Work Is Halted on Wind Tower

Court Grants Restraining Order to Stop Cape Wind Associates from Data Gathering Facility in Horseshoe Shoal Waters

By MANDY LOCKE

A state superior court judge has joined the wrangling over the 197-foot data tower planned for the shallows of Nantucket Sound, ordering a 10-day halt to work on a monitoring station already approved by the U.S. Army Corps of Engineers.

The temporary restraining order was issued Tuesday, a few days after Worcester-based attorney John W. Spillane filed suit on behalf of Cape Cod fishermen, boaters, marina owners and 10 taxpayers. Defendants are the Army Corps, the U.S. Army and Cape Wind Associates, the energy company that is building the tower.

Mr. Spillane, who has been involved in many environmental battles in the region over the last several decades, said the data tower threatens navigation, the environment and the livelihood of local fishermen.

"This is nothing more than a Machiavellian attempt to employ the unlawful permitting authority of the Corps," Mr. Spillane said in the brief, filed in Barnstable this week. He charged that the tower would gain "an unwarranted foothold in [a] pristine, environmentally protected area."

This week's lawsuit joins another challenge filed in federal court August 30 by the Alliance to Protect Nantucket Sound and several Cape Cod citizens. The U.S. federal court in Boston granted the U.S. attorney's office - which is representing the Army Corps in the suit - until Oct. 27 to respond to claims that the Corps overstepped its authority when granting a permit to Cape Wind.

Cape Wind, the first private company to propose an offshore wind farm for a location in the United States, hopes to plant 170 turbines throughout Horseshoe Shoal - 28 square miles of shallow water within Nantucket Sound. The $2 million monitoring station, to be erected on the outer edge of the shoal, would log wind speed and direction, ocean currents, wave height and water salinity.

Critics interpret the green light by the Army Corps as the first step toward a rush of loosely regulated private wind projects along American coastlines.

"This suit is testing ground on a number of issues," Mr. Spillane said. "The wind farm - in its enormity - presents a tremendous amount of issues."

The filing of the newest suit in state superior court rather than federal court cuts to the heart of one aspect of the debate over the wind farm. Mr. Spillane is questioning the jurisdiction of the Army Corps, and by extension the federal government, over Horseshoe Shoal, which is located four miles off Cape Cod and nine miles northeast of the Vineyard.

"The Harbors Act of 1899 - from which the Army Corps derives its jurisdiction - is so flimsy with respect to this kind of project," Mr. Spillane said Thursday morning. "There are no standards, no law, that establishes proprietary interest in the seabed. The Corps has abused its power."

Mr. Spillane's 42-page brief tracks dense, technical and often arcane state and federal laws regarding activities in Nantucket Sound over the last century.

He invokes the Cape and Islands sanctuary law, which he says prohibits the erection of any permanent structure in Nantucket Sound. The law, Mr. Spillane explains, includes no mechanism for a variance or special permit.

"If we can get the courts to enforce that law, there will be no wind farm in Nantucket Sound," he said.

One hitch, however, is a 1986 Supreme Court case which declares that the federal government controls waters more than three miles offshore. Mr. Spillane nevertheless argues in his brief that a 1992 U.S. court of appeals case upheld the Cape and Island's sanctuary law when it upheld the state's right to ban large commercial fishing vessels from the sound.

"That's where our fight begins," Mr. Spillane said.

The suit also claims that Cape Wind could collect wind and weather data from existing sources - namely records from the Cross Rip, a Coast Guard vessel which traveled the shoal for 120 years; from Steamship Authority daily wind reports, and from a University of Massachusetts weather station on a rock pile known as the Bishops.

Barnstable County superior court judge Richard Connon ordered the parties to discuss the matter next Thursday at 2 p.m. in the county courthouse.

Cape Wind Associates declined to comment on the litigation, as did counsel from the U.S. attorney's office in Boston.

Cape Wind has been in the process of manufacturing the tower at a steel factory in Hyannis. Officials also refused to comment on whether the temporary injunction would affect the company's goal of operating the data tower by December.

In a related matter, the Alliance to Protect Nantucket Sound added four new plaintiffs this week to the suit challenging the data tower permit: Robert Hazelton of Marstons Mills, a former Coast Guard officer; David Ellsworth, a recreational fisherman and pilot; the Osterville Anglers Club, and the Hyannis Anglers Club.

"This is not simply about Nantucket Sound, although it is being used as a guinea pig," said Isaac Rosen, the alliance's executive director. "It's about our nation's coast.

"They are not listening to the communities who are saying too big, too fast, not here."