NEWPORT CITY -- Retired farmers Don and Shirley Nelson intend to sue the company that has leased ridgeline property to Green Mountain Power for the Lowell wind project.
The two avowed wind project opponents, whose historic Lowell farm sits in a valley below where 21 turbine sites are being constructed, are already suing GMP for damages and for blasting on land they claim is theirs.
The Nelsons' attorneys filed a motion in civil court Tuesday asking permission to amend their counterclaim against GMP to add Moose Mountain Forestry, owned by Trip Wileman of Lowell who owns the ridgeline where GMP is building its turbine sites and road access, and Maine Drilling and Blasting, a blasting company hired by GMP.
The Nelsons claim that Wileman deliberately moved the property line to claim more of the ridgeline in a deal with the Nelsons years ago and got them to agree to it without them knowing that GMP needed the ridgeline for the wind project.
The Nelsons say GMP, Moose Mountain Forestry and Maine Drilling and Blasting trespassed, caused a nuisance, intentionally inflicted emotional distress and should be liable for ultra hazardous conduct.
They ask the court to declare that they own the ridgeline property in dispute and claim compensatory and punitive damages and attorneys' fees.
If they win the lawsuit, the Nelsons could shut down access by GMP workers to most of the wind project site because they would control an area where the access road meets the crane path.
The case won't make it to trial until the fall of 2013, based on a schedule agreed to by the parties but yet to be approved by the judge.
The property dispute could feature in criminal trespass trials, where protesters are trying to use the argument that they were actually on Nelson land when they blockaded construction on the crane path at the ridgeline in December. The state prosecutor is fighting that.
The Nelsons knew for years that GMP wanted to build the wind project. State utility regulators on the Vermont Public Service Board granted GMP a certificate of public good for the project last May. Construction began last fall, and a series of events led to the lawsuit by GMP. That's when Nelsons filed a countersuit and claimed the property was theirs. Appeals of the certification are being considered by the Vermont Supreme Court.
The civil court battle began when GMP sought and received a preliminary court injunction to stop protesters from standing on the edge of the Nelson property on the ridgeline within a blast safety zone.
GMP also at that time offered to buy the Nelson property for $1 million, the asking price. In the same week, GMP notified the Nelsons that hindering the blasting could cause $1 million in damages and the Nelsons would be liable. The Nelsons took that as a threat, raised the asking price to $2 million and refused to sell.
The injunction proved unenforceable when charges against two young protesters were thrown out in criminal court. But it had the desired effect, stopping protesters from hindering blasting near the Nelson property. Blasting is still being done but much farther away from the Nelson land.
But the civil court battle over who owns the land continues.
GMP attorneys have stated that they have a legal lease and have control of the property, saying in court that if the Nelsons have a problem with property lines, they are suing the wrong party.
Don Nelson tried to prove last fall in fighting the injunction that he owned the property, presenting evidence of a property line survey that has been disputed by GMP.
In the motion for an amended complaint, the Nelsons' attorney says that "Moose (Mountain Forestry) misrepresented to GMP the location of its common boundary with the Nelsons ... and GMP misrepresented to the Public Service Board the location of that same boundary."
The Nelsons' motion states that Moose Mountain Forestry knew that GMP wanted the ridgeline for the wind project. Moose, according to the motion, had a surveyor move the proper boundary line "well to the east" of where it should be "in violation of the Nelson property rights and in wilful disregard of accepted principles of surveying and created a false appearance that Moose owned more land in that area than it did."
The Nelsons want GMP to stop work on the ridgeline now or be liable.
Their attorney charges that Maine Drilling and Blasting did not get permission from state regulators to create a safety blast zone on the Nelson property.
"GMP has already used contractors, including Maine, to clear and blast away a broad swath of the Nelsons' land," the motion states, "defacing and destroying the Nelsons' ridgeline property.
They claim that flyrock did endanger people on the Nelson property.
The Nelsons also claim that GMP "has engaged in a course of conduct designed to threaten and intimidate the Nelsons to coerce them into selling their land to GMP."
The parties filed a schedule that says they would be ready for a four-day trial by September 2013. The turbines, if all goes as GMP plans, will be operating by the end of this year.