Lowell wind: In filing to Supreme Court, Nelsons make First Amendment claim

Kingdom Community Wind supporters at a rally held in Lowell. VTD/Josh Larkin

Don and Shirley Nelson claim they have a First Amendment right to assemble on their property — even if it interferes with the Kingdom Community Wind project in Lowell.

More specifically, in a court filing last week, the Nelsons argued that a preliminary injunction issued on Nov. 1 by a county court judge violated their rights to free speech and assembly. Their attorneys have requested extraordinary relief from the Vermont Supreme Court.

The court battle began when Green Mountain Power requested a preliminary injunction in Orleans Superior Court last month to prevent activists from camping out on a section of land on the Nelson’s property near the construction site. The utility has said the presence of the protesters is slowing the construction of a crane path for the project.

Judge Martin Maley granted the injunction, which allows Green Mountain Power the authority to move ahead with the construction of a 21-turbine wind farm on Lowell Mountain. Maley found the potential loss of $48 million in federal production tax credits was enough “irreparable harm” to grant a preliminary injunction against the Nelsons. If the project is not operational by the end of 2012, Green Mountain Power will lose these credits. The utility plans to pass those savings onto ratepayers, according to the court filings.

Dotty Schnure, a spokeswoman for Green Mountain Power, explained “basically the court said the Nelsons can’t use their land for the sole purpose of prohibiting us from using our land.”

Last week, Green Mountain Power took the case a step further and filed a motion that would allow the utility to fine the Nelsons $5,000 for each day they allow people to occupy their property within 1,000 feet of the blasting zone.

Attorneys for the Nelsons responded with a filing of their own – with a request to the Vermont Supreme Court for extraordinary relief. The farmers want the state’s highest court to hear their case immediately.

The Nelsons claim the Judge Maley’s order has no basis in law and it violates their constitutional rights to exclusive possession of their land and their rights to free speech and assembly.

Sheehey, Furlong and Behm, the law firm for Green Mountain Power, filed a motion to dismiss the Nelsons’ complaint on Wednesday.

Green Mountain Power states: “Donald Nelson admitted at the October 25 hearing that the campers’ sole purpose for remaining in the safety zone is to interfere with the project because they oppose large-scale ridgeline wind projects. The first amendment does not protect this activity.”

A nuisance, or constitutional right?

The court battle raging over the wind farm in Lowell presents a number of unusual legal issues.

First, Green Mountain Power asked for an injunction based on the fact that people on the Nelson’s property were causing a “nuisance” or unreasonable interference with the utility’s use of the property it is leasing to build the project. In most tort cases, this type of claim comes from a neighbor who is bothered by things like sounds, smells, or other bothers coming from the neighbor’s property.

In a somewhat ironic twist, it was Green Mountain Power, which is blasting to create a road nearby, that claimed the squatters on the Nelson property caused the nuisance.

Scott McGee, a partner at the Norwich law firm that represents the Nelsons, said “it’s the craziest argument I’ve ever seen.” He compares it to a restaurant owner throwing a big party and then calling the police when his neighbor tells the owner’s guests they can’t park on his lawn.

While people getting in the way of blasting may interfere with what Green Mountain Power wants to do on its land, this does not mean it is unreasonable, McGee said. To prevail on a nuisance claim, the activity in question must be “unreasonable”—somewhat of a fuzzy term of art in legalese.

McGee says that an injunction preventing people from peaceably assembling on their land violates their constitutional rights. The claim is slightly different from a garden-variety free speech case because people usually do not go to court for the right to protest on their own land.

“A lot of cases that make it to the courts involve public property,” McGee said.

The fact that the Nelsons are claiming a right to protest on their own land is what makes their case so compelling, McGee says, especially under precedent from the Second Circuit Court of Appeals. Vermont is in the Second Circuit.

Lawyers for Green Mountain Power say the claim is an attempt to make an end-run around the traditional appeal process by asking the Supreme Court for extraordinary relief. They argue that the Nelsons’ First Amendment claim should be discounted because it wasn’t originally introduced in superior court.

The utility asserts that the Nelsons will not lose any ownership of their property or their right to protest. The only limit on the use of their land is that they cannot be within 1,000 feet of the construction site while workers are blasting a few hours each day.

“A purely malicious desire to prevent GMP’s exercise of its own legal rights on its own property is not a protectable legal interest that justifies extraordinary relief from this court,” the motion states.

Green Mountain Power goes on to argue that the Nelsons cite no authority for the notion that positioning oneself in the area where a neighbor is blasting constitutes protected speech under the First Amendment.

Peter Teachout, a constitutional law professor at Vermont Law School, said the right to peaceably to assemble is one of the lynchpins of the rights embodied in the First Amendment.

Teachout said most of the First Amendment law that relates to free speech and demonstrations is for expression that takes place on public property. The U.S. Supreme Court has never recognized that the right to free speech in a demonstration is limited to expression on public property.

Like all rights, the right to freedom of speech and the right peaceably to assemble are not absolute. There are restrictions. For example, government can impose reasonable time, place, and manner restrictions on speech in public parks and other public spaces. Whether those restrictions apply on private property has not been fully addressed.

Teachout said the lower court’s finding that people standing on their own property is a nuisance to those blasting next door is somewhat novel. Another potential issue is whether the court’s decision is “state action” that violates the Nelsons’ rights. Private parties cannot violate people’s First Amendment rights.

“The interesting thing to me from a First Amendment perspective is the argument [by Green Mountain Power] that this is a minor interference with the right peaceably to assemble,” Teachout said.

Green Mountain Power argued that the restriction on the Nelsons was minor in that they only had to remain more than 1,000 feet away from the blasting zone for a few hours every day. On the one hand that is true, Teachout said.

On the other hand, he said, “If the purpose is to dramatically demonstrate and emphasize opposition to a project, that makes all the difference.”