Oil train protesters seek 'competing harms' defense

Lewiston-Auburn Sun Journal | May 22, 2014 | Column by Christopher Williams

AUBURN — A man and woman arrested last summer for sitting on railroad tracks said in court Thursday they intended to stop a train carrying dangerous crude oil.

RUSS DILLINGHAM/SUN JOURNAL Douglas Bowen Jr, left, and Jessie Dowling, next to him, talk about more people coming to protest in front of the Androscoggin County Courthouse in Auburn on Thursday morning. The two were arrested for blocking Auburn railroad tracks in August. The blockade was a protest calling for a moratorium on the transport of the same oil product on a train that crashed and exploded in Lac-Megantic, Quebec, last year.

Jessie Dowling of Unity and Douglas Bowen Jr. of Porter testified in a packed Androscoggin County Superior Court room during a pretrial hearing that they considered the act of criminal trespass to be of lesser harm than allowing a train hauling explosive cargo to pass through an urban area.

Outside the courthouse, roughly 70 protesters showed their support with banners and placards for the actions that led to Dowling and Bowen's arrest on Aug. 28, along with their concern about the conveyance by rail through Maine of light crude petroleum oil. 

The two defendants are hoping a judge will allow them to raise that point at their trial. Prosecutors argued Thursday that the two shouldn't be allowed to use that justification as a so-called "competing harms" defense.

If Justice Joyce Wheeler were to rule in favor of the defendants, prosecutors would bear the burden of showing beyond a reasonable doubt that at least one of the elements of such a defense hadn't been met. In addition, prosecutors would be tasked with proving beyond a reasonable doubt that the pair had criminally trespassed.

Bowen said on the witness stand that he didn't leave after local police warned him because he wanted to save the lives of city residents.

"We had tried all other options as others had, too, in a lawful way," he said, but "we were convinced that imminent harm on a grand scale was facing people along the track line." He had been told the train was traveling through Auburn on its way to Canada from the Midwest.

"We were, in fact, committing a much lesser harm in order to try to — which I think we succeeded at, basically — prevent a much greater harm," Bowen said. "I did not want to see a whole lot of people get killed or maimed and a town half-destroyed."

When Dowling was asked why she sat on the tracks, she said, "I put my body on the line to prevent the train from passing through."

She said, "There was no other way to get our point across."

She said she and other protesters at the site didn't want the same thing to happen in Auburn that had happened last summer in Lac-Megantic, Quebec, where a derailed train carrying light crude killed nearly 50 people.

"I didn't think there was anything else I could have done other than what I did," she said, adding, "I believe it was the right thing to do."

Assistant District Attorney Andrew Matulis grilled Dowling and Bowen about their motives and beliefs, seeking to cast doubt on their stated fears of an explosion occurring in downtown Auburn on that day when they both had admitted to a lack of knowledge as to the exact whereabouts of the train they were told was en route.

Matulis also questioned them about other legal options available to them, such as soliciting the aid of legislators or, if truly an emergency, local law enforcement and firefighters.

When he asked Dowling and Bowen about the potential risk of a train harming them, they said other members of the group were situated north and south of the site of the sit-in and would warn them of the approach of a train.

Although Dowling and Bowen referred to the train's arrival as imminent, leaving no time for other actions, Matulis reminded them that they had planned the event weeks in advance.

Matulis suggested the pair could have left the tracks after police warned them they were trespassing, but Dowling and Bowen didn't agree.

That was "a bad option," Bowen said.

The defense called two expert witnesses who testified about the dangers posed by the type of cargo Dowling and Bowen were seeking to block.

Dowling and Bowen had been arrested near Denny's on Court Street last summer, handcuffed and hauled away.

Thursday's rally outside the courthouse was organized by 350 Maine, of which Dowling and Bowen are members.

The August protest was organized by 350 Maine and Maine Earth First!, the environmental groups that blockaded an oil train in Fairfield last June. The groups are calling for a moratorium on the transport of the same oil product being transported when a train crashed and exploded in Lac-Megantic a month earlier.

cwilliams@sunjournal.com

http://www.sunjournal.com/news/lewiston-auburn/2014/05/22/oil-train-protesters-seek-competing-harms-defense/1538206#

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PAUSE, People of Albany United for Safe Energy
PAUSE is a grassroots group of individuals who have come together to promote safe, sustainable energy and fight for environmental justice. We engage the greater public to stop the fossil fuel industry’s assault on the people of Albany and our environment.