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Vermont Supreme Court denies Nelsons’ appeal

The Vermont Supreme Court on Tuesday refused to overturn a preliminary injunction giving Green Mountain Power the right to police a blast safety zone for the wind project in Lowell.

The high court denied an appeal for extraordinary relief from wind project neighbors Don and Shirley Nelson of Lowell, telling them to pursue appeals in Orleans Superior Court first.

The Orleans Superior Court preliminary injunction by Judge Martin Maley allows GMP to extend the safety zone onto the Nelsons’ land on the Lowell ridgeline. On Nov. 1, Maley gave GMP the right to use law enforcement to move anyone, including the Nelsons and protesters, out of the safety zone when blasting is under way on the wind project.

Since Nov. 5, officers with the state police and area sheriff’s departments have enforced the preliminary injunction. On Wednesday, two Sterling College students were cited for contempt of court for violating the court order, according to the Orleans County Sheriff’s Department.

The Nelsons asked the Supreme Court to dissolve Maley’s preliminary injunction, saying it violates their constitutionally protected right to the exclusive use of their land. The injunction requires the Nelsons and anyone on their property to move away during a two-hour window around each scheduled blasting of the ridgeline.

The Nelsons’ attorneys said in their appeal 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.”

Don Nelson testified in court before Maley that he and the protesters hoped to hinder blasting enough to slow or stop the construction of the 21 proposed large turbines on the Lowell ridgeline.

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.

It would be too late, their attorneys said, because by the time the Orleans Superior Court hears all the case, the blasting on the ridgeline near the Nelson property would be done.

GMP is clearing a crane path and pad locations to erect 21 industrial-grade wind turbines. Delay could cost millions in extra construction costs and loss of federal tax credits if the project is not completed by the end of 2012, GMP officials have said.

Vermont Supreme Court Chief Justice Paul L Reiber and Associate Justices John Dooley, Marilyn Skoglund and Brian Burgess summarized the Nelsons’ argument in a brief order.

“Petitioners argue that the injunction amounts to an abuse of the superior court’s power and therefore they are entitled to extraordinary relief,” the justices wrote.

“To be entitled to relief …, a party must show that there is no adequate remedy by appeal or by proceedings for extraordinary relief in the superior court,” they wrote, citing court precedents.

“Petitioners have pending motions to reconsider and for … appeal in the trial court. Given that petitioners can pursue these other avenues of relief, the petition for extraordinary relief is denied,” the justices wrote.

The denial does not preclude the Nelsons from appealing again once the lower court completely hears the case.

Other appeals about permits for the wind project have been made to Vermont Supreme Court.