2004 Spring, 78. Department Of Justice's Transportation and Construction Bureau: Trains, Planes and Automobiles.

AuthorBy Attorney Craig S. Donais

New Hampshire Bar Journal

2004.

2004 Spring, 78.

Department Of Justice's Transportation and Construction Bureau: Trains, Planes and Automobiles

New Hampshire Bar Journal Spring 2004, Volume 45, Number 1 Department Of Justice's Transportation and Construction Bureau: Trains, Planes and Automobiles By Attorney Craig S. Donais I. INTRODUCTION

The Transportation and Construction Bureau(EN1) is a subunit of the Division of Legal Counsel within the Department of Justice(EN2). The Bureau is managed by a Senior Assistant Attorney General and represents the Department of Transportation ("DOT") in all of its various functions. The Bureau's staff presently consists of five attorneys, one paralegal, and two administrative assistants.

The Bureau is unique in the Attorney General's Office in that it represents only one agency on a regular basis. In its primary role of legal counsel to the Department of Transportation ("DOT") (EN3), the Bureau handles all eminent domain matters undertaken by the State, and voluntary land acquisitions, personal injury and property damage claims, contract disputes, personnel issues and administrative appeals involving DOT. Bureau attorneys appear in state and federal trial and appellate courts and before administrative tribunals, including the Transportation Appeals Board (EN4), the Railroad Appeals Board (EN5), the Board of Claims (EN6), the Personnel Appeals Board (EN7), the Wetlands Council (EN8), the Commission on Human Rights (EN9), and intermittently at various federal administrative tribunals including the Equal Employment Opportunity Commission and the Surface Transportation Board (EN10). The Bureau represents the State before the Board of Tax and Land Appeals (EN11) and superior court in cases involving land acquisitions.

Originally established as the Eminent Domain division, the Bureau's name changed in 1987 (EN12). The name change occurred to more accurately reflect the dramatically increasing breadth of the bureau's work, including the area of tort law with the abrogation of the state's full sovereign immunity, and other matters within DOT's activities. Because the Bureau works closely with the DOT, its responsibilities closely track the DOT and its responsibilities. For sake of organization, the easiest way to describe the Bureau's work is to describe DOT, supplementing the description with a brief survey of reported cases and description of frequent legal issues the Bureau addresses in its everyday work.

II. THE DEPARTMENT OF TRANSPORTATION

In 1905, the Legislature established the position of State Highway Engineer, expanding into the State Highway Department in 1915, and finally, the Department of Public Works & Highways in 1950 (EN13). In 1945, the Legislature enacted the highway law that forms the basis of today's modern DOT (EN14). Established by the Legislature on July 1, 1985, the Department of Public Works & Highways, the Bureau of Common Carriers, the Bureau of Rail Safety, and the Aeronautics Commission were consolidated into the present day Department of Transportation, which became operational on February 28, 1986 (EN15).

The Department is led by the Commissioner (EN16), with the assistance of an Assistant Commissioner (EN17), and five Directors responsible for one of the Department's five divisions: Administration (EN18), Aeronautics (EN19), Project Development (EN20), Operations (EN21), and Public Works (EN22). Collectively, these five divisions oversee all aspects of transportation in New Hampshire. Of the five bureaus, Project Development and Operations lead to the largest number of cases and matters handled by the Transportation & Construction Bureau.

In addition to the statutory authority, primarily in RSA Chapters 228, 229, 230, 234, 236, 237, and 237-A, the Commissioner has both required (EN23) and optional (EN24) rulemaking responsibilities, and supervises many functions specifically exempted from administrative rulemaking process (EN25). Interpreting these statutes and regulations, as well as most every other Chapter in the RSAs occur on a regular basis in the Bureau.

DOT, with a budget of over $500 million, employs the second largest number of state employees, with approximately 2,000 permanent classified personnel statewide, and approximately 500 or more temporary personnel, predominantly staffing the tollbooths (EN26). Among state agencies, DOT is unique in that funds collected under NH Constitution, Part II, Article 6-a provide dedicated funding towards many of the Department's functions (EN27).

1. Division of Public Works

The Division of Public Works consists of two bureaus: the bureau of rail & transit, and the bureau of public works. The division is headed by a Director, who must be a registered professional engineer or a registered architect responsible for public works engineering (including planning and design), field supervision, and the maintenance, supervision, and coordination of all state owned and supported land and buildings, including, but not limited to, those functions specified in RSA 228:6, I.

a. Bureau of Rail & Transit

The bureau is responsible for all public transportation programs administered by the State, including grant administration for money from the Federal Transit Administration to the approximately 15 local public transit programs, excluding urban transit programs in Manchester, Nashua, and COAST in the seacoast region. The bureau also coordinates the commuter rideshare program.

The bureau also performs rail safety and inspection functions, working with the Federal Railroad Administration and encouraging development and use of rail infrastructure for passenger and freight services. In recent years, rail transportation has seen a renaissance. For the first time since the mid-1960s, Amtrak's Nor'easter Rail service provides regular passenger rail service between Portland, Maine, and Boston, Massachusetts, with stops in Portland, Old Orchard Beach, Saco, Wells, Dover, Durham-UNH, Exeter, Haverhill, Woburn, and Boston. Bureau attorneys participated in resolving numerous issues for the New Hampshire segment. The Department plans to extend commuter rail service from Lowell, Massachusetts to Nashua, New Hampshire, with further extensions to Manchester and perhaps Concord in future years. Concurrent with widening I-93 from the state line to Manchester, considerations call for possible rail service along the I-93 corridor in the future, by extending the Haverhill line to Salem. New Hampshire is also involved in a joint study with the federal government and Vermont and Massachusetts regarding high-speed rail connecting Boston to Montreal, running squarely through New Hampshire roughly parallel with Interstate 93 up to Interstate 89, and following Interstate 89 to Vermont.

The State has expended funds for many of these projects, including the Nashua Commuter Rail Extension project. The New Hampshire Motor Transport Association has filed suit challenging the State's expenditure of Article 6-a funds associated with the Nashua Commuter Rail Extension. After filing in Merrimack County Superior Court, Docket #02-E-0373, the parties agreed upon a statement of facts and a record, and jointly requested an interlocutory transfer without ruling to the Supreme Court. The Superior Court (Fitzgerald, J.) granted the request, and the Supreme Court accepted the appeal, see N.H. No. 2003-0641. Oral argument is anticipated for early 2004.

Railroad corridors produce a myriad of property issues. Since 1983, the Department has had a 90-day right of first refusal to purchase any rail properties offered for sale within the State (EN28). The State's right has been frequently exercised to add to the State's inventory of rail corridors with potential for future rail use. The Department has become one of the larger owners of rail property in New Hampshire, with a total of 193 miles of active railroad corridor (EN29), and many more miles of inactive, intact rail corridors. Some corridors have been put into interim uses such as recreation, managed by the Department of Resources and Economic Development, Trails Bureau (EN30). Landowners seeking access to their property on the other side of a rail corridor must obtain a crossing permit from DOT (EN31), generating regular Bureau involvement in the permitting process. Appeals of the Commissioner's final decisions related to crossing permits and other railroad issues are brought before the Railroad Appeals Board.

Railroad property matters frequently include resolution of the nature and extent of the railroad corridor, including who owns the underlying property. These thorny title issues arise from the myriad of statutes establishing or authorizing the establishment of railroads (EN32). In general, railroads were established solely by legislative act prior to 1844, through easement condemnations by the State from 1844-67 and by fee condemnations by the railroads through the railroad commissions post-1867. As each corridor consists of unique conveyances of easements and fee simple interests and condemnation actions, the underlying interests along each corridor could be parcel specific. Further, many of these interests may have never been recorded in the registry of deeds, but instead exist solely in the records of the railroad commissioners (EN33).

In 1991, the Legislature adopted RSA 228:60-a which provides the State with an ability to establish fee simple title to rail properties. After the State publishes notice in a...

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