Opponents of Shutesbury solar project file federal lawsuit 

  • A group of people concerned that a proposed solar energy project may be located on Native American burial grounds review a special permit issued by the planning board during earlier this year at Shutesbury Town Hall. GAZETTE FILE PHOTO

Staff Writer
Friday, September 02, 2016

SHUTESBURY — With continuing frustrations at being denied access to the property on which a large-scale solar array is proposed, and arguing the site could be a Native American burial ground, three Shutesbury and two New Salem residents have filed a federal civil rights lawsuit against the developers and the town planners who approved the project.

The lawsuit, filed Aug. 17 in U.S. District Court, aims to prevent construction of the 6-megawatt project on the 30-acre Wheelock Tract, owned by W.D. Cowls, Inc. and located off Pratt Corner Road, until tribal historic preservation officers and others can get onto the property and determine if it is a burial ground or sacred site.

Lead plaintiff Rolf Cachat-Schilling, of Leverett Road, said the lawsuit seeks an emergency injunction to ensure all rules and regulations are followed before Lake Street Development of Chicago installs the solar arrays.

“We are not suing for a penny. We are suing for laws to be followed that already exist,” Cachat-Schilling said.

The lawsuit contends that these laws, 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, as well as Indian land deeds of Hampshire County, require access to religious land that could be destroyed.

“This action was taken by Lake Street ... to harass, dishearten and obstruct from religious practices the plaintiffs, as well as to prevent investigation by Native Americans and others of the reported suspected burials,” the complaint states.

This marks the latest effort by opponents known as the Alliance for Appropriate Development to stop the Lake Street project.

“Its a shame that people are using the Native American issue,” said Marnin Lebovitz, a principal with Lake Street, adding that it is a “misleading, emotional argument” that has followed from original concerns about harm to wetlands and vernal pools on the property.

“It’s a handful of people who have been opposed to this from day one,” Lebovitz said. “We feel, talking to our attorneys, that this (lawsuit) has no merit.”

The lawsuit will continue to delay a project that would provide Shutesbury about $50,000 a year, as well as supplying more green energy to the power grid.

The Planning Board in June approved a special permit for the project with a condition that the developers hire an archaeologist to survey the land to ensure the solar array was not being built on any possible Native American cultural sites.

A report was then filed by Jessica Schumer, of SWCA Environmental Consultants. Hired by Lake Street, Schumer determined that what was suggested to be a set of burial mounds is actually root balls from trees knocked over years ago.

But while the archaeologist hired by the town, Eric Johnson of the University of Massachusetts, agreed with that assessment, he noted that the report had “significant shortcomings” regarding methodology and said the land should be reviewed by a representative from a Native American tribe in New England .

Earlier this month, the Planning Board asked for additional assessments of the property and a response from the developer within two weeks. While under no obligation to do more detailed site examination, Lebovitz said the developers intend to “beef up” some of the material in the archeological survey.

This likely won’t satisfy Cachat-Schilling, who, in the lawsuit, seeks “objective physical tests be performed to determine the presence or absence of human remains, such as ground penetrating radar and/or careful follow up with soil tests for anthropogenic bioderived soil chemical anomalies indicative of dissolved human remains.”

‘Bovine scatology’

Michael Pill, the Shutesbury attorney who represents W.D. Cowls and issued a trespass notice to any individuals affiliated with the various tribes, calls the lawsuit “the biggest pile of bovine scatology” that he has seen in a long time and that the plaintiffs are putting themselves at risk, observing that the code under which they are suing allows the court, if they lose, to award the “prevailing party ... a reasonable attorney’s fee as part of the costs.”

Pill said the only question right now is how much in attorney fees the plaintiffs will be liable for if they do not prevail.

The smart action, Pill said, would be for the plaintiffs to request the lawsuit be dismissed with prejudice, rather than being forced to cover legal costs that could exceed $25,000.

Cachat-Schilling, who identifies as a member of the St. Regis Mohawk tribe, said all of Shutesbury lies within Indian cultural properties district. “This town itself is super rich in Native American religious sites,” Cachat-Schilling said.

By not allowing anyone affiliated with tribes onto the property, their rights have been abridged.

“We’re asserting in court that that process is already engaged, and the town is suppressing it,” Cachat-Schilling said.

The lawsuit also names Planning Board Chairman Deacon Bonnar  and board member Jeffrey Lacy  who “aided and abetted this oppression of religious worship and expression in order to prevent Native Americans and syncretic spiritualists from documenting a suspected Native American burial ground and associated traditional cultural property.”

Lebovitz is not sure when the project can begin, but the lawsuit puts it at risk, as did efforts to adopt a restrictive solar bylaw at Town Meeting, which failed.

“We’re hopeful we can go forward with this quickly,” Lebovitz said.

Shutesbury town officials could not be reached for comment Friday.

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