Day 2 at the frac sand trial: The prosecution brings its case


“This case is ONLY about trespassing. Being on private property, being asked to leave, refusing to leave. That’s what this case is about, nothing more!” The Winona Prosecutor, Michael Flaherty kept his opening argument brief and moved quickly to his first witness, Dan Nisbit, owner of CD Corporation, a “bulk commodities company” which leases land from the City of Winona, MN in order to ship silica (frac) sand on barges down the Mississippi River. His operation can handle up to 120 truckloads of frac sand a day to fill two barges. When asked if he is aware of health risks associated with silica sand, he states, “I’ve seen some pamphlets”. He told the jury his employees do not wear any special respiratory equipment while work at his Port of Winona facility. He did say the protesters offered him donuts on the day of the arrest last April 29 and that we were “polite and respectful”. “They [the protesters] shut our operation down.”

Next on the stand was the owner of the sand washing facility across town where other activists also blockaded frac sand-hauling trucks. Robert Hemker also leases his property from someone else. He has a dredging operation for sand and gravel and equipment to screen, wash, size, and separate loads of silica sand that is trucked to his site from Wisconsin. His operation usually handles 80 trucks per day except in the cold season. When asked, he allowed that he uses 80 to 100,000 gallons of water in his sand washing operation but says he recycles and reuses almost all of it – maybe 1,000 gallons might be lost to evaporation or retained in the sand. When he was called to his site by employees who told him protesters were there, he described finding a “dinner table” set up by the scales used to weigh the sand-hauling trucks with food and “babies crawling on the ground.” He was offered food by the protesters (he declined) but agreed they were “peaceful and polite.” There was “nothing threatening; they weren’t throwing rocks or anything.”

The Deputy Chief of Police testified about how they run driver’s license or other photo ID through their computers to state-run databases to confirm the identities of those arrested. The next witness was an Investigator from the Winona Police department. Each of the following police or sheriff’s officers called to the two protest scenes were questioned about what they saw, what they did, and were asked to identify photocopies made of the driver’s licenses given to arresting officers. Some officers making the arrests did not hear the “warning” given by the officer in charge of the site. Other officers issued citations to people they hadn’t “arrested.” Some officers wrote the citations on site, others after persons were transported to the Law Enforcement Center (jail). Some were transported by the arresting officer, others were placed in a jail van and transported by others. All testified the demonstration and arrests were done peacefully and courteously. We were described as cooperative.

My arresting officer, Jim Sjoberg told the jury, “they were peaceful and nonviolent. Mr. Clemens said he respected me as a police officer.” One officer couldn’t remember which of the 3 men he processed he “arrested” and which he “cited” back at the LEC. To get a proper conviction for trespass, we need to be told we are on private property, asked to leave, and refuse to do so. If the arresting officer doesn’t give the defendant the warning and the opportunity to leave, the procedure is flawed – especially when a sharp lawyer like Richmond McCluer is sitting at the defense table. After his closing statement, I’m sure the Winona Police Department will order all their officers to take a remedial arrest procedure class for future mass arrests.

From this vantage point mid- trial, besides the 6 case dismissals already, I’m fairly confident up to one third of the remaining defendants are likely to be acquitted due to sloppy police work. We’d rather “win” on the basis of conscience and principle but acquittals for many might encourage other local folk to consider civil disobedience as one of their options.

Keep posted – tomorrow we remaining defendants get our chance to tell our stories to the jury. A jury of 7 women and one Catholic priest, ages 30, 41, 44, 52, 56, 56, 57, and 64.