During the six years I fought for my rights pro se by suing the Planning Board and the Town of Holland to finally win on appeal in the Appeal ’s Court of the Commonwealth last year, I had a weekly routine. Every Tuesday I would drive to Springfield to study at the law library on 50 State Street. For lunch I would go to the “Side Bar Cafe” on 91 State Street across the Court House. It is the place where most attorneys grab a quick bite before returning to motion hearings, pre-trial conferences, trials, or other court business. At times, individuals dressed in suits were eager to vent their frustration by engaging in a conversation while waiting for their food.
Sometimes I would also talk about my struggle. I remember some of the conversations; one individual called the Superior Court a “Crapshoot,” and suggested to just flip a coin and spare all the BS. “If you are not willing to take it to the next level (Appeals Court), you might as well flip a coin...”
One day I was there just before a scheduled motion hearing before Judge Peter A. Velis. It involved Constitutional Law (I moved to have one count dismissed without prejudice so I could bring it up in Federal Court). The attorney I talked to said, “This guy knows about Constitutional Law as much as I know about raising camels, and I have to tell you, I have never been to Egypt! As a matter of fact, I have never seen a camel!”
It actually is not funny; some judges make a mockery out of the judiciary.
Selectmen James Wettlaufer stated at the beginning of the selectboard meeting of November 3, 2009 about the judgment against James LaMountain:
“It ’s a very, very good thing for the town and it is about time. I also appreciate the fact that there were many witnesses who are residents in this town who contributed to this case... It means that if you stand up for yourself you can win and you can make a difference and that ’s a good thing.”
The truth of the matter is that Wettlaufer ’s statement is false and misleading; the case was not adjudicated based on witness testimony or on the facts, all that didn ’t matter anymore to Judge Ford.
What happened is, that the plaintiff, the Department of Environmental Protection (DEP), served Northeast Concepts Inc., and Huguenot Farm (James LaMountain), the defendants, a request for production of documents. LaMountain failed to produce the requested documents and the DEP filed a motion to compel, see paper #24 on the docket. The DEP then applied for a default judgment based on LaMountian ’s failure to produce the requested documents, see #25 on the docket.
Procedural law, Mass. Rules of Civil Procedure rule 33 (a)(4), enables a party to apply for a judgment by default in its favor to punish a non-responsive party. Rule 33 (a)(4) provides in part:
Application for Final Judgment; Affidavit.
“In the event that answers or objections have not been received and after the expiration of 40 days from the date of service of the final request for answers, ... the interrogating party may file a written application for entry of final judgment for relief or dismissal.”
The default judgment issued in favor of the DEP as it is jurisdictional (mandatory); rule 33 (a)(6) provides in part:
“Upon receipt of the application for final judgment... the clerk shall enter an appropriate judgment...”
The default judgment -- see paper #26 on the docket, -- is on liability only and issued back on March 30, 2009. The MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT written by judge Daniel Ford -- the judgement Wettlaufer refered to during the selectboard meeting -- is the judgment on damages and issued just last week (judgments are separate documents and are issued by the clerk based on the MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT which is written by a judge.)
On page one in Ford ’s memorandum, he opined:
“On March 30, 2009, a judgment as to liability only was entered against both defendants pursuant to Mass. R. Civ. P. 33(a), for failure to answer interrogatories... Thus, as a result of the defendants ’ failure to answer interrogatories and the judgment as to liability which has been entered as a result thereof, it has been established that both the bank and the riverfront area at the Site are protected areas under the WPA [Wetland Protection Act].”
Click here, to read Ford ’s entire MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT.
Ford ’s decision ignored the fact that LaMountain as a farmer is exempt from the Wetland Protection act and that the River Front Act does not apply to Amber Brook as Amber Brook is an intermittent stream.
James LaMountain represented himself and walked out of the court room in protest before the Commonwealth presented its closing argument.
Again, what Wettlaufer referred to in his aforementioned statement was the outcome of the three day evidentiary hearing Judge Ford held on the damages that began back on October 20, 2009, and not a trial; there was no trial due to the default judgment.
The DEP attained the default judgment against LaMountain not on the merits of the case or witness testimony as Wettlaufer incorrectly claims to mislead the community; it was LaMountain ’s failure to produce documents and answer interrogatories upon written questions in a timely fashion that gave cause for the default judgment against him as the agent of Huguenot Farm and Northeast Concepts Inc.
According to LaMountain, attorney Erin O ’Neil Baker was in charge of this case at the time and that her paralegal handling the case was killed in a motor vehicle accident. LaMountain claims not having had any knowledge of the fact that he was in default. If true, LaMountain could actually sue attorney O ’Neil-Baker for legal malpractice; however, that is not the kind of suit LaMountain would initiate, he is too considered to do that.
It is important that the community is informed who the bad guys are; James LaMountain has not done any thing wrong, he is the victim of a default judgment issued based on a circumstantial slip by his attorney that Wettlaufer is now using to further his agenda. What Wettlaufer is systematically trying to do is to ruin the LaMountain family and he is doing it with taxpayer’s money. If LaMountain eventually would run out of funds the hillside property would have to be sold or auctioned off. Guess who would most likely buy the property? There are only two guys who are able to "do things right" in this town, Grossi and Bergeron... nobody else in his right mind would touch the property as long as Wettlaufer sits on the Board of Selectmen and/or the Conservation Commission!
At first, it does not look promising for a potential appeal on behalf of LaMountain. On closer examination, the docket reveals certain inconsistencies. LaMountain filed a motion to dismiss on 01/21/2009 (docket #18), way before the default judgment issued. The motion was filed with several documents that proved the case initiated by Wettlaufer to be without merits. The motion was denied on 07/27/2009 by judge Velis after the default judgment issued. One of the documents filed with Lamountain ’s motion was an affidavit signed by Timothy-McKenna. McKenna ’s sworn statement concludes: “I did not observe any activity at the Site that I considered to be in noncompliance with the Massachusetts Wetlands Protection Act, MGL ch.131 s.40. Based on my April 5, 2007 observations, the August 10, 2006 Unilateral Administrative Order, UAO-WE-06-6W009, has been complied with.”
McKenna at the time was employed as an Environmental Analyst by the Massachusetts DEP for nine years. McKenna ’s affidavit was part of a supplement to a motion to dismiss filed by the DEP in a prior case initiated by Wettlaufer against LaMountain (Order 1). The motion filed by the DEP was granted and another case initiated by the town against LaMountain dismissed as moot.
Wettlaufer will never cease to waste taxpayer’s money. He is a master of deception and an expert in manipulating the public’s opinion. In order to agitate the public and officials with his smear campaign against LaMountain, not only deceptive statements but inflammatory lies are disseminated at will. Here is just one:
The Holland Blog reported about the “Twinning” Burn of April 26, 2008. The “Twining” Burn is called “Twining Burn” as the permit for the burning on this day was issued by the Fire Chief to Geri-Jean Twining, girlfriend of Mike LaMountain.
In an email sent by James Wettlaufer to Robert McCollum and other officials of the DEP, Wettlaufer claimed that the burning was not authorized and that the fire “encompasses most if not all of the subject property.”
Wettlaufer ’s claims are blatant lies! As stated before, the burn of April 26, 2008, was authorized by the fire department of Holland, and the ensuing wild-fire affected only about 3 to 4% of the 78 acre hillside property. To read the email sent by Wettlaufer to the DEP officials, click here! The picture attached to the email is an image taken from his house. It shows that LaMountain ’s property is what Wettlaufer is looking at from his house...
What ever his reason is, he refuses to accept the fact that James LaMountain is a farmer and exempt from the requirements of the Wettland protection act. The default judgment does not change this fact as Wettlaufer would like uninformed and/or gullible members of our community to believe. LaMountain could walk around with a one legged milking stool strapped to his but and Wettlaufer would still claim he is no farmer.
CMR 310, 10.58 Riverfront Area, 10.58(2) Definitions, Critical Characteristics and Boundaries, provides in part under 10.58(2)(a)(1):
”Intermittent streams are not rivers as defined herein because surface water does not flow within them throughout the year.”
And under 10.58(2)(a)(1)(d) in part:
“[T]he issuing authority shall find that any stream is intermittent based upon a documented field observation that the stream is not flowing. A documented field observation shall be made by a competent source and shall be based upon an observation made at least once per day, over four days in any consecutive 12 month period...”
Therefore, if Amber Brook meets this definition, Amber Brook is not a river and not subject to the “River Front Act.”
LaMountain provided the following photographs to the DEP showing the dates when the pictures were taken. The pictures show the "river" Amber Brook. If you don't see any water... there is none! Absurd, isn't it? (click on any picture to enlarge the picture):
These pictures clearly prove that Amber Brook is an intermittent stream.
The DEP itself confirmed in its Superseding Determination of Applicability, dated September 17, 2008, that Amber Brook is an intermittent stream:
“This SDA finds those portions of Amber Brook visible in the photograph depicting the stream bed marked with a red letter “B” dated July 7, 2008 and visible in the photograph depicting the stream bed marked with the number "1" dated August7, 2007 described in the (RDA or WPA Form 1) to be intermittent.”
Click here, to read the Superseding Determination of Applicability. The findings are valid for three years, or until September 17, 2011 according to the SDA written by the DEP.
“The field investigation of June 20 and June 23, 2008 and a review of historic aerial photographs suggest that the primary contribution of suspended sediments to Amber Brook and the delta in Hamilton Reservoir are from the town owned roads and private driveways... historic aerial photographs clearly show that the sediment delta in Hamilton Reservoir predates the ownership and forest cutting operations at the NC/HF property.”
The Report on the other side praises NC/HF for their storm water runoff management efforts:
“The measures in place at the NC/HF site provide multiple levels of protection prior to discharging to Amber Brook...” See page 14 of the report.
The findings in the aforementioned Report were reviewed by on of the most reputable firms in this field, EcoTec Environmental Consulting Services Inc., of Worcester. The findings of the aforementioned Report were confirmed; to read the EcoTec Review of the Report, click here!
LaMountain is lucky that his trial was a civil proceeding; Bernard Baran spent 22 years as an innocent man in prison convicted of several counts of child molestation that were found to be fabricated and false 22 years later. Ford, at the time the prosecutor in the Baran case, withheld exculpatory evidence that would have shown Baran ’s innocence.
It is understandable that prosecutor Kerry David Strayer filed a motion with the request to have Judge Ford as the presiding judge for the evidentiary hearing in the matter, see no.30 on the docket sheet. Filing such a request is extremely unusual; the motion was denied by the Chief Justice.
Somehow Judge Ford ended up conducting the hearing anyway... In Superior Court, assignment of judges is random. In previous hearings in this matter, Judge Peter Velis and Judge Brian McDonald conducted hearings of motions besides Judge Ford.
November 29, 2009, Peter Frei