In their efforts to get Green Mountain Power to stop peppering their property with blast debris, Don and Shirley Nelson lost for a couple of reasons.
For one thing, Judge Martin Maley ruled Tuesday, the Nelsons would not get the temporary restraining order they sought against GMP because they hadn’t demonstrated that they are likely to succeed if they sue the utility for trespass. To do that, the judge said, they would have to show “the element of intent.” And that, in turn, would require a claim that Green Mountain Power intended debris to hit the Nelsons’ land, or “knew it was substantially certain that particles would enter” their land.
Yet just before the blast in question, which came on Friday, October 23, Mark the Blaster urged protesters and the press to get behind a big tree “for your own safety.”
We have to call him Mark the Blaster because he declined to supply his last name. Names are a scarce commodity on Lowell Mountain these days.
And we give him great credit, and our personal thanks, for the warning.
But if a blaster tells you to get behind a tree and then sets off an explosion that throws small rocks and big chunks of old tires into your immediate vicinity, might that not stand as reasonable evidence of substantial certainty?
Judge Maley also ruled that the Nelsons “have not shown that more particles are likely to fall on their property.”
Yet in ruling on another motion in the same case on Tuesday, the judge wrote that GMP’s blasting contractor, “in order to maintain safety, modified the blasting by using blasting mats and smaller blasts.”
If the protesters are removed, as he has ordered, and these safety precautions are relaxed, how can the judge imagine that the debris from even bigger bangs won’t hit the Nelsons’ property?
The law is a wonderful and complex thing. We tend to regard it with deep respect, and from a safe distance.
But when justice runs contrary to simple facts, we can’t help wondering if the Nelsons are getting a square deal in court. – C.B.
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