NEWPORT CITY – The Orleans County sheriff and Vermont State Police said Tuesday that a judge’s order last week didn’t provide the legal basis to arrest protesters at the Lowell wind site.
Sheriff Kirk Martin and Lt. Kirk Cooper, head of the state police barracks in Derby, appeared in Orleans Superior Court–Civil Division during a second day of hearings in the court battle between Green Mountain Power and neighbors Don and Shirley Nelson.
Martin and Cooper met with Judge Martin Maley behind closed doors, despite objections from the press, to explain the problem with his temporary restraining order and to discuss security issues about arresting protesters.
The two officers left the court with a proposed amended order that Maley said they would show their attorneys.
Maley said the amended order should provide guidance in how to deal with protesters who have hindered a full blasting program at the Lowell wind project.
“It’s clear to the court, the order has to be specific,” Maley said.
But a full day of testimony ended without the officers returning.
At day’s end, Maley let stand the order he issued last Thursday, which targets protesters who have been standing on mountainside property belonging to the Nelsons within a 1,000-foot safety zone when blasting was planned.
GMP attorney Jeffrey Behm told Maley that the proposed amended order provides legal support for the temporary restraining order, saying a violation is punishable by criminal contempt of court.
Maley said the existing order is in effect until Oct. 30.
Meanwhile, he said he would consider both the request by GMP for a permanent injunction against protesters and the request by the Nelsons for a temporary restraining order of their own.
The Nelsons want Maley to put a stop to wind construction on property that the Nelsons say they own.
Maley did not say when he would issue a written decision.
That means GMP contractors can continue to blast and do work on the ridgeline.
Behm argued that the Nelsons had plenty of time during the past year to sue over property lines and asked why they waited until now.
Nelson testified that he didn’t really want to fight the wind project in court.
“I knew if I had to prove all this it would bankrupt me real quick,” he said.
The Nelsons have not had a full survey done.
He warned GMP officials about the property dispute on town meeting day 2010, he said.
And in written testimony in October 2010, Nelson said he told the Vermont Public Service Board, which OK’d the wind project, about the property line dispute.
But he said that he didn’t file a lawsuit in Orleans Superior Court before now because he was waiting for his attorney at the time, Duncan Kilmartin of Newport City, to file it.
“I was told month after month, ‘We’ll file it next week, we’ll file it next week,'” Nelson said.
Nelson said he had to go and get the file from Kilmartin several weeks ago.
Nelson said he thought that the PSB would make GMP try to resolve the dispute.
Nelson said he lost hope early last year during the hearings before the PSB. “I realized back in February that we lost the battle.”
Nelson said he welcomed the protesters who offered to come to his property and helped them to find the trail and set up camp. They called him Buzzard, he said, a name his wife selected. Others at the camp were called Muskrat or Raven.
He told them to obey the law, he said. “No destroying work up there. No pulling flags. No pulling stakes. I was real strict about that.”
He and his wife tracked who was on the ridgeline until the judge issued the temporary restraining order Oct. 17. Since then, he said he only knew 10 percent of the protesters on his land.
Nelson said that he knew that the protesters would be there for awhile, warning GMP in a letter.
“As long as they needed to be there to throw a monkey wrench into the blasting?” Behm asked.
“Yes, I suppose we did,” Nelson said.
Behm asked if Nelson told the protesters to stop.
“Why don’t you go to them and say, ‘I want you to obey the TRO and leave,'” Behm asked.
“I’m not going to tell these people what to do,” Nelson said.
Behm asked if the protesters would listen to Nelson, and he said he thought they would.
“You could end this … You haven’t tried,” Behm said.
“No I haven’t,” Nelson said.
GMP offered Nelson $1.25 million for his property, which has been for sale for years. He rejected the offer.
Nelson said GMP is interfering with the use of his land on the ridgeline.
His attorney said that it didn’t matter how far away the edge of the property is from the Nelson home. It is his property and GMP should not tell him how to use it and has no right to throw blasting rock on it, even if he doesn’t use it.
Most of the rest of the testimony Tuesday involved a history lesson about how once independent Vermont was divided up into ranges and lots – and how different surveyors can arrive at different conclusions when looking at property on a mountainside that has not been developed.
Surveyor Paul Hannon looked at the Nelsons’ property lines that he shares with Trip Wileman, who owns the property on which GMP is building the wind project. But he did not do a survey.
His proposed property line shows that in one place, the Nelsons should own 181 feet farther west, biting deep into the area where the crane path and two turbine sites would be located. That property line, if upheld in court, could derail some or part of the project and could force GMP back to the drawing board.
But Hannon’s analysis is different from that of Norbert Blais, who did a legal survey for Wileman and who disagreed with Hannon’s analysis.
And Blais created a property line that both the Nelsons and Wileman agreed to before Wileman invited GMP to look into the wind project.
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