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In the case of David v. Goliath

The Nelsons, of Lowell Mountain fame, are embroiled in a struggle with Green Mountain Power over their right to use their own land to allow access by supporters against Green Mountain Power. Earlier this month, GMP secured an injunction against the Nelsons assembling with other opponents of the wind farm within 1000 feet of a blasting area on GMP’s property, within which distance the Nelsons’ land sits. The Nelsons then appealed to the Vermont Supreme Court for emergency relief on Lowell Mt. They failed. Judge Martin Maley agreed with GMP that the Nelsons have no right to assemble within the 1,000 foot distance for the admitted purpose of hindering the project. Further, the judge accepted GMP’s claim that to allow the Nelsons to continue their obstructive behavior would cause irreparable financial harm in the amount of $48 million federal tax credits it will lose if GMP doesn’t finish the project on time.

The constitutional questions the Nelsons raise, are good ones with which we can’t help but agree. They claim that Judge Maley’s order has no basis in law and that it violates their constitutional rights to exclusive possession of their land and their rights to free speech and assembly; we agree. They claim that they didn’t cause the nuisance which Judge Maley is using as the occasion for enjoining their use of the property, but that GMP did; they are right, GMP did. They claim that the courts’ cited precedents for the injunction flow from a solid court history of rulings only on public lands, not private; they are right, again.

This is a unique David v. Goliath issue; the Nelsons are David and GMP is Goliath. Our sense is that the laws pertaining to neighbor v. neighbor nuisances were never intended, or even conceived of, to respond equitably to an issue as far beyond “public nuisances” as this. David’s farm is suddenly bordered by Goliath’s score of 490-foot windmills and his construction crews numbering in the dozens, with Goliath complaining that David is a nuisance and finding a judge who agrees and enjoins David from using his own property.

However this collision of interests finally resolves itself, we are certain that it will be precedential in many entirely unexpected ways.