Barton Chronicle Editorial
BRAITHWAITE: THE RIGHT TO POSSESS AND PROTECT
Editor’s note: This commentary is by Chris Braithwaite, the publisher of the Barton Chronicle, in which it was first published on Dec. 11, 2013
The Vermont Supreme Court’s four-to-one decision against the Lowell Six is only the latest in a series of rulings that, with disturbing consistency, seem stacked in favor of a big and influential Vermont corporation — and against ordinary citizens who tried to protect a mountain they love.
The high court upheld a Superior Court jury’s verdict that the six committed the crime of trespass when they put their bodies in the way of the heavy equipment that was building Green Mountain Power’s industrial wind project on Lowell Mountain.
The issue before the high court was whether, since the ownership of the property they occupied on the morning of Dec. 5, 2011, was in dispute, and they were there with the permission of one of the claimants, they could be convicted of committing the crime of trespass.
A majority of the justices said yes, for reasons that are legally complex. But in his dissent, Justice John Dooley raised a question any layman can understand: What if the civil courts ultimately decide that the land is owned by Don and Shirley Nelson, rather than the neighbor who leased it to Green Mountain Power?
If that happens, Justice Dooley wrote, “nothing would demonstrate a miscarriage of justice more. … A criminal case is an inappropriate way for the State to resolve a boundary dispute.”
Whatever consolation they may draw from Justice Dooley’s dissent, the Lowell Six face the fact that they have taken their case to the state’s highest court, and they have lost. The turbines are spinning on Lowell Mountain, however fitfully, and the people who did their best to stop them are criminals.
The criminal case was not the first time the Lowell wind project appeared before the Supreme Court.
On Nov. 4, 2011, the Nelsons’ lawyer, Scott McGee, filed a “complaint for extraordinary relief” with the court. Oddly, his argument makes no reference to the disputed property line — to the still distinct possibility that Green Mountain Power (GMP) has clearcut, blown up and reshaped a substantial strip of somebody else’s land.
Instead Mr. McGee focused on the 1,000-foot deep “safety zone” that Judge Martin Maley created with the stroke of a pen less than a month earlier.
To put the confrontation between the protesters and the utility in military terms, there were two distinct fronts on the mountain, separated approximately along the ridgeline by the disputed property line between the Nelsons and Trip Wileman, who was playing host to Green Mountain Power.
On the west side of the line was the project. On the east side, undisputed Nelson property, was nothing but steep, heavily forested land dotted with a few small tents and a primitive field kitchen.
The encampment had been built in the hope that, by putting their bodies as close as legally possible to enormous blasting job that faced Green Mountain Power, protesters could bring construction to a halt.
As a criminal matter, the tactic got a clean bill of health from no less an authority than Vermont Attorney General William Sorrell. If people are there with the landowner’s permission, he said when asked by a reporter, “there’s no criminal violation that readily comes to mind.”
But as a civil matter, GMP’s very able attorney, Jeffrey Behm, didn’t see it that way. He quickly drafted a temporary restraining order that would clear the Nelson property of protesters while blasting was in progress.
He got it signed by Judge Maley under circumstances that could fairly be described as dubious.
Mr. Behm sought, and was granted, an emergency ex parte hearing before Judge Maley in St. Albans. The Latin jargon means that the other side of the dispute wasn’t present, wasn’t represented by a lawyer, indeed received no notice that the hearing was taking place.
It’s a procedure that is used, for example, when a woman is in urgent need of a court order protecting her from an abusive partner.
Mr. McGee, the Nelsons’ lawyer, raised the point in a footnote to the argument he filed with the Supreme Court:
“If no notice is given, the Rule requires that court make express findings in the order as to why the order was granted without notice. No such findings were made, and there was no justification for not notifying the Nelsons other than the improper justification of ensuring that the Nelsons would be unable to debunk GMP’s claim before the court acted on the application.”
The facts seem to bear Mr. McGee out. The “emergency,” Mr. Behm argued that Friday, was that people at the campsite would be in danger by the next Monday, Oct. 17.
I climbed the mountain the next Tuesday, Oct. 18, to find a group of protesters standing well within the forbidden “safety zone” in defiance of the judge’s order. Nobody bothered them, not the police, not anyone from Green Mountain Power. A logging crew on the other side of the property line took a break when a siren sounded its warning of a blast, but didn’t leave the area. When it happened the blast was an anticlimax, a dull report from somewhere out of sight to the south and west.
It wasn’t until Wednesday, Oct. 19, that GMP sent two of its people up to ask the protesters to leave. They didn’t, and the GMP representatives stood nearby while the blast went off at a closer, but still harmless, distance.
There was, in fact, plenty of time for Judge Maley to convene a full hearing and hear argument from both sides before making up his mind.
But the position he took on Oct. 14 became a foundation from which Judge Maley never budged as events unfolded. Here is Mr. Behm’s formulation:
“The false premise of the defendants’ scheme to destroy the project is their assumption they can do whatever they please, no matter how injurious to others, so long as they do it entirely on their own land. That misguided belief is wholly incorrect.”
But that, as Mr. McGee argued strenuously, is a matter of opinion.
As they unfolded, events got pretty interesting. By Oct. 27 blasters had come so close to the encampment that one of them warned the protesters to protect their heads and take cover behind trees. Then he let off a blast that sent clouds of dust, a few small chunks of rock, and a big rubber piece of a protective blast mat onto the Nelson property where the protesters stood.
Mr. McGee went quickly to Judge Maley’s court, seeking a temporary restraining order to halt the blasting. The errant flyrock not only constituted a trespass, he wrote, but also violated the terms of GMP’s blasting permit.
Judge Maley did not agree.
Turning to the Supreme Court, Mr. McGee urged the justices to step into a case that remained unresolved in Superior Court. If it did not, he argued, the Nelsons would soon lose their constitutional rights to occupy their own land and protest against the project.
“The superior court’s preliminary injunction effectively grants GMP a license to use the Nelsons’ property which GMP otherwise would have no right to use. This is a misuse of court power that tramples the rights of Vermont landowners to accommodate a large corporation.”
Mr. McGee cited three specific rights, under the Vermont Constitution, that the order violated:
Article I names as a “natural and inalienable right” the right of “possessing and protecting property.”
Articles 13 and 20, he argued, protect the Nelsons’ right “to assemble with others to protest GMP’s activities” and the government’s decision, through the Public Service Board, to approve the project.
Finally, Mr. McGee noted, Judge Maley’s order even denies the Nelsons their constitutional right “to hunt and fowl on the lands they hold.”
The Supreme Court declined to consider Mr. McGee’s complaint on the grounds that it wasn’t timely.
The protesters, as a tactical matter, agreed not to get themselves arrested for defying the judge, and face contempt charges. When police finally appeared on the mountain and ordered protesters to leave the safety zone, they left. (In the event, two Sterling College students who weren’t given that opportunity had the contempt charges against them dismissed by Judge Robert Gerety Jr.)
The Lowell Six decided it would be wiser to face arrest for trespass, on the western front of the battle, and rely on the Nelson-Wileman property dispute for their defense.
In hindsight, it’s hard not to speculate how, if a contempt conviction had been appealed to their court, the justices would have dealt with the constitutional issues raised by Mr. McGee.
And it’s impossible not to regret that the high court didn’t take up Mr. McGee’s complaint in the fall of 2011, when it might have preserved, not only the rights of the protesters, but Lowell Mountain itself.
Editor’s note: The author was arrested with the Lowell Six when he refused to leave the construction site before he witnessed their arrest, as a reporter. The trespass charge against him was dismissed by the court, with prejudice, in December 2012.
Lawyers for Energize Vermont and Green Mountain Power will be making oral arguments before the Vermont Supreme Court on Thursday, Dec. 5, 2013 at 9 a.m. on the stormwater permits issued by Vermont’s Agency of Natural Resources for the Lowell wind project.
The Vermont Supreme Court is located next to the Statehouse. The oral arguments are open to the public.
Following is a statement from the six defendants in a Lowell Mountain trespassing case recently decided by the Vermont Supreme Court. They are Ron Holland of Irasburg, Anne Morse of Craftsbury, Suzanna Jones of Walden, Ryan Gillard of Plainfield, David Rodgers of East Craftsbury and Eric Wallace-Senft of West Woodbury:
For several hours on Dec. 5, 2011, six Vermonters blocked construction of Green Mountain Power’s 21-turbine wind project on the Lowell Mountains. With our banners and signs, we stood on land that we believed — and solid evidence shows — belongs to Don and Shirley Nelson.
Nearly two years later, ownership of that strip of land is still in dispute and will remain so until the matter is resolved in a civil trial. Nonetheless, the Supreme Court of Vermont has now denied our appeal in the above case. We acknowledge the Supreme Court’s decision, and we believe it is profoundly flawed. In his dissent, Justice John Dooley provided a commonsense analysis of the issues involved:
“There is a disconnect in this case between the trial court’s charge to the jury and the defense allowed by the court and presented by the defendants. The parties at trial submitted conflicting evidence on whether defendants were arrested on land owned by the Nelsons — neighboring landowners who allegedly permitted defendants to be there — or by those who leased the property to Green Mountain Power (GMP). …
“Nevertheless, despite defendants’ specific request to do so, the trial court refused to address the question of ownership as part of the jury’s consideration of whether GMP had ‘lawful possession’ — an essential element of the criminal trespass charge — of the land upon which they were arrested. … The court’s failure to address ownership in its jury instructions undoubtedly confused the jury after it had just heard evidence focusing almost exclusively on who owned the land in question and whether defendants had permission to be on that land. The questions posed by the jury during its deliberations highlighted its confusion, but the court nonetheless refused to clarify or elaborate on its initial truncated instruction regarding the element of lawful possession.”
We wish to make it clear that the court’s decision will not sway us from our fundamental commitment: to help Vermont develop a cogent, effective energy policy that protects its landscape and citizens from corporate or governmental bullying.
We will focus our efforts on towns, communities and individuals whose peace, health, harmony, and ecosystems are currently threatened by industrial wind development.
Currently, that means Brighton, Ferdinand, Newark and nearby towns in the Northeast Kingdom, targets of Eolian/Seneca Wind. It also means Grafton and Windham in Windham County. It means Grandpa’s Knob in Rutland County, and the towns of Castleton, Hubbardton, Pittsford and West Rutland. And it means Georgia Mountain where neighbors are struggling with that new facility.
We will continue to be responsible advocates for effective climate change strategies. “Effective” means an approach that reduces the state’s carbon emissions, is affordable, assures a reliable supply of power, and protects residents and the Vermont landscape from the negative effects of energy development.
We will continue to question and oppose corporate-friendly policies that pretend to be “green” but in fact do nothing to advance effective responses to climate change.
This might be your last chance to hike the Lowells before the trails get buried in snow! Join knowledgeable guides for a hike up the mountain and up-close views of the Lowell wind project and the old “occupation” camp site. Catch up with friends and the latest developments, or learn about how things have changed on the Lowell Mountains.
December 10, 2011, full moon
Hiking the Lowell Mountains in the moonlight, I realized that I had not been up there since 1975 on some Sterling Bounder trip – Grassroots Project Winter Expedition? The lighting was incredible with the full moon peeking out from the clouds at various intervals creating blue shadows on the snow in the forest. We hiked through the hardwoods and aptly named Hobblebush while I wished for boots with newer Vibram soles. But it didn’t really matter the slipping and sliding – we were as excited as bad kids on a secret adventure.
When we reached the top we suddenly felt the sharp wind. It wasn’t really blowing that hard, but it was cold so it always feels like it is blowing a gale even when it isn’t, and besides now there were no trees to block it.
No trees. How strange to be on a mountaintop that I had known so well so long ago and to not have any trees. The devestation in the moonlight brought up so many emotions. They zipped through my mind with the speed of my heartbeat.
“Holy Cow they have done a lot since I was up here that day in September.”
“Look at the view – all those twinkling lights in the valley. Look at how much light pollution – there are a lot more lights than in 1975. 7 billion humans now.”
“Look at how wide the road is they have built. It really does feel like I am hiking up an unpaved northbound lane of some newly built interstate, including the rock faces along the side where they have blasted it to make the hill more level. I bet no Perigrine Falcons nest there, though.
“Wow, it sure is easier walking than it was when I was an assistant Sterling Short Course instructor. You weren’t allowed to suggest to the students that it might be easier to hike not in a straight compass line, but to get out of the thicket of spruce and chart a slightly different course along the side of the ridge.”
“Wow, that view is incredible. You could never see this much view before, and the moonlight is so beautiful. Oh, and there are the flashing lights of the Sheffield Wind Project.”
We walked the road north to the first tower sight. The land leveled and the huge equipment all tidily parked in a row below the blasted rock face. A bit further on we came to where they had stopped filling in the saddle with the blasted gravel and the road suddenly dropped more like a dirt road than an interstate – a car could drive it but not a semi with a tower or crane. In the distance on the next peak, you could see where the clearcutting had started for the continuance of the road. Three and a half miles never seemed so long. We pass rolls of that fiber with straw embedded in it that gets put over the raw earth like a bandaid. Like that would stop the bleeding erosion of the earth on a scale this big. I feel like crying, but with the moonlight, it all seems so surreal that my mind can’t quite register it the same way as if I was there in the broad daylight, and I just stare at it all in confusion.
We turned back to where we had started and headed south on the road towards the current blasting area over the filled part of the saddle – filled with crushed mountain to a level taller than my house. We peeked over the embankment and marveled at the moonlit woods beyond – treetops now at eye level.
Further up the road, more huge equipment. We walked over and stood next to the tires – taller than me – OK, that’s not that hard, I am only 5’3″- then climbed up the steel stairs to the little platform where you stand to open the door of the cab. “Hey, it’s open.” Like guilty school kids we go inside. One of us sits in the drivers seat and realizes the keys are right there. Instantly all sorts of scenarios race through our minds and we wrestle with our former teenage selves – especially the men – it is a giant teenage boy’s wetdream. But our adult selves know the assorted outcomes of each of the scenarios we are thinking and we leave the machine sleeping in the moonlight, laughing nervously. As much as we would have liked to monkey wrench the project, it probably would have just gotten that one operator in trouble, not shut down the whole grizzily project.
We continue hiking south which again starts to resemble less interstate and more dirt road as the south end of where they have gotten to approaches. First we leave the big road building rigs, they we come to the logging rigs, further on in the distance we can see the untouched peak magestically shining in the moonlight. I think to myself “What is this mountain thinking of these humans – to do this. Not since the glaciers has there been such destruction up here.
We head back under the tape and into the snowy magic of the forest. It folds itself around us like a warm embrace healing a hurt child – asking nothing. The wind is blocked by the ridge now and I start to warm up as we share some hot tea from the thermos and some cheese before heading down to the car. We are much more quiet during our descent, tired and lost in our private thoughts. It will be an evening we all remember for the rest of our lives – an evening out of the ordinary – a weird twilight zone. And again I have to ask – Why are they doing this? And will we just waste this electricity like it gets wasted now? How much electricity is enough and what are we willing to sacrifice in order to have it? Apparently a lot, and even when we are long gone as a species, those mountains will never be the same.
What are Mountain Occupiers Doing These Days?We’ve been busy plotting our next event, and it’s gonna be a big one! After last summer spent fighting a single (albeit very important) issue, many folks were feeling like we needed to work for change on a bigger scale as well, looking at the larger picture and going for the roots of the problem. Enter:The Rendezvous.This will be a free 2-day event, August 17-18 in Irasburg, VT. There will be workshops, presenters, activism, camping, live music, a performance by Bread and Puppet — a place to learn more about the issues confronting us – and the solutions available- while networking with folks from activist and environmental groups from around the state. We’re especially excited about our first keynote speaker, Peter Brown, author of the book Right Relationships: Building a Whole Earth Economy. We’ll be announcing our second keynote speaker soon, so stay tuned! You can learn more about what we have planned and keep up to date on developments by checking our website: http://therendezvousvt.wordpress.com. You can also join our Facebook group -www.facebook.com/therendezvousvtWe Need You!Here’s how you can help:First, spread the word about the event- forward the website to your friends, share the facebook page, or print out flyers from the website and pass ‘em outSecond, we need workshop presenters! If you or someone you know has knowledge to share, submit a workshop proposal to this e-mail by July 8! You can find all the details on being a presenter by clicking on “Request for Presenters” on the website.Third, we need volunteers! We need help with media outreach, the logistics of finding equipment and setting up for the event, and before, during, and after we need help with things like putting up tents, building a stage, cleaning up recycling and compost, parking, making signs, etc. Send us an e-mail and we’ll find you a job!