Hunters skeptical of state deer count

deer picby Paul Lefebvre

LYNDON — A deer hearing at Lyndon State College last week may have been lightly attended, but it still attracted hunters willing to cross knives with the Department of Fish and Wildlife.

“I think the deer herd has plummeted since the department took over the herd,” said Rodney Elmer from Northfield.

He said the Vermont herd, estimated at 130,000, would do better if biologists relied more on Mother Nature.

A hunter from St. Johnsbury aired his disbelief over estimates from department biologists that indicate the deer herd is healthy and growing.

“I seriously question where those statistics are coming from,” he said, adding that he has been seeing fewer deer.

He said he hunted every day of rifle season last year and saw 17 doe and only one buck.

Perhaps he would have enjoyed more success if he had hunted in Orleans County.

Recently, the department published its deer harvest report for 2012, showing that Orleans County was the hottest of spots among the three counties in the Northeast Kingdom.

Hunters there last year took a total of 1,151 deer over the course of four seasons involving archery, black powder, rifle and the special youth weekend hunt.  That total far exceeded the 819 deer harvested in Caledonia County or the 231 that were taken in Essex County.

Statewide, the largest harvest of 2012 occurred in Franklin County, where just under 2,000 deer were taken.

The department’s deer project leader, Adam Murkowski, told only a dozen or so hunters last Wednesday night that the deer herd constitutes a robust population.  He attributed the herd’s growth to back-to-back mild winters and a management plan intent on keeping the numbers of Vermont deer in balance with the habitat that supports them.

He said Vermont’s deer population has a fluctuating history, with numbers soaring when the winters are mild and plummeting when they are severe.  Using a PowerPoint presentation of graphs and statistics, he showed how the harvest of bucks has stabilized since 2006.

Antlerless permits given out on the basis of deer density in any given zone, and the youth deer season weekend, were among the management tools he credited with bringing about that desired end.

Still unknown are the effects global warming will have on the herd.  Warmer winters suggest that the herd’s population is likely to grow.  But if the herd gets larger, will the state have the habitat to support it?

The ten-year West Mountain Wildlife Management plan is coming up for its renewal.  Public hearings will be held on June 11 in Brighton and June 13 in Lyndon to review how the state has been managing the 22,000 acres that were acquired, mainly through the Champion Lands deal of 1991.

Mark Scott, the department’s director of wildlife, told hunters last week the department is counting on public involvement to both preserve and improve wildlife habitat.

The habitat statewide is changing, and Mr. Murkowski noted the pressure is on to keep harvest levels stable while maintaining a healthy herd.

Among the hunters present, Mr. Elmer expressed fears that the big deeryards that were crucial to the herd’s survival are disappearing.  He attributed part of the decline to the way the forest is being managed, opining that hardwood is pushing out the cedar and spruce stands that deer need to survive.

“We want what’s right for the land and what’s right for the deer,” he said.  “If we try to grow a bigger herd in the Northeast Kingdom and the land won’t support it, that’s a bad move.”

The hearing last week was the fourth in a series held by the department on the status of the Vermont deer herd.  The fifth and final one will be held on June 5 in Manchester.

contact Paul Lefebvre at paul@bartonchronicle.com

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Senate passes weakened wind power bill

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Wind towers at Lowell Mountain, as seen from Irish Hill Road.  Photo by Bethany M. Dunbar

Wind towers at Lowell Mountain, as seen from Irish Hill Road. Photo by Bethany M. Dunbar

copyright the Chronicle  3-27-13

by Paul Lefebvre

MONTPELIER — A legislative push to give towns and regional planning commissions more say in the siting of industrial wind towers appears to be dead, following a preliminary vote here Tuesday in the Senate.

The vote came after a marathon, contentious and at times personal debate that started at the fall of the morning gavel and lasted past the noon hour.  The result is expected to hold when the Senate takes up the bill for the third and final time later this week.

Little remains of a bill that started out as a call for a three-year moratorium on wind and morphed into legislation to reform the permitting process by adding Act 250 criteria and by putting wind development on hold for roughly eight months of study.

What’s left in the measure passed by the Senate Tuesday is a $75,000 appropriation for the creation of a Joint Energy Committee that will evaluate recommendations due out next month from the Governor’s siting commission.

Presumably, the role of towns and the regional commissions in the siting process will be revisited when the committee meets.

The vote was seen as a defeat by the two senators representing Essex and Orleans counties, whose ridgelines are prized by wind developers.

“They stripped the meat out of it,” said Senator John Rodgers, a member of the Senate Committee on Natural Resources that created the bill.

“They took the soup and left the broth,” said Senator Bobby Starr, who during the debate defended the bill as a “commonsense, down-to-earth proposal.

“All it’s asking for is for people to be heard,” he said.

After the debate was over and the vote was in, the region’s senior senator put his best spin on the results by saying a half a loaf was better than none.

A straight up and down vote on the bill was avoided when Senator David Zuckerman prevailed with an amendment that stripped out its key provisions.  It took the unusual route of being voted on twice.  Defeated the first time when Lieutenant Governor Phil Scot broke a tie by voting against it, the amendment was rekindled when Bennington Senator Dick Sears asked if he could change his vote.  His request led to a second vote by the full Senate.

During the debate, Senator Sears had spoken out against the bill and the intent to add Act 250 criteria to the siting process.  That would be an intrusion into the present permitting process, he said.  It would have the effect of “opening up a can of worms that doesn’t need to be open.”

And with his support the Zuckerman amendment passed by two votes, 16 to 14.

In a brief interview outside the Senate Chamber, Senator Zuckerman said he offered the amendment in the belief the bill was sending a “false hope message” to towns.  He said the veto power the bill gave them and the regional commissions could be taken away after eight months had passed and the legislation had sunset.

On the floor he said the bill was duplicating the work of the Governor’s siting commission, and raised the specter of global warming.

“We have a climate crisis on our hands,” he warned.

Stripped of what many believed to be its essential components, the amended bill passed easily.  If the outcome disappointed Senator Joe Benning, the legislator who a year ago spearheaded the call for a three-year moratorium, he didn’t show it during a brief interview after the vote.

He said that with a stronger vote to back it up, the bill would stand a better chance of getting a fair hearing before the House.

“It’s keeping the discussion alive and that is the most important thing of what this last month has been about,” he said.

If words could draw blood, the Senate floor might have become slippery.  Senator Dick McCormack could have been speaking about the debate when he called the issues surrounding the bill “a clash of non-negotiables.”

At different points along the way, the debate pitted one core value against another:  the public good versus local control; global warming versus protecting the environment; rural Vermont versus urban; and the urgency to develop renewable energy versus planning and evaluation.

Senators from the Northeast Kingdom led the way in charging that the most rural corner of the state was being picked on.

Early in the debate Senator Rodgers said Chittenden County didn’t want the Northeast Kingdom to stop the development of renewable energy.  With two wind farms already in place and a landfill taking a large share of the state’s waste, he argued it was time for some other region to step up to the plate.

“A nice landfill in Burlington could conserve diesel fuel and cut down on carbon emissions,” he said at one point.

The freshman Glover senator applauded the bill for giving small towns a voice and financial aid so they might be able “to compete with the deep pockets of developers.”

Senator Starr continued along that line when he characterized big wind as a runaway development that had pushed its way through his district like a bulldozer.

His constituents were complaining, he said, that they “are not being given a chance to be heard.”

Senator Diane Snelling of Chittenden County introduced the bill as a planning mechanism.  She said she “took to heart the concerns over global warming,” and defended the bill as being “very pro renewable energy.”  All the bill was asking for, she said, was a better way to site renewables.

One of the uncertainties arising from the debate was how much weight neighboring towns would have in the permitting process.  Senator Snelling said there was nothing in the bill that would allow a neighboring town to kill a project.

But others suspected the bill would give towns a veto power.  Senator McCormack was among the senators who argued that local control should not override the public good.

“It’s a question of state sovereignty,” he said, pointing out that local control is a power granted to towns by the state.

While Senator Snelling argued that the bill was “a workable proposal to get the best siting for energy,” others argued there was no need for it.

Senator Jeanette White of Windham argued that the bill was redundant and unnecessary.  She noted there were no projects waiting in the wings, and said she was uncomfortable with the bill because she believed it discriminated against wind.

Senator Benning became an advocate for changing the permitting process after he climbed Lowell Mountain and viewed how construction had transformed the mountaintop in preparation for the placement of 21 turbines.  When he came off the mountain, he decided, “We had a problem that wasn’t being addressed by our government.”

As part of his presentation Tuesday, he passed out a parcel of photographs that documented the destruction on Lowell Mountain.  And proceeded to argue that wind developers had gone to the Northeast Kingdom because of its rural isolation and lack of population.

He compared Newark’s town plan with a set of ordinances drawn up by the city of Burlington and pointed out their striking similarities.  Each, he said, wanted to preserve their landscape, natural beauty, and views.

Burlington and the surrounding communities within a ten-mile radius account for one-third of the state’s population.  But Newark, he said, had a population of 581.

Small towns like Newark, he implied, need protection because wind developers go where they won’t get a push back.  Or where resistance is least and likely less affordable.

Senator Mark MacDonald of Orange County said the Kingdom was like the leopard that wanted to change its spots.  He said among supporters of the bill were people from the Northeast Kingdom who had brought “cell towers to mountaintops, and Act 250 be damned.”

No great harm would come, he promised, if the bill were defeated.

Each side in the debate claimed to champion action to slow global warming.  Senator Richard Westman of Lamoille called it “the most important issue facing us.”

He supported the bill because he said it was making lawmakers struggle with the consequences of what has already been done.  And although he was not real happy with the bill, he called the debate surrounding it vital.

For Senator McCormack, the choice hinged on global warming.  The planet was in danger, he said, and push had come to shove.

“The very idea I would vote against a bill to regulate a troubling development — something I never thought I would do,” he said.

“I’m going to vote against this bill and break my heart.”

A final vote by the Senate could come as early as Thursday morning.

contact Paul Lefebvre at paul@bartonchronicle.com

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Publisher’s trespassing case dismissed

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The Lowell Mountain wind towers as seen from Irish Hill. Photo by Bethany M. Dunbar

by Paul Lefebvre

copyright the Chronicle 12-12-2012

NEWPORT — A utility wind developer company that tried to do the right thing by the press appears to have shot itself in the foot when it allowed the arrest of a reporter and then failed to step forward and rectify an action contrary to company policy.

The Orleans County state’s attorney’s office last week dismissed a criminal charge of unlawful trespass brought against Chris Braithwaite, a reporter for and publisher of the Chronicle in Barton.

Mr. Braithwaite, who had been spearheading his paper’s coverage of the wind project on Lowell Mountain and the controversy it triggered, went to the site on December 5, 2011, to cover a demonstration that protesters had scheduled for the morning.

Police intervened and arrested six protesters, who became known as the Lowell Six.  A jury found each of them guilty of unlawful trespass this summer.  Mr. Braithwaite also was arrested despite his claims he only had gone to the site to cover the demonstration as a reporter.

When news of his case’s dismissal was announced last week, Mr. Braithwaite, 68, of West Glover, released the following statement:

“On the day after my arraignment on a charge of unlawful trespass, I wrote that I believed my conduct on Lowell Mountain on December 5, 2011, satisfied the dictates of common sense and the ethics of journalism.  What remained was the daunting task of demonstrating that it was also within the law.  That task came to a successful conclusion today.”

Dismissal came as the case was preparing to go to trial and after defense attorney Phil White subpoenaed internal e-mails that passed back and forth among officials of Green Mountain Power Company (GMP.)

The documents show that GMP intended to give Mr. Braithwaite and other reporters access to its Lowell Mountain site, where protesters were demonstrating against the construction of a 21-turbine wind project.

“Does anyone know what happened,” asked Robert Dostis, a GMP official who works with communities and who was responding to colleagues about an editorial against the arrest.

To GMP’s site manager at Lowell Mountain, he went on express surprise that an arrest had occurred.

“Frankly, I don’t understand why Chris was arrested since you gave exact instructions that he not be,” he wrote in an e-mail dated December 10.

A day later, a second official struck a similar note.

“I think now we have to put an end to the notion we tried to stop the media, when we simply did not,” wrote a GMP consultant Stephen Terry in an internal e-mail sent six days after the arrest.

He then repeated a question asked earlier by the company’s public relations officer:  “Did the leadership instruction not to arrest CB just not get relayed fast enough Monday morning?”

While release of the e-mails helped to end the criminal charge, they may have opened a new chapter in the case.

Attorney White said Monday he had asked for an apology from GMP as well as compensation for expenses and legal fees that came to $22,330.

“Had Green Mountain Power disclosed this information to the State Attorney’s Office promptly, Chris never would have had to undergo a year facing criminal charges,” wrote Mr. White in an e-mail.

“Instead, GMP sat on its hands and did nothing, absolutely nothing.”

Mr. White said he hoped that GMP would “do the right thing” by apologizing and paying Mr. Braithwaite.

But that appeared unlikely Tuesday.

GMP Public Relations Officer Dorothy Schnure said that it was Mr. Braithwaite’s refusal to leave the site that caused him to be arrested.  And once an arrest occurred, it was out of GMP’s hands.

“It’s not our case, it’s the state’s,” she said, adding later:  “While we had hoped he wouldn’t be arrested, that’s what played out.”

She declined to comment Tuesday if the company had received Mr. White’s request of GMP to pay for his client’s legal fees and expenses.

In an e-mail later in the day Ms. Schnure stated:

“Frankly, the proposition that David Coriell acted inappropriately and that it gives grounds for a legal claim by Chris Braithwaite is frankly frivolous.”

On Monday Judge Howard VanBenthuysen, who presided over the case, released some of the documents, which had been sealed under an agreement between the defense and prosecution.

The judge noted they had been submitted in support of the defense motion to dismiss with prejudice and were now part of the public record.

He also said he would not rule on the motion to dismiss the case with prejudice until the state had a chance to respond.  If a case is dismissed without prejudice, the state can bring it again.  He set a deadline of December 26 for the prosecution to respond.

Deputy State’s Attorney Sarah Baker said in an interview Tuesday she would file a response opposing the motion because there is still evidence available that would enable the state to win the case.

She said her motion would also explain why the state dismissed the charge, adding that her office did not want to inconvenience a witness and former employee of GMP who has since moved from Vermont.  Ms. Baker also said there were documents in the file that had not been unsealed and that would help the state prove its case, in the event it was brought back.

The documents that came to light this week indicated that the state’s dismissal may have hinged on the failure of a GMP employee at the scene on the day of the arrest to correctly inform police officers of the company’s policy toward arresting Mr. Braithwaite and any other journalists covering the protest.

As GMP officials scrambled to learn what had happened, David Coriell, its representative at the site during the protest, tried to explain to his bosses in two e-mails why the arrest had occurred.

The first e-mail sent on the day of the arrest stated: “Braithwaite and another woman stopped at the edge of the construction site and started taking pictures.  Phil Brooks, the Orleans Co. Chief Deputy, asked Braithwaite and the woman to get back another 50 feet to the Nelson property.  The woman complied.  Braithwaite chose to stay.  Brooks approached Braithwaite and after a short conversation he asked him to leave or come back and stand with those willing to be arrested.  Braithwaite walked back and stood with those being arrested.”

In the second e-mail, dated December 11, Mr. Coriell told his bosses that the no-arrest instructions “didn’t get relayed to all the officers involved.

“That said, I know the Sheriff had no intention of arresting Chris.  Chris actually arrested himself by physically walking back to the middle of the crane path.”

He went on to say that Mr. Braithwaite called the officer an expletive.  The officer charged that the reporter had stepped “over a professional line.”

Ms. Schnure said Tuesday the scene that day at the site was confusing, with cell phones losing signal and people milling around.  She called the arrest Tuesday “a breakdown in communications.”

Concerned that another protest at the mountain was coming, GMP officials huddled and considered what they should do about access and the press, and what instructions to give the police.  An e-mail from Ms. Schnure to GMP managers on December 11 laid out a possible course of action.

“Dave confirm that sheriff will be there early if at all possible.  Ensure sheriff knows media has permission to be there.  Tell Sheriff we really don’t want any reporters arrested.”

Mr. Terry, the consultant, agreed, calling the proposed instructions “a good way to pre-empt another journalism arrest which was never our intent or purpose here.”

While it is still unclear how far the documents went in convincing the state to dismiss the charge, they did provide a picture of GMP managers working to ensure similar arrests of reporters would not occur at future demonstrations.

“We have to minimize the public and political fallout of decisions made on the mountain,” wrote Mr. Dostis in a December 10 e-mail.

“Arresting reporters will do more harm than good.”

Ms. Schnure said repeatedly Tuesday that it was Mr. Braithwaite’s actions that caused his arrest.  And that he was not owed an apology by GMP.

contact Paul Lefebvre at paul@bartonchronicle.com

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Lowell Six wind turbine protesters convicted of trespassing

Eric Gillard, the brother of one of the Lowell Six, holds a sign in front of the courthouse. Photo by Paul Lefebvre

by Paul Lefebvre

copyright the Chronicle 8-22-2012

NEWPORT — It took a jury of nine women and three men four hours to find wind opponents known as the Lowell Six guilty of unlawful trespass, following a one-day trial here in Superior Court.

The verdict appeared to reflect a trial in which a straight law and order issue trumped a disputed property boundary.

Conflicting testimony over the dispute may have confused the jurors as about an hour or so into their deliberation, they sent a note to the judge.

They wanted to know if there could be a legal owner when a property is in dispute.  And if the dispute was still current.

Trial Judge Martin Maley complimented the quality of the questions, but ruled each irrelevant.

“Do the best you can based on the evidence you heard,” he instructed them.

Disputed property boundaries were the key to the defense case:  If the state could not prove that the protesters were standing on property that was in the lawful possession of Green Mountain Power (GMP), then the defendants could not be convicted of unlawful trespass.

The prosecution argued that GMP was in lawful possession of the property, and that the protesters had broken the law when they refused to leave the land that had been posted by the company.

The trial was the first to be held involving protesters against the Lowell wind project that is being constructed by GMP.

Each of the six were arrested on December 5, 2011, when they refused police orders to leave posted property on Lowell Mountain while blocking the path of heavy construction vehicles.

Although the six presented their case as a group, the jury found each guilty as individuals.

Six more protesters are scheduled to be arraigned next month for a similar confrontation on the same mountain earlier this month.

Held Wednesday of last week, August 15, the trial was surprisingly silent on the underlying and highly charged issue that caused the defendants to break the law.  Before the jury entered the courtroom, Judge Maley warned he would only allow limited testimony on why the defendants were on the land.  And nothing, per se, on wind itself.

The jury, he said, knew what the case was about.  “It’s not a secret to them.”

So wind remained the elephant in the room:  the one everyone knew was there and agreed not to see.

Surprisingly, the only one to raise it as an issue was prosecutor Sarah Baker, when she sought to challenge the intent of the defense’s star witness, surveyor Paul Hannan of Calais, formerly of Holland and at one time a Kingdom legislator who served in the House.

Placed on the stand as an expert witness by defense attorney Kristina Michelsen, Mr. Hannan was prepared to provide the rock-bottom kind of testimony the defense needed to support its case.

Mr. Hannan testified that he had 31 years of experience as a surveyor and the credentials to qualify as an expert.  The rules of evidence, however, say that either side can challenge an expert’s witness.  And when her turn came, Ms. Baker proceeded vigorously.

First she asked Mr. Hannan about his association with Sterling College, and learned that during the years 1990 and 1991, he was one of the faculty members who accompanied students on three-to-four-day expeditions on Lowell Mountain.

The prosecutor pressed on.  Did he have any prior knowledge of Don Nelson — who allowed the students to use his property and who also is in a property dispute with GMP concerning the boundary line between his land on the mountain and the adjourning site where the utility is constructing its wind project.

No, said Mr. Hannan.

Ms. Baker may have thought she had found a chink in the defense’s armor when she abruptly asked the witness if he had any association with any anti-wind group.

Instead, the question brought a prompt objection from attorney Michelsen, along with a few hisses and murmurs from the 35 or so spectators in the gallery, a largely anti-wind crowd.

Judge Maley sustained the objection and Ms. Baker sat down, taking with her any references that the industrial wind project on Lowell Mountain had anything to do with the case.

There was a stirring in the closing moments of the trial when one of the defendants, Dr. Ronald Holland, took the stand.  The doctor’s name had surfaced earlier in the trial when Deputy Sheriff Phil Brooks testified for the state.

Of the ten protesters on the mountain that day, the deputy said he only knew Dr. Holland from previous personal and professional encounters.  He went on to testify that about two weeks prior to the December 5 confrontation, he received a call at home from Dr. Holland.  The doctor, according to the testimony, told the deputy he was going to the mountain that day to protest and wanted the deputy to arrest him.

“I informed him I was off duty and it wasn’t going to be me,” Deputy Brooks testified, adding that he passed what he characterized an “odd request” on to the State Police, who didn’t do anything either.

That testimony was before the jury when Dr. Holland took the stand late in the day.  The 67-year-old resident of Irasburg told jurors that days prior to the confrontation with police, he had gone onto the site and measured with twine the distance where he believed Mr. Nelson’s property ended.

And on the day of the confrontation, he testified he went to the limit of that measured distance.

But in a question that had nearly everyone in the courtroom leaning forward on the edge of their seats, Ms. Michelsen asked the emergency room doctor why he had climbed to the top of Lowell Mountain on December 5, 2011.

He paused and bowed his head a moment before answering that he had gone there to “protest the taking of Don Nelson’s property.”

Defendant David Rodgers, 69, of Craftsbury followed Dr. Holland to the stand and testified that he too believed he was on the Nelson property when police moved in to arrest him.

He testified that Dr. Holland had tied a block of wood to the end of a string as a means of measuring the property’s boundary.  And that he was “very careful not to” trespass on the land GMP is leasing to erect its 21-turbine wind plant.

The procession to the stand might have continued had not the prosecution agreed to stipulate that the remaining four defendants had followed the doctor’s lead.

But if the defense thought a protest over property rights could overturn the confrontation that followed, the jury saw it differently.  Nor did any witness refute or challenge the deputy’s testimony over what happened that day.

Deputy Brooks testified he received a call around nine that morning from GMP, informing him that protesters were on the mountain blocking heavy equipment from working on the wind project.  Police arrived roughly two hours later, and observed that the group was blocking cranes and big trucks.

“They were stopped on either side of where the defendants were,” he testified.

Deputy Brooks testified that prior to December 5, GMP had shown him a map of the project and its property boundaries.  And when confronting the protesters, he said he gave everyone the opportunity to step back behind the property line between GMP and the Nelson farm.

Of the ten protesters, three complied with a police order to step aside.  Six refused and were placed under what sounded like a gentleman’s arrest.  The deputy said he chatted cordially with the defendants and discussed everything but the project going on around them.

“I limited myself to that,” said Deputy Brooks.

The biggest problem police encountered that day, the deputy added, was finding a way to transport their prisoners off the mountain.

Police also arrested a seventh individual, Chronicle publisher Chris Braithwaite, who is challenging his arrest on grounds he was there doing his job as a reporter.

GMP’s intent to keep people off the site and the property it has under lease was deliberate and thorough, according to its project manager Charles Pughe, who also oversaw the posting.

“We cleaned out several stores,” he said, speaking of the no trespassing signs the company purchased.  “We had to have so many of them.”

Mr. Pughe testified that the land was initially posted for safety and to keep hikers out of harm’s way.  But he also noted that problems with people at the site began appearing sometime in October, as campers began to gather on the neighboring Nelson land.

Terms of the lease gave GMP authority to exclude or allow access to anyone the company chose, he said.

Mr. Pughe was off site the day the protesters were arrested.  But under cross-examination by Ms. Michelsen, he said, he could tell from photographic evidence — including photographs taken by the arrested journalist — that the protesters were on GMP’s leased property at the time of their arrest.

He estimated the face of the turbine would be about 200 feet away from the Nelson boundary line.

From the moment he took the stand it was evident that Don Nelson was not going to be a friendly witness.

He gave mostly monosyllabic responses to the prosecutor’s questions, and when asked to read a document, he shrugged and said he didn’t have his glasses.  That brought a query from the bench

“Need your glasses, Mr. Nelson?” asked Judge Maley.

“Don’t have them with me,” replied Mr. Nelson.

The prosecutor decided to try a different tack by asking the witness if he had given Dr. Holland permission to go on his property.

“My land is open.  People come and go,” he replied.  “I don’t invite or not invite.  We don’t post it.”

When Ms. Michelsen’s turn came to ask the questions, Mr. Nelson said that Dr. Holland had come to see him about the boundary dispute, and that he had provided him with the coordinates that were in disagreement.  According to his testimony, the dispute began years ago with the landowner who leased the land to GMP.  At the time, the witness testified, there was a difference of roughly 420 feet.

For its final witness, the state put on the surveyor who recently bought out a surveying business in Derby Line that surveyed the Nelson property several years ago in hopes of resolving the boundary dispute.

Andrew Nadeau testified that the previous owner had surveyed the property in dispute in 2007, and that he had spent in excess of two weeks surveying it as well.  But the surveyor who spent the longest time on the stand turned out to be the expert for the defense, Mr. Hannan.

Throughout his testimony, Mr. Hannan repeatedly testified there were fundamental mistakes in the 2007 survey — that affected the boundaries of lots leased by GMP.

He told jurors that in surveying the same ground, he found that markers had been inappropriately defined.  He said there must be corroborating evidence to define a marker or monument that had been used in the past when the land was first surveyed.  And such markers, he added, could be used to determine boundaries.

“When is a stone pile a stone pile or a monument?” he asked at one point.

Jurors already had heard from Mr. Nelson that surveying is not an exact science, and depends in part on the quality of surveys done in the past.  Mr. Nelson noted that he and his neighbor had tried to settle survey discrepancies on their abutting lands through an agreement.  Their boundary dispute was rekindled, however, when the agreement came unraveled.

Mr. Hannan testified that in surveying the land for the Nelsons, he found almost no markers on the ground that were left when the land was first surveyed in 1790.  And he told the jurors that the monuments defined by the 2007 survey were inaccurate.

Closing arguments were short, lasting about five minutes apiece.  Each attorney offered similar arguments to those they had made in their opening statements.

The verdict clearly took the defense and its supporters by surprise.  After asking the judge to poll each juror for a verdict, Ms. Michelsen said she would be filing post trial motions.  The court gave her ten days to submit them.

Prosecutor Baker said she would be requesting a restitution hearing, which means the state will try to convince the court to order the defendants to pay compensation to GMP.

The late hour verdict led the defendants to call off a press conference they had planned to hold at the conclusion of the trial.

In a press release Monday, Dr. Holland was quoted as saying:

“We are obviously disappointed with the verdict but respect the jury’s efforts. This is, and will continue to be, a complex case that rejects the simple and disingenuous offerings of Green Mountain Power.  We will continue to educate Vermonters on the science and math of ridgeline wind-generated electricity.”

As Mr. Pughe was walking away from the courthouse, he said he hoped the verdict would make his job easier.

The remaining four defendants of the Lowell Six are:  Ryan Gillard, 23, of Plainfield; Suzanna Jones, 50, of East Hardwick; Ann Morse, 48, of Craftsbury; and Eric Wallace-Senft, 46, of West Woodbury.

contact Paul Lefebvre at paul@bartonchronicle.com

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Bernie Henault of Island Pond lived a life of advocacy

Bernard Henault of Island Pond.

by Paul Lefebvre

copyright the Chronicle August 1, 2012

MONTPELIER — As a one-legged fellow, Bernie Henault had a long stride:  a stride that carried him through the doors of one social agency after another in the Kingdom and into the State House committee rooms here in the state’s capital.

Perhaps it was fitting and most appropriate then that the last tribute paid to Bernie was in the cafeteria where politicians and lobbyists mingle over lunch and pitch issues.

“He spent a great deal of his life roaming through these halls and that’s the reason why we’re meeting in this cafeteria,” said Sharon Henault, Bernie’s wife and partner in working for the poor and those who must cope with a physical disability.

Saturday’s potluck tribute to Mr. Henault, who died June 4, came on what would have been his seventieth birthday.  A familiar figure at town meetings as well an animated talker on the streets of Island Pond, Mr. Henault was indefatigable in his advocacy for social justice for the poor and the disabled.  Nor was he afraid to step outside the box.

“He was the best antidote to group think I know,” said Susan Yuan of Jericho, who served on low-income committees with Bernie.

She said he had a larger vision than most of the other committee members in that he saw that advocacy begins at home.  She noted that Bernie urged other advocates to take the issues that affected their clients back to their local school boards and town meetings.

Ed Paquin of Montpelier, who once served as a state legislator in the House and is the current executive director of Disability Rights of Vermont — a nonprofit agency that provides legal representation to its clients — described Mr. Henault as a tenacious fighter for the cause and one not easy to appease.

“He was a great guy to call your bluff,” recalled Mr. Paquin, who gets around in a wheelchair.

Mr. Henault was 17 when he was struck by a drunk driver that led to the amputation of one of his legs, according to an interview he gave recently to a reporter with the Rutland Herald.

A man with an empty pant leg who relied solely on crutches, Mr. Henault was equally as passionate about education as he was social justice.

He served on the North Country Union High School Board and along with Sharon adopted two biracial girls, whom he guided on what to expect in a Northeast Kingdom public school system that historically sees few people of color.

Samantha, who is now a 21-year old single mom, living at home with her mother and going to college, recalled her public school experience as the “only girl with two disabled parents and the only mixed girl.”

Bernie, she said, taught her to feel proud that she was different, told her to hold her head high.

“He was always protective of me.  Always,” she said, as she contended with a different problem in the same hallways where her father had once bent a legislator’s ear:  Her two-year old daughter, Jaelyn, was acting up.

A Democrat who worked for Robert Kennedy in the party’s 1968 presidential primary, Mr. Henault was no stranger to electoral politics.  He repeatedly ran for a seat in the Vermont House and, although he never won, his ardor for public service never diminished.

No doubt it was a trait that U.S. Senator Bernie Sanders admired and praised when he showed up Saturday in the closing moments of the tribute.

Their relationship dated back to the 1970s when the two worked together on low-income issues, recalled Mrs. Henault in a telephone interview this week.

“If Bernie was looking down from above I know he’d be pleased,” she said, adding that the two men were friends as well as political allies.

People who worked with Mr. Henault recalled that he had a big voice and a pointing finger when it came to advocating on behalf of his clients.

Testimonials Saturday recalled that Bernie told his clients to see themselves as differently able people, never disabled, which gave them a different outlook about themselves and the world.

More than one speaker remembered him as the person who initiated the first wheelchair, “Mini Olympics” games in the state.  Or as the powerful voice who spearheaded the movement for independent living in the Kingdom.

Assertiveness was one of his traits.

“He was a guy to push you all he could if you represented the system,” noted one of the speakers.

Sarah Laundervill remembered meeting Bernie when she was teaching a class at Springfield College’s satellite campus in St. Johnsbury.  Her students were making their final presentations in a course on social work.  Bernie, who had come to the campus on another matter, stuck his head in the classroom to listen.  He wasn’t impressed.

“You must do better if you’re going out into the community,” he told one of the students.

Afterwards, Ms. Laundervill said she made a point of engaging Bernie in a conversation, but recalled having a difficult time getting him to listen to her.

Someone in the group quickly picked up the thread of her story, saying that at this moment Bernie was no doubt up in heaven telling them how they could do it better.

“I don’t think God could get a word in edgewise,” she concluded.

People Saturday characterized Bernie as someone who was infallibly human, someone who had his weaknesses as well as his strengths.  But most agreed that as an advocate he was a person who put the human in human services.

“It’s going to be very Bernie-like,” said Sharon, when she earlier characterized how she expected the tribute would play out.

“Very informal with people sitting around eating and talking.”

That’s pretty much the way it went with one exception:  On behalf of the Vermont Statewide Independent Living Council, Harriet Hall presented a plaque to Mrs. Henault in recognition of Bernie’s efforts for the group.

contact Paul Lefebvre at paul@bartonchronicle.com

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Why aren’t there more hydro projects?

by Paul Lefebvre

copyright the Chronicle, May 30, 2012

This is part one of a series of articles about hydropower.

MONTPELIER — The Legislature gave a nudge this session to a renewable source of energy that roughly 70 years ago dominated Vermont’s rivers and ponds. As recently as 1940, hydropower supplied the state with 90 percent of its power needs.

But today hydropower is seldom mentioned in the push to acquire 20 percent of Vermont’s energy needs from renewable sources like solar and wind by 2017.

“Hydropower is the forgotten stepchild of the renewable energy movement,” says Lori Barg, who owns a business in Plainfield that designs and installs small hydro systems for towns and farms, and who gave testimony for the hydro bill that was signed into law recently by Governor Peter Shumlin.

One of the co-sponsors of the bill was Northeast Kingdom Senator Vince Illuzzi of Derby. Nearly ten years ago Senator Illuzzi spearheaded a failed attempt to get the state to buy hydroelectric dams on the Connecticut River.

He has been pushing hydro ever since and, except for this year, striking out.

“It’s been a constant fight with ANR and water quality people,” he says. And in the Legislature there has been no middle ground with hydro projects, he adds: “Either you authorize them or you don’t.”

The bill that made it into law this year, S.148, intends to expedite the permit process for small and micro hydro developers. A small hydro is defined as a project that generates up to five megawatts (MW) of power, while a micro is one that is 100 kilowatts (KW) or less. There are 1,000 KW in a MW.

Estimates of Vermont potential for hydro projects are all over the map. According to the bill’s findings, they range from 25 MW to 434 MW. In a 2008 study, the Agency of Natural Resources (ANR) estimated there were 25 MW at 44 sites; whereas a year earlier the Department of Public Service (DPS) estimated there were 90 MW developable at 300 of the 1,200 existing dams, according to the bill’s findings.

In testimony on the bill before the House Fish, Wildlife and Water Resources Committee, Ms. Barg testified that Vermont has 400 MW of potential hydropower without building a single new dam.

So, the elephant in the room or the whale in the river is the question: Why isn’t hydro playing a larger, more important role in the renewable energy mix?

The reason, say a variety of sources, is the cost of permitting — a process that involves both state and federal agencies.

“Most hydroelectric projects require approval from the Federal Energy Regulatory Commission (FERC). The length and cost of the process of obtaining a FERC approval do not vary significantly with the capacity of the hydroelectric project,” says the bill’s findings. “However, the ability of a hydroelectric project to absorb this cost decreases as the capacity of the project grows smaller.”

To ease the permitting cost, S.148 authorizes the DPS commissioner to enter into an agreement, or what is known as a “memorandum of understanding” (MOU) with FERC that would enable Vermont agencies to prescreen proposed hydroelectric projects in the state.

The MOU would be comparable to one recently signed between Colorado and FERC “to streamline and simplify the authorization of small-scale hydropower projects.” But whereas the Colorado MOU focused mainly on agricultural irrigation canals, Vermont’s will deal with small dams and conduits.

The state must initiate negotiations with FERC by July 15, and recently the DPS assigned a staff person to the project, according to Andy Perchlik, who is the department’s director of Clean Energy Development Fund.

It may be too early to estimate how much money the new law will save those who develop small hydro projects, says Mr. Perchlik. The bill says the state will review the MOU once five projects have been permitted and are up and running.

For its part, says Mr. Perchlik, the state is expected to do “more hand holding” with developers and coordinate permit work among agencies. The department and ANR will put together a list of criteria that a project will have to meet and, once all the agencies have signed off, he adds, FERC will be able to move ahead.

Though some may see the legislation as a step forward, no one is saying it will stimulate hydro development or increase applications for small or micro hydro projects.

Since S.148 went into effect the phone hasn’t been ringing off the hook at the Department of Environmental Conservation, says Brian Fitzgerald, the department’s Streamflow Protection Coordinator.

“Realistically, there aren’t that many good projects out there,” he says.

If the MOU succeeds, Mr. Fitzgerald says the state will be able to offer “a new service” to small hydro projects. He says that by pre-screening environment issues, the state will be able to speed up the FERC review.

Still, he adds, when licensing a hydro project, the state is “allocating a public resource.” And that requires a permitting process “to be thorough and thoughtful.”

Mr. Fitzgerald says operating costs and the need to maintain minimum stream flows are the biggest obstacle for hydro developers. And while legislation to allow hydro owners to sell or net meter power back to utilities has improved the economic picture, he expects the new law will only help a few small hydro developers.

A 5 MW hydro is “a big project for Vermont,” he says.

Hydro projects are licensed for 30 years and, according to Mr. Fitzgerald, between three and five have been certified in the state during the last couple of years. But some say that the permitting process in Vermont takes so long that would-be developers get discouraged.

There are no tax credits but the state does offer grants for micro projects. Mr. Perchlik says the grants only kick in when the permits are nearly in hand.

“You need to prove you’ve got the permit,” he says.

When it comes to hydros, he adds, applications for financial aid are rare.

As the woman who founded the Plainfield business, Community Hydro, Ms. Barg believes projects should be rated initially by the impact they will have on the environment. That would enable those projects with low impact to clear the permit hurdle quicker.

She also believes there should be something like the IRS 1040 EZ form for hydro projects, which she says would make life easier for both the regulated and regulators. In her ideal list, developers would be required to go through a standard form and check off the statements that characterize their projects.

For example:

• “Utilizes for electric power generation only the water power potential of an existing dam”; or

• “Utilizes only a dam at which there is no significant existing upstream or downstream passage of fish.”

In testimony before the House Committee on Fish, Wildlife and Water Resources, she characterized the federal licensing process as onerous and expensive, regardless of size.

Still, she notes, that the MOU signed between Colorado and FERC has expedited the permit process in the Rocky Mountain state by licensing ten projects in a year and a half.

Big hydro projects like the one at James Bay in Quebec may have given hydro an indelible black eye. Senator Illuzzi says it alienated the public opinion by displacing native people and flooding thousands of acres of land. But local hydros, he argues, are viewed more benignly.

Still, when it comes to permitting, he says developers are caught between a “chicken-egg type of thing” as to who comes first, the state or FERC?

“It’s a colossal circuit that advances nothing,” he says.

contact Paul Lefebvre at paul@bartonchronicle.com

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An intimate drink with a literate coyote: Perimeter Check II

Perimeter Check II, Tales from Vermont’s Upper Kingdom, by Paul Lefebvre.  Published by Beck Pond Books.  187 pages.  $14.95.
Reviewed by Julia Shipley
copyright the Chronicle February 23, 2011
Fans of Paul Lefebvre’s know how his weekly column for this newspaper, Perimeter Check, is delivered like an intimate mutter, as if you’d dared yourself to climb on the barstool next him as he was ten minutes into his second whisky, and he had deigned to pretend you were a pretty good friend.
First conceived in 1999, Perimeter Check has appeared on a weekly basis in the Chronicle for almost 12 years.  As co-editor of the Chronicle, Bethany Dunbar acknowledged, “He’s always pretty easy to find on Mondays — he’s home writing his column.”
Mr. Lefebvre’s first book of columns, aptly titled, Perimeter Check, debuted in 2008.  This second collection, Perimeter Check II:  Tales from Vermont’s Upper Kingdom, gathers together more of these prize-winning episodes, as his column has won four first-place awards from the New England Newspaper and Press Association since 2004.
In offering an explanation for the title and content of these 1,200-word dispatches, Mr. Lefebvre states in the introduction, “No one is sure what he will find by picking at the edges.  But it is at the edges where I have found a life. Small truths sometimes grow into a larger one, and I would like to believe the columns in this collection are keepers of little truths.”
Edges, as ecologists know, are places rich in biological activity; one of my favorite poets, a psychologist by training, asserts that, “Truth appears only at the borders,” and once, seated with a group around a campfire in a wilderness area in Arizona, I watched a coyote skirt our circle, trotting the perimeter where the flickering light of our campfire met the deep blue shadows.  In this manner, Mr. Lefebvre is like a literate coyote, whose beat is the place where two zones converge.
His column of November 21, 2007, takes for its beginning the phenomenon of in-between seasons, “when one season is not quite over and another flirts with beginning.”  His sentences are so unpretentiously smart and beautiful: “Dwellers of the Upper and Lower Kingdom alike will undoubtedly agree that when it comes to the space between winter and fall, all of us are living between a hope and a fantasy — etched indelibly in those lines where the snug hat meets the creases in the brow:  Maybe I’ve got enough wood to last the winter; maybe it’s my year to get that ten-pointer.”
His columns relate stories that are scrounged, befitting of a coyote’s luck and cunning, from his rambles around the state’s least populated counties.  As in his column from October 17, 2007, which describes his willingness to “make do with whatever is at hand.  From wearing a dead man’s clothes to picking up discarded wooden guardrails and splitting them lengthwise to use as bridge planks….” He calls it “back road conservation,” this act of browsing and selecting from the discards and blow-aways of the byways.
It seems this same kind of beachcombing ethic directs the way his column accrues: It can begin with a letter from the State Police about his reported stolen guns.  Or it might start out as a note to self:  “Never trust a car that has sat for two months in the winter without being driven.”  Sometimes a simple change in the length of daylight kicks off a riff that leads to a review of Chief’s horseradish and closes down with a roofing job finished in the chilly rain.
In My Antonia, a classic novel by Willa Cather, the narrator, speaking from the early twentieth century, tells us of his college studies, learning, ‘Primus ego in patriam mecum…deducam Musas means “for I shall be the first, if I live, to bring the Muse into my country.”  He goes on to explain how his professor clarifies that the word “patria” didn’t mean nation, “but the little rural neighborhood on the Mincio where the poet was born.”
This was not a boast, but a hope, at once bold and devoutly humble, that he might bring the Muse (but lately come to Italy from her cloudy Grecian mountains), not to the capital, the palatia Romana, but to his own little “country,” to his father’s fields, “sloping down to the river and to the old beech trees with broken tops.”
When Mr. Lefebvre writes from his little rural neighborhood, telling us of the Great Piano Shootout at Mad Brook, recounting past basketball games as he waits for a truck loaded with firewood to find his driveway, or making another escape to camp, it seems there is a carefully meted out, lonely-proud howl rising out of these pages.
Masters of narrative say there are only two fundamental stories:  A man goes on a journey and a stranger comes to town. Somehow, each week, Paul Lefebvre finds a fusion of those archetypes, sending his readers a letter from a place where the dirt road meets the main road, “between church and religion; between marriage and love; and even between hill and town,” as he says in a column titled, “A People of In-Between.”
In this manner, simultaneously bold and devoutly humble, bent over his computer in Newark, Vermont, on most every Monday, Mr. Lefebvre escorts the Muse as he stands with one paw inside, one paw outside, straddling the perimeter, the rogue poet-King of the Upper Kingdom.
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