Don and Shirley Nelson of Lowell have asked the Vermont Supreme Court to dismiss a preliminary injunction granting Green Mountain Power the right to move Lowell wind protesters off their ridgeline during blasting.
The Nelsons and the protesters have tried to hinder blasting at the Lowell wind project site by standing within a 1,000-foot safety zone that extends onto the Nelsons’ ridgeline property.
For a week now, state police and deputy sheriffs have carried out the preliminary injunction issued by Orleans Superior Court Judge Martin Maley, reading it to protesters and ordering them to move out of the safety zone.
As of Wednesday, no protester had resisted the court order.
The Nelsons, in a complaint for extraordinary relief, are asking Vermont Supreme Court to promptly dismiss the lower court order.
Their attorneys say the injunction “violates the Nelsons’ constitutionally protected right to the exclusive possession of their own land, including the right to occupy their land to prevent their leasehold neighbor, Green Mountain Power, from using the Nelsons’ land to support GMP’s blasting activities,” according to the complaint filed Tuesday with the high court.
The Nelsons’ attorneys also say that GMP used the injunction to “remove any impediment to GMP’s continuing its blasting activities on lands it is leasing by prohibiting the Nelsons from using a portion of the Nelsons’ adjoining land.”
The Nelsons and the protesters hope to hinder blasting enough to slow or stop construction of the 21 proposed large turbines on the Lowell ridgeline.
GMP said the project would go forward even if delays add to construction costs and cost the utility, partners and ratepayers $47 million in federal production tax credits.
Vermont Supreme Court justices are reading the Nelsons’ complaint this week, a court clerk said Thursday. The court is waiting for the official mailed response from GMP, the clerk said, which could arrive today or Monday.
It would be unusual for the high court to have a hearing on such a complaint, the clerk said.
The Nelsons asked for a quick response from Vermont Supreme Court, saying they can’t wait for the Orleans Superior Court judge to have another hearing.
“Waiting for a merits hearing on GMP’s request for a preliminary injunction will be an inadequate remedy because GMP’s justification for issuance of the injunction, namely, GMP’s need for a 1,000-foot blast safety zone, will no longer exist once the blasting has taken place, and the entire issue will be moot,” Nelsons’ attorneys wrote.
“The blasting in the area in question is likely to be completed in the next several days,” Nelsons’ attorneys wrote.
GMP’s attorneys, in their response obtained by The Record, disputed that time frame.
Dorothy Schnure, GMP spokeswoman, said Thursday that the preliminary injunction applies to the blasting safety zone through the beginning of December.
She said GMP contractors expect to use all that time to conduct blasting on the ridgeline.
The Vermont Supreme Court clerk could not say how quickly the high court would respond to the complaint by the Nelsons – if the court decides to react to it at all.
The Nelsons’ attorneys argued that GMP is usurping the Nelsons’ state and federal constitutional rights to property, free speech and freedom of assembly.
GMP attorneys argued that the Nelsons’ complaint for extraordinary relief “is a thinly veiled, improper attempt to circumvent the normal appellate processes …” The Nelsons have not exhausted their case before Orleans Superior Court, GMP’s attorneys argued.
The injunction by Maley had “virtually no burden on the Nelsons and was necessary to prevent the Nelsons and their ‘guests’ from irrevocably injuring GMP by derailing the construction of an electric generation project that the Vermont Public Service Board has found will promote the general public good,” GMP’s attorneys wrote.
GMP’s attorneys said that the Nelsons are rushing to appeal to Vermont Supreme Court because they may lose their ability to impede the construction of the wind project once the blasting schedule near the Nelson property is finished.