November 18, 2012
Vermont

State must prove ownership of Lowell Mt. land to make trespass case, attorney says

Jennifer Hersey Cleveland, Staff Writer | Caledonian Record via Mountain Talk

NEWPORT CITY – The six Lowell wind project protesters with pending court cases say the state can’t hold them accountable for unlawful trespass without resolving a property ownership issue.

Attorney Kristina Michelsen asked the court to dismiss the charges against her six clients and is awaiting Judge Howard VanBenthuysen’s ruling in Orleans Superior Court-Criminal Division. VanBenthuysen said during a status conference Tuesday that he hopes to finish his decision by the end of next week.

Michelsen argued, as she did in defending the other six convicted protesters, that the simple fact that ownership of the property in question is still under dispute in civil court gives rise to reasonable doubt that must be resolved before a jury can find the protesters guilty.

Deputy State’s Attorney Sarah Baker argued that the state has no vested interest in the property dispute, just in holding the defendants responsible for trespassing.

But in her response to the state’s opposition, Michelsen wrote, “In order to prove unlawful trespass, the State must prove the Green Mountain Power lawfully possessed the property upon which the Defendants were arrested.”

To do that, the state must prove GMP’s possession of the property was obtained from the legal owner of the property, she wrote.

But Don and Shirley Nelson – who gave protesters 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 Raymond Micklon, 51, of Craftsbury Common, permission to be on the land – are plaintiffs in pending litigation against GMP for unlawfully taking their land, Michelsen argued.

Judge Martin Maley concluded that the Nelsons made at least a primary showing that they own the land in question, but denied their motion for a preliminary injunction because the Nelsons could be adequately compensated with money damages, Michelsen wrote.“The question of whether it is an abuse of process to prosecute these trespass cases where there is a legitimate dispute as to ownership of the property goes less to whether the State cares about the property dispute than to the propriety of the prosecutorial arm of the State being engaged by one party to a civil property dispute,” Michelsen argued.“The property dispute should be resolved in civil court, not with criminal prosecutions,” she wrote.

GMP knows how to use civil courts to keep people off property, and in fact, obtained injunctions against the Nelsons and those acting in concert with them before blasting at the site began, Michelsen wrote.

“There is no reason that Green Mountain Power cannot seek (or could have sought) an injunction for the piece of property at issue in this case, other than the fact that the State is prosecuting people for trespass on their behalf,” Michelsen wrote.

“This is the abuse of process,” she concluded.

The six protesters were arrested Aug. 6 while blocking a private road and preventing GMP vehicles from getting to the construction site.

The protesters convicted by a jury – Dr. Ron Holland, 67, of Irasburg, Anne Morse, 48, of Craftsbury Common, David Rodgers, 69, of Craftsbury, Ryan Gillard, 23, of Plainfield, Suzanna Jones, 50, of Walden, and Eric Wallace-Senft, 46, of Woodbury – will be sentenced on Dec. 11 at 3:30 p.m.

Chronicle publisher Chris Braithwaite, who was arrested at the same time last December while covering that protest, is scheduled for a pre-trial conference and jury selection on Nov. 28 and 29.

In the meantime, several wind turbines at the GMP site on Lowell Mountain are up and running.

At the status conference, Michelsen asked the court to allow her to depose the surveyor upon whose conclusions the state is relying to make its case. Michelsen argued that Trip Wileman, who leases land to GMP, used improper methods to determine the property boundary.

VanBenthuysen said she should await his decision on the motion to dismiss and file a motion to compel if the case is still viable at that point.

URL to article:  https://www.wind-watch.org/news/2012/11/18/state-must-prove-ownership-of-lowell-mt-land-to-make-trespass-case-attorney-says/