Gorka have already been ‘punished enough? for their crime of trespassing.
‘It was a nonviolent piece of civil disobedience,? she said. ‘No property was destroyed, no person was injured.?
She views Precision’s restitution request as overkill meant to punish her clients, not simply reimburse the Wisconsin company.
‘It makes me think that in some circumstances, restitution’s used as a punitive measure, not to make the victim whole,? Heberle said. ‘In this case, I believe it is being used punitively . . . That sure is what it looks like to me.?
Heberle fears that if Precision Pipeline’s restitution request is granted, it will have a negative impact on free speech.
‘It’s going to have a chilling effect on environmentalists and other protesters? (willingness) to exercise their First Amendment rights for fear that they might wind up charged with a crime, and then on top of that, get saddled with a gigantic restitution request,? she said.
Heberle is not optimistic about what Nicholson’s restitution ruling is going to be with regard to her clients.
‘The judge indicated her intentions throughout the hearing,? she said. ‘She’s not going to go easy on them, I can tell you that.?
Because the prosecutor, according to Heberle, requested the restitution payments be tied to Tarr and Ochala-Gorka’s probation, she fears that could have ‘long-lasting, undeserved consequences? for her clients.
‘If they miss a payment and can’t prove to a judge that they can’t make the payment, they can go to jail (for a probation violation),? she said. ‘Neither one of them is any position to take on an additional $20,000 debt, even if there’s a payment plan.?