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ATTORNEY GENERAL DEPARTMENT OF JUSTICE 33 CAPITOL STREET CONCORD, NEW HAMPSHIRE 03301-6397 MICHAEL A. DELANEY ATTORNEY GENERAL April 6, 2011 Eileen Fox, Clerk New Hampshire Supreme Court One Charles Doe Drive Concord, New Hampshire 03301 Re: Thomas Morrissey, et al. v. Town of Lyme, et al. Docket No. 2010-0661 Dear Ms. Fox: Enclosed for filing with reference to the above-captioned matter please find an original plus eight copies of the State's Memorandum of Law for New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department .. Thank you for your attention to this matter. fi:L~ Manuela Perry Paralegal II Environmental Protection Bureau (603) 271-3679 IMP Enclosures cc: Gregory E. Micheal, Esquire Christopher G. Aslin, Esquire Judith E. Whitehall, Esquire John R. Hughes, Jr., Esquire John S. Stebbins, Esquire Stephen P. Girdwood, Esquire Allan Newton, Pro Se Telephone 603-271-3658 FAX 603-271-2110 TDO Access: Relay NH 1-800-7:35-29(;,1 -- .. ,----
Transcript
Page 1: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

ATTORNEY GENERALDEPARTMENT OF JUSTICE

33 CAPITOL STREETCONCORD, NEW HAMPSHIRE 03301-6397

MICHAEL A. DELANEYATTORNEY GENERAL

April 6, 2011

Eileen Fox, ClerkNew Hampshire Supreme CourtOne Charles Doe DriveConcord, New Hampshire 03301

Re: Thomas Morrissey, et al. v. Town of Lyme, et al.Docket No. 2010-0661

Dear Ms. Fox:

Enclosed for filing with reference to the above-captioned matter please find anoriginal plus eight copies of the State's Memorandum of Law for New HampshireDepartment of Environmental Services and New Hampshire Fish and Game Department ..

Thank you for your attention to this matter.

fi:L~Manuela PerryParalegal IIEnvironmental Protection Bureau(603) 271-3679

IMPEnclosurescc: Gregory E. Micheal, Esquire

Christopher G. Aslin, EsquireJudith E. Whitehall, EsquireJohn R. Hughes, Jr., EsquireJohn S. Stebbins, EsquireStephen P. Girdwood, EsquireAllan Newton, Pro Se

Telephone 603-271-3658 • FAX 603-271-2110 • TDO Access: Relay NH 1-800-7:35-29(;,1 -- .. ,----

Page 2: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

v.

THE STATE OF NEW HAMPSHIRESUPREME COURT

DOCKET NO. 2010-0661

THOMAS MORRISSEY, et al.

TOWN OF LYME, et al.

MEMORANDUM OF LAW FOR NEW HAMPSHIRE DEPARTMENT OFENVIRONMENT AL SERVICES AND NEW HAMPSHIRE

FISH AND GAME DEPARTMENT

The New Hampshire Department of Environmental Services (hereinafter "DES") and the

New Hampshire Fish and Game Department (hereinafter "F&G"), by and through their counsel,

the Office of the Attorney General, file this Memorandum of Law pursuant to Supreme Court

STATEMENT OF FACTS AND CASE 1

Rule 16(4)(b).

The appellants are a collection of landowners possessing property with frontage on Post

Pond and Clay Brook wetlands in Lyme, New Hampshire. App. 2, 18. On May 4, 2009, the

appellants filed a "Petition in Equity and Writ of Mandamus" (hereinafter "Petition") against the

Town of Lyme (hereinafter "Town"), DES, and F&G (hereinafter collectively referred to as

"State respondents") in the Grafton County Superior Court. App. 16-41. With respect to the

Town, the Petition alleged that the Town's management of Post Pond's water levels violated

numerous State environmental laws, the public trust doctrine, their littoral rights, and resulted in

a trespass and private nuisance on their properties. ld. With respect to the State, the Petition

alleged that DES and F&G violated numerous environmental laws and the public trust doctrine

I Citations to documents in the "Appendix to Appellant's Brief' shall be "App.'· Citations to the appellant'sbrief shall be "App. Br. "

Page 3: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

Ifit were true that the Petitioners' claims against the State were solely andexclusively a request for a Court Order requiring the State to enforce certainenvironmental laws and policies against the Town, in short, solely a Petition forMandamus, the State's Motion [to Dismiss] might indeed be sufficient to addressall the Petitioners' claims against the State.

by failing to enforce or regulate the Town relative to its management of Post Pond's water levels.

ld. In light of the standard of review and solely for the purposes of this appeal, DES and F&G

will assume the truth of the facts underlying the lawsuit, as set forth in the appellants' brief, to

the extent those facts are also alleged in the Petition.

The Town and State respondents answered the Petition, App. 42-66, 67-104, and

respectively, moved to dismiss the lawsuit for failure to state a claim upon which relief could be

granted. App. 105-16,138-49. The primary thrust of the State respondents' motion to dismiss

was that the Petition solely alleged and requested mandamus relief for discretionary and, with

respect to certain requested relief, vague acts. App. 138-49. The appellants objected to the

motions to dismiss. App. 117-26, 150-53. In their objection to the State respondents' motion to

dismiss, the appellants conceded that

App. 150 (emphasis in original). The appellants then, in essence, conceded that those "Prayers

for Relief' in the Petition, which asserted mandamus relief, could be dismissed. App. 153.

On May 7, 2010, the superior court issued an "Order on Respondents' Motions to

Dismiss & Petitioners' Motion to Bring Forward." App. 1. In its order, the superior court

dismissed the State respondents entirely from the lawsuit, finding that the Petition impermissibly

requested mandamus relief that was either too vague or requested that DES and/or F&G perform

discretionary acts to a specific conclusion. App. 11-13. The superior court order also dismissed

all claims against the Town, save the allegations of trespass made by two of the landowners.

App. 10. On May 17, 20 I0, the appellants moved for reconsideration as to onc count against the

2

Page 4: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

ARGUMENT

Town (private trespass), App. 181-86, which, on June 2, 2010, the superior court denied. App.

191-92. On August 20, 2010, the appellants filed a fully assented-to voluntary motion for non-

suit of their remaining claims against the Town, App. 197-99, which, on August 30, 2010, the

superior court granted. App. 200.

On September 28, 2010, the appellants filed the instant "Rule 7: Notice of Mandatory

Appeal" with this Court.

STANDARD OF REVIEW

"The standard of review in considering a motion to dismiss is whether the plaintiffs

allegations are reasonably susceptible of a construction that would permit recovery." Beane v.

Dana S. Beane & Co., r.c., 160 N.H. 708,711 (2010) (citation omitted). "This threshold

inquiry involves testing the facts alleged in the pleadings against the applicable law." Id. (citation

omitted). "In reviewing an order granting a motion to dismiss, [this Court] assume[s] the truth of

the facts as alleged in the plaintiffs pleadings and construe all reasonable inferences in the light

most favorable to the plaintiff." Id. (citation and quotations omitted). However, this Court

"need not assume the truth of statements in the petitioner's pleading ... that are merely

conclusions oflaw." In re: Kenick, 156 N.H. 356, 358 (2007) (citation omitted). "Dismissal is

appropriate if the facts pled do not constitute a basis for legal relief." Beane, 160 N.H. at 711

(citation and quotations omitted).

A. THE SUPERIOR COURT CORRECTLY DETERMINED THAT, WITHRESPECT TO THE STATE RESPONDENTS, THE PETITION SOLELYALLEGED AND REQUESTED MANDAMUS RELIEF.

The appellants do not dispute that the Petition requested that the superior court issue

mandamus relief against the State respondents. See App. 150; see also App. Br. at 28. The

3

Page 5: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

303.05(j).

appellants also do not dispute that their requests for mandamus relief against the State

respondents were properly dismissed. See App. 150-53; see also App. Br. at 28. Rather, the sole

appeal issue raised by the appellants, relative to the State, is that the superior court erred by "not

reasonably construing the Petition as including a request for declaratory judgment" with respect

to New Hampshire wetlands regulation Env-Wt 303.05(j). App. Br. at 28. Accordingly, the

State's analysis herein will not focus on whether the appellants were entitled to mandamus relief,

an issue the appellants do not raise, but rather, on whether any part of the Petition could have

been reasonably construed as a request for declaratory judgment with respect to Env-Wt

Declaratory judgment actions were unknown at common law. Wuelper v. University of

N.H., 112 N.H. 471, 473 (1972). Such actions exist only by statute, in this case RSA 491:22,

which provides in it relevant part that "[a ]ny person claiming a present legal or equitable right or

title may maintain a petition against any person claiming adversely to such right or title to

determine the question as between the parties, and the court's judgment or decree thereon shall

be conclusive." RSA 491 :22, I (1997). The purpose ofRSA 491 :22 is "to provide parties an

opportunity to determine their legal or equitable rights at an earlier stage than would be possible

if the matter were pursued in other established forms of action." Craftsbury Co. v. Assurance

Co. of America, 149 N.H. 717, 719 (2003) (citation and internal quotations omitted). "Where a

plaintiff seeks a declaratory judgment, he is not seeking to enforce a claim against the defendant,

but rather a judicial declaration as to existence and effect of a relation between him and the

defendant." Benson v. N.H. Ins. Guaranty Assoc., 151 N.H. 590, 593 (2004) (citation omitted).

As such, declaratory judgment actions focus on "the identification and resolution of disputes

4

Page 6: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

Sovereign immunity bars declaratory judgment actions filed against the State in equity,

hefore they cause harm [.]" 5 MacDonald, Wiehusch on NH Civil Practice and Procedure §

36.02 (3rd ed. 2010) (emphasis added).

unless the petitioner is challenging the constitutionality of the actions of the government or the

legislature has waived immunity. Lorenz v. N.H. Admin. Office of the Courts. 152 N.H. 632,

634-35 (2005). RSA 541-A:24 (2007), titled "Declaratory Judgment on Validity or Applicability

of Rules," effects the latter, with respect to challenges to administrative rules, in that it provides:

The validity or applicability of a rule may be determined in an action fordeclaratory relief in the Merrimack county superior court if it alleges that the rule,or its threatened application, interferes with or impairs, or threatens to interferewith or impair, the legal rights or privileges of the plaintiff. The agency shall bemade a party to the action. A declaratory judgment may be rendered whether ornot the plaintiff has requested the agency to pass upon the validity or applicabilityof the rule.

Accordingly, any action questioning the (non-constitutional) validity or applicability of a rule not

brought in the Merrimack county superior court is barred by sovereign immunity. RSA 541-

A:24; see John H. v. Brunelle, 127 N.H. 40,43 (1985) ("[S]tatutory waivers of sovereign

immunity [ ... ] [are] strictly construed").

As opposed to declaratory judgment actions, mandamus actions existed under the

common law, Attorney General v. Taggart, 66 N.H. 362,367-69 (1890), although they are now

recognized in statutes. See RSA 490:4 (2010); see also RSA 491:7 (2010). The purpose of a

mandamus action is "to compel a public official to perform a ministerial act that the official has

refused to perform, or to vacate the result of a public official's act that was preformed arbitrarily

or in bad faith." Petition ofCigna Healthcare, 146 N.H. 683,687 (2001) (citation omitted).

Among other situations, mandamus actions will lie where a party seeks to direct a public official

to perform a duty imposed by law when the official's refusal to act is based on a mistaken view

5

Page 7: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

,-----------_._------

Standing alone, neither paragraph 124 nor 125 requests any relief from the superior court.

of the law. Fortier v. Grafton County, 112 N.H. 208, 211 (1972). While both declaratory

judgments and mandamus actions require that their respective petitioners possess a present legal

right in order to bring either action, Silver Brothers, Inc. v. Wallin, 122 N.H. 1138, 1140 (1982)

(with respect to declaratory relief); Bell v. Pike, 53 N.H. 473, 474 (1873) (with respect to

mandamus relief), a mandamus action requires that the writ requested is needed to address a

present harm. See Goodell v. Woodbury, 71 N.H. 378,381 (1902) (a "writ [of mandamus] will

not be granted in anticipation of a defect of duty or error of conduct").

The bases of the appellants' contention that the trial court erred by not construing the

Petition as a request for declaratory relief are the allegations in paragraphs 124 and 125 of the

Petition regarding Env- Wt 303.05(j). See App. Br. at 28. Paragraph 124 of the Petition states:

In refusing to regulate the Town of Lyme's plan to drain wetlands and shrink PostPond, DES cites Env-Wt 303 .05(j), the regulatory provision that permits theremoval of a beaver dam without a permit. DES-WETLANDS interprets thenarrow exception for this usually minor activity described in 303.05(j), aspreempting and negating the substance of all of Env-Wt Sections 303.01, 303.02,303.03 and 303.04. Such an interpretation of Section 303.05(j) is wrong underthe accepted rules of interpretation.

App.33. Paragraph 125 of the Petition states:

The State of New Hampshire, through its Department of Environmental Services,has violated RSA 482-A "The Wetlands Act" by classifying the Town of Lyme'splan to reduce the water level in the Post Pond Ecological Area as a project thatdoes not require a permit, rather than a major project, under Env-Wt 303.02.

Id.

Rather, they essentially make two legal conclusions: (i) the Town's water level reduction plan

was a "major project," requiring a permit under Env-Wt 303.02; and (ii) DES's reliance on Env-

Wt 303.c)5(j) in determining that a permit was not required was wrong. Accordingly, in order to

determine whether the superior court erred by not interpreting paragraphs 124 and 125 as a

6

Page 8: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

Second, relative to the State respondents, the Petition's "Prayers for Relief," do not

request for declaratory relief, it is necessary to view those paragraphs in the context of the entire

Petition.

A thorough review of the Petition reveals that the superior court correctly determined that

the allegations in paragraphs 124 and 125 related solely to mandamus relief. First, with respect

to the State respondents, the Petition is framed purely as a request for mandamus relief. The

Petition is styled as a "Petition in Equity and Writ of Mandamus," and with respect to the State

respondents, the Petition introduces itself by stating: "Petitioners allege that [DES] and [F&G]

have not fulfilled their statutory obligations to regulate the Town's actions, which has forced

plaintiffs to petition for a Writ of Mandamus." App. 16. Neither the words "declaratory

judgment" nor any reference to the statutes that provide for declaratory relief - RSA 491 :22 and

RSA 541-A:24 - appear anywhere within the Petition's twenty-six pages. App. 16-41.

Moreover, as the appellants were required to file any declaratory judgment action relative to the

scope and applicability ofEnv-Wt 303.05(j) in Merrimack County, see RSA 541-A:24, the

Petition's filing in Grafton County strongly suggested it was alleging and requesting mandamus

request, nor do the appellants now contend that they request, declaratory relief. With regard to

the State respondents, the Petition divided the relief sought into two categories. "Prayers A

through E," requested that the superior court find that the State respondents violated various

environmental protection statutes byfailing to enforce these statutes against the Town. App. 38

(emphasis added). "Prayers I through L" requested that the superior court order the State

~ In the event this Court concludes the Petition alleged and requested declaratory relief with respect to "the properscope and application ofEnv-Wt 303.05{J) and whether the rule is in conflict with various statutes." App Br. 29.such relief is barred by the doctrine of sovereign immunity because. among other things. the appellants did notadhere to the requirements or RSA 541-A:24. See infra at 4-5.

7

Page 9: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

8

respondents to comply with RSA 482-A, RSA 212-A, and the public trust doctrine, by taking of

specific discretionary regulatory and enforcement actions. App. 39.

Before the superior court, the appellants conceded that Prayers I, J, and L requested

mandamus relief, App. 153, but contended that Prayers A through E and K requested declaratory

relief. ld. However, as any request for declaratory relief must be predicated on the possession of

a "present legal or equitable right," see RSA 491 :22, I, the appellants' argument below failed

because they lacked any legal or equitable right to have the State enforce certain environmental

statutes. See App. 12-14. Accordingly, the appellants, correctly, do not contend on appeal that

any of the Petition's "Prayers for Relief," which pertained to the State respondents, requested

declaratory relief.

Finally, nothing in the Petition's substantive allegations support a conclusion that the

appellants were alleging or requesting declaratory relief. The Petition makes numerous

allegations against the State respondents, which fall into three broad, self-labeled categories: (i)

DES and F&G have failed to enforce State laws protecting wetlands, shoreland, public waters,

beaver and endangered species, App. 32; (ii) DES's decision not to regulate the Town of Lyme's

plans for Clay Brook wetlands was due to the presence of beaver, App. 32-34;3 and (iii) F&G

declined to protect threatened habitats, plants and species in the Post Pond ecological area. App.

34-37. The Petition then summarizes, relative to the State respondents, in Paragraph 151, by

averring: "The [S]tate has an obligation to comply with the statutes cited herein. The State's

obligation to uphold these statutes is not relieved (a) by the exception [DES] cites in the NH

Code of Administrative Rules, or (b) by [F&G's] "routine practice ... [.J" App. 37.

None of the foregoing allegations inform the State or the superior court that the Petition

included a request for declaratory judgment against DES or F&G. To the contrary, the Petition's

; Paragraphs 124 and 125 fall into tlus category.

Page 10: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

In sum, the appellants assert that paragraphs 124 and 125 of the Petition set forth their

disagreement with DES over its interpretation of En-Wt 303.05(j), and this, in and of itself, was

sufficient for the superior court to construe its Petition as making a request for declaratory relief.

App. Br. at 28. Such an assertion is incorrect as a matter of law. While New Hampshire does

substantive allegations against the State respondents speak in precisely the language one would

expect to see where mandamus relief is sought. Specifically, the Petition alleged that DES and

F&G havefailed to enforce State laws; that DES had made a decision not to regulate; that F&G

had declined to protect threatened habitats, plants and species, and that the State has an

obligation to cornply with the statutes. Such language, when viewed in context of the requested

Prayers for Relief, points to mandamus relief for two reasons. First, it indicates the appellants

are seeking to direct DES and F&G to perform a legal duty, where their refusal to act is based on

a mistaken view of the law, which is akin to a claim for mandamus relief. Fortier, 112 N.H. at

211. Second, the foregoing language describes alleged harms, which are on going or have

already occurred, for which the appellants seek redress (in this case by compelling official

action), i.e., language that is emblematic of a claim for mandamus relief. Goodell, 71 N.H. at

381; see Petition ofCigna Healthcare, 146 N.H. at 687. It is not language that identifies a

"threatened wrong" and redress for that wrong before harm has occurred, i.e., language that is

emblematic of a request for declaratory relief. See Beadouin v. State, 113 N.H. 559, 562 (1973)

(stating that declaratory relief is designed to prevent threatened wrongs, uncertainty, and

misunderstandings). Having failed to ask for a declaratory judgment below, the appellants

cannot now argue the merits of such relief before this Court. See State v. Blackmer, 149 N.H. 47,

49 (2003) (the Court "will not review any issue that the defendant did not raise before the trial

court").

9

Page 11: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

B. THE APPELLANTS' CLAIM THAT ENV-WT 303.05(1) CONFLICTS WITH"OTHER STATE ENVIRONMENTAL STATUTES" WAS NOT ALLEGED INTHE PETITION, AND THEREFORE CANNOT FORM THE BASIS OF ACLAIM THAT THE PETITION ALLEGED A DECLARATORY JUDGMENTACTION.

have a liberal standard for pleadings, "[i]t is well settled that a defendant is entitled to be

informed of the theory on which the plaintiffs are proceeding and the redress that they claim as a

result of the defendant's actions." Pike Indus. v. Hiltz Construction. Inc., 143 N.H. 1,3 (1998)

(citation omitted). As set forth in detail above, the Petition in this case fails to accomplish either

task with respect to declaratory relief. To the contrary, every aspect of the Petition ~ the court in

which it was filed, its unambiguous statement that it seeks mandamus relief, its use of language

inherent to mandamus actions, and the absence of any cognizable request for declaratory relief ~

indicate that solely mandamus relief was sought with respect to the State respondents."

Accordingly, it cannot be said that the superior court erred by not construing the Petition as a

request for declaratory relief with respect Env-Wt 303.05(j). Furthermore, because the

appellants failed to request declaratory relief with the trial court, the appellants are barred from

arguing the merits of such relief now.

On appeal, the gravamen of the appellants' claim relative to 303.05(j) is:

On its face, Env-Wt 303.05(j) is overly-broad, permitting activities notpermissible under RSA 210:9. In addition, as applied by DES in the instant case,Env-Wt 303.05(j) operates to exempt the Town [of Lyme] from compliance withany other applicable State environmental statutes. . . . Appellants seek adeclaratory judgment determining the proper scope and application of Env- Wt303.05(j) and whether the rule is conflict with various statutes.

App. Br. 29 (emphasis in original).

4 Had the appellant's identified a declaratory judgment claim the State respondents could have respondedaccordingly by moving to dismiss on grounds such as subject matter Jurisdiction, venue, standing, and sovereignimmunity.

10

Page 12: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

Moreover, while Paragraph 151 references "the exception DES cites in the NH Code of

While articulated in the appellant's brief, this claim is not set forth anywhere in their

Petition. Although it is true that paragraph 124 expressly references Env-Wt 303.05(j), it does so

in the context of discussing how it conflicts with other wetlands regulations. See App. 33

("DES-WETLANDS interprets the narrow exception ... described in 303.05(j), as preempting

and negating the substance of all of Env-Wt Sections 303.01,303.02, 303.03 and 303.04. Such

an interpretation of Section 303.05(j) is wrong under the accepted rules of interpretation"); see

also App. 151 ("the Petition explicitly alleges that the State has misinterpreted and misapplied

Env-Wt Sections 303.05(j), 303.01, 303.02, 303.03 and 303.04").

Administrative Rules," see supra at 8, it does so in the context of asserting that the rule, to which

it refers, does not "relieve the State of its obligation to uphold [the environmental] statutes." In

other words, the Petition does not request that the superior court determine whether Env-Wt

303.05(j) conflicts with the environmental statutes cited in the Petition; rather, it asserts that

notwithstanding DES's interpretation of Env-Wt 303.05(j), the State was obligated to enforce

those statutes. In short, the appellants did not allege that Env-Wt 303.05(j) conflicted with State

statutes. Therefore, such a claim cannot be considered by this Court. Similarly, the superior

court did not err by not finding in the Petition a claim that the appellants make for the first time

on appeal.

C. THE APPELLANTS' "FACIAL" ATTACK ON ENV-WT 303.05(1), WHICHWAS MADE FOR THE FIRST TIME ON APPEAL, IS INCORRECT AS AMATTER OF LAW

To the extent the Court determines that the Petition makes a cognizable claim for

declaratory relief relative to Env- Wt 303.05(j), on its face, conflicting with RSA 210:9 ("Beaver

Protection Act"), such a claim is incorrect as a matter of law. As a preliminary matter, it should

1 1

Page 13: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

be noted that given the posture of this appeal, an appeal of a motion to dismiss, consideration of

the substance of an alleged claim for declaratory relief (should this Court find that the Petition

alleges the claim the appellants now make) should be handled by the superior court on remand.

Barrows v. Boles, 141 N.H. 382,396 (1996) ("The resolution of conflicts in the evidence and

determination of issues of fact are functions of the trier of fact") (citation omitted). Along those

same lines, neither the State nor this Court can address the appellants' "as-applied" attacks on

Env- Wt 303.05(j) because the superior court has made no factual finding regarding how DES

interpreted or applied Env-Wt 303.05(j). However, although not raised below, because the

appellants' "facial" attack touches upon an issue of law, the State will briefly address that issue.

The appellants assert that Env-Wt 303.05(j), on its face, conflicts with RSA 210:9

because Env- Wt 303.05(j) permits activities, which are not permitted under RSA 210:9, II.

Specifically, the appellants assert that because Env-Wt 303.05(j) allows the removal of beaver

dams not on the actor's property and not threatening property damage, and RSA 210:9, II, does

not, the former unlawfully adds to, detracts from or modifies the latter. App. Br. 29-30.

Where possible, laws that deal with the same subject matter are to be construed so as not

to contradict each other. State v. Farrow, 140 N.H. 473,475 (1995). This principal of statutory

construction applies with equal force when seeking to harmonize a statute with an administrative

rule. Cf. Associated Press v. State, 153 N.H. 120, 144 (2005) (in the context of harmonizing

statute with court-promulgated rule); see 2 AMJUR 2D ADMINISTRATIVELAW§ 245 ("[R]ules of

statutory construction apply to administrative regulations"). Only where two laws cannot coexist

- meaning effect cannot be given to both - should they be found in conflict. See Associated

Press, 153 N.H. at 144 (conflict will not exist where neither provision oflaw prevents invocation

of the other).

12

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Env-Wt 303.05, titled, "Projects in Jurisdiction That Do Not Require a Permit," provides

in its relevant part that "[t]he following activities shall not require application or, unless

explicitly stated, a notification to the department ... (j) [r]emoval of a beaver dam by hand or

machine provided:

(1) Machinery does not enter the water or create any disturbance by filling ordredging to adjacent surface waters, wetlands, or their banks;(2) All dredged materials are placed out of department jurisdiction; and(3) Removal of the dam is done in a gradual manner that does not allow a suddenrelease of impounded water so as to cause erosion or siltation[.]"

At the time the Petition was filed, RSA 210:9, titled "Protection of Beaver," provided in it

relevant part that

I. No person shall destroy or disturb or interfere in any manner with the dams orhouses of beaver, without first obtaining a special permit from the executivedirector.

II.Notwithstanding paragraph I or any other provision oflaw or rule of theexecutive director or the department of environmental services, a landowner, alandlord's employee, tenant, or caretaker, or any town or municipal or stateofficial or employee, may destroy beaver and beaver dams on property under theircontrol to protect property, public highways, or bridges from damage orsubmersion with the permission of the owner oflands affected, if applicable.

An examination of the unambiguous language of Env-Wt 303.05(j) shows that the intent

of the regulation is solely to describe those circumstances when an application for a wetlands

permit or notification to DES would not be required. No part of the regulation speaks to the

protection of the beaver, who may remove a beaver dam, and when a beaver dam may be

removed under any other law. Rather, Env-Wt 303.05(j) only provides that if one is going to

remove a beaver dam, a wetlands permit application or notification will not be required unless

one conducts certain activities that will effect jurisdictional wetland areas. RSA 210:9, on the

other hand, governs the protection of beavers by regulating when and by whom beaver dams may

13

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14

be removed, and it in no way concerns itself with the protection ofwetiands.5 Accordingly,

nothing prevents compliance with both Env-Wt 303.05(j) and RSA 210:9- meaning full effect

can be given to both laws. As a result, the appellants "facial" attack Env- Wt 303.05(j) must fail

as a matter of law.

D. THE APPELLANTS' CLAIM, THAT THE PETITION REQUESTS ADECLARATORY JUDGMENT ACTION, PERTAINS ONLY TO DES;THEREFORE, REGARDLESS OF THE OUTCOME WITH RESPECT TODES, THE SUPERIOR COURT'S DISMISSAL OF F&G SHOULD BEAFFIRMED.

On appeal, the appellants' claim, that the superior court erred by not construing the

Petition as a request for declaratory relief, is solely based the contention that the Petition set forth

"a genuine controversy with the State over the interpretation and scope of Env-Wt 303.05(j)."

App. Br. at 28. While the appellants use the generic term, "the State," to define the party with

whom they have an adverse interest, in reality, the only adverse party would be DES, as by the

appellants' own admission, it administers and interprets Env-Wt 303.05(j). App. 33; App. Br. 29.

Thus, even assuming for the sake of argument that the Petition could be reasonably construed as

requesting declaratory relief with respect to Env-Wt 303.05(j), such relief would be limited to

parties involved in the controversy over that regulation: DES and the appellants. RSA 491 :22, I;

see Conway v. Water Resources Bd., 89 N.H. 346, 348-49 (1938) ("The declaratory judgment act

... provides that one must assert a right or title to which the defendant claims adversely in order

to invoke the court's judgment").

5 Indeed, the only conceivable regulatory overlap between Env-Wt 303.050) and RSA 210:9, II, would be a situationwhere RSA 210:9 permitted the removal of dam, but the manner of the removal required a wetlands permitapplication or notification. In such a situation, the "notwithstanding language" at the beginning of RSA 210:9would be triggered, and the beaver dam removal would be restricted under Env-Wt 303.050). Thus, in exactapposition to the appellants' assertion, to the extent there was any overlap in the issues regulated by Env- Wt303.05(j) and RSA21O:9, it was that Env- Wt 303.05(J) restricts (by forcing the actor to obtain a permit) beaver damremoval activities that might otherwise be permitted under 210:9.

Page 16: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

April 6, 2011)

The appellants fail to appeal, however, on the issue of whether a "genuine controversy"

exists with respect to the interpretation or scope of any statute, regulation, or policy administered

by F&G. Accordingly, regardless of the outcome of the Court's decision on the appellants'

assertion that the superior erred in not construing the Petition as requesting declaratory relief,

F&G is no longer a party-in-interest in this litigation.

CONCLUSION

For the foregoing reasons, DES and F&G respectfully request that this Court affirm the

superior court's decision on the State's motion to dismiss. In filing this Memorandum of Law, it

is DES and F&G's position that oral argument is not necessary. Should the Court request oral

argument, Assistant Attorney General Daniel]. Licata will present oral argument on behalf of

DES and F&G.

Respectfully submitted,

THE STATE OF NEW HAMPSHIREDEPARTMENT OF ENVIRONMENTALSERVICES & FISH AND GAMEDEPARTMENT,

By their attorney,

MICHAEL A. DELANEYATTORNEY GENERAL

Daniel 1. Licata (Bar No. 15594)Assistant Attorney GeneralEnvironmental Protection BureauOffice of the Attorney General33 Capitol StreetConcord, New Hampshire 03301(603) 271-3650

15

Page 17: ATTORNEYGENERAL DEPARTMENT OFJUSTICE...reasonably construing the Petition as including arequest for declaratory judgment" with respect to New Hampshire wetlands regulation Env-Wt 303.05(j).

I hereby certify that two (2) copies of the foregoing were mailed this 6th day of April 2011 ,postage prepaid, to Gregory E. Michael, Esquire, and Christopher G. Aslin, Judith E. WhitelawEsq., John R. Hughes, Jr., Esq., John Storrs Stebbins, Esq., Stephen P. Girdwood, Esq., andAllan Newton, pro se.

CERTlFICA TlON

Daniel J. Licata

16

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