Judge tosses lawsuit over Shutesbury solar project

  • Miriam DeFant, left, speaks to the Shutesbury Planning Board, June 8, at Town Hall. GAZETTE FILE PHOTO

  • Geoffrey Pray Whittum, of Suffield, Conn., speaks in support of those who are concerned about Native American burial grounds that some believe exist at a site where a 30-acre solar installment is planned on Pratt Corner Road, during a Shutesbury Planning Board meeting June 8. GAZETTE FILE PHOTO

Staff Writer
Monday, August 14, 2017

SPRINGFIELD — A civil rights lawsuit against the developers of a proposed 6.2-megawatt solar project, and the Planning Board that approved the site plans, has been dismissed in federal court in Springfield.

U.S. District Court Judge Mark Mastroianni on Friday ruled that the subject matter of the lawsuit, filed by three Shutesbury and two New Salem residents in August 2016, is out of the court’s jurisdiction.

The dismissal comes as opponents of the project have continued to contend that the 30-acre site off Pratt Corner Road, known as the Wheelock Tract, contains burial grounds or a ceremonial landscape for Native Americans.

But representatives for project developer Lake Street Development of Chicago say that thorough analysis of the property by two independent archaeologists shows that the property has no such history.

While the lawsuit was not holding up plans to put arrays on the land owned by W.D. Cowls Inc., Mark Vietzen, a consultant for Lake Street, said on Monday the judge’s decision gives the company peace of mind.

“The lawsuit is gone, so whatever they (the opponents) said doesn’t exist anymore,” Vietzen said.

Rolf Cachat-Schilling, a lead plaintiff, said in an email that Mastroianni pulled the plug on the lawsuit before there was an opportunity to make additional arguments.

“We were not permitted to make any oral arguments on our behalf at the last hearing, ostensibly because it was a ‘status hearing,’” Cachat-Schilling said. “We were led to believe that we would be allowed to make arguments on the motions before the court at the next hearing.”

In the lawsuit, plaintiffs asked for a standard assessment of suspected burials and Native American relics, and for some form of restored access to the proposed site for religious practices. They also cited various laws they claimed were being flouted, including U.S. Department of Interior codes, equal protection and freedom of religious and personal expression rules under the Religious Land Use and Institutionalized Persons Act, and Indian land deeds of Hampshire County.

With the lawsuit dismissed, Vietzen said he hopes residents will judge the project on its merits and the thorough work that has already taken place. Vietzen said no one has objected to the information the archaeologists and consultants have provided after several visits to the site, including those done alongside Planning Board members.

A report filed by Jessica Schumer, of SWCA Environmental Consultants, suggested that what critics claim may be a set of burial mounds are actually root balls from trees knocked over years ago.

Another archaeologist hired by the town, Eric Johnson of the University of Massachusetts, agreed with Schumer’s assessment.

The Planning Board has said that the developer successfully completed archaeological studies that were a condition of a special permit issued in June 2016.

But opponents argued that unless a Traditional Cultural Properties review is complete, including a review by a Tribal Historical Preservation Officer representing Native American tribes, they will continue to make the case about problems with the site.

Cachat-Schilling said he intends to launch a signature petition objecting to the lawsuit dismissal and is in the process of alerting Native American rights organizations and the International Court for Human Rights.

Lake Street managing director Zachary Schulman said with a special permit and site plan review done, and a building permit issued by the Franklin County building commissioner, work can start.

“The project is construction-ready,” Schulman said.

Lake Street, he said, is working on a number of preconstruction issues, including survey work and scheduling.

When complete, the solar arrays will provide green energy and about $50,000 a year in property taxes to Shutesbury.

W.D. Cowls President Cinda Jones said she is pleased to help Shutesbury move forward with goals of being a Green Community.

“Optimizing the local substation with proximate solar energy production in the midst of a permanently conserved working forest is our end goal,” Jones said. 

Meanwhile, a presentation on sacred stone prayer sites will be held at the Shutesbury Elementary School on West Pelham Road on Sept. 23 from 3 to 5 p.m. This comes as the Select Board begins forming a Native American Preservation Action Committee.

Scott Merzbach can be reached at smerzbach@gazettenet.com.