Encamped Lowell Mountain protesters await court action, GMP intervention 

LOWELL – Glancing at their watches, a group of about half a dozen protesters stood in the forest atop Lowell Mountain at 12:30 Tuesday afternoon, waiting for the blast. Green Mountain Power had announced the time about an hour earlier and “Old Crow,” who was logging protesters in down on the Bailey Hazen Road, had relayed the news up to “Muskrat” by radio.

When the sound of high explosives rolled over from the west side of the ridgeline a few minutes later, it seemed distant, almost subdued. And it didn’t trigger the legal confrontation the protesters had been prepared for when they set out on the steep, wet trail that winds about a mile up the east side of the mountain to their campsite.

That confrontation could come later this week, or it might never come. It depends on what happens in Orleans Superior Court, which last week became the second front in the battle over the industrial wind project that Green Mountain Power (GMP) is building on Lowell Mountain.

The night before, Monday night in Craftsbury Common, some of these protesters said they would be willing to defy a temporary restraining order compelling them to stay 1,000 feet away from the edge of the project when blasting was scheduled – even if that defiance led to their arrest. Others, uneasy about the consequences of an arrest, signed up to be part of the support team for those who broke the law.

The meeting, a workshop on civil disobedience, included a rehearsal of sorts. Casting themselves as police, a few of the 55 people present did their best to intimidate and upset a larger group of resistors. For the most part, they weren’t very good at it.

But Anne Morse, who led the session, said it was important for people to know how they might react to such abuse. You need to know how to control those emotions, she said, so you don’t slug somebody.

Awaiting blasting

Nobody at Monday’s meeting was sure when the blasting would come close enough to the campsite to trigger a real confrontation.

In court documents, GMP had said it would begin blasting dangerously close to the campsite on Monday, Oct. 17, and the protesters would have to move.

But the protesters were there Monday and Tuesday, and nobody showed up to order them away. They speculated that GMP’s blasting contractor is behind schedule, still working on the access road further down the mountain. If the blasting wasn’t within 1,000 feet of the campsite, there would be no need to try and move the protesters.

On Tuesday, the contractor didn’t move a crew of loggers working just across a wide orange tape that separated them from the protesters. Using grapple skidders, a limber and, reportedly, a feller-buncher, they were clear-cutting a wide path that will be used by the cranes, once they are assembled atop the mountain, to put together the project’s 21 459-foot wind turbines.

Taking a break for the blasting or for lunch – it wasn’t clear which – the loggers stood casually by their machines until the explosives went off, and then went back to work.
According to a claim filed Tuesday in the other battlefield, the county courthouse in Newport, the loggers were trespassing on the farm of Don and Shirley Nelson. That is one of several arguments filed by the Nelsons’ attorneys in their first volley in a legal fight that has, so far, gone pretty much GMP’s way.

Court filings, counter filings

The Nelsons, determined foes of the wind project whose farm borders it and hosts the protesters’ campsite, were sued last week by GMP.

The utility also obtained the temporary restraining order demanding that protesters retreat when blasting is scheduled. Judge Martin Maley issued that order on Oct. 14 on the strength of a motion by GMP’s attorney, Jeffrey Behm. The Nelsons did not have an opportunity to be heard on the matter.

The Nelsons, Behm wrote, “having failed in their attempts to stop the project through legal means, are now attempting to destroy the project by improper conduct that violates GMP’s legally protected rights, subverts the state’s legal processes and creates an imminent risk of irreparable harm to GMP and the public interest.

“Specifically,” he continued, “they are inviting and assisting persons to occupy their land adjoining the project to create a safety risk that will halt construction blasting on GMP’s land essential to the timely completion of the project.”

Behm argues that the Nelsons just don’t understand the law.

“The false premise of the defendants’ scheme to destroy the project is their assumption they can do whatever they please, no matter how injurious to others, so long as they do it entirely on their own land. That misguided belief is wholly incorrect.”

Behm wrote that, if it had to, GMP could blast out the path of the crane road without endangering protesters at the campsite.

However, he said, the contractor would have to use 50 more blasting mats, “and rely on a greater number of blasts with smaller charges.” (A blasting mat, he wrote, “is a 288-square-foot rubber and steel mat weighing about 11,000 pounds.)

“There is an estimated 330,000 cubic feet of rock to be removed by blasting located within 1,000 feet from the Nelson boundary,” he wrote. That amount of stone would fill more than 780 10-wheel dump trucks.

Such precautionary measures would delay completion of blasting on the crane road by nearly six weeks, Behm wrote, and cost an extra $1.4 million.

In their response, the Nelsons’ attorneys argue that GMP should never have adopted a blasting plan that threatens to hurl debris onto the Nelsons’ property.

Such a plan, they wrote, “will, if carried out, be a violation of GMP’s permit conditions.

“GMP thus does not come before the court with clean hands and is not entitled to injunctive or other equitable relief,” they wrote in an “emergency motion to dissolve the temporary restraining order and request an emergency hearing.”

The attorneys, with the firm Hershenson, Carter, Scott & McGee, say that a blast that throws debris onto the neighboring farm “will constitute a trespass and a nuisance under settled principles of Vermont law.”

They cite the certificate of public good issued by the state Public Service Board, which ruled that “blasting mats will be used where needed to limit the occurrence of flyrock.”

And according to a federal rule, they said, flyrock should not fall beyond the permit boundary.

“Like the child who, after killing his parents, pleads for mercy because he is an orphan, GMP pleads for emergency relief to absolve it of its own negligence in planning this blasting,” the attorneys wrote.

Disputed boundaries

In the counterclaim to the GMP suit that was also filed Tuesday, the Nelsons’ lawyers said that the utility is building its project “partially on land owned by the Nelsons.”

“GMP has already used contractors to clear a swath of land that is located on the Nelsons’ property in violation of the Nelsons’ property rights,” they wrote.

“The Nelsons are entitled to injunctive and declaratory relief establishing their common boundary with the owner of the land now being leased by GMP and prohibiting GMP from trespassing on the Nelsons’ land either directly or by casting blast debris upon it.”

The Nelsons’ attorneys also wrote that “GMP has engaged in a course of conduct designed to threaten and intimidate the Nelsons to coerce them into selling their land to GMP.”

Referring back to a 2010 attempt to purchase the Nelson farm, the attorneys wrote of GMP’s “deceptive and duplicitous conduct by attempting to use a Vermont non-profit land trust to serve as a front party to acquire the property.”

The utility’s conduct, they wrote, constitutes “intentional infliction of emotional distress for which GMP is liable for compensatory and punitive damages.”

Since they were served with GMP’s restraining order last Friday, Oct. 14, the Nelsons no longer keep the log of the protesters as they come and go from the campsite. A notice posted on a tree in front of their farmhouse reads in part:

“Due to threats of legal action against the property owner by Green Mountain Power people are not invited, encouraged or permitted to be present within 1,000 feet of the northwesterly boundary of the property of Donald and Shirley Nelson.”

Visitors park a few hundred yards west along the Bailey Hazen Road, and follow a barbed wire fence on a neighbor’s property before entering the Nelson farm well up the mountain.

“If they want to police it, let them police it,” Mr. Nelson said Monday of the restraining order. “But don’t ask me to police it.”

The matter is scheduled to go back to Superior Court in Newport on Thursday afternoon, Oct. 20, when GMP will seek to obtain a more permanent preliminary injunction against the Nelsons.