2006 Summer, 50. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy: Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2006 Summer, 50.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Volume 47, No. 2, Pg. 50Summer 2006Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy: Attorney Charles A. DeGrandpreNo one can accuse the members of the present Court of being a bunch of lollygaggers.1 The present Court is handing down an avalanche of opinions, tackling, without temerity, issues large and small and, in a timely manner. Most of the Court's opinions are unanimous, but this is a Court, the members of whom do not hesitate to dissent or to concur specially. It's been fun reading the recent opinions and the author urges his readers to dip into the interesting reading these cases make.

In a major case, Appeal of the Town of Nottingham, opinion issued May 19, 2006,2 the Court, speaking unanimously in a crackerjack opinion authored by Justice Dalianis, waded into the area of water rights law and upheld the granting of a permit by the Department of Environmental Services (DES) for "a large groundwater withdrawal permit. . . .proposing to withdraw up to 439,200 gallons of water per day" from groundwater in the Town of Nottingham. Before the Court was a long-running battle which began with a groundwater withdrawal application of USA Springs to the DES in May of 2001 and was finally concluded just about five years later with the Court's recent opinion.

Many issues were before the Court and were deftly dissected by Judge Dalianis' opinion. The case involved "the application of and interplay among various State statutes, as well as claims under administrative rules, the common law and the Federal and State Constitutions." The Court first held that the provisions of RSA 485-C, the Groundwater Protection Act, were applicable to the proposed withdrawal and that Chapter RSA 481, State Dams, Reservoirs and Other Water Conservation Projects, did not control and that "no other public trust test must be applied" as RSA 481 would have required.

Taking up the issue of whether the applicant had to apply for a dredge and fill permit under RSA 482-A, the Court concluded that it did not since the dredge and fill statute did not speak in terms of the removal of "water" from wetlands, banks, etc.

A key issue was whether or not the granting of a large groundwater withdrawal permit to the applicant was "an unconstitutional taking of property in violation of the State and Federal Constitutions." After a careful review of cases from many other jurisdictions, the Court rejected the claim that compensation was required because "the right to use water does not carry with it ownership of the water lying under the land. . . .[T]he right of user is not considered 'private property' requiring condemnation proceedings unless the property has been rendered useless for certain purposes," quoting the Florida Supreme Court.3

Confronting the issue of whether an adjudicated hearing was required under the provisions of 485-C, the Court held that entitlement to notice of the proceedings and the opportunity to submit comments to the agency did not make an individual or entity a party to the proceedings for the purposes of bringing into play the contested case provisions of the law. The Court rejected the claims of a public interest group [SOG - Save Our Groundwater] to the contrary, ruling that "it is not this Court's function to 'prod' administrative agencies to engage in activities not authorized by their governing statute."

There were several other issues of lesser importance before the Court, all of which were, of course, important to the parties, which the Court decided in the applicant's favor. This case makes clear that, if anyone...

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