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GMP vs. Nelsons: Judge denies appeal to lift injunction

NEWPORT CITY – A superior court judge has denied retired farmers Don and Shirley Nelson’s appeal of a court order banning protests within a blast safety zone near the Lowell wind project.

The denial comes days before the preliminary injunction expires.

Every denial in court gives Green Mountain Power more time to complete construction of the crane path and wind turbine sites on the ridgeline near the Nelson property.

A GMP spokeswoman said the blasting near the Nelson property will be complete this week.

Judge Martin Maley of Orleans Superior Court–Civil Division made it clear Monday that his preliminary injunction Nov. 1 was directed at anyone in the 1,000-foot blast safety zone. The injunction expires Friday.

The zone extends onto the Nelsons’ property on the ridgeline near where GMP is preparing to erect 21 industrial-grade wind turbines. Protesters have, until this week, gathered in the area, requiring GMP to hire deputies to enforce the blast safety zone.

Two Sterling College students were arrested last month and charged with criminal contempt of court for being in the blast safety zone on Nelson property after the warning for blasting sounded. Protesters have said the students didn’t mean to violate the order.

GMP sought the injunction to stop the protesters, who hoped to hinder or stop the ridgeline wind project. In court, GMP officials said delays by protesters could cost $1.4 million in additional construction costs and could mean the loss of $47 million in federal production tax credits. Those credits are slated to expire at the end of 2012.

The Nelsons countersued GMP, claiming that they own part of the ridgeline property used for the wind project. They also said the blast safety zone on their land violated their property rights.

The Nelsons have claimed part of the ridgeline for years but have not sued property owner Trip Wileman or his company, Moose Mountain Forestry. Wileman leases the land to GMP.

Last month, protesters said that rock and a piece of blasting mat flew onto the Nelson property, prompting a complaint to state utility regulators on the Vermont Public Service Board, which issued a permit for the wind project. The board did not stop the blasting.

Maley denied the Nelsons’ order to reconsider or modify the preliminary injunction. He also denied their motions to reconsider the injunction, to amend it and restrict its scope.

Maley said it is rare for a judge to reconsider his own preliminary injunction. However, he said it can happen when a party can show a change in the facts.

“The Nelsons’ main argument is that the injunction is overbroad because it applies to persons who are present on the property without the specific purpose of protesting the blasting,” Maley wrote.

He said the Nelsons don’t have standing to raise that challenge on behalf of others.

Maley also noted that the Nelsons raised First Amendment claims, including that news media have a right to be present on the Nelson land in the 1,000-foot safety zone. That, he said, is up to the news media to pursue.

He also said the Nelsons have not lost their right to free speech and assembly.

“The injunction does not prevent the Nelsons from protesting the project or GMP, nor is it targeted at silencing them. Rather, the injunction seeks to protect the Nelsons and their guests from potential, albeit unlikely, injury caused by GMP’s blasting,” Maley wrote.

The Nelsons and protesters can stand in the safety zone whenever blasting is not occurring, he wrote.

The protesters had complained on their website, lowellmountainnews, that the blasting earlier in November was occurring almost every two hours or more on weekdays, preventing anyone from being in the blast safety zone during daytime hours.

“The purpose of the injunction is to ensure human safety and to allow GMP to conduct its lawful business on its own land. The injunction has been crafted and recrafted with input from GMP, the Nelsons, and law enforcement officials, in order to ensure that it places a minimal burden on the Nelsons while still preventing the harm GMP has alleged,” Maley wrote.

“Contrary to the Nelsons’ argument, the decision to issue the injunction was not based solely on the admitted intent of the Nelsons and their guests to stop the blasting and delay the project by remaining within the safety zone,” he wrote. “The injunction was also based on the fact that the Nelsons and their guests were deliberately exposing themselves to a risk of bodily harm and that their conduct was reasonably avoidable.

“The presence of any person within the blast zone, regardless of that person’s subjective intent, will cause the harm sought to be avoided by GMP,” Maley said.

The Nelsons’ request to modify the injunction would not solve that, he said.

Maley said this case “presents a unique set of circumstances.”

Usually, one would expect the Nelsons to be suing GMP, claiming that GMP’s blasting is causing a nuisance, he wrote. Instead, GMP sued the Nelsons, claiming they and the protesters were a nuisance.

In law, he wrote, a nuisance is defined as the deliberate conduct of one landowner that is intended to “disrupt or sabotage a neighbor’s lawful business.”

The challenge, he wrote, is to strike a balance between the rights of both neighbors.

The court has not made a final determination on GMP’s nuisance claim, Maley wrote.

He refused to change the preliminary injunction because he found that GMP would suffer irreparable harm without it and that GMP would succeed on the merits of the case.

The Nelsons, Maley wrote, have the right to appeal his decision to Vermont Supreme Court.

The Nelsons tried to appeal earlier, but the high court justices said it was too soon.

Their argument all along has been that if they wait for the court case to play itself out, they would not be able to stop damage to the ridgeline near their property – even if they won on appeal.