NEWPORT CITY – The six Lowell wind project protesters arrested for unlawful trespass in August say their charges should be dismissed because ownership of the land where the trespass allegedly occurred is in dispute in civil court.
“These prosecutions should be dismissed because pursuing them constitutes an abuse of process by the state,” Kristina Michelsen, attorney for the protesters, wrote in her motion filed in Orleans Superior Court-Criminal Division.
“Green Mountain Power should not be permitted to engage the police and the prosecutor’s office to resolve a civil property dispute,” Michelsen wrote.
But Deputy State’s Attorney Sarah Baker wrote in her response, “There has been no abuse of process by the State. The purpose of the prosecution is to hold the Defendants responsible for an Unlawful Trespass, not to resolve a property line dispute.”
Defendants William Roddy, 66, of Irasburg, Dennis Liddy, 64, of Westfield, Meredith Pearce Jones, 63, of Irasburg, Carol Irons, 72, of Albany, Keith Ballek, 57, of Sheffield, and 51-year-old Raymond Micklon of Craftsbury Common were arrested Aug. 6 while blocking a private road and preventing GMP vehicles from getting to the construction site, according to Sgt. Michael LaCourse’s affidavit.
The land in question is being claimed in Orleans Superior Court-Civil Division by both Don and Shirley Nelson and GMP, which leases land from Trip Wileman.
Michelsen wrote in the motion that the Nelsons gave the protesters permission to be on the property.
While the issue has not been decided by a Vermont court, other states have addressed the government’s pursuit of criminal trespass charges where there is a dispute over ownership, Michelsen wrote.
In other states, courts have concluded that it is an abuse of process for the state to intervene on behalf of property owners in this situation, she wrote. “The State should not be taking up the property rights cause of one litigant in a civil property dispute,” she wrote.
The leading case cited is from a 1981 decision in which a Wyoming rancher named Miller used a portion of neighboring land controlled by the U.S. Bureau of Indian Affairs to access his land.
Miller refused to stop using the reservation land, believing he had a long-standing right to use it for access. The U.S. government charged him with criminal trespass and he was convicted, but the appellate court reversed the decision, saying the basic issue was whether he had the right to use the land.
The appellate court said the government should have brought a civil action. “It is an abuse of process when a legal procedure is perverted to accomplish an ulterior purpose for which it was not designed,” Michelsen quoted.
Furthermore, the Miller court said, “If the conviction in this case were allowed to stand on the facts disclosed by the record it would undoubtedly settle a dispute over title and right of possession of land.”
In a similar Montana case, Michelsen wrote, the court said a property rights dispute in a criminal trespass case automatically creates reasonable doubt, precluding a conviction, and that in order overcome that doubt, jurors would have to first determine proper ownership before getting to the other elements of the crime alleged.
Michelsen wrote that expert survey evidence will also show that Wileman used an incorrect method to create the boundary, which is well within the property owned by the Nelsons.
In the case of the Wyoming rancher, the court did not hold that the state couldn’t proceed with the trespass case merely because there was a property dispute, Baker wrote.
The same court held in 2001 that there was no abuse of process when the “prosecution was not a means to resolving a property dispute,” Baker wrote.
“In Miller, the trial court did not treat the case as a matter of criminal law; rather it saw that the purpose of the litigation was to reach an ultimate solution to the property right question,” Baker continued.
“The Court of Appeals held that there was an abuse of process because the prosecution sought to resolve a dispute that the criminal court process was not intended to resolve,” Baker wrote.
That case is distinguishable from the case at hand because the government was a party in the property dispute, Baker argued. Plus, the government acknowledged that the criminal charge was brought because it was unable to resolve the issue administratively or in a civil action.
In this case, the government became involved after GMP was unable to get the defendants to move away from the property. Baker wrote that the defendants knew they had no permission to be on the property and that as a result of their actions, work on the wind project came to a halt.
“In this case, the Nelsons and GMP are litigating the boundary issue in civil court. The Defendants in this matter are not a party to that case,” Baker wrote.
“Contrary to the expectations of the defendants in this matter a finding of guilty or not guilty in this criminal trespass matter will have absolutely no bearing on the outcome of the litigated matters in civil court,” she continued.
“The State has no interest in the ultimate resolution in the civil matter,” Baker concluded.
In all of the cases cited by Michelsen, the people charged with trespass had a property interest in the land they were allegedly trespassing upon, Baker wrote.
The protesters are scheduled for a calendar call on Nov. 13. The motion hearing has not yet been set.
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