NEWPORT CITY – An Orleans Superior Court judge said Tuesday that Lowell farmers Don and Shirley Nelson as well as protesters on their mountainside land are “improperly interfering” with the Lowell wind project.
Judge Martin Maley said Green Mountain Power “will sustain irreparable harm” if the protesters continue to hinder the wind project’s blast schedule.
Maley issued a preliminary injunction Tuesday that gives law enforcement officers the authority to arrest and move protesters from the 1,000-foot blast safety zone on the edge of the Nelson property during blasting times. The protesters could be cited for criminal contempt of court, which carries a penalty of a fine, imprisonment or both, the order states.
Maley also banned the Nelsons and the protesters from “inviting, encouraging or permitting” anyone else from entering an active blast zone.
In two other orders, Maley denied the Nelsons’ request for a temporary restraining order to stop GMP from potentially sending debris from blasting onto their property, saying that they didn’t prove actual damages had occurred.
And he denied the Nelsons’ request for a temporary restraining order to stop GMP from blasting on property that they claim is theirs.
Maley left open the argument about who owns the property. He said the Nelsons had not shown they would be harmed if blasting continues.
But Maley said it was clear that GMP would lose $1.4 million if blasting fell behind schedule – and potentially could lose $47 million in federal production tax credits if the construction is so delayed that it is not completed before the end of 2012.
“The public has a strong interest in this project being completed on time,” Maley said.
GMP is blasting rock on the ridgeline on property owned by Trip Wileman of Lowell to build a crane path and erect 21 turbines 459 feet tall. Protesters have been on the ridgeline for weeks trying to stop the blasting.
GMP officials reacted immediately to the court orders.
“This is a very strongly worded ruling to allow the project to proceed,” GMP spokeswoman Dorothy Schnure said.
GMP hired a mediator who has arranged to meet with protesters in a neutral setting to seek resolution to the protest, she said.
Vermont State Police Troop B Capt. Tim Clouatre and Orleans County Sheriff Kirk Martin spoke to protesters Monday at the ridgeline. They were told that some protesters would resist the court order, according to protesters.
“Our goal was to communicate with the individuals participating regarding our public safety concerns,” Clouatre said Tuesday morning.
It was not clear late Tuesday if law enforcement officers had time to act on the judge’s new orders. Schnure said blasting was scheduled for Tuesday but she did not know if protesters were on the mountain.
“Our position remains that we respect their right to assemble and recognize that they have very strong opinions about this renewable energy project,” Schnure said. “But the fact is, their presence on the mountain is putting their safety and the safety of a lot of hardworking men and women working on this important project at risk. This demonstration will only serve to slow the project and drive up cost for Vermonters. It will not stop construction of the project.”
In issuing the preliminary injunction, Maley looked at the financial impact to GMP.
“The court is satisfied that GMP has met its burden of proof of irreparable harm,” Maley wrote.
He said that state utility regulators approved the blasting plan, which was crafted without expectation that anyone would be in the 1,000-foot safety zone on Nelson property – a steep, uninhabited, forested area.
Maine Drilling and Blasting “has worked on several wind projects in the past and has never encountered a situation where persons refuse to leave the safety zone during a blast,” Maley said.
The company estimates that $1.4 million in expenses will be incurred if extra safety precautions have to be used because of protesters, he said.
“More importantly, the delay jeopardizes GMP’s chances of completing the project by Dec. 31, 2012, and thus its ability to qualify for the valuable production tax credits. This would be a major blow to the viability of the project and would significantly harm GMP and its customers,” Maley wrote.
The intrusion on the Nelson property is minimal, Maley wrote. He said it does not amount to a “taking” of part of the Nelson property.
He said the campers and the Nelsons “are acting out of a desire to injure GMP,” making their actions unreasonable.
“Because they are acting intentionally to derail the project, the Nelsons may be held liable whether or not they specifically intend to interfere with Maine Drilling and Blasting’s contract with GMP,” Maley said.
Maley concluded that the public has an interest in seeing the project completed on time.
“Completion of the project by Dec. 31, 2012 is necessary to ensure that the public receives the maximum benefit from the project via the federal production tax credits. Thus, the public has a vital interest in avoiding delays to the project, and that interest is served by granting a preliminary injunction,” Maley wrote.
The Nelsons’ attorneys filed a motion Monday seeking a temporary restraining order after a blast on Friday. Their attorneys claim, citing protesters, that blasting sent a piece of blasting mat, some chunks of rock and particles smaller than a pea onto the Nelsons’ property.
Maley denied that, saying the Nelsons had to show that they suffered actual damages, that the blasting harmed people, land or property, and that the blasting company intended to cause harm.
Finally, Maley explained why the Nelsons’ claim to part of the wind project property isn’t enough to stop the wind project.
“There is a genuine issue of fact as to whether the property in question belongs to the Nelsons or their neighbors,” Maley wrote.
Maley said both sides had surveyors testify about the location of the disputed property line between the Nelsons farm and the Lowell wind property owned by Trip Wileman. The Nelsons, he said, raised enough evidence to win their case if GMP or Wileman didn’t challenge it.
However, Maley said they didn’t demonstrate that they would be irreparably harmed by the alleged trespass – in part because it is speculative since they haven’t won the case that the land is theirs. And they didn’t show the court why they couldn’t be compensated with money damages, he said.
Maley said GMP could get an order from the Public Service Board for a right of way to work on the property.
“In this case, it is impossible for this court to tell at this point whether GMP is in fact trespassing. So the benefit to the Nelsons of issuing an injunction is at best uncertain. By contrast … the harm to GMP of issuing an injunction that turns out erroneous would be great,” Maley wrote.
Maley reminded the parties that the court could see things differently once the property dispute case is argued.